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The opinion of the court was delivered by
Valentine, J.:
A. B. Smith was the sheriff of Jewell county, Kansas, and Patrick Fay, J. D. Robertson and .0. L. McClung were his sureties on his official bond. James Martin was the owner of two judgments rendered by the district court of Atchison county, Kansas, against one M. M. Herrington. Executions were issued on these judgments, directed to the sheriff of Jewell county, and were received by him and levied upon certain property belonging to Herrington, subject to certain attachments. The sheriff did not sell the property, but returned the executions unsatisfied. Afterward, alias executions were issued on said judgments to the said sheriff, which executions were also returned unsatisfied. Martin then commenced proceedings in the district court of Atchison county, to amerce Smith, as sheriff of Jewell county, for his neglect of official duty in reference to the said executions, and at the March term of the court in 1877, obtained judgments of amercement against Smith, which judgments were afterward affirmed by the supreme court. (Smith v. Martin, 20 Kas. 572.)
Afterward, these judgments were assigned by Martin to James M. Edmiston, and the judgments not being paid or satisfied, Edmiston commenced this action in Jewell-county on the official bond of Smith and his sureties, Fay, Robertson and McClung. The plaintiff Edmiston set forth the foregoing facts in his petition, and also alleged “that the said A. B. Smith did not honestly' and faithfully discharge and. perform all and singular his duties as sheriff according to law, and did not well and faithfully execute all papers that came to his hands, as by law in such eases made and provided, and has not paid any part of said judgments, or either of them, of amercement, heretofore rendered against him,” etc. Certified copies of the judgments of amercement, and also of the official bond, were attached to the petition and made a part thereof. To this petition the defendants filed an answer, admitting that Edmiston was the owner of the judgments, and that the same had been duly transferred to him, but denying each and every other allegation of the petition. The defendants also set up a certain special defense. The plaintiff then filed a motion for judgment, notwithstanding the answer, which motion was sustained by the court below, and judgment was rendered accordingly. That judgment was afterward reversed by the supreme court, the supreme court holding that the answer set up a sufficient defense to the plaintiff’s action. (Fay v. Edmiston, 25 Kas. 439.)
The case was then tried in the district court, before the court and a jury. The plaintiff read in evidence the official bond, and also transcripts of the judgments of amercement, and rested his case. To that evidence the defendants filed a demurrer, which was overruled. The defendants then introduced their evidence, and the plaintiff introduced rebutting evidence, and the case was submitted to the jury. The jury found a verdict in favor of the plaintiff and against the defendants, and judgment was rendered accordingly. This judgment the defendants below, who are now plaintiffs in error, seek to have reversed by this petition in error.
The plaintiffs in error (defendants below) claim that the judgment of the court below is erroneous for several reasons, which we shall consider in their order.
I. The plaintiffs in error claim that the judgment of the court below is erroneous because it was not shown that any attempt had been made to collect the judgments of amercement from Smith; and they cite §478 of the civil code as their authority therefor. This section does not meet the case. It at most only means that when a judgment shall be rendered against the sheriff, his sureties may be made parties thereto, but that no property of the sureties shall be taken on execution until the property of the sheriff himself subject to execution shall first be exhausted. It does not prevent the rendering of a judgment against the sureties, as well as against the sheriff.
■ II. The plaintiffs in error also claim that the district court of-Jewell county had no jurisdiction of the subject-matter of this action, or of the persons of the defendants for the purposes of the action; and as authority for such claim, cite § 48 of the civil code, and the case of Clay v. Hoysradt, 8 Kas. 74, 80. We think that both the section and the decision are against the claim of the plaintiffs in error. The section, so far as it has application to this case, reads as follows:
“Sec. 48. Actions for the following causes must be brought in the county where the cause, or some part thereof, arose:
“Second. An action against a public officer for an act done by him in virtue or under color of his office, or for a neglect of his official duties.
“ Third. An action on the official bond or undertaking of a public officer.”
And the decision was, that “suits against public officers for official acts must be brought in the county where thosé acts are performed.”
It is probably true, that where a writ is issued from the district court of one county to an officer of another county, that the officer so far becomes the officer of the court from which the writ is issued, that the officer becomes amenable to the orders of that court, and that the court may direct the manner in which the writ shall be served, or may order that it be returned without service, or may amerce the officer for a failure to perform his duties in the service or return of the writ. But where the action is against the officer and his sureties upon his official bond, we should think that the action might properly be commenced in the county where the cause of action arose — -.that is, in the county where the breach of the bond was committed, and that the court from which the writ was issued would not have the sole and exclusive jurisdiction, even if it had jurisdiction at all.
III. The plaintiffs in error also claim that the sheriff’s bond was not a statutory bond, and therefore that the judgment was erroneous; but the reasons for such claim are not given, and therefore we shall pass to the next question.
IV. The court below gave the following, among other instructions to the jury:
“1. That the issues in this case are solely between the plaintiff and the defendants, Robertson, Fay and McClung, who are sued as the sureties of said A. B. Smith, late sheriff, and is to be tried and determined upon such issues without regard to the question of liability of said Smith or any proceedings had against him to which these defendants were not parties; any such proceedings, and also returns of such sheriff, having only the force of evidence upon this trial; and the verdict of the jury must be upon what they determine from all the evidence that the real facts are.
“2. The defendants in their answer claim that said judgments were not based upon the facts as they really existed, and introduced evidence tending to sustain that issue, and upon that issue the burden of proof is upon the defendants; and unless the defendants have shown by a preponderance of the evidence that said judgments were not based upon the facts as they really existed, the jury will find for the plaintiff.”
The plaintiffs in error complain of the second instruction above quoted. Now it is possible that the language of that instruction is not technically correct; but whether it is or not, we do not think it is necessary in this case to decide — for upon the circumstances of this case we do not think that the instruction is materially erroneous. The judgments of amercement were conclusive evidence against Smith himself, and we think they were prima fade evidence of all the facts involved therein as against the sureties; and in the absence of other evidence these judgments would authorize a judgment to be rendered against the sureties. (Fay v. Edmiston, 25 Kas. 439, 443.) It devolved upon the defendants to show that these judgments of amercement, were not based upon sufficient facts. It devolved upon them to show that the facts upon which these judgments were rendered were not true, or that they were not sufficient in law, or that there were other facts which would countervail and destroy their apparent force and effect. In other words, and perhaps more correctly, it devolved upon the defendants to show by the introduction of evidence that the real facts of the case did not authorize the rendering of any such judgments as were rendered in the amercement proceedings; and until they made such a showing, the plaintiff was entitled to rest upon the prima fade ease made out by his introduction and proof of such judgments.
V. The plaintiffs in error also raise a point with reference to the alias executions. These alias executions appear to have been issued in the same form as the original executions, without referring to the original executions, and without any special clause of venditioni exponas. The point, however, raised, with reference to these executions, has already been decided by this court, and decided against the views entertained by counsel for plaintiffs in error. (Ritchie v. Higginbotham, 26 Kas. 645.)
We do not think that the court below committed any material error in this case, and therefore the judgment rendered therein will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting. | [
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The opinion of the court was delivered by
Valentine, J.:
The controversy between the present parties has already furnished this court with two cases, (Meixell v. Kirkpatrick, 25 Kas. 13, and Meixell v. Kirkpatrick, id. 19,) and this is the third case.
The present action was commenced by Worthington Meixell against S. S. Kirkpatrick in the district court of' Labette county, to obtain a decree declaring void and perpetually enjoining a judgment rendered by the district court of Wilson county. The plaintiff set forth in his petition various grounds upon which he claimed that said judgment should be declared void and perpetually enjoined; but for the purposes of the decision in this case we do not think that it is necessary to specifically mention any of them. The defendant demurred to the petition upon the ground that it did not state facts sufficient to constitute a cause of action, and the court below sustained the demurrer; and to this ruling the plaintiff excepted, and now brings the case to this court for review.
We think the decision of the court below was unquestionably correct. The petition of the plaintiff below, with its exhibits, which were made parts thereof, showed beyond all question that the- district court of Wilson county had jurisdiction of the subject-matter of the action, and also jurisdiction of the parties, and that it did not exceed or transcend its jurisdiction in rendering the judgment of which the plaintiff in this action complains, and which he sought to have declared void and perpetually enjoined in the district court of Labette county; and this we think is conclusive. It can make no difference that the district court of Wilson county may have erred in some of its rulings, or that some of its proceedings may have been irregular. They could not be corrected by the district court of Labette county; nor could the district court of Labette county declare the judgment void or perpetually enjoin the same because of any such supposed erroneous rulings, or because of any such supposed irregularities in the proceedings. The only way to correct the errors of the district court of Wilson county was to apply to that court itself, or to apply to the supreme court of the state by petition in error.
Where a district court has jurisdiction of the subject-matter of the action, and of the parties litigant therein, and does not transcend its jurisdiction in rendering judgment therein, its judgment is not void, however irregular or erroneous some of its proceedings may be; and no district court of any other county can, for any supposed irregularities, or erroneous rulings, or inequitable conclusions, declare such judgment to be void, or perpetually enjoin the same.
The ease of Chambers v. The Bridge Manufactory, 16 Kas. 270, has been referred to by the plaintiff as authority for this action; but we do not think that it is any authority for the action at all. In that case it was not attempted to enjoin the judgment itself, and the judgment was not merely irregular or voidable, but it was absolutely void. The judgment was rendered in the district court of Leavenworth county without any service of summons upon the defendant; and then an attempt was made to enforce the judgment in Shawnee county; and it was the attempted enforcement of the judgment in Shawnee county that was sought to be enjoined and was enjoined. In that ease the judgment rendered in Leavenworth county was considered as- absolutely void —the same as no judgment at all. The judgment really had no force or validity anywhere. In the present case, the judgment rendered in Wilson county is not void, as the judgment rendered in Leavenworth county was. It is certainly valid, however many grounds there may be for its reversal; and it cannot be treated as a nullity, as the judgment of the district court of Leavenworth county was.
A void judgment may be treated .as void everywhere, and collaterally as well as directly, while a judgment that is merely irregular, or erroneous, or voidable, cannot be so treated. The Leavenworth county judgment was of the former kind of judgment, while the Wilson county judgment, at most, cannot be treated as more than the latter kind of judgment.
Perceiving no error in the ruling of the court below, its judgment sustaining the demurrer will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Sarah Parrott, defendant in error (plaintiff below), against D. C. Ambrose and Mary E. Ambrose, plaintiffs in error (defendants below), to recover a personal judgment on three promissory notes, and to foreclose a mortgage given to secure the same. Only one of the notes was due, according to the terms of the notes, when the action was commenced, but the other two notes were alleged to be due by virtue of a stipulation contained in the mortgage, providing in substance that in case of default in payment of any part of the debt evidenced by the three notes and the mortgage, the whole of the debt should become due. The petition, after the formal commencement, was divided into three sections or paragraphs, severally numbered by Roman numerals, as follows: “I,” “II,” “III.”
In paragraph numbered “I” were included allegations concerning the execution and delivery of the three notes sued on. In paragraph numbered “II” were allegations concerning the execution and recording of the mortgage. And in paragraph numbered “III” were allegations concerning the various stipulations and conditions contained in the mortgage; averring that the debt was due, the amount thereof, etc.; and a prayer for judgment. The defendants filed a motion that the plaintiff be ordered to separately state and number her various alleged causes of action, which motion reads as follows:
“The defendants move the court that the plaintiff be ordered to separately state and number her alleged various causes of action, set out in her petition filed herein.”
The motion was overruled by the court, and the defendants excepted. The defendants making no further appear anee in the case, the court thereupon rendered judgment in favor of the plaintiff and against the defendants upon all the notes and the mortgage as upon' a default. To reverse this judgment, and the order of the court below overruling the defendants’ motion, they "bring the case to this court for review.
We think that at least two, and perhaps three, causes of action were set forth and stated in the plaintiff’s petition in this action. One of such causes of action was a cause of action set forth, stated and founded upon' the non-payment of the promissory note which had become due by virtue of its own terms and lapse of time prior to the commencement of this action; and another of such causes of action (and perhaps two of them) was a cause of action (and perhaps two causes of action) set forth, stated and founded upon the nonpayment of the other two promissory notes, which had become due before this action was commenced by virtue of a default in payment, and by virtue of a stipulation contained in the mortgage making them so become due on the happening of any such default.
In the case of Swenson v. Plow Company, 14 Kas. 387, it was held as follows:
“Where S. executed to A. two promissory notes, and a mortgage on real estate to secure the payment of the notes, and A. afterward assigned one of the notes to M., held, that A. and M. cannot sue jointly as plaintiffs on the notes and mortgage; but each has his separate action.”
To the same effect are the eases of Rankin v. Major, 9 Iowa, 297, and Thayer v. Campbell, 9 Mo. 277. See also McDowell v. Lloyd, 22 Iowa, 448. In the case of Swenson v. Plow Company, p. 389, it is also said in the opinion of the court that —
“Where more than one note is given, there are as many causes of action as there are notes; and if any of the notes are assigned, then each, owner of a note has a separate cause of action, and each has a right to have the mortgaged property sold to satisfy his claim. The mortgage is a security for each note. It is substantially the same as several mortgages for the several notes.”
In the case of Andrews v. Alcorn, 13 Kas. 351, which was an action on two promissory ¿otes and a mortgage, one of which notes was due and the other was not due, it was held that only one cause of action was stated in the petition. The petition was divided into three counts, and using the language of the court in delivering the opinion in that case, the “first count set forth the substance of one of said notes, which was then due, and stated a good cause of action; the second count set forth the substance of the other note, but did not state any cause of action, for the reason only that this note was not yet due.” This language leaves it to be inferred by an irresistible implication, that if the note set forth in the second count of the petition had been due, two causes of action would unquestionably have been stated. The court by this language says in substance, that the only reason why the second count of that petition did not state a; cause of action as well as the first count, was that the note set forth in the second count was not yet due. In that case, both parties in the supreme court admitted that only one cause of action was set forth in the original petition. (See briefs of counsel in that case.) The court below in that case also held that only one cause of action was stated,- and rendered judgment upon only one of the notes — the one that was due, and the one that was set forth in the first count of the petition; and the supreme court, following the district court and the counsel of the parties in that case, also held that only one cause of action was stated, and so held for the single reason, “the reason only” that the second note was not due when that action was commenced and tried in the district court. In this present case, however, all the notes were due when this action was commenced. The plaintiffs in error in this case say that the court below based its decision in this case upon the words printed in italics at the commencement of the second paragraph of the syllabus, in the case of Andrews v. Alcorn, ante. Now said words in italics are no part of the syllabus of that case, and constitute .no part of the decision of the case, but are simply the words of the reporter. The court in that case decided that a prom issory note and a mortgage executed to secure the same, taken together, constitute only one cause of action; and also decided that even two promissory notes together with a mortgage securing them, where only one of the notes is due, do not constitute more than one cause of action. But the court has never decided that two or more promissory notes, where all are due, do not constitute more than one cause of action; and it makes no difference whether the notes are secured by a mortgage or not. The note, although secured by a mortgage, is nevertheless the principal thing, and the mortgage is only an incident thereto — merely a security for the payment or the collection of the note.
But it is claimed by the defendant in error (plaintiff below) that the questions which we have been considering were not properly raised in the court below; that the motion filed by the defendants in the court below for the purpose of raising these questions was too indefinite; that it should have pointed out wherein the petition in the court below stated more than one cause of action, and how many causes of action it was claimed that it did state; and the case of Gilmore v. Norton, 10 Kas. 491, is cited as authority. See also Kerr v. Reece, 27 Kas. 338.
Now we would think that in all fairness to the trial court and to the opposite party, the motion should have been more definite and specific than the motion in this case was. We would think that a motion filed' for such a purpose should in all cases point out specifically the matters which the party filing it desired the court to act upon. It should designate the matters supposed to constitute each separate and distinct cause of action, so that the court might act intelligently. We think, however, the court might in its discretion act upon and sustain just such a motion as the one which was filed in the present case. If the court, however, should overrule the motion, as was done in the present case, then the question arises, Should the supreme court reverse the decision of the trial court simply because it overruled such an indefinite motion? Generally, we would think not. Perhaps cases might occur where we would think otherwise. But such cases would be rare. It may be claimed that the object of the presént motion was obvious; that the court should have known from an inspection of the petition just how many causes the defendants claimed were stated therein, and what they were, and therefore that there was no necessity for the defendants’ designating in their motion how many causes of action they supposed were stated in the plaintiff’s petition, or what they were. But this is not entirely clear; the defendants might have claimed that there was a cause of action set forth upon each promissory note, and one or more separate causes of action set forth upon the various stipulations contained in the mortgage; or they might have claimed that there were only two causes of action stated in the petition — one upon the promissory note that became due by force of its own terms and lapse of time, and one on the other two promissory notes, which became due by virtue of the stipulation in the mortgage and non-payment of a portion of the debt. These two notes last mentioned became due, not by separate stipulations contained in the separate notes, nor by separate stipulations contained in the mortgage, nor by separate stipulations contained in any instrument; but they became due by virtue of one and the same stipulation, contained in one and the same instrument, mortgage, and by virtue of one and the same default; and the two notes were given as part evidence of a part of one and the same original debt. Then did these two notes, under these circumstances, constitute separate causes of action, or did they constitute only one, and an indivisible cause of action? Probably they constituted separate causes of action; but there is nothing contained in the motion of the defendants below to indicate what their opinions or desires were upon the subject.
As we. understand the brief of plaintiffs in error, they now contend that there were three separate causes of action set forth and stated in the plaintiff’s petition, and that each note constituted a cause of action. Their motion, however, was silent upon this subject. Now if their views were the same in the trial court as in this court, it would have been very easy for them to have stated in their motion the number and kind of causes of action which they believed were stated in the plaintiff’s petition, and which they desired the court to require the plaintiff to separately state and number. If, however, the various causes of action set forth in the plaintiff’s petition were so manifestly obvious that the court must have readily taken notice of them by a bare inspection of the petition and without any specific designation of them in the defendants’.motion, then they were necessarily so manifestly obvious that the defendants themselves should also have taken notice of them, and would not have experienced any considerable inconvenience in pointing them out in their motion, or in answering to them as they were set forth and alleged in the plaintiff’s petition. In any view we may take of the case, we think that no material error was committed by the court below in overruling the defendants’ motion.
The judgment of the court below will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The principal questions involved in this •controversy are: Was the deed obtained by Charles H. Payson from Lena McNeil absolutely void? Second, if not void, but voidable only, was the actual possession of the premises by Lena McNeil notice to the defendants of the fraudulent title of their grantor? If the deed to Jordan was absolutely void, then it was and is an absolute nullity, and nothing can be founded upon it. It cannot be made the basis of any title. On the other hand, if voidable only, it passed an estate of which Payson became legally seized, defeasible in his hands, but not in the hands of innocent, bona fide purchasers under him. On the part of the plaintiff, it is contended that the deed was and is absolutely void, because in fact it was a deed to another grantee than the person intended, and therefore that there was no assent of the mind of the grantor to the creation of the instrument to which her signature wras fraudulently obtained, and hence that the writing was not her act. To sustain this position, counsel cite the fraudulent procurement of a deed deposited as an escrow from the depositary by the grantee, (Everts v. Agnes, 4 Wis. 343, and 6 id. 453;) the furtively purloining without the knowledge or consent of the maker of a note and mortgage deposited in escrow, (An drews v. Thayer, 30 Wis. 228;) and the cases of deeds obtained bv larceny and like means. Secs. 190,191 of Bishop on Contracts; Tisher v. Beckwith, 30 Wis. 55; Burton v. Boyd, 7 Kas. 31, and Ayres v. Probasco, 14 Kas. 196, are also referred to. The principle announced in the various decisions presented to us by counsel for the plaintiff is not applicable. The question of the assent of the grantor need not be considered now. In this case, it appears from the findings of the court that on the 26th day of January, 1880, Lena NcNeil, at the request of Payson, accompanied him to the office of a notary public, and upon reaching the office signed her name to the deed in the presence of the notary, without any examination, and then acknowledged its execution, and delivered it to Payson to be filed for record. He deposited the deed for record on the next day at 11:30 o’clock A. M., and it was thereupon recorded in the book of deeds in the office of the register. The conduct of the grantor of this deed was such as to forbid her to deny its validity so as to affect the rights of persons holding the position of bona fide purchasers of the premises for value. Where parties are inattentive and careless in the execution of conveyances of real estate, the law estops them from setting up title as against a bona fide purchaser for value under such conveyance. As was said in Somes v. Brewer, 2 Pick. 184, cited upon the former hearing in this case, (Jordan v. McNeil, 25 Kas. 459:)
“It is a general and just rule, that when a loss has happened which must fall on one of two innocent persons, it shall be borne by him who is the occasion of the loss, even without any possible fault committed by him, but more especially if there has been any carelessness on his part which caused or contributed to the misfortune. A man can scarcely be cheated out of his property, especially of real estate, in such a manner as to give an innocent purchaser a right to hold according to the principles which have been mentioned, without a degree of negligence on his part which should remove all ground of complaint. Suppose him to be prevailed upon by fraudulent representations to execute a deed without asking advice of friends or counsel, he has locus penitentice when he goes before a magistrate to acknowledge it.”
Counsel claim that as the grantor employed a lawyer to draft for her the deed which she intended to execute, and as she examined the contents of it on its first presentation to-her, and found it drafted according to her wishes, she had the right to rely implicitly upon the integrity of the lawyer and sign the conveyence produced in the office of the notary by him, without question or examination; that she exercised due caution in examining the deed when first presented, and any further examination was unnecessary. The lawyer who-prepared the deed for her was acting as her agent, and she confided in him. If she chose to relv upon his\ statements and thereby received injury, she must suffer the consequences of her misplaced confidence, rather than an innocent third person. Where a person not illiterate or of feeble mind, possessed of legal capacity to make a contract, executes and acknowledges a deed without ascertaining its character and extent, upon the representations of another, he puts confidence in that person, and if injury ensues to an innocent third person by reason of that confidence, his act is the means of that injury and he ought to answer to it. (Chapman v. Rose, 56 N. Y. 137.) Here it appears that the grantor unwittingly fell into the hands of a dishonorable and dishonest lawyer, (In re Payson, 23 Kas. 757,) and trusted to his integrity. But he betrayed that, trust, and wrongfully obtained her signature and acknowledgment to the deed, conveying the property to himself. This deed was afterward recorded, and the consequences thereof. must fall upon the grantor of the fraudulent deed, rather than upon those who have paid their money upon the faith of the conveyance. The deed, therefore, in our opinion, was not and is not a nullity. It was effectual to pass the estate so that the deed and the mortgage from the fraudulent grantee to defendants, if they may be regarded as bona fide purchasers, are valid. (Bloomer v. Henderson, 8 Mich. 405; Burson v. Huntington, 21 Mich. 415; Douglas v. Matting, 29 Iowa, 498; Putnam v. Sullivan, 4 Mass. 45; Bishop on Contracts, § 169; Cook v. Moore, 39 Tex. 255; Deputy v. Stapleford, 19 Cal. 302.)
This brings us to the consideration of the possession of the premises by Lena McNeil at the date of the execution of the mortgage, a subsequent conveyance. Were the defendants notified by such possession of the fraud of their grantor? Were the defendants bound to inquire of Lena McNeil what interest she claimed or represented ? We have time and again stated that open, notorious, unequivocal and ex-elusive possession or real estate under an apparent claim of ownership is notice to the world of whatever claim the possessor asserts, whether such claim be legal or equitable in its nature. (Johnson v. Clark, 18 Kas. 164; School District v. Taylor, 19 Kas. 292; Tucker v. Vandermark, 21 Kas. 263.) This rule, however, does not in the nature of things apply to a vendor remaining in possession. A purchaser from the grantee of the party in possession need not inquire whether such party has reserved any interest in the land conveyed. So far as the purchaser is concerned, the actual occupant’s deed is conclusive upon that point. The object of the law in holding possession constructive notice, is to protect the possessor from the acts of others who •do not derive their title from him, not to protect him against his own acts, not to protect him against his own deed.
Therefore, where a grantor executes and delivers a i i * n , deed ot conveyance to go upon record, he says ^ o l is/ to the world: “ Though I am yet in the possession of the premises conveyed, it is for a temporary purpose, without claim of right, and merely as a tenant at sufferance of my grantee.” The great weight of the authorities supports this conclusion. Thus, Wade on Notice says:
“ So the possessor may by his own act, in putting upon the record an instrument inconsistent with title in himself, or by executing and delivering such a recordable instrument, be estopped from relying upon his possession as evidence to subquent purchasers that he claims title to the premises. In the case cited, defendant had conveyed the land in question to ■one in whom he placed confidence, subject to a secret trust. The deed of conveyance was absolute on its face, and was ■duly recorded. Relying upon the record, plaintiff purchased the premises from the apparent grantee for value, who, in making the sale, was guilty of a breach of trust. But the plaintiff took without-knowledge or notice of the trust, although the defendant, after making the conveyance, remained in possession and openly exercised acts of ownership over the property.” (Sec. 299.)
Bigelow on Fraud states:
“The rule of notice by possession does not apply in favor ■of a vendor remaining in possession, so as to require a purchaser from his grantee to inquire whether he has reserved any interest in the land conveyed. So far as the purchaser is concerned, the vendor’s deed is conclusive. Having declared by his deed that he makes no reservation, he cannot afterward set up any secret arrangement by which his grant is impaired.” (Pp. 295-6.)
Washburn on Real Property also says:
“Nor will the continued possession by the grantor of land, ■after the making of his deed, be notice of a defeasance held by him which is not recorded.” (Vol. 2, 3d ed., p. 66.)
The following decisions are in accord with these elementary writers: Van Keuren v. Central Rld. Co., 9 Vroom (38 N. J. L.), p. 165; Newhall v. Pierce, 5 Pick. 450; New York Life Ins. Co. v. Cutler, 3 Sandf. Ch. 176; Kunkle v. Wolfersberger, 6 Watts, 126; Hennesey v. Andrews, 6 Cush. 170; Crossen v. Swoveland, 22 Ind. 434; Scott v. Gallagher, 14 Serg. & R. 333; 2 Leading Cases in Eq., pt. 1., p. 118; Juvenal v. Patterson, 10 Pa. St. 203. See also 4 Cent. L. J. 122, 124; Bloomer v. Henderson, supra; Deputy v. Stapleford, supra; Cook v. Moore, supra.
In this case, as the defendants had no knowledge of the fraud practiced upon the plaintiff by their grantor, as they examined the records of the office of the register of deeds of Cowley county, and found recorded there the title in fee simple in Payson before they took their conveyances from him or paid out their money, and as in all the matters connected with their transactions they acted in good faith, they caijnot be regarded as other than holding the position of bona fide purchasers; and the possession of the land by the grantor of their grantee was, at the most, merely constructive notice to them that she was a tenant at sufferance of'her grantee.
Counsel for plaintiff make the further claim that plaintiff held the premises by an adverse possession at the time of the execution of the mortgage and conveyance to defendants, and therefore that Payson could not convey the land. The conclusion already obtained justifies us in saying that the grantor of Payson did not have in law, adverse possession as to bona fide purchasers after the execution and recording of her deed. Both the innocent mortgagee and the bona fide purchaser had the right to treat her merely as a tenant at sufferance of her grantee, at the execution of the conveyance to themselves.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error (plaintiff below) commenced his action before a justice of the peace to recover on a school warrant issued by defendant. The bill of particulars simply set out a copy of the warrant, alleged its execution by the defendant, and an assignment to the plaintiff. The case was appealed to the district court, and there tried by the court without a jury. Findings of fact and conclusions of law were made. Thereupon the court gave leave to the plaintiff to amend his bill of particulars, which was done, and judgment entered in favor of the plaintiff. The testimony is not preserved. In reference to the findings, amendment and judgment, the record recites as follows:
“The court finds from the evidence in said cause the following facts, which are all the facts found:
“1. That on the--day of August, 1878, at an election held in said district, a majority qf the qualified electors of said district voted to authorize the district board to issue the bonds of said district in a sum not exceeding eight hundred dollars, for the purpose of building a school house in said district.
“2. That the district board of said district, after said election was held, found that the entire taxable property of said school district amounted to the sum of $8,500, and that under the limitation of five per cent, they could not legally issue bonds in excess of $425, which last- mentioned sum said school-district board did immediately thereafter issue, and realized from the sale of the same $425. .
“3. That said school-district board then made a contract with one John T. Groat to build said school house for the sum of $510, and agreed with said Groat to pay him the said $425 realized from the sale of said bonds, and to give him an order on the building fund of said district for the balance of the contract price, to wit, the sum of $85.
“4. That at the annual meeting in August, 1878, said school district voted a tax for building fund of five mills on the dollar, and at the annual meeting in August, 1879, said district voted a tax for building fund of two and one-half mills, and at the annual meeting in August, 1880, said district voted a tax for building fund of one per cent.; that the levy for building purposes in 1878 produced the sum of forty dollars, the levy for building purposes in 1879 produced about $20, and the levy for building purposes in 1880 produced about $80.
“5. That on November 23,1878, the school board of said district issued and delivered to said Groat the warrant sued on in this action in payment of said balance of $85 due him on said contract for building said school house, as appears by said warrant.
“6. That said Groat duly assigned said warrant to one R. M. Crane, and said R. M. Crane then and there duly assigned the same to the plaintiff.
“ 7. That school has been held in said school house, attended by the school children of the district prior to the commencement of this suit.”
And the court also found as a conclusion of law in said cause the following, to wit:
“That said plaintiff cannot recover in this action upon the said warrant, but can only recover as upon a balance of account.”
And thereupon said plaintiff, after the evidence was closed on the part of both of said parties, made and filed a motion for leave to amend his bill of particulars so as to conform to' the facts proved, which motion being argued by counsel and considered by the court was by the court sustained; to which ruling of the court said defendant duly excepted. Thereupon the court made and found as a conclusion of law: .
“That the plaintiff is entitled to recover judgment against said defendant in said action, as assignee of said John T. Groat upon said balance of account for building said school house, in the sum of $85, with interest thereon from the 23d day of November, 1878, at 7 per cent, per annum, amounting in all to the sum of $100.40;' and thereupon said defendant presented its motion for a new trial in said cause, which motion being argued by counsel and considered by the court, is by the court overruled; to which ruling of the court said defendant excepted.
“It is therefore considered by the court, that said plaintiff do have and recover judgment against said defendant, in the sum of $100.40, together with his costs taxed at $ — .”
The amended bill of particulars reads as follows:
“The said plaintiff complains of the said defendants, for that said defendant School District No. 73 was on the 23d day of November, 1878, indebted to said defendant John T. Groat in the sum of $85, for a balance of account due said Groat on a contract before that time made with said school district for building a school house. That to evidence said indebtedness, said defendant school district made and delivered the said John T. Groat its certain order upon its treasurer, of which the following is a copy:
No. 7. November 23,1878..
Treasurer of School District No. 73, County of Marion, Kansas: Pay to John T. Groat, Dec. 1st, 1879, eighty-five dollars, for building school house, ■with interest at ten per cent, per annum from date, out of any funds in your possession raised or appropriated for such purposes.
E. J. Groat, District Clerk,
I. H. Btjrgesser, Director,
“.The said balance of account, so as aforesaid due said Groat and evidenced by said order, was duly, for a valuable consideration, assigned by the said John T. Groat to one R. M. Crane, and was by said R. M. Crane duly assigned to the plaintiff by the following indorsements written upon said order: ‘Pay to the order of R. M. Crane. — John T. Groat.’ ‘Pay to the order of Wm, H. Dudley. — R. M. Crane.’ And when by the terms of said order said account became due and payable, said defendant school district failed and neglected to pay said indebtedness, and still fails to pay the same; and there is now due the plaintiff from said defendants upon the said account and assignment thereof the said sum of $85, with interest thereon at rate of ten per cent, per annum from November 23d, 1878, for which sum plaintiff demands judgment against said defendant. . L. F. Keller, Ait’y for Pl’ff”
Two questions are presented: First, did the court err in permitting the amendment? and second, if not, was the plaintiff, upon the findings and amended bill of particulars, entitled to judgment? Notwithstanding the able and ingenious argument of counsel for plaintiff in error, we are constrained to think that the ruling of the district court must be sustained. It does not affirmatively appear why the district court held the warrant invalid, but probably by reason of § 39, ch. 92, Comp. Laws of 1879, which, upon the principle expressio unius, exdusio alterius, seems to forbid the drawing by the. clerk of orders on the treasurer, except in cases where moneys are already in the hands of the treasurer to meet such order. Still, the amendment was only to conform the pleading to the facts proved. It is evident from the findings, although the testimony is not preserved, that the inquiry on the trial extended to all circumstances and transactions out of which the debt evidenced by the warrant and the warrant itself arose. We are not advised, in the absence of the testimony, as to which party it was that introduced all this testimony. Presumably, as the warrant itself was prima facie evidence of indebtedness, this testimony came from the defendant. And the case, for the purpose of upholding the ruling of the district court, may be stated thus: A party, when sued upon its own instrument evidencing indebtedness, introduces testimony tending to show that the instrument as an instrument is invalid'; but at the same time shows the existence of a valid debt for which the instrument was issued. Having shown that fact, an amendment is permitted so that the pleading alleges the indebtedness as well as the instrument by which it was evidenced. Under those circumstances, in view of the large discretion vested in the • trial court, it cannot be held that any material error, any error working prejudice to the substantial rights of the defendant, has been shown. We had occasion, in the case of Rld. Co. v. Salmon, 14 Kas. 512, to consider at some length the power of the court in the matter of amendments, and the language of Mr. Justice Valentine in that case upon the general question of the court’s power in this respect would be very apt and appropriate for this case. We are aware that the power of the court in the matter of amendments is not susceptible of such exact definition as makes an application of the rule to every case easy and clear. At the same time, it may be stated as a general proposition, that where the ruling of the trial court does not appear to have wrought any substantial error to the rights of either party, it will be sustained, and this notwithstanding that in such ruling there may be some deviation from technical accuracy and exactness. In this case we cannot see that plaintiff in error suffered any material injury, that it lost any substantial rights; and hence it would be sacrificing substance to mere form to reverse the judgment on account of this alleged error in the matter of amendment.
The ruling of the district court upon the second question must also be sustained. The original bill of particulars simply counted on the school warrant. The amended bill of particulars sets forth, besides the warrant, the circumstances under which it was issued and the character of the debt which it was intended to evidence, and alleged that the debt so evidenced was duly assigned to the plaintiff; and whether the warrant which was issued as evidence of that indebtedness was invalid or not, the assignment of such warrant.operated equitably as a transfer of the indebtedness.
No other question is presented; therefore the ruling of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action for an injunction brought by the plaintiff, Donald L. McGinnis, seeking to enjoin the defendant, Kansas City Power and Light Company (KCPL), from entering upon certain land owned by the plaintiff for the purpose of constructing an electrical transmission line. In an earlier condemnation action, KCPL sought to condemn an easement across the plaintiff’s property for the purpose of constructing a portion of a 345 kilovolt electric transmission line from the Wolf Creek Nuclear Power Plant in Coffey County to an electric substation in Johnson County. While the Wolf Creek Nuclear Power Plant had been in the process of development and construction for several years, it was not until the condemnation action was filed by KCPL in February, 1981, in the district court of Anderson County that KCPL specifically turned its attention to the acquisition of easements for construction of the electric transmission line.
The plaintiff’s request for injunctive relief was based upon the proposition that KCPL had failed to comply with the provisions of the Kansas Siting Act (K.S.A. 66-1,177 et seq.) which was enacted in 1979 and which provides in part as follows:
“66-1,178. Siting of electric transmission lines; permit required; application, contents; hearing. No electric utility may begin site preparation for or construction of an electric transmission line, or exercise the right of eminent domain to acquire any interest in land in connection with the site preparation for a construction of any such line without first acquiring a siting permit from the commission. Whenever any such electric utility desires to obtain such a permit, it shall file an application with the commission setting forth therein that it proposes to construct an electric transmission line and specifying the proposed location thereof, the names and addresses of the landowners of record whose land or interest therein is proposed to be acquired in connection with the construction of such a line and such other information as may be required by the commission. Thereupon the commission shall fix a time for a public hearing on such application, which shall be not more than sixty (60) days from the date the application was filed, to determine the reasonableness of the location of the proposed electric transmission line. The commission shall fix the place for hearing, which may be in any county through which the electric transmission line is proposed to traverse.” (Emphasis supplied.)
“66-1,179. Same; notice of hearing. The commission shall publish notice of the time, place and subject matter of such hearing in newspapers having general circulation in every county through which the electric transmission line is proposed to traverse once each week for three (3) consecutive weeks, the last publication to be not less than five (5) days before such hearing date. Written notice by certified mail of such hearing and a copy of the application shall be served not less than twenty (20) days prior to the hearing date upon all landowners, as shown by the application.”
“66-1,182. Same; not applicable, when. The provisions of this act shall not apply to any electric utility which complies with the provisions of the national environmental policy act of 1969 with regard to the siting of electric transmission lines.” (Emphasis supplied.)
It was the position of the plaintiff that KCPL had not applied for or obtained a siting permit from the Kansas Corporation Commission (KCC) as required by the Kansas Siting Act and thus KCPL had no right to condemn an easement across plaintiff’s property or go upon the plaintiff’s property to construct the line.
The facts in the case are mostly undisputed and essentially are as follows: In 1975, KCPL filed an environmental impact statement (EIS) pertaining to the overall construction of the Wolf Creek Nuclear Power Plant which included alternative proposals for transmission lines. The documents, contained in the record before the trial court, show that a preferred route and three alternative routes for an electric transmission line were originally proposed by KCPL to the Nuclear Regulatory Commission (NRC). The EIS was approved by the NRC subject to further proceedings as provided in its regulations. At the time approval of the EIS was obtained in 1975, the federal regulations did not provide for any direct notice to affected landowners or any specific public hearing on the location of proposed transmission lines.
In 1978, the Council on Environmental Quality, which was established under the National Environmental Policy Act of 1969 (NEPA), produced additional regulations for all federal agencies to follow in implementing NEPA. These regulations, in substance, required a federal agency to cooperate with state and local officials and to incorporate state and local requirements into environmental statements and further required the giving of notice to agencies and persons who might be affected by its actions.
At about the same time, numerous controversies arose across the country between electric utilities constructing electric power lines and interested property owners who were notified out of a clear blue sky that a portion of their land was to be condemned for easements for transmission lines. The property owners were most upset that they had no reasonable opportunity to have a hearing where they could object to the particular placement of the transmission lines and to point out the specific environmental impact that the lines would have upon their properties.
In 1979, the problem was brought to the attention of the Kansas legislature. Representatives of the Kansas Farmers Union, the National Audubon Society, and various individual farmers and ranch owners appeared and testified before a committee of the Kansas House. The committee also heard spokesmen for the Electric Companies Association of Kansas and the Kansas Electric Cooperatives. The farmers and the environmentalists com plained of lack of advance notice of the proposed location for construction of electric transmission lines. They emphasized the need for input from the public and interested citizens as to the environmental impact on the areas which might be affected by such construction. The testimony was generally in support of House Bill No. 2130, which later became the Kansas Siting Act, K.S.A. 66-1,177 et seq. Harold Shoaf, director of public relations and public affairs for the Kansas Electric Cooperatives, in his testimony advised the members of the house committee that Kansas electric cooperatives were already required to comply with certain public notice procedures required by NEPA and federal regulations and that the obtaining of an additional siting permit from the KCC, after a permit had already been obtained from the federal agency, would cause duplication of effort and unnecessary additional costs. The thrust of Mr. Shoaf’s statement was that all property owners whose lands would be affected by electric transmission lines subject to control by federal agencies would have an opportunity under the federal regulations to receive prior notice and to appear at a hearing where their positions could be stated. The legislature obviously considered the statements made by these various interested citizens and enacted the Kansas Siting Act, including therein the exemption contained in K.S.A. 66-1,182 which made the act inapplicable to any electric utility “which complies with the provisions of the national environmental policy act of 1969 with regard to the siting of electric transmission lines.”
The controversy arose in this case in February of 1981 when KCPL commenced the condemnation action in the district court of Anderson County to condemn an easement across land owned by plaintiff McGinnis. In that condemnation action, the plaintiff from the beginning challenged the authority of KCPL to condemn easements for the proposed transmission line until KCPL had obtained a siting permit in compliance with the provisions of the Kansas Siting Act. The trial judge in the condemnation action held that the issue of KCPL’s noncompliance with the Kansas Siting Act was a matter not properly before the court in the condemnation action and that the issue could only be raised in an independent action for injunctive relief. The district court then approved the taking and appointed three appraisers who filed their report on March 18, 1981. On April 17, 1981, the KCC filed notice of appeal from the appraisers’ award.
On May 5, 1981, plaintiff McGinnis filed his petition for an injunction in the case now before this court. In his petition, the plaintiff requested the court to enter judgment holding that KCPL had failed to comply with the Kansas Siting Act and that it should be enjoined from entering or trespassing upon the plaintiff’s property for site preparation until compliance with the act was shown.
The case was tried to the court. Plaintiff’s evidence showed that landowners had not been notified of the proposed site of the transmission line until KCPL filed its condemnation action to obtain the necessary easements for the transmission line. KCPL took the position that, having obtained approval of its environmental impact statement relating to the construction of Wolf Creek Nuclear Power Plant by the Nuclear Regulatory Commission on October 31, 1975, it had complied with the provisions of NEPA with regard to the siting of electric transmission lines and, therefore, it qualified within the exemption provided by K.S.A. 66-1,182. KCPL also raised certain issues challenging the jurisdiction of the district court which will be discussed later in the opinion. The primary issue for determination by the court was whether KCPL was exempted from the requirements of obtaining a siting permit under the Kansas Siting Act on the basis that it had complied with NEPA. The case was submitted to the district court for decision and, at the conclusion of the hearing, the court dictated in the record certain findings of fact which were later incorporated in the journal entry of judgment. Specifically, the trial court found there had been compliance by KCPL with NEPA prior to the effective date of the Kansas Siting Act, but there was no compliance with NEPA by KCPL subsequent to July 1, 1979. In support of its findings the court cited various regulations of the Council on Environmental Quality which had been introduced into evidence.
The trial court noted that the federal regulations requiring notice to be given to interested parties were published on November 29, 1978, to become effective on July 30, 1979. The court stated that at the time the Kansas legislature enacted the Kansas Siting Act in April of 1979, the federal regulations required that reasonable notice be given to interested persons where proposed electric transmission lines were involved. The court construed K.S.A. 66-1,179 as requiring compliance with the notice requirements of the new federal regulations which had been adopted when the Kansas Siting Act was enacted. The district court then entered judgment granting plaintiff’s petition for an injunction and enjoining KCPL from entering upon the plaintiff’s land for site preparation “until such time as the defendant has complied with the provisions of K.S.A. 66-1,177 et seq., by acquiring a siting permit from the Kansas Corporation Commission or complying with the provisions of the National Environmental Policy Act of 1969 subsequent to July 1, 1979.” From this judgment, KCPL has appealed to this court.
Before turning to the primary issue in the case, we will consider points raised by KCPL which attack the jurisdiction of the court to consider the case on its merits. The first point raised by the defendant is that the construction of the Kansas Siting Act was a matter for the exclusive determination of the Kansas Corporation Commission and an issue over which the KCC had previously exercised its jurisdiction so as to preclude a judicial determination in this case.
The record discloses that Joseph Schneider, another property owner in the area, filed a complaint with the KCC on May 26, 1981, 21 days after McGinnis filed this action, complaining that KCPL had exercised its right of eminent domain to begin site preparation for an electric transmission line without first obtaining a siting permit and without complying with NEPA as required by the Kansas Siting Act. KCPL filed an answer alleging, in substance, that the siting act was not applicable, since KCPL had complied with NEPA. The matter was submitted to the KCC. On June 15, 1981, the KCC held that KCPL was in compliance with NEPA since it had filed an environmental impact statement with the NRC which had been approved by the NRC in 1975. The KCC thereupon dismissed the complaint of Schneider.
It is the position of KCPL in this case that this finding.of compliance by the KCC constituted a prior determination of the issue of compliance and barred the district court in this case from reconsidering the issue. We find no merit to this contention. The courts of this state have jurisdiction to inquire in appropriate actions whether a public utility has exceeded its lawful authority in bringing a condemnation case against a landowner. See Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 523 P.2d 755 (1974). The interpretation of a statute involves a question of law and the final construction thereof rests with the courts. Amoco Production Co. v. Arnold, Director of Taxation, 213 Kan. 636, 518 P.2d 453 (1974). The basic issue of law presented in this case was the construction of K.S.A. 66-1,182 which exempts certain electric utilities from the application of the siting act, where the electric utility complies with the provisions of NEPA. Any determination of this issue by the KCC is not final and is properly subject to later determination in the Kansas courts.
KCPL argues, however, that the previous ruling of the KCC in the proceeding involving Joseph Schneider constituted a prior determination of this issue which is controlling upon the district court under the doctrines of res judicata and collateral estoppel. We find this point to be without merit. The defendant, Donald L. McGinnis, was not a party to the action filed by Joseph Schneider before the KCC and was not in privity with Schneider. Since McGinnis was not a party to the prior proceeding, the doctrines of res judicata and collateral estoppel cannot be applied to bar McGinnis in this case. It should be noted that KCPL could have avoided the problem of further litigation by requesting the KCC to include McGinnis as a party and to give notice to all landowners of the proceeding so that the matter might be determined as against all landowners along the Wolf Creek electric transmission line. KCPL failed to do this. We, thus, have concluded that the district court in this case had jurisdiction to determine whether KCPL was exempt from the site permit requirements of the Kansas Siting Act.
KCPL’s second point is that McGinnis, as a landowner, was barred from making a collateral attack, by an independent action for an injunction, on the validity of the easement obtained by KCPL in an eminent domain action. Simply stated, it is the argument of KCPL that plaintiff McGinnis should have filed an action and sought a temporary restraining order to enjoin the condemnation action before the conclusion of the eminent domain proceeding. It argues that, since KCPL had paid the award into court, the condemnation had become an accomplished fact and, thus, an action to enjoin a completed condemnation action is moot. We, likewise, find no merit to this contention. Under the Kansas Siting Act, compliance with the act was a prerequisite to both condemnation and entry upon the land. It is important to note that this action challenges the legal authority of the condemning authority, KCPL, to take plaintiff’s property by eminent domain. Kansas courts have entertained injunction actions challenging the extent or validity of an eminent domain proceeding many years subsequent to the conclusion of the condemnation action. See for example Spears v. Kansas City Power & Light Co., 203 Kan. 520, 455 P.2d 496 (1969). The law is clear that the only way a landowner may attack the right of a public utility to exercise the power of eminent domain is for a landowner to bring an independent action, usually by suit for injunction. Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 605 P.2d 125 (1980). Moreover, we think it important here that KCPL has appealed the award granted in the condemnation proceeding and that plaintiff has not withdrawn the award from the district court. Thus, the action is pending and there has been no final determination made in the eminent domain case. Furthermore, KCPL has not entered upon the property or constructed the transmission line and hence there can be no question of mootness involved. We have concluded that the independent action for an injunction brought in this case was the proper way for the plaintiff to challenge the eminent domain proceeding and the right of KCPL to enter upon his land to commence construction of the transmission line.
KCPL next contends that it was entitled to judgment as a matter of law at the close of the plaintiff’s evidence. Essentially, KCPL takes the position that there had been a complete failure of plaintiff’s proof, because plaintiff presented no evidence to show that KCPL had failed to comply with the requirements of NEPA. It is KCPL’s position that the burden of proof was upon the plaintiff to show that defendant did not fall within the exception of the siting act. The law is otherwise. The general rule recognized in Kansas is that an exception or proviso in a statute, which follows and restricts an enacting clause general in its scope, should be strictly construed so as to exclude only those cases which are fairly within the terms of the proviso, and the burden of proof is on the one claiming benefit of the exception or proviso. Emporia Township v. Williams, 149 Kan. 860, 861-62, 89 P.2d 919 (1939); City of Winfield v. Board of County Commissioners, 205 Kan. 333, 469 P.2d 424 (1970); Elliott v. State Dept. of Social & Rehab. Serv., 3 Kan. App. 2d 494, 496, 597 P.2d 679 (1979).
Since KCPL is relying upon the exception contained in K.S.A. 66-1,182, it had the burden of coming forward with evidence to prove that it was not required to obtain a siting permit since it had complied with the provisions of NEPA in regard to the siting of electric transmission lines. The question of compliance was thus a mixed question of law and fact to be determined by the district court in this case.
We'turn now to the primary issue in the case: Whether the trial court erred in holding that K.S.A. 66-1,182 requires KCPL to comply with NEPA and federal regulations issued thereunder on and after July 1, 1979, the effective date of the Kansas Siting Act. Before determining this issue, we must first examine the provisions of the Kansas Siting Act to determine the legislative intent. K.S.A. 66-1,178 states, in substance, that no electric utility may begin site preparation for construction of an electric transmission line or exercise the right of eminent domain to acquire any interest in land in connection with preparation of any land to construct any transmission lines without first obtaining a siting permit. K.S.A. 66-1,182 states that the provisions of the act shall not apply to any electric utility which complies with the provisions of the National Environmental Policy Act of 1969 with regard to the siting of electric transmission lines. After considering the legislative history of the act, we believe that the purpose of the exemption was to avoid duplicate procedures so that an electric utility should not be required to obtain a siting permit in cases where it had already undertaken comparable procedures under NEPA and applicable federal regulations to the extent it had fully achieved the purposes of the Kansas Siting Act.
Simply stated, it is the position of KCPL that, upon the publication of the environmental statement on the construction phase on October 31, 1975, by the National Regulatory Commission, and the issuance of a Construction Permit on May 17, 1977, by the Atomic Safety and Licensing Board, from that point on it was in full compliance with NEPA and it was thereafter, as a matter of law, exempt from the requirement of obtaining a siting permit from the KCC. Plaintiff and the trial court took a different position. They maintained, in substance, that the October 1975 approval of KCPL’s environmental impact statement was only a preliminary approval of construction of the plant and not the final approval of the location of the proposed electric transmission lines as contemplated by NEPA and the Kansas Siting Act. The issue presented is not an easy one. It is complicated by the morass of federal statutes and regulations which are applicable to nuclear power projects. To find an answer to our question, it is necessary to explore the provisions of NEPA and the federal regulations adopted by those federal agencies which have been given the responsibility of carrying out the public policy of NEPA. This court has not had occasion before to consider this issue. It would thus be helpful to set out basically what NEPA is and consider its purposes and objectives.
42 U.S.C.A. § 4321 sets out the Congressional declaration of purpose behind NEPA as follows:
“To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.” pp. 523-24.
42 U.S.C.A. § 4331(a) sets forth the Congressional declaration of national environmental policy. That section declares, among other things, that it is the continuing policy of the federal government, in cooperation with state and local governments, to use all practicable means and measures to create and maintain conditions under which man and nature can exist in productive harmony. Section (c) provides a Congressional recognition that each person has a responsibility to contribute to the preservation and enhancement of the environment.
Section 102 (42 U.S.C.A. § 4332) is the heart of NEPA. It states, in substance, that to the fullest extent possible all agencies of the federal government shall make available to states, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment. Very relevant to the issue before us is 42 U.S.C.A. § 4334, which recognizes the obligations of a federal agency to coordinate or consult with other federal or state agencies and to act or refrain from acting contingent upon the recommendations or certification of any other federal or state agency.
42 U.S.C.A. § 4332 requires the filing of environmental impact statements on all major federal actions significantly affecting the environment. There has been much litigation based on this sec tion. An excellent review of this litigation may be found in Coggins & Hensley, Environmental Law Creeps into Kansas: A Commentary on the Concerned, Citizens United Suit, 23 Kan. L. Rev. 421, 447 (1975), and Coggins & Wilkinson, Federal Public Land and Resources Law, p. 260 (1981). In this litigation, the procedural issues have often become paramount. The courts have held federal agencies to strict compliance with NEPA procedural mandates and they have had no hesitancy overturning an agency’s decision if it has failed to comply with NEPA procedures. Calvert Cliffs’ Coord. Com. v. United States A.E. Com’n, 449 F.2d 1109 (D.C. Cir. 1971); National Helium Corporation v. Morton, 455 F.2d 650, 655-56 (10th Cir. 1971); Natural Resources, Etc. v. U.S. Nuclear Reg. Com’n., 685 F.2d 459 (D.C. Cir. 1982).
Another important theme which has developed from the cases interpreting NEPA is that NEPA is an environmental disclosure act that requires the agency to deal with environmental concerns and obtain public input at every stage of the decision making process. It is clear that NEPA requirements are ongoing and apply to projects at every stage of the proceeding, even if such projects were commenced before the effective date of NEPA or the guidelines later developed by the Council on Environmental Quality (CEQ). See Environmental Defense Fund v. Tennessee Val. Auth., 468 F.2d 1164, 1176-81 (6th Cir. 1972); 40 C.F.R. §§ 1502.9, 1506.12 (1981).
In summary, a court reviewing whether an agency has complied with NEPA must review the procedural requirements, specifically and strictly, and should require the agency to show that it has adequately informed the public of the environmental consequences at every stage of the project. NEPA, as noted above, has directed the agencies of the federal government to carry out the Congressional policies. In the case now before us, KCPL in constructing the Wolf Creek Nuclear Power Plant, including electrical distribution lines, is governed by the regulations of the NRC. Although these regulations establish no specific criteria regarding the siting of electric transmission lines, the regulations at 10 C.F.R. § 51.23(c) (1982), require compliance with standards and requirements which have been imposed by federal, state, and local agencies having responsibility for environmental protection, including applicable zoning and land-use regulations. Sec tion 51.20(c) suggests that, if there are state regulations regarding such matters as the siting of electric transmission lines, then an applicant must comply with those requirements in order to be said to have complied with NRC requirements. These are consistent with the Atomic Energy Act from which NRC gets its power to regulate. At 42 U.S.C.A. §2018, it is stated that nothing in the act shall be construed to effect the authority or regulations of any federal, state or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the commission. These regulations are also consistent with the general guidelines developed by the Council on Environmental Quality which declare that federal agencies shall cooperate with state agencies to the fullest extent possible. 40 C.F.R. § 1506.2(c) states that where state laws have environmental impact statements, in addition to but not conflicting with those in NEPA, federal agencies shall cooperate in fulfilling these requirements so that one law will comply with all applicable laws.
It is also clear that compliance by agencies governed by NEPA with federal regulations is an ongoing process which arises again and again in the course of development and construction of nuclear power plants and their electric transmission lines. In the NEPA regulations which were adopted in 1973 by the Council on Environmental Quality, § 1500.13 states specifically that agencies have an obligation to reassess ongoing projects or programs in order to avoid adverse environmental effects. That section clearly demonstrates the continuing nature of compliance with the regulations when it states as follows: “It is also important in further action that account be taken of environmental consequences not fully evaluated at the outset of the project or program.” These rules and regulations were in effect at the time KCPL filed its original environmental impact statement which was published in October of 1975 by the Nuclear Regulatory Commission. These 1973 regulations did not emphasize the requirements of notice to interested agencies and individuals to the extent they were incorporated in the regulations adopted in 1978. However, § 1500.09(d) of the 1973 regulations emphasized that the procedures established by these guidelines are developed to encourage public participation in the impact statement process at the earliest possible time. It further stated that agency procedure should make provision for facilitating the comment of public and private organizations and individuals. Section 1500.10(b) stated that copies of final statements shall be sent to all federal, state, and local agencies and to individuals.
Probably as the result of extensive litigation, the NEPA regulations were dramatically changed in 1978 to obtain increased public input from interested public agencies and from individuals who would be directly interested in or affected by a particular project. Section 1501.7 of the 1978 regulations provides for a “scoping” process. Scoping involves the determination of the issues to be addressed and identification of the significant issues relating to a proposed action. Section 1503.1 provides that before preparing a final environmental impact statement, the agency shall request comments from the public, affirmatively soliciting comments from those persons or organizations who may be interested or affected. Section 1506.6 requires agencies to make a diligent effort to involve the public in preparing and implementing NEPA procedures and, in the case of an action with effects primarily of local concern, suggests direct mailing to owners and occupants of nearby or affected property. Section 1506.12 provides the effective date of these regulations is July 30, 1979, but then declares that these regulations shall apply to the fullest extent practicable to ongoing activities begun before the effective date. Thus, the ongoing nature of the procedure requiring compliance with the 1978 regulations and their application to projects begun before the effective date of the regulations is clearly and unequivocally stated.
After this case was decided in the district court and the case was pending on appeal, KCPL filed a motion for the court to take judicial notice of a second assessment of the environmental impact statement associated with the Wolf Creek Nuclear Power Plant issued by the NRC in the spring of 1982. It is stated in the motion that this assessment is an additional step in the continuing proceedings required by NEPA and 10 C.F.R. Part 51 as amended. We have sustained the motion of KCPL and have added this additional document to the record in the case. KCPL, however, has made no showing that in obtaining this supplemental assessment it complied with the procedural and notice steps required under the 1978 regulations which become effective in 1979.
From all of the documents discussed above, we have concluded that, at this point, KCPL has not established in the record that it is in compliance with NEPA and the regulations issued by the NRC under the authority of that act. We hold that the trial court correctly determined the issues presented in this case and properly issued an injunction enjoining KCPL from entering upon the plaintiff’s land for site preparation until such time as the defendant has shown a compliance with the provisions of K.S.A. 66-1,177 et seq. either by acquiring a siting permit from the Kansas Corporation Commission or by showing that it has given comparable notice and hearing under the provisions of NEPA subsequent to July 1, 1979. The district court has retained continuing jurisdiction in the case and, therefore, KCPL may at any time move for a hearing so that it may have the opportunity to show that it is now in compliance with NEPA and the federal regulations. At such hearing, KCPL has the burden of showing that it is in compliance. If it does so, it may then proceed to prepare the site on the easement for the construction of its electric transmission line. If it fails to show such compliance, then the injunction shall continue in effect. As an alternative, KCPL may proceed under the Kansas Siting Act and obtain a siting permit as required thereunder.
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PER CURIAM:
This is an action brought by certain named beneficiaries to recover benefits under a group life and health insurance policy. After extensive discovery, the district court sustained the motion of the plaintiffs for summary judgment and awarded plaintiffs the full amount of the benefits under the policy plus attorney fees. The defendant, Nationwide Life Insurance Company, appealed to the Court of Appeals. That court affirmed in a unanimous opinion by Frederick Woleslagel, district judge retired, who was assigned to the Court of Appeals panel. The comprehensive and well-written opinion by Judge Woleslagel may be found in Estate of Bingham v. Nationwide Life Ins. Co., 7 Kan. App. 2d 72, 638 P.2d 352 (1981). The Supreme Court granted Nationwide’s petition for review.
The opinion of the Court of Appeals sets forth the undisputed facts, the issues presented in the case, and the controlling Kansas law. After consideration of the entire record and the briefs of counsel, we have concluded that the case was correctly determined by the Court of Appeals and that the judgment of the Court of Appeals affirming the judgment of the district court should be affirmed by this court. We adopt the opinion of the Court of Appeals except for that portion of that opinion remanding the case to the district court to determine and allow an additional attorney fee for the plaintiffs on the appeal. The allowance of an attorney fee on appeal is a matter for determination by the appellate court on motion of a party to the appeal.
The judgment of the district court and the judgment of the Court of Appeals affirming the district court are affirmed as modified.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
Anthony L. Chears, defendant in this action, was convicted by a jury in Sedgwick District Court of aggravated robbery, K.S.A. 21-3427, aggravated kidnapping, K.S.A. 21-3421, aggravated sodomy, K.S.A. 21-3506, and kidnapping, K.S.A. 21-3420. He was sentenced to life imprisonment for aggravated kidnapping, a Class A felony, and to fifteen years to life for each of the other offenses, all sentences being concurrent. He appeals. Although the defendant does not challenge the sufficiency of the evidence to support the verdicts, a short statement of the facts is necessary to an understanding of the issues.
On November 19, 1980, Mr. A, his wife, and their ten-year-old daughter were at their home in Wichita. Two men came to the front door. Mr. A answered the bell; one of the men pulled a gun on him and the defendant, Anthony Chears, pulled out a sawed-off shotgun and pointed it at A’s head. The men pushed their way into the house, made the three family members lie on the living room floor, took jewelry from their persons, threatened to kill them, and tied their hands with ropes. A third man arrived, carrying a red and white bag. Two men ransacked the house while Chears stood guard; the two men then took Mr. A downstairs where they took various articles, breaking glass and furniture in the process. The defendant pulled Mrs. A to her feet and moved her into the front bedroom of the home. He pulled Mrs. A’s slacks and underclothes down and attempted intercourse but failed; finally, he pointed the gun at her head and forced her to commit oral sodomy upon him. Shortly thereafter, his accomplices shouted that it was time to leave; the defendant stopped the sexual activity and returned Mrs. A to the living room. The robbers then left the house, taking various items of personal property and leaving the family tied up on the living room floor. Mr. and Mrs. A were able to free themselves and call the police; all three men were apprehended in the area and were identified by the victims. The defendant made a statement to a Wichita police officer, admitting his participation in the robbery but denying that he was involved in sodomizing Mrs. A; he indicated that the other men were apparently involved in that. Mrs. A positively identified the defendant as the one who committed the offense upon her.
Defendant first contends that the trial court erred in overruling his motion to dismiss the aggravated kidnapping charge because it was multiplicitous with the charge of aggravated sodomy.
We recently discussed multiplicity in State v. Garnes, 229 Kan. 368, 372-373, 624 P.2d 448 (1981), where we said:
“Multiplicity in criminal pleading is the charging of a single offense in several counts. . . . Multiplicity exists when the State attempts to use a single wrongful act as the basis for multiple charges. The general principles for determining whether charges are multiplicitous are these:
“(1) A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution.
“(2) If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge.
“(3) Where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act.”
Returning to the case at hand, to establish aggravated kidnapping, the State was required to prove that the defendant took and confined Mrs. A by force; that this was done to facilitate the commission of the crime of rape or aggravated sodomy; and that bodily harm was inflicted upon the victim. In establishing the aggravated sodomy charge, the State was required to prove that the defendant had oral sexual relations with Mrs. A, a nonconsenting adult who was not his wife; that there was actual penetration; and that the defendant used force. It is clear that each of these offenses requires proof of one or more facts not required in proving the other. Even though the sodomy charge was used to supply the element of bodily harm necessary to make kidnapping aggravated, the charges do not merge. In State v. Brown, 181 Kan. 375, 389, 312 P.2d 832 (1957), the defendant challenged his conviction of both forcible rape and kidnapping in the first degree, where the rape was used to supply the element of bodily harm necessary in the first degree kidnapping charge. Justice (now Chief Justice) Schroeder, speaking for the Court, said:
“The fact that rape in the instant case must be construed to supply the element of bodily harm required by the kidnaping statute is no obstacle to a prosecution for both offenses in the criminal law. . . . [T]he test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge, and if not, the fact that both charges relate to and grow out of one transaction does not make a single offense where two distinct offenses are defined by statute.” 181 Kan. at 389-390.
The same logic applies here. The charges are not multiplicitous.
Next, the defendant contends that the moving of Mrs. A from the living room to the bedroom was merely incidental to the crime of aggravated sodomy and did not facilitate the crime or lessen the risk of detection. He relies upon the test set forth in State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976). We there said that the movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
In the case at hand, the removal of Mrs. A from the living room removed both the defendant and Mrs. A from the view of all of the other persons in the home; it ensured that there would be but one witness to the sodomy; the defendant’s confederates, Mrs. A’s daughter, and Mr. A could not see what went on in the bedroom. The defendant thus prevented the daughter and the husband from resisting, protesting, or from otherwise interfering with the commission of the offense of sodomy, and he prevented all persons in the house from witnessing it. We conclude that the movement was sufficient to constitute kidnapping under the Buggs test.
The trial court instructed the jury that “the crime of Aggravated Sodomy, as set forth in these instructions, constitutes bodily harm.” Defendant contends that this was error. In ruling upon defense motions at the close of the State’s evidence, the court said:
“Bodily harm includes an act of physical violence, even though no permanent injury results to subject the accused to the more severe penalty. Our Supreme Court has held that rape is an act of violence unnecessary to and not part of the kidnapping itself. Oral sodomy follows the same reasoning. It is unnecessary to and not a part of the kidnapping itself. The same act of physical violence is perpetrated upon the victim, the only difference being the location of where the penis was placed by force. Both have the effect of physical violence. . . . Bodily harm was significant and great. Therefore, I find that the crime of aggravated sodomy constitutes bodily harm within the meaning of those words as a matter of law.”
A number of Kansas cases have established that the crime of rape constitutes “bodily harm,” and is sufficient to establish that bodily harm necessary in establishing aggravated kidnapping. See State v. Sanders, 225 Kan. 156, 158, 587 P.2d 906 (1978); State v. Corn, 223 Kan. 583, 591, 575 P.2d 1308 (1978); State v. Ponds and Garrett, 218 Kan. 416, 421, 543 P.2d 967 (1975); State v. Taylor, 217 Kan. 706, 714, 538 P.2d 1375 (1975); and State v. Brown, 181 Kan. at 389. In reaching this conclusion in Brown, we relied upon two California cases, People v. Tanner, 3 Cal. 2d 279, 44 P.2d 324 (1935), and People v. Brown, 29 Cal. 2d 555, 176 P.2d 929 (1947). Those same cases were relied upon by the California Supreme Court in People v. Chessman, 38 Cal. 2d 166, 185, 238 P.2d 1001 (1951), cert. denied 343 U.S. 915, reh. denied 343 U.S. 937 (1952), in which case the California court held that forcing a female victim to commit sodomy constituted the infliction of bodily harm within the meaning of the California kidnapping statute. We agree, and we hold that forcing a victim to commit sodomy constitutes the infliction of “bodily harm,” as that term is used in K.S.A. 21-3421. The trial court was eminently correct in so instructing the jury.
Defendant also contends that the trial court erred in failing to instruct the jury on the lesser included offense of kidnapping. He premises this argument upon his contention that aggravated sodomy “does not constitute bodily harm.” Since we have already ruled adversely to the defendant’s position on that issue, it is clear that defendant either committed aggravated kidnapping, or, as he claims, no kidnapping at all. A trial court need instruct upon a lesser included offense only where there is evidence upon which a defendant might have reasonably been convicted of the lesser charge. See State v. Johnson & Underwood, 230 Kan. 309, 634 P.2d 1095 (1981); State v. Prince, 227 Kan. 137, 140, 605 P.2d 563 (1980); and K.S.A. 21-3107(3). The trial court did not err in failing to instruct the jury on the lesser included offense of kidnapping with regard to Mrs. A.
Next, defendant contends that the trial court erred in denying his motion to suppress his statement to the police officers, for the reason that he claims that he told a detective that he wanted to talk with a lawyer and in spite of his request the officers continued the interrogation. This was a factual issue; the trial court heard the defendant’s testimony as well as that of the police officers and determined the matter adversely to the defendant’s position. There is substantial competent evidence to support the trial court’s determination and we will not reweigh the testimony on appeal. See State v. Nicholson, 225 Kan. 418, 423, 590 P.2d 1069 (1979), and cases cited therein. The defendant contends that this issue is controlled by Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880 (1981), decided after this trial was completed. The difficulty with this argument is that the reasoning expressed in the Edwards case presupposes a request for counsel by the accused, and as we have noted, the trial court resolved this factual issue adversely to the defendant. There was ample evidence in the record to support the trial court’s finding “that the police officers’ version is the correct version of this case and that the defendant voluntarily, intelligently, understanding^ and knowingly waived his constitutional rights . . . .”
Defendant contends that the trial court should have granted a mistrial because the little girl cried before and after her testimony and such behavior was observed by the jury. The trial judge, in denying the motion, stated that he did not observe her “sobbing” or “rubbing her eyes,” as claimed by defense counsel. Given the conduct of the defendant and his confederates, so clearly shown by this record, and about which this child was required to testify, we think it not unusual for a child witness to display some emotion. Be that as it may, the trial court is in the best position to observe the demeanor of those present, and to determine whether the accused has sustained substantial prejudice. In State v. Everson, 229 Kan. 540, 543, 626 P.2d 1189 (1981), a motion for a mistrial was made because of an emotional outburst by the complaining witness in a rape and sodomy trial; the trial court overruled the motion. In reviewing the matter, this court said:
“Declaration of a mistrial is a matter entrusted to the trial court’s discretion. K.S.A. 22-3423. All rape trials involve the risk of emotional outbursts- by the complaining witness. When there is no proof of substantial prejudice to the appellant, it cannot be held that the trial court abused the exercise of its power of discretion in denying the mistrial. See State v. Baker, 227 Kan. 377, 383, 607 P.2d 61 (1980).” 229 Kan. at 543.
The defendant has failed to show any substantial prejudice. We find no error, and no abuse of discretion in the trial court’s ruling.
Finally, the defendant contends that the trial court erred in failing to grant a mistrial based upon the prosecutor’s closing argument in which he characterized the defendant as an “animal.” The trial court sustained the defendant’s objection at the time the argument was made, and admonished the jury to disregard it. It has long been the rule in this state that improper remarks made by the prosecutor on final summation will not constitute reversible error where the jury has been instructed to disregard them unless the remarks were so prejudicial as to have been incurable. State v. Warbritton, 215 Kan. 534, Syl. ¶ 1, 527 P.2d 1050 (1974). The remarks here were not so inflammatory and prejudicial as to be incurable. While the remarks may be improper, the jury was quite properly directed to disregard them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
A complaint was filed under the Habitual Traffic Violators Act, K.S.A. 8-284 et seq., to have Charles K. Wood declared an habitual traffic offender. The complaint alleged the following convictions within the immediately preceding five years:
“In the Municipal Court of the City of Topeka, Shawnee County, Kansas of the offense of driving while suspended on the 8th day of March, 1979;
“In the District Court of Jefferson County, Kansas, of the offense of driving while suspended on the 24th day of November, 1977;
“In the Municipal Court of the City of Topeka, Shawnee County, Kansas of the offense of leaving the scene of an accident on the 19th day of November, 1980.”
The two convictions in the municipal court were for violations of city ordinances of the City of Topeka. The trial court checked the statute and entered judgment in favor of the defendant, holding the two convictions for violating city ordinances were not intended to be included under K.S.A. 1981 Supp. 8-285(c) as qualifying traffic offenses. The appeal presents a question on the construction of K.S.A. 1981 Supp. 8-285 — specifically what traffic offenses are included as qualifying a person as an habitual traffic violator?
K.S.A. 1981 Supp. 8-285 reads:
“As used in this act, the words and phrases defined in K.S.A. 8-234 shall have the meanings ascribed to them therein, and the term ‘habitual violator’ shall mean any resident or nonresident person who, within the immediately preceding five (5) years, has been convicted in this or any other state:
“(a) Three (3) or more times of:
“(1) Vehicular homicide, as defined by K.S.A. 21-3405 or as prohibited by any law of another state which is in substantial conformity with said statute;
“(2) Driving while under the influence of intoxicating liquor or drugs, as prohibited by K.S.A. 1977 Supp. 8-1567, oras prohibited by an ordinance of any city in this state or by any law of another state, which ordinance or law declares to be unlawful the acts prohibited by said statute;
“(3) Driving while the privilege to operate a motor vehicle on the public highways of this state has been canceled, suspended or revoked, as prohibited by K.S.A. 1981 Supp. 8-262 or as prohibited by any law of another state which is in substantial conformity with said statute;
“(4) Perjury resulting from a violation of K.S.A. 8-261a or resulting from the violation of a law of another state which is in substantial conformity with said statute;
“(5) Violating the provisions of the fifth clause of K.S.A. 1977 Supp. 8-142, relating to fraudulent applications, or violating the provisions of a law of another state which is in substantial conformity with said statute;
“(6) Any crime punishable as a felony wherein a motor vehicle was used in the perpetration of such crime;
“(7) Failing to stop at the scene of an accident and perform the duties required by K.S.A. 8-1602 to 8-1604, inclusive, or required by a law of another state which is in substantial conformity with said statutes;
“(8) Violating the provisions of K.S.A. 40-3104, relating to motor vehicle liability insurance coverage after the effective date of this act; or
“(b) Three (3) or more times, either singularly or in combination, of any of the offenses enumerated in subsection (a) of this section.” Emphasis supplied.
We note that eight separate criminal violations, each having to do with the use of a vehicle, are identified. One of the eight has to do with making a false affidavit in connection with the licensing of drivers. Of the remaining seven, five refer to violations prohibited by the laws of Kansas and other states. Only 8-285(a)(2), which refers to driving while under the influence of intoxicating liquor or drugs, includes convictions for similar violations prohibited by city ordinance.
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. Ballweg v. Farmers Ins. Co., 228 Kan. 506, Syl. ¶ 1, 618 P.2d 1171 (1980).
Even if the legislature did 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. Ballweg v. Farmers Ins. Co., 228 Kan. 506, Syl. ¶ 2.
One of the more common rules of statutory interpretation is that the mention or inclusion of one thing implies the exclusion of others. In re Olander, 213 Kan. 282, Syl. ¶ 1, 515 P.2d 1211 (1973).
In our present case eight separate violations of the laws relating to the use and operation of motor vehicles are specified. Looking at seven of the eight prohibited acts: (1) specifies K.S.A. 21-3405 “or as prohibited by any law of another state”; (3) specifies K.S.A. 1981 Supp. 8-262 “or as prohibited by any law of another state”; (4) specifies perjury resulting from a violation of K.S.A. 8-261a “or resulting from the violation of a law of another state”; (5) specifies K.S.A. 1977 Supp. 8-142 “or violating ... a law of another state”; (6) specifies any crime punishable as a felony wherein a motor vehicle was used in committing a crime; (7) specifies K.S.A. 8-1602 to 8-1604, leaving the scene of an accident “or [as] required by a law of another state”; and (8) specifies K.S.A. 40-3104 relating to required motor vehicle liability insurance.
Of the eight prohibited acts, it is only the driving while under the influence of intoxicating liquor or drugs, which includes conviction for violation of “an ordinance of any city in this state” as a qualifying offense.
In looking for the purpose and intent of the legislature, this special treatment of a violation for driving while under the influence cannot be overlooked. We can only speculate why the legislature singled out this particular violation for inclusion of city ordinances while omitting it from the others. It is true that intoxicating liquor and drug use appears to be more prevalent in cities. It is also true the problems attending abuse of these drugs may be more apparent in cities but regardless of what possible reasons, the legislature has spoken. As to the convictions of the defendant in this case, driving on a suspended license and of leaving the scene of an accident are violations of city ordinances and are not included under the statute as qualifying offenses. This court may not supply omissions in a statute. There is little to indicate an omission in this case. The legislature saw fit to include violations of the Kansas statutes and of similar statutes of other states. It failed to include violations of city ordinances except in one of the eight prohibited acts. Under our rules of statutory construction the inclusion of city ordinances solely in 8-285(a)(2) implies an intentional exclusion of city ordinances from the other parts of the statute.
The parties vigorously argue the question of strict construction versus liberal construction. There are cases which seem to support either position. The loss of the privilege to operate a motor vehicle when one is found to be an habitual violator is a major sanction. The revocation of the license remains in effect for a minimum of three years. K.S.A. 8-288(b). At the expiration of the three years the habitual violator may apply to the court for reinstatement and “for good cause shown” the court “in its discretion” may restore the privilege.
In the present case it makes little difference whether a strict or liberal construction of the statute is applied. Under the Habitual Traffic Violators Act as it appears in K.S.A. 1981 Supp. 8-285, any person who within the immediately preceding five years has been convicted three or more times of one or more of the eight traffic-related crimes therein listed, shall be guilty of being “an habitual violator” after a hearing as prescribed in K.S.A. 8-286. Only one of the eight traffic related offenses relates to city ordinances. All others cover offenses for violating state laws. We would not be justified in rewriting the statute by inserting violations of city ordinances. To consider an obvious omission in one of the eight separate violations would be one thing but here the so-called omissions would have to be written into at least five of the eight violations to make the statute consistent. The other three qualifying traffic-related crimes are limited by their nature to state statutes.
It has been called to our attention that the provisions of K.S.A. 1981 Supp. 8-285 were amended by the 1982 legislature; that as amended by L. 1982, ch. 144, § 2 violations of city ordinances are now included in what will be 8-285(a)(l), (2), (3), (7), and (8). These include both driving without a license and leaving the scene of an accident. This law did not become effective until July 1, 1982. It affects the imposition of a penalty assessed for criminal violations and is therefore to be categorized as a change in substantive law. See State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980), and State v. Augustine, 197 Kan. 207, Syl. ¶ 1, 416 P.2d 281 (1966).
Under the rules set forth in State v. Hutchison, 228 Kan. 279, Syl. 6, 7, and 8, this change has only prospective application. It cannot affect our present holding.
Under the Habitual Traffic Violators Act as it appears in K.S.A. 1981 Supp. 8-285, convictions under city ordinance of the offense of driving while suspended and of the offense of leaving the scene of an accident cannot be counted toward the three convictions necessary to make the person an habitual violator.
Appeal denied. | [
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The opinion of the court was delivered by
Herd, J.:
Harry L. Taylor was convicted by a jury of second-degree murder (K.S.A. 21-3402) on March 4, 1981. This is an appeal from that conviction.
This prosecution arose from the following events. Efelton Sanders was the owner and operator of a grocery and gambling establishment in Topeka called the Party Shack. Melvin Walker, Jr., who Sanders considered a stepson, worked there on occasion. Sanders kept a .38 pistol at the Party Shack. Walker also had access to the gun. On July 12, 1980, prior to leaving on a trip to Kansas City with his friend, Harry L. Taylor, Walker discovered the gun had disappeared. Walker accused Taylor of taking the gun.
Walker’s accusations against Taylor continued off and on until November 21,1980. On that day Taylor and a friend were helping Taylor’s sister move to a new apartment. In the course of this endeavor, Taylor stopped at the Party Shack for pop and cigarettes. Walker was the store clerk. He refused to wait on Taylor. Taylor asked Walker outside for a private discussion. Taylor proceeded outside armed with a gun he possessed for his “protection.” Walker followed and as he pushed the screen door open Taylor shot and killed him. Taylor said he thought Walker also had a gun and he was merely “beating Melvin to the draw.” Thereafter, Harry L. Taylor was arrested and charged with first-degree murder. The jury conviction followed.
Appellant claims the trial court erred in refusing to suppress statements made to the police prior to Miranda warnings being given. When Harry Taylor was stopped for questioning the officer asked him for his name. Appellant answered, giving a fictitious name. The officer knew it was Harry Taylor and proceeded to frisk him. The appellant was then taken to the police station and again asked his name. He replied “Harry Taylor, why should I lie anymore.” At this time, appellant was advised of his constitutional rights, which he voluntarily waived.
Appellant argues the statements he made before the Miranda warning are inadmissible. In Miranda v. Arizona, 384 U.S. 436, 444, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), the U.S. Supreme Court held “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”
The admissibility of appellant’s statements depends upon whether they were the result of a “custodial interrogation” or an “investigatory interrogation.” A custodial interrogation, which requires that Miranda warnings be given, involves “significant restraints on [a subject’s] freedom of movement which are imposed by some law enforcement agency.” State v. Greenberg, 4 Kan. App. 2d 403, 405, 607 P.2d 530, rev. denied 228 Kan. 807 (1980); State v. Brunner, 211 Kan. 596, Syl. ¶ 2, 507 P.2d 233 (1973). In State v. Bohanan, 220 Kan. 121, 128, 551 P.2d 828 (1976), it was recognized, “that general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process does not constitute custodial interrogation requiring a Miranda warning.” An investigatory interrogation, requiring no warning, is defined as “the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way.” 220 Kan. at 128.
Clearly, Taylor’s initial untruthful identification of himself is admissible as the product of an investigatory interrogation. Moreover, K.S.A. 22-2402 allows an officer to “stop any person in a public place whom he reasonably suspects is committing, has committed, or is about to commit a crime and may demand of him his name, address and an explanation of his actions.” Taylor’s objections to the court admitting his first statement to the police are without merit.
However, the statements made at the police station before defendant was advised of his rights are more troublesome. Obviously, Taylor was in custody at the station. There is no reason the officers should not have advised him of his Miranda rights as soon as he arrived there. Unless the initial question at the police station about appellant’s identity is not considered “interrogation,” the court erred in admitting it. In Miranda the court stated that “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. at 444. More recently, in Rhode Island v. Innis, 446 U.S. 291, 301, 64 L.Ed.2d 297, 100 S.Ct. 1682 (1980), the court held:
“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.”
The question asked of appellant at the police station was a form of express questioning but it was merely a request for appellant to identify himself. This could easily gravitate in favor of an accused by preventing interrogation of the wrong person. We hold a request for a person to identify himself is not interrogation within the meaning of Miranda and Innis. The trial court did not err in admitting Taylor’s answer. The first issue is without merit.
Appellant next argues the trial court erred in admitting a gun sold, by Taylor to a police operative during a “sting” operation because the chain of custody was not established. The police had set up a fencing business run by an operative, Mr. Dobbins, in the garage of a Topeka residence. Mr. Dobbins was not a police officer. On July 15, 1980, Harry Taylor sold a gun to the fence. A police detective was present and secretly watched the entire transaction. As soon as the gun changed hands and Taylor was gone the detective seized the gun. Later, Mr. Sanders identified the gun as the one missing from his business. The State failed to present Mr. Dobbins at trial. Appellant claims Mr. Dobbins is the missing link in the chain of custody and because the chain was broken the gun should not be admitted.
Establishing the chain of custody is part of the foundation for the admission of physical evidence. “Generally, the admissibility of physical evidence is within the sound discretion of the trial court and is to be determined by the court on the basis of its relevance and connection with the accused and the crime charged.” State v. Beard, 220 Kan. 580, 584, 552 P.2d 900 (1976). Deficiencies in the chain of custody ordinarily affect the weight of the evidence, not its admissibility. State v. Crawford, 223 Kan. 127, 128, 573 P.2d 982 (1977), cert. denied 435 U.S. 930 (1978).
However, there is no break in the chain of custody because the detective observed the entire transaction and immediately seized the pistol. Admission of the evidence was therefore proper.
Appellant’s final contention is the court erred when it allowed the State to present evidence in rebuttal of Taylor’s participation in the “sting” operation. During pretrial proceedings the trial court and defense counsel discussed the possibility of an order in limine:
“MR. JOHNSON: (Interrupting) Your, Honor, I do want to take up a motion for an Order in Limine at this point, or do you want to —
THE COURT: (Interrupting) What orders?
MR. JOHNSON: As I explained to the Court earlier, I filed a motion because we’re aware of the fact that there is another case presently pending against our client wherein —
THE COURT: (Interrupting) There will be no mention made of any other case.
MR. JOHNSON: Very well.
THE COURT: Against this man. We’re trying him for this crime, and I don’t want other cases brought in.
MR. JOHNSON: Yes.
MR. YEOMAN: Yes.
THE COURT: Okay. There is going to be no mention made of his other cases.”
On direct examination the appellant testified about Walker’s accusations concerning the “stuff” appellant had allegedly taken from him. Specifically, Taylor testified Walker came to his house and stated “[t]hat he wanted his gun.” Taylor answered he “didn’t know what he was talking about . . . Later during direct examination Taylor identified the gun obtained in the fencing operation as one he had purchased at a local pawn shop and introduced a receipt to that effect. During cross-examination the court allowed the prosecution to inquire of the appellant whether he actually stole the gun from Melvin Walker. Finally, during rebuttal the police detective who observed Taylor sell the gun to the fence was allowed to testify.
In State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980), we stated:
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.” Syl. ¶ 9.
The rebuttal evidence was proper. The appellant offered evidence to show he did not steal Melvin Walker’s gun. The State’s rebuttal tended to counter that evidence. Further, the trial judge gave a proper limiting instruction. See also State v. Washington, 229 Kan. 47, 60, 622 P.2d 986 (1981).
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The opinion of the court was delivered by
Fromme, J.:
The plaintiff, Terry J. Dorman, brought an action for personal injuries under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. against the Kansas City Terminal Railway Company. The defendant railway pleaded a written release signed by plaintiff, a copy of which was filed with a motion for summary judgment. Plaintiff objected, saying the validity of the release was a question of fact to be tried to a jury. The trial court sustained the motion for summary judgment. Plaintiff appeals.
The following facts are taken from the petition, the affidavits in the record, and the deposition of Mr. Ludgate, the defendant’s claim agent:
On October 3, 1978, plaintiff was working as a station maintainer at the railway’s terminal in Kansas City, Missouri. Plaintiff and his fellow workers were engaged in dismantling a mail conveyor system. This conveyor system was suspended over twelve feet above the floor. Unknown to the plaintiff someone had previously worked on dismantling the conveyor system and had cut certain bolts in the structure which helped to hold up the system. In the course of his work plaintiff cut a rod which was the sole remaining support for the conveyor system. The entire structure crashed to the floor. Plaintiff fell approximately ten feet and he sustained various personal injuries which included permanent injuries to his lower back.
Plaintiff was first taken into the station maintenance shop by a fellow worker. Claim Agent Ludgate arrived shortly, checked plaintiff’s physical condition, and then Ludgate and plaintiff’s supervisor arranged for plaintiff to be transported to the office of Dr. Duncan, the company doctor. Dr. Duncan x-rayed plaintiff’s neck and back and stitched up plaintiff’s forehead. After completing his examination and treatment the doctor advised plaintiff there was “nothing broken.” Plaintiff was not hospitalized. From time to time, as requested by Dr. Duncan, plaintiff returned for further examinations.
During these subsequent examinations which extended over a month plaintiff continued to complain of pain in his neck, back and left leg. Dr. Duncan advised that plaintiff had a hematoma in his leg which would probably go away. Plaintiff was never told what was the matter with his neck, head and back. He was merely told he was going to be sore for a while from the fall. Dr. Duncan’s only treatment consisted of prescribing pills for pain and putting plaintiff’s leg under a heat lamp. Plaintiff felt he was getting no better and complained to Dr. Duncan, who then made arrangement for plaintiff to see a Dr. Forsythe. Dr. Forsythe examined plaintiff superficially. He took no history of the accident and took no x-rays. The examination was completed in 15 or 20 minutes and no report or findings were made available to plaintiff. When plaintiff was later examined by Dr. Duncan, Dr. Forsythe had not yet filed his report. Later Dr. Forsythe filed a report but plaintiff was never advised of the contents. Dr. Duncan reported that plaintiff had received a “normal neurological consultation.”
Dr. Duncan then reported this to Mr. Ludgate, the company claim agent, and plaintiff was released for light work. On his return to work plaintiff was assigned to his regular duties. He demanded another examination and Dr. Duncan then wrote “light duty” on the release-for-work form in large letters. He was then assigned light duty jobs. His last examination was around the 1st of February, 1979. At this time he mentioned a tired feeling in his back and a pain in his leg like a “charley horse.” The doctor advised, “Mr. Dorman it looks like you are making a fine recovery.” He was then given a work slip for full duty.
On February 2, 1979, the claim agent Ludgate prepared a release form and began negotiating with plaintiff for settlement and release. Plaintiff did not consult with an attorney and apparently knew little about his rights. Ludgate and the plaintiff discussed lost wages and the cost of an eye examination and glasses. Plaintiff assumed the company was paying Dr. Duncan and Dr. Forsythe. Nothing was said concerning pain, suffering, or permanent injuries. The release was presented to plaintiff for his signature, along with a check in the sum of $1,072.00. It was received by him in full settlement. The release is as follows:
“RELEASE
“In consideration of the payment of the sum of One thousand seventy two and 00/100 . . Dollars ($1,072.00) by Kansas City Terminal Railway Company, receipt whereof is hereby acknowledged, I do hereby release and discharge Kansas City Terminal Railway Company and all other parties whomsoever, from any and all claims and liability of every kind or nature, arising out of an accident on or about October 3,1978, at or near the East subway in the subbasement of the Union Station Building, when a mail conveyor that I was cutting down fell to the floor causing me to fall about ten feet to the floor causing injuries injury to my left thigh and a laceration to my forehead.
“I have read this release and understand it.
“The above payment is made and accepted in compromise settlement and satisfaction of disputed claims and is not an admission of liability.
“No other promise of any kind, has been made to me in connection with this settlement.
“Signed at Kansas City, Missouri, this 2nd day of February, 1979.
s/ T J Dorman
“Witnesses:
s/__J E Ludgate”
In the 8th line of the release claim agent Ludgate crossed out the word injury and then instructed plaintiff to write on the face of the release in longhand “I have read this release and understand it.” Plaintiff did so and then signed it.
It should be noted the release described plaintiff’s injuries as being “left thigh and a laceration to my forehead.” No mention is made of any injury to plaintiff’s back. It appears from the affidavit of plaintiff and the deposition of agent Ludgate that neither had knowledge at this time that plaintiff had suffered a permanent back injury consisting of a ruptured intervertebral disc.
On consulting with Dr. Otis E. James, Jr., M.D., plaintiff first learned that he had sustained a ruptured disc in the accident of October 3, 1978. Plaintiff was operated on April 21, 1980, and a ruptured disc was removed. According to Dr. James, plaintiff now has a permanent disability to the body as a whole. It was for this condition that the present suit was filed.
Now we turn to the first question. Does federal law govern the validity of a release taken under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq?
The United States Supreme Court in Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 361-62, 96 L.Ed. 398, 72 S.Ct. 312 (1952), states:
“We agree with the Court of Appeals of Summit County, Ohio, and the dissenting judge in the Ohio Supreme Court and hold that validity of releases under the Federal Employers’ Liability Act raises a federal question to be determined by federal rather than state law. Congress in § 1 of the Act granted petitioner a right to recover against his employer for damages negligently inflicted. State laws are not controlling in determining what the incidents of this federal right shall be. Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44 [76 L.Ed. 157, 52 S.Ct. 45 (1931)]; Ricketts v. Pennsylvania R. Co., 153 F.2d 757, 759 [164 A.L.R. 387 (1946)]. Manifestly the federal rights affording relief to injured railroad employees under a federally declared standard could be defeated if states were permitted to have the final say as to what defenses could and could not be properly interposed to suits under the Act. Moreover, only if federal law controls can the federal Act be given that uniform application throughout the country essential to effectuate its purposes. See Garrett v. Moore-McCormack Co., 317 U.S. 239, 244 [87 L.Ed. 239, 63 S.Ct. 246 (1942)], and cases there cited. Releases and other devices designed to liquidate or defeat injured employees’ claims play an important part in the federal Act’s administration. Compare Duncan v. Thompson, 315 U.S. 1 [86 L.Ed. 575, 62 S.Ct. 422 (1942)]. Their validity is but one of the many interrelated questions that must constantly be determined in these cases according to a uniform federal law.”
The Dice case was concerned with a release obtained by misrepresentations as to its contents; however, the law is the same regardless of the basis for attacking the validity of the release. Taylor v. Chesapeake and Ohio Railway Company, 518 F.2d 536, 537 (4th Cir. 1975); Correia v. Seaboard Coast Line R. R. Co., 393 So. 2d 1161, 1162 (Fla. Dist. Ct. App. 1981).
The following cases, although not on the precise issue raised here, recognize the controlling authority of federal law in FELA cases. Underwood v. Missouri-Kansas-Texas Rid. Co., 191 Kan. 338, 343, 381 P.2d 510 (1963); White v. Thompson, 181 Kan. 485, 493, 312 P.2d 612 (1957); Schaefer v. Lowden, 147 Kan. 520, 522, 78 P.2d 48 (1938).
We hold the validity of a release given by an employee for injuries covered by the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. raises a federal question to be determined by federal rather than state law.
Our second question is whether federal law recognizes mutual mistake as a ground for invalidating a FELA release.
Federal law recognizes mutual mistake as a ground for invalidating a release, but the mutual mistake must be as to a material past or present fact and not a mere mistake in prophecy, opinion or a belief relative to an uncertain event such as probable developments from and permanency of a known injury. Locke v. Atchison, Topeka and Santa Fe Railway Company, 309 F.2d 811 (10th Cir. 1962); Heston v. Chicago and North Western Railway Co., 341 F. Supp. 126 (N.D. Ill. 1972); Robertson v. Douglas Steamship Company, 510 F.2d 829 (5th Cir. 1975); Edwards v. Western & Atlantic R., 552 F.2d 137 (5th Cir. 1977).
Actually, it does not make any difference whether federal or state law applies because both recognize mutual mistake as to a material past or present fact as grounds for invalidating a release. In re Estate of Thompson, 226 Kan. 437, 441, 601 P.2d 1105 (1979); Fieser v. Stinnett, 212 Kan. 26, Syl. ¶ 3, 509 P.2d 1156 (1973).
We are now ready for the final question. Was there a sufficient showing before the trial court of the existence of evidence to establish mutual mistake to constitute a genuine issue of fact for submission to a jury?
The issue of mutual mistake in executing a release is a question of fact to be submitted to a jury. Dice v. Akron, C. & Y. R. Co., 342 U.S. at 363; 66 Am. Jur. 2d, Release § 64, p. 749. In an action brought under FELA where plaintiff testified that he had read and understood the release which he signed but that he had done so on the claim agent’s assurance that there was nothing permanently wrong with his back, the issue of the validity of the release was held to be a question for the jury in Callen v. Pennsylvania R. Co., 332 U.S. 625, 92 L.Ed. 242, 68 S.Ct. 296 (1948).
Where neither party to a release understood at the time that plaintiff had sustained a ruptured disc and both proceeded on the basis that the injury sustained by plaintiff was merely a temporary though painful strain, this was sufficient evidence of mutual mistake to make validity of the release a genuine issue of fact precluding summary judgment. Taylor v. Chesapeake and Ohio Railway Company, 518 F.2d 536. Where a material issue of fact existed as to whether a release entered into by employee and employer’s claim agent, based upon a characterization of employee’s injury as temporary in nature and either strain or sprain of back, there was mutual mistake or misrepresentation, and this precluded summary judgment. Correia v. Seaboard Coast Line R. R. Co., 393 So. 2d 1161. Where plaintiff swears in his affidavit that he had no knowledge of the fact that he had a back condition requiring surgery, this is adequate to create a genuine issue of mutual mistake of fact which is a jury question under the FELA. Castro v. Chicago, Rock Island & Pac. R. R. Co., 83 Ill. 2d 358, 415 N.E.2d 365 (1980). We hold the issue of the existence of mutual mistake in the execution of a release, when the mistake claimed is based on a material past or present fact not known to the parties, is a question of fact to be submitted to a jury. See also Annot., Jury Trial — Validity of Release, 43 A.L.R.2d 786, § 4 [c], p. 796-97.
It appears in the present case that both parties labored under a mutual mistake of fact at the time the release was signed. Mr. Dorman had a bad back problem with a ruptured disc which had been caused by the accident. Neither party knew of this problem. The doctors who examined Mr. Dorman took x-rays of the back but they discovered no abnormality. Dorman complained some of his back but his complaints were chiefly associated with pain in his leg and neck. The written release does not mention injuries to the back, only the thigh and forehead. From the deposition testimony of Mr. Ludgate it is fair to say he was not aware that plaintiff had suffered a back disability from his fall.
The appellee cites cases to support its position that the validity of the release in this case was properly taken from a jury and decided by the trial court. These cases have been examined. In Fieser v. Stinnett, 212 Kan. 26, the court stated that questions concerning mutual mistake were normally for the trier of facts. In Fieser, both parties consented that the issue be submitted to and decided by the trial court as the trier of fact. 212 Kan. at 28. In Reynard v. Bradshaw, 196 Kan. 97, 409 P.2d 1011 (1966), the validity of the release was a matter submitted to a jury and the jury verdict upheld the settlement. On appeal the court held the jury’s finding against the plaintiff on the issue of mutual mistake of fact was amply supported by substantial evidence. There was no evidence introduced to show any mutual mistake of past or present material fact on the part of the defendant. Other cases cited by the defendant can be similarly distinguished.
“A summary judgment proceeding is not a trial by affidavits, and the parties must always be afforded a trial when there is a good faith dispute over the facts. (United States v. Kansas Gas and Electric Company, 287 F.2d 601 [10th Cir. 1961].) A motion for summary judgment cannot be made a substitute for a trial either before a court or jury, and a plaintiff who states a cause of action which entitles him to a trial by jury is entitled to have his case tried in that way and cannot be compelled to submit his evidence in the form of affidavits in resistance to a motion for summary judgment and have the issues determined by such motion. (United States v. Broderick, 59 F. Supp. 189 [D. C. Kan. 1945].)” Brick v. City of Wichita, 195 Kan. 206, 211, 403 P.2d 964 (1965).
“Where the case records reflect a genuine issue of material fact, summary judgment is not warranted.” Mitchelson v. Travelers Ins. Co., 229 Kan. 567, 570, 629 P.2d 143 (1981).
The summary judgment entered for defendant is reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an original mandamus action wherein David Berst, Dale Smith and the National Collegiate Athletic Association (petitioners) seek an order directing the Honorable Marion W. Chipman, Judge of the District Court of Johnson County, to set aside his order which denied petitioners’ motion for a protective order pursuant to K.S.A. 60-226(c) quashing subpoenas duces tecum served upon the petitioners. The documents sought relate to confidential investigations conducted by the NCAA and the Southeastern Conference of a possible infraction of NCAA rules by the University of Alabama in Huntsville, Alabama, in the recruitment of a high school basketball star, Bobby Lee Hurt.
The documents in question are sought in discovery proceedings growing out of a libel action filed against the Birmingham Post Company and others in the Circuit Court of Madison County, Alabama, for publishing alleged defamatory statements contained in an article published in the June 24,1981, issue of the Birmingham Post-Herald newspaper. The foregoing action was filed by Edward E. Seal, then principal of Butler High School in Huntsville, Alabama. Bobby Lee Hurt, a Butler High School basketball star, also filed a libel action against the Birmingham Post Company and others for publication of alleged defamatory statements in the same newspaper.
Pursuant to a petition filed by the Birmingham Post Company in accordance with K.S.A. 60-228, Judge Chipman on April 2, 1982, caused a subpoena to issue to the NCAA, Berst and Smith, requiring them to comply with notices to take depositions upon oral examination and to produce documents issued by the Circuit Court of Madison County, Alabama. The subpoena commanded the NCAA, Berst and Smith to make available at their depositions:
“[A]ll documents and correspondence relating to the initiation, prosecution and results of any investigation by the National Collegiate Athletic Association concerning Bobby Lee Hurt, Edward Seal, Butler High School, Huntsville, Alabama or the recruiting of Bobby Lee Hurt by the University of Alabama.”
On May 3, 1982, the NCAA, Berst and Smith moved for a protective order pursuant to K.S.A. 60-226(c) directing that they “not be required to disclose the contents or results of their confidential investigation of Edward Seal, Bobby Lee Hurt, Butler High School, Huntsville, Alabama, or the University of Alabama.” After a hearing the motion was denied.
Upon hearing the matter in this court and after giving due consideration to the arguments and briefs filed by counsel for the respective parties, this court finds the action taken by Judge Chipman was arbitrary in that an in camera inspection of the NCAA files tendered for examination was not undertaken upon hearing the application for a protective order.
Upon an in camera inspection of the confidential NCAA files by the Supreme Court of Kansas, we hold the respondents may proceed with discovery upon the following terms and conditions. Statements and comments of the parties litigant, their employees and fellow employees of Butler High School orally made either in person or by telephone to the NCAA investigator Dale Smith and reduced to writing in memoranda which bear the typed signature of Dale Smith, but which are otherwise not subscribed, are discoverable by the subpoena duces tecum at a time and place mutually to be agreed upon by the counsel for the respective parties litigant.
The written documents discoverable are specifically enumerated and listed by description in a separate Protective Order filed with the Clerk of the Supreme Court of Kansas on this date.
The subpoena issued to the NCAA, Berst and Smith to take depositions upon oral examination and to produce documents is limited to the taking of the oral statements and comments subsequently reduced to writing in memoranda and specifically identified by the Protective Order.
Due to the urgency of the matter and the public interest involved, this original proceeding was given a preferential setting in our court. This brief opinion announcing the decision of the court will be supplemented by a formal opinion to be filed when it is prepared.
Fromme and Herd, JJ., dissenting. | [
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Per Curiam:
This case is dismissed, on the authority of McDermott v. Loftus, 27 Kas. 68, and Bennett v. Dunn, 27 Kas. 194. Judgment in the district court was rendered June 8, 1881, and the petition in error not filed in this court until June 24, 1882 — more than one year thereafter. | [
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The opinion of the court was delivered by
Valentine, J.:
This case has once before been to this court, and every question involved therein of any importance has already been decided. (Challiss v. McCrum, 22 Kas. 157.)
The facts, stated briefly, are in substance as follows: On December 4, 1871, W. L. Challiss loaned to Edward A. Ege the sum of $250, and in consideration therefor took Ege’s n°te and mortgage, payable to Richard Probasco, or bearerj for fhe gum of $265, due one year after date, with interest at the rate of 12 per cent, per annum, payable semi-annually. Afterward, and on or about December 10, 1876, Joseph McCrum, through his agent, A. B. Symns, purchased this note and mortgage from Challiss, paying therefor the sum of $305, the full face value of the note at that time. At that time, neither McCrum nor Symns had any knowledge of the usurious character of the note. At the time of the purchase of the note, the note was deposited at Hetherington’s bank, and Symns received the note from the bank and paid the money to the bank, and Challissindorsed the note as follows: “Without recourse. — W. L. Challiss.” Afterward, McCrum demanded payment of the note and mortgage from Ege, but Ege refused to pay the same, offering, however, to pay $270 in full payment thereof, and claiming- that the note was usurious. McCrum refused to accept that amount, and on July 18, 1877, commenced an action on the note and mortgage against Ege, Challiss and Probasco. Ege answered, setting up the usurious character of the note and mortgage, and asking that judgment be rendered accordingly. Challiss answered, for himself and Probasco, that they had no interest in the matter. At the September term, (September 8, 1877,) judgment was-rendered in the case in favor of McCrum and against Ege, for $75.10, that amount being $229.90 less than the face value of the note at the time that McCrum purchased it, and being that much less than he paid for the same. On February 27, 1878, McCrum commenced this action against W. L. Challiss to recover from Challiss the said amount of $229.90, with 7 per cent, interest thereon from December 10, 1876, the time at which McCrum purchased the note and mortgage from Challiss. Challiss answered, setting up various matters not necessary now to mention. A trial was had before the court and a jury, and the plaintiff McCrum proved, in substance, all the foregoing fácts. The defendant Challiss then demurred to the evidence, which demurrer was overruled;, and then Challiss introduced Ege as a witness, and offered to prove by him the following facts, to wit:
“That he was the maker of the said note and mortgage to Probasco sued on by the plaintiff in the Doniphan county district court, and that from time to time before assignment thereof to.the plaintiff he had made payments of interest thereon, and always assented to the same as valid, and was willing to pay the same according to the tenor thereof; and that before the plaintiff purchased said note and mortgage he was hostile to the witness, and frequently threatened him with trouble, and that soon after his purchase of the said note and ■mortgage the plaintiff came to said Ege’s house and told him that he now owned the said note and mortgage, and that Ege must forthwith pay the same, and if not he would forthwith sue thereon; that Ege told the plaintiff that if he sued he would plead usury and beat him out of all that he could, but if he insisted on payment he would pay as due justly thereon the sum of $270, and then tendered that sum to the plaintiff, which he then refused in an angry manner, and then went' away and forthwith commenced suit on the said note and mortgage.”
The plaintiff objected to the foregoing evidence, and the ■court below sustained the objection. Neither party offering to introduce any further evidence, but both parties resting their case, the court instructed tlie jury, upon request of plaintiff’s counsel, to find a verdict in favor of the plaintiff and against the defendant for the sum of $229, with interest thereon at the rate of 7 per cent, per annum from December 10, 1877. The instruction should have been to find a verdict in favor of the plaintiff and against the defendant for the sum ■of $229.90, with interest thereon at the rate of 7 per cent, per annum from December 10,1876. But of course the plaintiff in error has no reason to complain of this error. The jury then found a verdict in favor of the plaintiff and against the defendant for $227.09. This verdict was rendered January 19, 1881, and the defendant within proper time made a motion for a new trial; but the court below overruled the motion, and rendered judgment in accordance with the verdict; and of this judgment the defendant below, who is now plaintiff in •error, complains.
We shall not reconsider the questions that were before us when this case was formerly presented to us, but shall consider only such as are supposed to be new; and these supposed new questions are really only such as arise upon the •offer of the defendant below to introduce the testimony of the witness Ege.
Counsel for plaintiff in error claims in his brief that McCrum did not purchase the note and mortgage in good faith, but that he purchased them merely that he might “ set his thumb-screw in motion” upon Ege, whom he disliked. Now for the purposes of the case, we will suppose that McCrum did in fact purchase the note and mortgage for the purpose among others of suing Ege upon them, and yet we do not think that that would render McCrum remediless # as against Challiss. The object for which he purchased them was not illegal; and we do not think that Challiss can interpose such object as a defense. It does not appear that McCrum was in any great hurry, however, in bringing the action after he purchased them. He testified himself upon the trial, among other things, as follows: “$ did not bring a suit for some six or eight months after I purchased it.” And the dates would seem substantially to corroborate this, and to show that he did not bring the action for over six months after he purchased the note and mortgage. Nor do we think that.counsel’s illustration of the horse with the “poll evil” is any better than his claim concerning the “thumb-screw.” It is not applicable to this case.. The plaintiff was not the cause of the note being usurious, while according to the plaintiff’s illustration the purchaser of the horse was the cause of the “poll evil” in the horse after he had purchased the same. The tender made by Ege to McCrum of $270 cannot amount to anything, because it was not the amount apparently due on the note, and there is no pretense that Ege kept the tender good. McCrum having purchased the note in good faith, had a right as against Challiss to act and to treat the note and Ege just as though the note was valid in every particular and good for its face value. He had a right to demand all and to sue for all, and a tender for anything less than the full face value of the note and a tender not kept good could not furnish Challiss any defense to the action subsequently brought by McCrum against Challiss for the difference in amount between the face value of the note and the amount collected from Ege. In the action brought by McCrum against Ege and Challiss and Probasco, McCrum recovered from Ege every cent that he could.recover from him; and as Challiss was a party to that action and interested therein, he is bound by the' judgment rendered therein as well as McCrum. (Strong v. The Phœnix Ins. Co., 62 Mo. 289, 295, 296; Robbins v. Chicago, 71 U. S. 657.)
There is no room in this case for Challiss to claim that he was an innocent and bona fide surety and entitled to the rights of sureties. He knew the note was usurious, and failed to disclose that fact to either McCrum or McCrum’s agent before the purchase, and failed to protect McCrum after the purchase.
The evidence clearly shows that McCrum, through Symns, as his agent, purchased the note and mortgage from Challiss, and that at the time neither Symns nor McCrum had any knowledge of the usurious character of the note. Besides,, the answer of the defendant virtually admits' the purchase. The note did not show upon its face that it was usurious, nor did the indorsements of payments made thereon show that anything was paid in the way of usurious interest. So-far as the face of the note and the indorsements thereon were concerned, the note appeared to be perfectly good for the-amount which the plaintiff paid for it.
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
Valentine, J.:
This was an action of replevin brought by Emil Werner against M. A. Bergman, to recover certain goods and chattels used by the defendant in keeping a restaurant. The facts of the case appear to be substantially as follows: On July 2, 1879, Mrs. M. A. Bergman was keeping a restaurant in Wichita, Kansas. On that day she borrowed some money of the plaintiff, Werner, and gave her promis sory note therefor. The note was dated July 2, 1879, was for the sum of $125, and was due in sixty days after date. •She also gave a chattel mortgage to the plaintiff upon all her property used in keeping the restaurant, as security for the payment of the note. The chattel mortgage contained among •others the following provisions:
“If default shall be made in the payment of said sum of money, or any part thereof, or the interest thereon, at the time or times when by the condition of the said notes the same shall become payable, or if the said party of the second part shall at any time deem himself insecure, then and thenceforth it shall be lawful for the said party, his executors, administrators or assigns, or his authorized agents, to take said goods and chattels wherever the same may be found, and dispose of the same at public auction or at private sale, and after satisfying the sums of money and interest hereby secured, and all necessary and reasonable costs, charges and expenses incurred, out of the proceeds of sale, he shall return the surplus to said party of the first part, or her legal representatives; and until default be made as aforesaid, or until such time as the said party of the second part shall deem himself insecure, as aforesaid, the said party of the first part to continue in the peaceful possession of all the said goods and chattels.”
On July 29, 1879, Werner, feeling that he was not safe in leaving the mortgaged property any longer-in the possession ■of Mrs. Bergman, demanded the possession thereof, which was refused by her, when he brought this action of replevin to recover the possession of the property. The defendant answered, denying generally all the allegations of the plaintiff’s petition, and demanded a return of the property, and asked for damages in the sum of $1,000. The plaintiff retained the possession of the property until after the note became due, and then sold the same at public auction for $70, and applied the proceeds thereof in part satisfaction of the note and mortgage.
In May, 1881, the case was tried before the court and a jury, and the jury found a verdict in favor of the defendant and against the plaintiff for $225, as the value of the property; $28.85 for its detention, and $50 as exemplary dam ages. The plaintiff filed a motion for a new trial, upon various grounds, which motion was overruled by the court, and judgment was rendered in favor of the defendant and against the plaintiff for the full amount of the verdict, to wit: $303.85. The plaintiff then brought the case to this court, claiming that the court below erred in the following particulars: First, in overruling objections made by the plaintiff to the introduction of certain evidence offered by the defendant; second, in giving certain instructions to the jury; third, in overruling the plaintiff’s motion for a new trial upon the grounds that the verdict of the jury was contrary to law and against the evidence in the case.
As to the first alleged error, it would seem to us that even if it was an error, it was immaterial error.
As to the second alleged error, it would seem to us that the plaintiff hardly saved the same by proper exceptions; and therefore, that he could hardly expect a reversal of the judgment of the court below upon that error alone, provided no other error was committed.
The third ground of error was properly saved, and it seems to us to be material and substantial. The verdict of the jury was undoubtedly against the law and against the evidence. There was nothing whatever in the case authorizing a verdict for exemplary damages. No-such malice or wantonness was shown in the case, as would authorize that kind of damages. Besides, it was clearly and conclusively shown that the plaintiff “deemed himself insecure” when he replevied the property in controversy. Probably, however, the jury did not intend to find that the plaintiff did not “deem himself insecure” when he replevied the property; for the case was not tried by the defendant or by the court below upon the theory that the plaintiff had any right to the property, merely because he “ deemed himself insecure.” The ease was tried by the defendant and by the court below upon the theory that before the plaintiff could have any right to take the possession of the property, he must have reasonable grounds to believe that in fact he was insecure; and the court below so in structed the jury. This then brings us to the question whether the plaintiff had in fact, under the mortgage, the right to take the possession of the property at any time whenever he “deemed himself insecure,” whether he had reasonable grounds for so believing or not; or whether he could not take the possession of the property, unless he had reasonable grounds for deeming himself insecure. In Wisconsin, it is held that the mortgagee under such a chattel mortgage, may take possession of the property whenever he deems himself insecure, whether his apprehension of insecurity is well founded or not. (Huebner v. Koebke, 42 Wis. 319, and cases there cited; Cline v. Libby, 46 Wis. 123; Evans v. Graham, 50 Wis. 450, 453, and cases there cited. See also upon this same subject, Jones on Chattel Mortgages, § 431; Braley v. Byrnes, 21 Minn. 483; Boice v. Boice, 27 Minn. 371; Hall v. Sampson, 35 N.Y. 274; Bailey v. Godfrey, 54 Ill. 507; Lewis v. D’Arcy, 71 Ill. 648; Botsford v. Murphy, decided Jan. 1882, by the supreme court of Michigan, 13 Reporter, 338.)
The defendant cites the cases of Furlong v. Cox, 77 Ill. 293, and Davenport v. Ledger, 80 Ill. 574, as holding a different doctrine. Now it is not clear that these last two decisions are in conflict with the doctrine as held in Wisconsin. In the case of Furlong v. Cox there is no evidence that there was in fact any danger, or that there was any reason to suspect any danger, nor did the mortgagee even swear that he had any apprehension that there was danger, and probably he did not have any such apprehension; and therefore the court held that he was not entitled to take the possession of the property, although there was a clause in the chattel mortgage authorizing him to take the possession of the property at any time when he should think the property was in danger of being sold, removed, &c.
In the case of Davenport v. Ledger, the mortgagee, on the same day that the mortgage was executed, ahd within eight hours after its execution, at an unreasonable hour; without previous notice, and from malicious motives, took possession of the property; and it was held that the taking possession of the property was wrongful, although there was a clause in the mortgage giving him the right to take such possession whenever he should feel himself insecure or unsafe. It does not appear that any evidence was introduced showing that the mortgagee felt himself insecure or unsafe; and under the facts of the case, it seems hardly possible that he could have felt himself insecure or unsafe in so short a time after the mortgage was executed; and other sufficient reasons were shown for his taking the property at that time besides the feeling of insecurity or unsafety. The mortgagee in that case did not wait even eight hours to elect to take the property, but elected to take it immediately, and the property was taken by the constable, who seems to have acted more slowly, within eight hours after the mortgage was executed.
There does not seem to have been any intention on the part •of the supreme court of Illinois in these last two cases mentioned, to overrule their previous decisions made in the cases ■of Bailey v. Godfrey, and Lewis v. D’Arcy, which previous decisions almost recognize the doctrine as held in Wisconsin.
We think the doctrine as held in Wisconsin is correct; and it is not a hard or unconscionable doctrine; for if it should be held to be so, then our own statutes must be held to be still more hard and unconscionable. Section 15 of the act relating to mortgages, provides as follows:
“Sec. 15. In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.” (Comp. Laws of 1879, p. 557.)
The mortgagor, by having a clause inserted in the mortgage that he shall have the right to the possession of the property until the mortgagee shall deem himself insecure, may secure himself such right, notwithstanding the provisions of the statute, and may retain the possession of the property until the mortgagee shall deem himself insecure. If he wishes to go still further, and retain the possession of the property until the mortgagee shall have reasonable grounds to deem himself insecure, he can insert, or have inserted, a ■stipulation to that effect in the mortgage; or if he wishes to go still further, and retain the possession of the property until the mortgagee shall become in fact insecure, he can have a stipulation put into the mortgage to that effect. But if he chooses only to have inserted in the mortgage a clause that he shall have the right to the possession of the property until the mortgagee shall deem himself insecure, then he can only retain the property until the mortgagee does in fact deem himself insecure; and he has no right to question the grounds upon which the mortgagee entertains such feelings of insecurity. He cannot say to the mortgagee, “You are unreasonable; you have no right to feel insecure; there are in fact no grounds for such feelings of insecurity.” The only question at all material in such a case is, whether the mortgagee does in fact so feel; and if the mortgagee claims that he has such a feeling, and afterward on the trial testifies that at the time he took possession of the property he had such a feeling, and if upon the facts of the case it is possible at all to believe that any person, however timid and fearful he might be, might have had such a feeling, then it should be held that the mortgagee had a right to take possession of the property. It must be remembered that the statute gives the right to the possession of the property absolutely to the mortgagee; and the mortgagor can obtain such right only so far as he secures it by a stipulation to that effect in the mortgage. Now if he stipulates that he shall have the right to the possession of the property only so long as the mortgagee does not deem himself insecure, then he can hold the possession of the property only for that length of time, and he holds' it subject absolutely to the feelings of the mortgagee; and he has no right to question the grounds upon which the feelings are founded. If the mortgagor should desire better terms, it is his duty to stipulate for them in the mortgage.
From the evidence in this case, it would seem that there were ample grounds warranting the mortgagee in deeming himself insecure; and he testified on the trial that he did deem himself insecure; and there was no evidence introduced tending to show that he did not deem himself insecure. Among the things testified to on the trial tending to show that the plaintiff had grounds for believing himself insecure are the following: The plaintiff testified that the defendant agreed to insure the property, but that she never did insure the same, and refused to do so, and claimed that she did not agree to dc so, but that the plaintiff himself was to insure the property; that after the execution of the mortgage, and before the plaintiff attempted to take possession of the property, the defendant executed another chattel mortgage upon the same property; that the defendant was running behind in her business, and was not paying the rent for the house in which she was doing business, and that she had been notified by the owner of the house to quit the premises; that the defendant entered into an agreement with another person, by which a saloon was to be put into the restaurant, and this other person was to have a half-interest in the business; and the plaintiff also testified that he thought that some of the property was missing, and that it was all offered for sale. Some of these things were unquestioned facts; others of them were questioned by the defendant.
These were certainly sufficient grounds upon which a timid man might deem himself insecure; and the plaintiff testified that he did deem himself insecure, and that he was afraid unless he took possession of the property, that he would lose all.
We think the verdict of the jury was against the law and the evidence. As before stated, however, we do not think that the jury intended to find that the plaintiff did not deem himself insecure, but under the instructions of the court,, they simply intended to find that the plaintiff did not have reasonable grounds upon which to deem himself insecure; and if the verdict was against the law and the evidence, of course the court below erred in overruling the plaintiff’s motion for a new trial.
The judgment of. the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The question in this case is, whether the conviction and sentence of the petitioner, Franklin Vanderberg, in the district court of Ellis county at the April term for 1882, were absolutely void. It is alleged on the part of the petitioner that there is not, and never was, any seven teenth judicial district in this state; that Ellis county, at the date of the conviction and sentence, was, and continues to be, a part of the fourteenth judicial district of the state; that W. H. Pratt was not the regular judge of the fourteenth judicial district, nor the judge pro tem. of said district, nor the judge dejure or defacto of any court or district; that at the time he was holding court in Ellis county, the regular term of the district court of Lincoln county, one of the counties comprising the fourteenth judicial district, was being held as required by law, by J. H. Prescott, the elected judge of that county and district; that all the proceedings, acts and things done and pretended to be done at the April term of the court of Ellis county for 1882, .toward restraining and depriving the petitioner of his liberty, were and are wholly illegal and unauthorized. The alleged grounds for this contention are two-fold:
First, that chapter 100, Laws of 1881, entitled “An act to create the seventeenth judicial court to provide a judge therefor, and for holding terms of court therein,” cannot be regarded as a legislative act enforcible by the courts, because it is claimed on the part of the petitioner that the act on its final passage by the house of representatives did not receive the votes of two-thirds of the members thereof, as ordained by the constitution of the state to be necessary to increase the number of judicial districts. (Sec. 14, art. 3, State Const.)
Second, that chapter 98, Laws of 1881, providing for terms of court in the fourteenth judicial district, designates that court shall be held in the county of Ellis on the fourth Monday of March and the last Monday of September in each year, and is therefore in conflict with chapter 100, Laws of 1881, creating the seventeenth judicial district and naming Ellis county as a part thereof, and fixing the time for the holding of courts therein on the fourth Monday of April and the third Monday of October of each year.
If we accept the enrolled statute embodying the act now challenged by the petitioner as conclusive evidence of thet regularity of the passage of the act and of its validity — as in many of the states the courts decide must be done — we would not be at liberty to inquire into or dispute the enactment or contents of this statute. (13 Cent. L. J. 181.) If it were st> held, it would be incumbent upon us to declare without other reason that the seventeenth judicial district had been legally created, and that at the time the sentence was passed upon the prisoner, W. H. Pratt was the judge thereof, both de jure and de facto. It is said, however, in the opinion of the Division of Howard County, 15 Kas. 194, that “we take judicial notice without proof of all the law's of our own state. All the courts of the state are required to do this, and in doing this we take judicial notice of what our books of published laws contain.” In The State v. Francis, 26 Kas. 724, it is also stated that —
“In this state, where each house is required by the constitution to keep and publish a journal of its proceedings, we cannot wholly ignore such journals as evidence, and therefore, when there can be no room for doubt from the evidence furnished by such journals, that the statute was not passed by a constitutional majority of the members of either house, then the courts may declare that the supposed statute was not legally passed, and is invalid.”
This language of the opinion is qualified, however, as follows:
“ The enrolled statute is very strong presumptive evidence of the regularity of the passage of the act and of its validity, and it is conclusive evidence of such regularity and validity, unless the journals of the legislature show clearly, conclusively and beyond all doubt that the act was not passed regularly and legally. If there is any room to doubt as to what the journals of the legislature show; if they are merely silent or ambiguous; or, if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid.”
In view of these decisions of our court, we have examined with great care the original house journal of 1881, to ascertain if it establishes “clearly, conclusively, and beyond all doubt,” that chapter 100 was not regularly add legally passed. The house of representatives of the state for 1881 consisted apparently of one hundred and thirty-seven persons. At least, one hundred and thirty-seven persons attempted to take part in the proceedings of the house. Under the decision-of. The State v. Francis, supra, as the number of representatives can never exceed one hundred and twenty-five, some of these' persons must have been there illegally, and under that decision the twelve persons from counties which were not provided for by law with numbers or districts, and who were the last members admitted to seats, were not entitled to seats; and any act passed only by the assistance of their votes must be held as not having passed the house of representatives, and as void. From an examination of the house journal as published, ninety-three members voted yea and ten nay upon the passage of the act now challenged. In the yeas were included the illegal votes of Davis, Francis, Gates, Hargrave, Keeney, Montgomery, Newby, Stone, Tousley, and Turner. Two-thirds of the constitutional members of the house would be eighty-four. If the ten votes of the persons who were illegally admitted to the house were deducted from the total yeas, eighty-three only would remain, and therefore if the journal of the house as printed is conclusive, it could not be said that two-thirds of the constitutional members of the house concurred in the creation of the seventeenth judicial district, and if the printed journal of the house is a correct exemplification of the original journal, then, within the language of the opinion in The State v. Francis, supra, we would be bound to say that chapter 100, Laws of 1881, did not receive the votes of a constitutional two-thirds of the members of the house, and therefore that it did not pass the house as prescribed by the constitution. But our examination of the original journal convinces us that the printed journal is not to be taken as conclusive against the validity of the enrolled statute embracing chapter 100. Counsel for the petitioner claim that the original journal shows ninety-two votes only recorded’in favor of the passage of the bill.- The clerk,- in the printed journal, counts ninety-three votes recorded for the bill. This difference is proof that the journal is doubtful. The only way the yeas and nays were entered upon the journal of the house upon the passage of the substitute for house bill No. 119, now known as chapter 100, Laws of 1881, was by a roll of the names of all the persons admitted as members of the house being attached to the journal, and the names of the persons voting upon the measure being numbered. At least, an attempt was made to enter numbers opposite their names. These numbers opposite tbe names of persons voting on the first call of the roll, increase in regular progression of tens. The last number of each series of affirmative tens closes with the number sixty, after which five more votes are numbered, running down through the roll, and the first total of sixty-five yeas is indorsed at the foot of the roll. The votes, from sixty-five to niuetyfour, were apparently cast on the second call of the roll, or when the members appeared in the hall, as the numerals opposite the names of the affirmative voters from sixty-five to ninety-four are scattered irregularly through the roll. It is also apparent that some of the members changed their votes, and the face of the original journal shows different •counts and many attempted corrections. At the bottom of the roll the number ninety-four appears, and this number also appears opposite the name of Bennyworth, the member from Pawnee county. It is very evident to •us that ninety-four persons voted originally in favor of the passage of the act; that ninety-four votes were numbered .and counted by the clerk, or his assistant, as voting in favor of the act, and that this number was announced to the house, and that the house understood that ninety-four votes had been recorded for the bill upon its final passage. This is corroborated not only by the figures ninety-four, at the bottom of the roll, and by the figures opposite the name of Bennyworth, but also by the journal kept by the docket clerk, which shows that ninety-four votes were cast in favor of the .act. From sixty-five to ninety-four, inclusive, the numbers are regularly set opposite the names of members voting affirmatively, and the numerals ninety-four opposite the name of Bennyworth have never been changed or erased. They stand to-day as a part of the journal of the house. To our mind the natural supposition is, that in the haste of calling the roll, and in the confusion incident to the checking the names of the members voting and the marking of numerals opposite thereto, the name of some person who had voted yea was marked nay, or some member, after the count, was improperly marked as having changed his vote from yea to nay. Had the numerals ninety-four, opposite the name of Benny-worth, been changed and corrected to some other number less than ninety-four, we might suppose that the figures ninety-three yeas and ten nays were the true votes given for and against the bill, but as against the enrolled bill, we have no ■more right to assume that the ninety-four opposite the name -of Bennyworth was improperly recorded, than we have to assume that the keeper of the journal committed an error in marking the'vote of Schott as changed from yea to nay. To ignore the numerals ninety-four, opposite the name of Bennyworth, requires us to question the integrity of the journal. If it be discredited as to one name, it falls before the strength of the enrolled bill. Viewing it from any standpoint, upon its face the journal is conflicting and ambiguous. If the act upon its passage received ninety-four votes, striking from the list all of .the illegal votes pointed out, still two thirds of the constitutional members of the house concurred in its passage. As the house is constituted of one hundred and twenty-five members, eighty-four votes were sufficient. In any event, from our personal inspection, we cannot say that the original journal of the house “shows clearly, conclusively, and beyond all doubt,” that chapter 100 was not regularly and legally passed. In our opinion the enrolled statute embracing chapter 100 is too strong evidence of the regularity of the passage of that act and of its validity, to be overthrown and destroyed by the journal, as it now appears in its confused and unascertainable condition. The enrolled statute is not to be set aside upon mere guesses or surmises, nor upon a doubtful interpretation of a journal seemingly contradictory upon its face. Further, chapter 100 is now challenged before us for the first time. This statute has been recognized by both houses of the legislature; has been approved by the governor in the form as it now appears enrolled in the office of the secretary of state; has been published under the authority of the secretary of state as a valid statute; has been recognized by the legislature as an existing statute, by the act appropriating money for the salary of the judge of the seventeenth judicial district for the years 1881 and 1882; has been acted upon by the chief executive of the state, in the appointment and commission of a judge for the seventeenth judicial district; has been recognized by the people of the counties comprising that district, by the election of the presiding judge who passed the sentence upon the petitioner; and this court has upon several occasions examined and affirmed judgments in actions heard and tried by the judges of that district. Under all these circumstances we do not hesitate to say, that we would require the original journal of the house to establish, beyond all possible doubt, that the act was not concurred in by two-thirds of the constitutional members of the house, before we would be willing to disregard and treat it as naught, when it seems to be surrounded and supported by so many appearances of absolute validity. '
One thing further as to the conflict between chapter 98 and chapter 100. Both acts were approved March 5, 1881. It is contended on the part of counsel of the petitioner, that chapter 98 is the last expression of the legislative will. Even if this were true, the insertion of Ellis county in chapter 98 was evidently an inadvertence. Chapter 100 created the seventeenth judicial district, and mentions Ellis county as comprising a part thereof. It further provides for the holding of two terms of court in the county for each year. Chapter 98 provides for the terms of the court in the fourteenth judicial district, another and a different district than that in which Ellis county had’been located by chapter 100. If it clearly appears from all the sources of interpretation that a provision of a statute has been inserted through inadvertence, it will 'be disregarded. (Pond v. Maddox, 38 Cal. 572. See also Potter’s Dwarris on Stat. Construction, 183; Shrewsbury v. Boylson, 1 Pick. 105; People v. King, 28 Cal. 265; Turnpike Co. v. McKean, 6 Hill, 616; Moody v. Stephenson, 1 Minn. 401; [Gil. 289;] Winona v. Whipple, 24 Minn. 61; Smith v. People, 47 N. Y. 330.)
We must, therefore, upon this doctrine, disregard the provision relating to Ellis county in chapter 98. Of course, if chapter 100 were the last enactment of the legislature, it would be valid and binding in all of its terms, notwithstanding the provisions of chapter 98, even if none of the provisions thereof had been inserted by inadvertence.
Several other questions have been fully and elaborately presented upon the hearing of this case, but the conclusion obtained makes it unnecessary to consider them.
Nothing appearing before us -upon the record or evidence presented, warranting any judgment annulling the conviction of the petitioner, he must be remanded into custody.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of libel. A demurrer to the petition was overruled, and the defendant, as plaintiff in error, now brings the question of the sufficiency of the petition to this court for review. The publication is charged to have been false and malicious, and the single question is, whether the articles complained of are, in view of all the facts disclosed in the petition, libelous. The following is a copy of the articles:
“He [Sterry] advised the [city] council that it had the right to sink a well on the banks of the Cottonwood river, adjacent to Soden’s mill-dam, to procure water for the use of the city, and draw all the water it needed from the dam, and Soden could not prevent it; and when Soden enjoined the city from taking water out of the well or out of his millpond, Mr. Sterry resigned as city attorney, and left others to •fight out the. difficulty caused by taking his advice, at a cost, as we are informed, of $1,000 to the city of attorney’s fees alone.”
“Had the [city] council been given proper advice some time ago, it is most probable that the engine and well of the water works would not have been located where they now are, and all the expense of litigation, etc., now entailed upon the city by that idiotic action would have been avoided.”
The articles referred to plaintiff’s connection with those transactions out of which sprang the litigation between Soden and the city of Emporia, which was considered and deter mined by this court in the case reported in 25 Kas. 588, to the opinion in which case, we refer for a full history of the transaction. In the petition filed in this case, plaintiff recites the action of the city at some length, including the purchase of land bordering on the Cottonwood river, the sinking of the well adjacent to Soden’s mill-pond, and the connection of the pumps in the water works with the mill-pond, by means of a 12-inch pipe running directly into the pond; and then that the first article charged, by way of innuendo, that the plaintiff advised the council that it had a right to draw all the water it needed from the mill-pond through this 12-inch pipe, and that Soden could not prevent it, and also that the city council having by reason of said advice directly connected the water works of the city with said mill-pond, and having thereby gotten into a law-suit with said Soden, plaintiff then deserted and abandoned his client, and thereby compelled the employment of other attorneys, at a cost of $1,000, which expense the city would not have had to incur if plaintiff had advised the city council correctly, or had not deserted and abandoned his client the moment it got into litigation from following his advice.
We have not attempted to give the various allegations of the petition in detail, but we think we have stated the substance of enough to fully present the question for determina-: tion. On the part of the defendant, it is urged that the articles amount to no more than a statement that the plaintiff erred in his advice, and subsequently resigned the office of city attorney; that it is not libelous to charge an attorney with making a mistake in giving advice or otherwise — for attorneys, like all other persons, are liable to mistakes; and that an officer has a right to resign his office, and therefore to state that he has done so is not libelous. On the other hand, plaintiff contends that the articles charge him with giving advice not merely mistaken and erroneous, but that which implies gross ignorance and stupidity, and which led to action not inaccurately characterized by defendant as idiotic; that while in a qualified sense it is true that an officer may resign his office at any time or an attorney abandon his client’s cause at any time, yet that the resignation of a city attorney pending important litigation on the part of the city is like the abandonment by private counsel of his client in the middle of a litigation, and that it is grossly unprofessional for a lawyer to lead his client into difficulty, and when he has once gotten him into it, abandon him in the midst of his trouble and leave him to get out of it as best he can. We agree in the main with the views of plaintiff. It is not strictly true that office is held purely at the pleasure of the incumbent. The public has rights as well as the office-holder, and he may not abandon its duties at his own pleasure. (The State, ex rel., v. Clayton, 27 Kas. 442.) Neither is it true that an article is not libelous simply because the acts charged upon the plaintiff are such as he might do without violation of any law. Whatever might be the case as to slander, the law of libel is much broader. In the third edition of 1 Hilliard on Torts, p. 237, § 13, the author thus states the law:
“So every publication by writing, printing, or painting, which charges or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, odious, or ridiculous, is prima facie a libel, and implies malice in the publisher, without proof of an intent to vilify. (White v. Nichols, 3 How. U. S. 266: Curtis v. Mussey, 6 Gray, 261.)”
In the third edition of Townshend on Slander and Libel, § 176, the author says:
“That language in writing is actionable per se which denies ‘to a man the possession of some such' worthy quality as every man is a priori to be taken to possess,’ or which tends ‘to bring a party into public hatred or disgrace,’ or ‘to degrade him in society,’ or expose him to ‘ hatred, contempt, or ridicule,’ or ‘which reflects upon his character,’ or ‘imputes something disgraceful to him,’ or ‘throws contumely’ on him, or ‘contumely and odium,’ or ‘tends to vilify him,” or ‘injure his character or diminish his reputation,’ or which is ‘injurious to his character,’ or to his ‘social character,’ or shows him to be ‘immoral or ridiculous,’ or ‘induces an ill opinion of him,’ or ‘ detracts from his character as a man of good morals/ or alters his ‘situation in society for the worse/ or ‘imputes to him a bad reputation/ or ‘degradation of character/ or ‘ingratitude/ and ‘all defamatory words injurious in their nature’” — -citing authorities in support of each separate statement. See also Russell v. Anthony, 21 Kas. 450.
Now we think it is unquestionably unprofessional and dishonorable for a counsel to advise his client into an illegal course of action, and after his client in pursuance of such advice has gotten' into difficulty and litigation, then wantonly and unnecessarily to abandon him and leave him so that he is obliged to employ extra counsel at additional cost to rescue him from his trouble. We do not mean that a lawyer may not abandon a litigation, evén in medias res; circumstances may sometimes justify or even compel such conduct; by the most honorable of men; but still it is generally true that it is the counsel’s duty to stand by his client to the end, and unnecessary abandonment of that client at the time when his interests are in jeopardy, and especially when he has been placed in such jeopardy by following the advice of his counsel, is not only unprofessional, but must always be deemed in the estimation of good citizens dishonorable and dishonest conduct. It implies a breach of that confidence and trust which every client has a right to repose in his counsel. The lawyer who has the reputation of advising his client into trouble and then leaving him to get out of it the best way he can, is one who would be shunned by all prudent men in search of legal counsel and assistance; and to charge a lawyer with such a course of conduct is certainly calculated to make him infamous and odious in the sight of- all.
Hence we think the court did not err in overruling the demurrer, 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.:
The question presented for our considertion is, whether the statute of 1874, entitled “An act relating to killing or wounding stock by railroads,” is operative within the limits of the United States military reservation, known as the Fort Leavenworth reservation. By an act of the legislature of our state, approved February 22, 1875, it was provided :
“That exclusive jurisdiction be and the same is hereby conceded to the United States over and within all the territory owned by the United States, and included within the limits of the United States military reservation known as the Fort Leavenworth reservation, in said state, as declared from time to time by the president of the United States, saving, however, to the said state, the right to serve civil or criminal process within said reservation, in suits or prosecutions for or on account of rights acquired, obligatons incurred or crimes committed in said state, but outside of said cession and reservation; and saving further to said state the right to tax railroad, bridge, and other corporations, their franchises and property, on said reservation.”
Counsel for plaintiff in error (defendant below) claims that since the enactment of this statute, the laws of the State have had no more force within the territory attempted to be ceded thereby, than they have in Missouri or Maine, and that the rights and liabilities of parties for acts done within this territory since the alleged cession of jurisdiction, must be determined, not by the laws of Kansas, but of the United States.
On the part of the defendant in error (plaintiff below), it is urged that the act of 1875, ceding jurisdiction of the Fort Leavenworth reservation to the United States, is void, on the ground that there is no power vested in the legislature of Kansas to cede away any of the sovereign political rights of the state, and that the constitution of the state grants no power to its legislature to divest the state of any part of its governmental authority over any portion of the soil included within its boundaries when admitted into the union. It is further claimed, that although the eighth section of the first article of the federal constitution gives congress the exclusive right of legislation “over all places purchased by the consent of the legislature of the state ... for the erection of forts, magazines, arsenals, dockyards and other needful buildings,” it cannot be asserted that the legislature of Kansas ever consented to the purchase by the federal government of the Fort Leavenworth military reservation. Further, it is contended that if the power does exist in the Kansas legislature to cede jurisdiction of a portion of its territory to the United States, it cannot compel the federal government to accept such grant; and in the absence of any evidence tending to show an acceptance of the grant by the United States, no presumption exists that the government has ever accepted the grant. It is finally contended, that as the act of February 27, 1874, applied to the Fort Leavenworth reservation prior to the claimed cession of jurisdiction to the United States by the act of February 22, 1875, that tfae act of 1874 is operative and of full force over the ceded territory, as such act has not been modified or repealed by any law of the United States, and is not inconsistent or in conflict with the provisions of any existing law of the United States. As steps are being taken to obtain the opinion of the supreme court of the United States upon the validity and interpretation of the act of February 22, 1875, by the prosecution of proceedings in error from the judgment of this court rendered in the case of The Fort Leavenworth Railroad Company v. Lowe, 27 Kas. 749, we content ourselves with deciding the matter before us upon the last proposition made by counsel representing defendant in error.
It is the rule, as we understand it, that all laws and municipal regulations in force at the time any territory is ceded by one power to another .power or jurisdiction, remain in force until changed by the new sovereign authority, unless such laws and regulations are inconsistent or in conflict with the existing laws of the new power taking possession of the ceded territory. It follows from this, that even conceding the validity of the act of February 22, 1875, ceding to the United States the Fort Leavenworth reservation, and conceding that the United States has legally accepted the grant, the act of 1874 is operative over the reservation, because such act has not been abrogated by congress, nor is it inconsistent with any legislation "of that body. (Cass v. Dillon, 2 Ohio St. 607; United States v. Heirs, 11 How. 570. See The Fort Leavenworth Rld. Co. v. Lowe, supra.)
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
Hobton, C. J.:
Defendant in error (plaintiff below) claims that she is the owner of the lot in controversy by virtue of the several tax deeds set forth in the findings of fact, and the actual possession of the premises thereunder for such length of time that the statute of limitations has run, and therefore that the plaintiffs in error (defendants below), holding under the owner of the patent title, have no rights whatever to the lot. The defendant in error, with the consent of the original owner, in 1865 went into possession of the premises, and occupied a house which was built for her thereon by the city of Leavenworth, until 1876, when she left. All of the tax deeds were issued for taxes due and payable during the time that she was in the actual possession of the premises. The deed •of April 29, 1870, embraces the taxes levied for 1867; the city deed of May 10, 1872, embraces the taxes levied for 1869; the county deed of May, 1872, embraces the taxes levied for the year 1868 and the subsequent taxes of the years 1869 and 1870; the tax deed of October 5, 1880, embraces the taxes levied for the year 1875. The important question therefore is, in our view, not whether these several ■tax deeds are regular and valid in form, but whether the holder thereof is estopped from setting up title thus acquired. This involves the question whether defendant in error was precluded from becoming a purchaser of the lot at the tax sale for taxes levied and payable during her actual occupation of it. If her relation as occupant of the lot with the consent of the owner, without agreement as to rent or taxes, and receiving all the benefits of its use and paying no rent- therefor, forbade her divesting the owner of his property by the purchase of it at a tax sale for taxes levied and payable.while she was in the actual occupancy thereof, she grounds her title on her own misconduct, and such title would be fraudulent as against the owner. If a tax deed is acquired fraudulently, although it is regular on its face, and all the requirements of the statute have been strictly complied with so far as the tax proceedings are concerned, that avails not. Nothing passes to the fraudulent holder, because such holder is not in a position to take anything, and a tax deed that is fraudulent as against the owner of the premises is void, and a void deed never starts the statute of limitations relating to tax titles to running. (Carithers v. Weaver, 7 Kas. 110; Taylor v. Miles, 5 Kas. 498.) The statute of limitations as to lands sold for taxes, applicable to persons in general, has no application as against the original owner where the person purchasing the tax title is precluded by his relation from becoming the purchaser. (McMahon v. McGraw, 26 Wis. 614; Cooley on Taxation, 345.) In Carithers v. Weaver, supra, it was held by this court that a tax deed issued to a tenant or lessee who had contracted ,to pay the taxes for which the deed was issued was absolutely void; and it was further held therein that the fact that the party acquired no interest in the tax proceeding until after the termination of the lease would not change the rule, if, during the lease or agency, the taxes became due and payable and the tenant neglected to pay them. In Weichselbaum v. Curlett, 20 Kas. 709, we held that a tenant under no-.obligation to pay taxes might purchase property in his possession at a tax sale made during his term. The former case was decided upon the principle that the tenant was under legal obligation by his contract to pay the taxes, and he could not, by neglecting to pay the same and allowing the land to be sold in consequence of such neglect, obtain a title by purchasing at the tax sale. The latter case was decided upon the principle that as the tenant had agreed to pay rent for the premises in his possession, and had properly paid all the rent prior to the tax sale, he was at the time under no obligation to his landlord to pay the taxes or discharge the property from the lien thereof. This case differs from the cases just cited, as the occupant went into the possession of the lot with the consent of the owner without any agreemént as to the payment of rent or taxes. We interpret the findings of fact to mean that there was nothing said about rent at the time the original owner consented for plaintiff below to take possession, and this interpretation is sustained by the evidence of Callaghan, who testified: “I owned the lot in controversy about 1865, when H. T. Green applied to me for permission to erect a house for the plaintiff and her children on the lot. I learned she was very poor, and I consented she might put a house on the lot. There was nothing said about rent, or who should pay the taxes. I permitted the plaintiff to remain on the lot as long as she wanted to. She moved the shanty and left the lot about 1876. From that time until I sold it to the defendants, the lot was vacant. Since they purchased the lot of me, the defendants took possession and built a brick house thereon.”
Had the trial court accepted the evidence of the plaintiff below as wholly truthful, we think the finding would have been that she went into possession of the premises with the consent of the owner under an agreement that she was not to pay any rent. With our interpretation of the findings of fact, the occupant was under an implied obligation to pay rent. Continuing in the possession of the premises for about eleven years, with a house erected thereon for her own use, which added to the valuation of the premises, and thereby increased its assessed value, and also the taxes levied annually thereon, it ought not to be assumed that having paid no rent, she would also neglect to pay the taxes and thereby risk the hazard of dispossession by a tax sale. Her landlord could hardly suppose that being permitted to occupy the premises without the collection of the rent, she would neglect the duty of protecting her own possession by failing to pay the taxes, and then thereafter attempt to cut off his title by buying in the land at a tax sale. Taking all the circumstances of . . . . . . n . this case together, we think that the tenant acquired no rights as against the original owner or his grantees by neglecting to pay the taxes levied upon the prem ises during her actual occupancy thereof, and thereafter purchasing such premises at tax sales. At least, while thus occupying the premises, if during such occupancy the taxes became due and payable and she neglected to pay them, as against the party who put her into possession and his grantees she ought in all justice to be precluded from setting up a title acquired upon the sales on defaults in the payment of the taxes while the premises were so occupied by herself. The aggregate of the taxes represented by the various tax deeds is only $64.85, and yet the holder of these titles insists that as she occupied the premises with the consent of the owner thereof, without any agreement as to the payment of rent or taxes thereon, she has acquired by the payment of this small sum, not only absolute title to the premises, but is also the owner of all the improvements thereon, including the brick building recently constructed by the grantees of the original owner. It would cause a shock to the moral sense, if the law were to permit such a result, and we cannot consent to the establishment of any such doctrine. Ingratitude thus exhibited is not commendable, and when it attempts to call to its protection judicial support, it deservedly calls in vain. As the tenant paid no rent during all the ten or eleven years she occupied the lot, the most she can in common honesty demand is to offset the taxes paid by her against the-value of the use of the premises while in her exclusive possession.
Owing to her .disqualification to take title, neither the statute of limitations of 1868 nor 1876 applies. But counsel for defendant in error contend that even if there had been upon her part an obligation to pay the taxes, and instead of paying them she obtained the deeds to herself in fraud of the rights of the owner, that such fraud is now beyond his reach or inquiry of his grantees, as a suit to set aside the deeds has long since been barred by the general limitation law.
In our view of this case, the only statute of limitations applicable is the one for relief on the ground, of fraud. The .statute requires such an action to be brought within two years> but further provides that the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. In a case like this, the statute does not begin to run until the fraud is discovered. For this purpose there is no constructive discovery. If an agent or tenant should fraudulently allow the lands of his principal or landlord to be sold for taxes and take the deed himself and put it on record, this would not be notice to the principal or landlord that would set running the statute that would bar him from an action for relief against the fraud. (McMahon v. McGraw, 26 Wis. 622.) There is no finding that the tenant ever notified her landlord or any of his grantees of her claims under her alleged tax titles, until the plaintiffs in error were erecting a building on the premises. This was in the year 1880, and only a few months prior to the commencement of the action in the court below. The defendant in error therefore is not protected by the general limitation law.
The judgment of the district court must be reversed, and the case remanded with direction to the court below to enter judgment upon the findings of fact in favor of plaintiffs in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a controversy about a tract of land in Miami county, and the same which was in dispute between these parties in the case of Coonradt v. Myers, 24 Kas. 313. On the trial of this case in the district court, the defendant in error, defendant below, recovered a judgment for the possession of the land. Preliminary to the trial the record disclosed a variety of proceedings, in many of which we think the court erred; but as no exception was taken thereto by the plaintiff in error they may be placed entirely out of consideration. Stripping the case of superfluous matters, it is sufficient to state generally that the plaintiff commenced two actions in the district court; one, April 2,1879, in which he alleged that he was in possession of the real estate and sought to enjoin the defendant from interfering therewith; and one commenced July 4,1880, which was an, ordinary action in ejectment. Both these actions he dismissed without prejudice, and each was retained by the court for trial on the counter claim set up by defendant. By consent these two actions were consolidated and tried as one. "We fail to see any connection between the issues as presented by the pleadings in the first action and the issues as finally tried and disposed of; so the pleadings in that action may be laid entirely out of consideration. The pleadings upon which the case was in fact tried were an answer of the defendant setting up as a cause of action a tax deed executed July 16,1875, and recorded July 17, 1875, and alleging that the land was vacant and unoccupied until the spring of 1880, and that then the defendant entered upon and made valuable and lasting improvements upon the land; and also that the defendant is the owner and entitled to the possession of the premises. To this answer there was a reply which denied every allegation in the answer, and further alleged that on the 20th day of March, 1879, the plaintiff, who was the owner and entitled to the immediate possession of the real estate, and which up to that time had been vacant and unoccupied, entered and took possession, and had always since remained continuously in actual possession, setting up also that on the 15th day of October, 1879, in a certain action then pending in the district court between the parties, it was found and adjudged that plaintiff was in possession. The case was tried by the court without a jury. Special findings of fact were made, which were to the effect that defendant’s tax deed was valid on its face, but, based upon a tax sale, illegal because no place of sale was designated in the notice. The findings also stated the times of commencing this action, of filing the answer and amended answer and reply.
In reference to possession, the only finding was as follows :
“That said land remained vacant and unoccupied from the date of said deed until the 20th day of March, 1879, when the plaintiff built a line of fence about eight or ten rods long on the west side of said quarter-section, at the north end of said west line.”
And from these findings as a conclusion of law, the following :
“The court finds that the plaintiff’s cause of action was barred at the time said answer and reply were filed; and that the defendant recover posssession of said land, and that he is entitled to hold and enjoy the estate therein free from any claim of the plaintiff thereto.”
Upon the trial the- plaintiff offered in evidence the judgment in the district referred to in his reply, finding possession in him, which judgment was affirmed in this court, 24 Kas., supra; and also testimony tending to show the continuance of that possession. The finding of the district court, ás shown by the journal entry for that case, was, that on the 20th day of March, 1879, Simon Myers took actual and peaceful possession of the land and remained in actual possession from that date until after the commencement of the action, which «action, as shown by the record, was commenced on June 2, 1879. The following, therefore, may be stated as the facts upon which the rights of the parties are to be adjudged: Plaintiff was the holder of the original title — -a title perfect and complete, except so far as affected by the defendant’s tax deed. The land was vacant and unoccupied until the 20th. of March, 1879, when possession was taken by the plaintiff, and subsequently maintained by him. The defendant’s tax deed was valid on its face, but in fact voidable for a defect in the sale proceedings if challenged in time. It was recorded July 17,1875, and this action was commenced by plaintiff July 14, 1880. The answer was filed August 12, and the amended answer, December 12, 1880, and the reply, February 7, 1881. On November 30, 1880, the plaintiff dismissed his action. It follows from these facts, without any question, that the judgment decreeing the title in defendant and awarding him the possession of the land was erroneous, unless the plaintiff’s right to challenge this deed was cut off by the statute of limitations. Plaintiff insists that as defendant brought no action within two years from the date of the l’ecording of the tax deed, his tax title failed, and all right to the land ceased, and this under the third subdivision of §16 of the code of civil procedure. In this he is mistaken. While that subdivision applies to an action brought by a tax-title holder, and id that respect provides a different statute of limitations from that prescribed by g 141 0f jax jaw Q an ac£jon agajnst the tax-title holder, (see Thornburgh v. Cole, 27 Kas. 490,) yet that •subdivision applies only where an action is maintainable; and where the land is actually vacant and unoccupied, no action to recover possession will lie against the original owner. In the absence of a statute making special provision therefor, an action for the recovery of possession of real estate will lie •only against the party having possession. The actual possession was in no one. The constructive possession was in the •holder of the tax title. (See §§ 138 and 143 of ch. 107, Comp. Laws 1879; see also Dean v. Early, 15 Wis. 100; Coal Co. v. Blair, 51 Iowa, 447; Goslee v. Tearney, 52 Iowa, 455.) And as was said by Mr. Justice Valentine, in Taylor v. Miles, 5 Kas. 515: “A statute of limitation can only be applied where •one person has received or suffered some injury from another person, either in contract or tort. It must operate to bar a ■cause of action, for it seems absurd to say that a cause of action can be barred if no cause of action has ever accrued.” See also Waln v. Shearman, 8 S. & R. 357; Cranmer v. Hall, 4 W. & S. 36; Banyer v. Empie, 5 Hill, 48. Whether the ■holder of the tax title in such a case would have two years from the time the holder of the original title took possession, in accordance with the ruling in Wain v. Shearman, supra, or simply a reasonable time thereafter, it is for the purposes of this case unnecessary to inquire. All that is necessary to decide is, that where the land is actually vacant .and unoccupied during the two years, the holder of a tax title is not by reason of said third subdivision barred of his right of action to recover the possession, if thereafter the original owner takes actual possession of the land.
Neither on the other hand can we concur with the counsel for the defendant, that the right of the plaintiff to challenge the validity of this deed is cut off by § 141 of the tax law. It is true, as counsel contend, that plaintiff had dismissed his,. .action, and the case is to be treated as though' on August 12, which was more than five years from the recording of the tax deed, the defendant had commenced an independent, an original action; and though section 141 reads —
“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of land for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter;”
yet there are two reasons why, in this case, the right of the plaintiff is not cut off: First, the plaintiff'commenced an action within the five years and then dismissed it, and under § 23 of the code he could have commenced a new action within one year after such dismissal. (McWhirt v. McKee, 6 Kas. 419; Hiatt v. Auld, 11 Kas. 176.) If he could have commenced a new and independent action, he could assert the same right in a defense to an action commenced by the defendant. He dismissed his action Nov. 30, and at the time within one year thereafter he could have commenced the same kind of action against the defendant, or when sued by the defendant could have asserted the same rights in an answer by way of counterclaim.
The other reason is this: plaintiff was in actual possession, and being in possession the statute of limitations in respect to the recovery of possession was not running as to him. It is true, §143 authorizes an action n t for the recovery of possession against a party putting on record a tax deed, whether such party is in actual possession or not, but this section is permissive only. It gives the original owner, whether in actual possession or not, the right of testing, in asimple action at law to recover possession, the validity of a tax title, even when the holder of the tax title has no actual possession; but it. does not compel the owner of the original title, when himself in possession, to commence such an action within five years, under penalty of being thereafter deprived of the right to defend his title and possession. It is true the supreme court of Iowa, in the case from 51 Iowa, supra, did, by a divided court, hold that where land remains vacant and unoccupied during the five years, the constructive possession is in the holder of the tax title, and that at the end of five years the tax title becomes perfect; and that if the original owner subsequently takes possession he may be ejected by an action brought by the holder of the tax title, and is not at liberty to challenge the validity of such title. (See also the cases of Hill v. Krieke, 11 Wis. 442; Knox v. Cleveland, 13 Wis. 245; Dean v. Early, 15 Wis. 100; the Pennsylvania cases heretofore cited; and in addition, Parrish v. Stevens, 3 Serg. & R. 298; Ash v. Ashton, 3 W. & S. 515; Robb v. Owen, 9 Barr, 71.) But whether that ruling be correct or not, it does not apply to a case in which the original owner is in actual possession. In such a case the initiative does not lie with him; he may rest secure in his possession and title until somebody attacks them, and when so attacked he may show any defect in the title of the assailing party. It is also true-that said § 141 prescribes the five-years limitation not merely upon an action for the recovery of land, but also one to defeat or avoid a sale or conveyance of land for taxes. And it may be that the original owner in possession might be unable after the expiration of five years to maintain an action to remove the cloud which the tax deed casts upon his title; but.it does not follow that because he may not maintain an action to quiet his title that the opposing title, the tax deed, is to be adjudged perfect, and the holder thereof allowed to recover possession from him. If such a construction be maintainable, it would have this curious result: suppose the holder of the original title is in possession, the tax-title holder may within two years bring an action to recover possession; but thereafter, under subdivision third referred to above, his right to recover possession is barred, then three years passing, during all which time the holder of the tax title can maintain no action; and now the right of the original owner to set aside the tax deed having also ceased, the right of the tax-title holder to recover possession is revived. Of course this is not the rule. Though after the lapse of five years an action to set aside the tax title may not be maintainable, yet that fact does not perfect and establish the tax title so' as to enable its holder to maintain an action for the recovery of possession, of which for three years he has been barred. Now for nearly a year and a half before the running of the five years, the holder of the original title had been in actual possession, and the right of defending his possession against the holder of the tax title had not been lost. See upon the general questions involved in this case, Cooley on Taxation, pages 377, and following.
It follows from these considerations that the district court erred in awarding to the defendant the possession of the land. All that he was entitled to was an adjudication of his lien for taxes. The judgment of the district court will therefore be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring. | [
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Per Curiam:
This case grows out of, and is founded upon, the same facts as the case just decided, of this same title, except that upon the facts of this case another and additional question is raised, to wit, Is the remedy given by § 13, ch. 128, of the Laws of 1881, providing for shutting up and abating all places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, a civil action, or a criminal proceeding? Unquestionably, we think, it is a criminal proceeding. The entire section seems to be dealing with matters of a criminal nature, and not with matters of a civil nature. There is nothing in it that seems even to squint toward a civil action. Besides, the abatement of nuisances always was a matter for criminal jurisdiction, and never was, at common law, a matter, for civil jurisdiction. It is true that courts of equity in rare cases have sometimes taken jurisdiction of nuisances and perpetually enjoined the same; and possibly courts of equity may have, in extremely rare cases, gone to the extent of abating nuisances; but such cases have-been so extremely rare that they need scarcely be taken into consideration when attempting to construe a statute which seemingly and apparently is nothing but a criminal statute.
Counsel for plaintiff in error refer us. to chapter 113 of the General Statutes, (Comp. Laws of 1879, p. 988;) and also to the decisions of this court construing such chapter, to wit: The State v. Armell, 8 Kas. 288; Manville v. Felter, 19 Kas. 253; Felter v. Manville, 23 Kas. 191; and draw the inference from such chapter and decisions, that the remedy given by said § 13 is a civil action, and not a criminal proceeding. We do not think that any such inference can be fairly drawn. It has uniformly been' held by this court, that the remedy given to the public by said chapter 113 is a criminal action, and not a civil action; and we suppose no one would pretend to claim that any remedy, civil or criminal, is given to a private individual by said § 13, ch. 128, of the Laws of 1881. The two statutes are entirely dissimilar; but we think that under both of them it must necessarily be held that the remedies given' by them to the public are criminal actions, and not civil actions. In this way the decisions with reference to them will harmonize.
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an application in habeas corpus, brought by Joseph A. Bullen in behalf of Emily C. Evans, a little girl of the age of six yoars, against Josephine Cant-well, praying that the said Emily C. Evans' may be taken from the custody of the respondent and sent to England, to .be placed under the care and guardianship of her grandmother, Catherine Anne Evans. The questions in the case are in many respects novel and interesting, and the conclusion to which I have come has been reached with much hesitation. The facts of the case are these:
The grandparents of the ohild were residents of London, England. The father of the child (their oldest son), some time about the year 1868, then about twenty years of age, came to this country in the hope of bettering his condition. In 1875 he married, in the city of Leavenworth, Catherine Mary Murray, and shortly thereafter returned with his wife to London, where, on the 2d day of September, 1876, Emily C. Evans was born. On June 22,1878, the father died, and in December of the following year the mother, with the little girl, returned to Leavenworth, in hopes of meeting a brother in this city, supposed to be in comfortable circumstances.
She was disappointed in this expectation, and being without means, proceeded to support herself and child by her own labor. In the spring of 1880 she was taken down with consumption, was unable to do further work, and became very destitute. In April of that year, information was received at the Home for Friendless Women, of her condition, and Mrs. Bullen and Mrs. Legate, in response thereto, proceeded to North Leavenworth and found her in the basement of a little house, in extreme destitution and weakness. Words fail me to picture clearly her forlorn and wretched condition. Wasted by sickness, weak and feeble, she was lying on a little mattress on the floor, sheltered from the cold by only a few rags. There was no furniture in the room, no fire, and the room was cold and damp. Her little child was running around scarcely half clad. These ladies removed her and her little child to the Home, where they remained a few days, and then, becoming dissatisfied with the matron, she with her child left and returned to the basement. Here, within a few days, she was found by Mrs. O’Connor and Mrs. McFarland, who soon procured her admission to St. John’s Hospital, where she remained, gradually failing, until her death, on September 5, 1880. During these last days of feebleness and disease, she was tenderly cared for by the good Sisters in charge of the hospital, and I have no reason to doubt that everything was done by them which sympathy and love could suggest to make bright and peaceful the few last days of life, and to assuage a mother’s grief at leaving her only child a lonely orphan in the world. I pause a moment in the coldness of judicial opinion, to say that every true man stands with uncovered head in the presence of a kindly charity such as this case discloses, when gentle woman, foregoing personal ease and comfort, drawn by no tie of blood nor for old acquaintance’ sake, but moved alone by the impulse of a common humanity, seeks out a wretched and helpless one, removes her from a dreary, cold and desolate abode to surroundings of warmth, cleanliness and comfort, smooths with tenderest touch the pillow beneath her weary head, and brings to the heart of a dying mother the richest of all comfort, in the assurance that the little life she leaves behind her will be tenderly cared for by loving hearts and hands. Such acts redeem poor human nature from all its burden of selfishness and sin, and make us thank God that we are brothers to such sisters. But returning, it appears that while at the hospital, at her solicitation proceedings were attempted for the purpose of having her child adopted by St. Mary’s Female Academy, conducted by the Sisters of Charity of St. Vincent of Paul. It is conceded by counsel that these proceedings were ineffectual for the purpose of effecting a legal adoption, yet they confirm a fact, abundantly established by other testimony, that during her last days she desired and earnestly besought the Sisters to take care of her little girl; and they, on the other hand, comforted her dying hours with the promise to watch over and care for her during her childhood and until she should reach the years of maturity. It is also true that while she was at the Home for Friendless Women, she as earnestly urged the good ladies there to see to it that after her death her child be sent to its father’s family in London. I see no reason to doubt the fact of both these requests of the mother; nor do I see anything unnatural in her conduct in this respect. It seems to me it must be true, not alone because the witnesses testify to it, but because I think it is just what a mother would do under those circumstances. Since the mother’s death the Sisters have fulfilled their promise to her, and have taken tender and faithful care of the little girl. The testimony of the witnesses shows this, and the little one’s face and appearance confirm it. Turning now to the other side, it appears that the grandfather of the child died in 1879, leaving a widow and children. He made a will, which has since been duly probated. By this will he left all his property in trust that the yearly income should be paid to his . widow during her life or until she married again, and upon her death or marriage, to be divided among his children: this trust to continue until the expiration of twenty-one years from the death of the longest liver of his children. He. especially provided that his granddaughter, Emily C. Evans,, should take the place of her father and share in his property; but coupled this provision with the condition that she be brought to England before she attained the age of seven years) and not reside abroad thereafter; that she should be brought up and remain in the Protestant faith, and not marry a Roman Catholic. At the expiration of the trust as above indicated, the entire property was to pass to the person who should then be his heir-at-law. And in the meantime, the death of any child increased by so much the share of all the survivors.
The testimony shows that upon the settlement of his real estate, there remained nine freeholds, now producing in the aggregate a rental of sixteen hundred and twenty dollars. It further appears that the grandmother has a comfortable home, well furnished, situated in the city of London, in which she lives with an unmarried son and two unmarried daughters. The testimony abundantly shows that her home is all that could be expected of one in ordinary circumstances of life; that the income is sufficient to maintain the family comfortably; that the characters of the inmates of the family are above reproach; that all the members of the family feel a deep interest in, and strong attachment for their little orphan relative here; and that if this child is placed in that family it will have all the advantages of personal and affectionate care, education, moral training and social position which come to those who live in ordinary walks of life.
This, I think, presents a fair summary of the facts of the case; and from this statement I pass to a consideration of the questions presented and discussed by counsel. On the one hand, it is claimed that the grandmother has no legal right to the custody of the child; that it is never the province of the 'court to expatriate a citizen, even though that citizen be a mere child; that the expressed wishes of the dying mother should be respected; and that beyond all these matters, the child is at present happily situated, in good hands, kindly and properly cared for, and that there is not under the testimony enough to satisfy that the change asked for would substantially better its condition, or promote its welfare. On the other hand, it is contended that upon a change, the little girl will obtain that which she now lacks — the surroundings and blessings of a home, where personal attachment and not official duty is the controlling spirit; that she will secure a property sufficient for her support, and which will render her comparatively independent, and that therefore- the interest of the child, which in all such cases as this is the paramount consideration, demands the change. Clearly the grandmother has no right to the child; there is on her part no legal obligation to support it, and therefore no legal right to its custody. It cannot be said that the child is illegally restrained of its liberty, deliverance from which, as counsel well say, was in the first instance the purpose and object of habeas corpus. Yet, as to children at least, the scope of the writ has been largely extended. Beyond the mere matter of forcible restraint, of technically illegal confinement, the courts will inquire whether the surroundings of the child are such as make for its highest welfare, and will do for it that which such welfare compels. In such cases, it is in fact the petition of the child; and I know of no duty more delicate and responsible than that which such petition places upon a judge. Take the case before me: The parents of the child, the ones who by every law, human and divine, are charged with the sacred duty of protection, support, care and promotion of its highest welfare, are both dead. By this petition, in effect she comes to me and says: • “ They who were my guardians by nature have passed away. My feeble steps are just commencing the walk of life; I know nothing of the world and its ways; I cannot tell what will be best for me; I appeal to-you to take the place of father and mother, to decide for me, who am too young to decide for myself, and to place me where I can receive the highest advantages; and where the surroundings of my life shall win for it its best and highest fruition; and so that when I reach the years of womanhood, I can look back to this hour and this decision, and say, £I thank you.’ ”
Do I demean myself by saying I shrink from this responsibility? I cannot agree with counsel, that it is never the province of the court to expatriate a citizen. In some cases I think the duty so to do is clear and absolute. As, for instance,- where parents moving to a foreign country and leaving their little child here for awhile, come back to claim it and are hindered by those who have it in possession. Nevertheless, it is a matter always to be considered. With pardonable partiality, we look upon our own land, its laws, institutions and social life, as the best; and not lightly should a child be deprived of the benefit of them. Yet we may not ignore the fact that the mother country is a land of liberty and law, of education and social refinement, of morality and religion; and it would be wrong to make the matter of expatriation an excuse for depriving this little girl of that which would promote her welfare. Neither is it clear that sending this child to England would be technically an expatriation. The child was not born in -this country, and there is nothing in the testimony which shows that either parent ever ceased to be an alien, or became a citizen. Further, the grandmother has been appointed by the courts of England the guardian of this little girl, and if now this petition is granted she will pass under the special care of those courts, the faithfulness of' whose watch in oases of this kind is a matter of universal recognition. But I place comparatively little stress on this, and turn to the. paramount question and ask, What will be best for the welfare of the child? And looking at this ques tion in the light of experience, and testing it by the generally recognized facts of society and life, I can but think that the welfare of the child, its best interests, will be promoted by granting the prayer of the petition. Two principal reasons control in my mind: First, her life here would be a life in an institution; there, a life in a home. I need not stop to recount the numberless blessings which home gives to a child, especially a female child. The common judgment of all voices the truth, that the best development of a young life is within the sacred precincts of a home. No institution, however cultured and refined its instructors, however pure its life, however faithful and devoted all its officers and teachers to the care, nurture and education of the many children within its walls, will give that sweet, gentle and attractive development to a young girl, that comes from the personal and affectionate training of a home. There is something of the same difference as between hotel life and home life. There is more publicity to the,one; more privacy to the other. .There is something official, as it were, in one, and personal in the other. The varied graces of true womafaly nature ripen more sweetly and more surely in one than in the other. I would not detract in the least from the advantages which these institutions afford to the young. I believe they are a large blessing, and that even for those children who have homes, an occasional and temporary sojourn in one is, of lasting and incalculable benefit to the development of the child. But when it comes to the question of a life wholly -within an institution, and one wholly a home life, I think all will agree that the latter is to be preferred. I think every parent, when asked whether he or she would have his or her child forego during all the years of childhood the blessings of a home life, for the sake of the advantages furnished by even the best institution in the world, would unhesitatingly answer in the negative. And I doubt not the good Sisters in this institution, many of whom look back with sacred reverence to the home life of their childhood, with all their pride in and affection for that institution to which they have so sacredly devoted their lives, still feel in their inmost hearts that that home life was a blessing which nothing else could equal to their early days.
Second, there is a pecuniary consideration. I am not so sordid as to believe that money is the one thing .to be regarded; but other things being equal, that certainly is a matter to be considered. If she remains here she will come to maturity without means, and dependent solely on her own labor or the help of others. There she will have a little property — not a great wealth, it is true, but enough to keep want away and to enable her to act freely in her choice of place and work in life. There is also a possibility, though perhaps only a remote one, of her becoming through the death of others the heir to quite a property. It is true there are conditions attached to the receiving of that property which to my mind are odious and unjust. They indicate a bigoted spirit on the part of the testator, so foreign to the free and catholic spirit of to-day, that every true man must condemn them. Yet this little girl ought to have the opportunity to decide for herself, when she comes to maturity, whether she will accept or reject the property burdened with those conditions. To-day she knows nothing of the value of the property, or the meaning and import of the conditions. It would be wrong to refuse her the privilege of an intelligent choice. When she arrives at years of discretion she may prefer to accept her mother’s faith and reject her grandfather’s proffered bequest, or she may prefer to accept the bequest and walk in the faith of her father; but unless the prayer of the petition be granted, she will never have the opportunity of accepting it.
Counsel have made a most eloquent appeal that the wish of a dying mother as to the future of her child should be respected. The precious recollections of my own childhood, with all the shapings of my life through the gentle influence of a loving mother’s care, from its first helping my infant steps, up through all the sunny days of childhood, to her dying blessing in manhood’s morning hour, send this appeal home to my heart with tremendous force. But I intefpret the mother’s conduct and desire thus: She was a stranger in a strange land, alone, and dying. The uppermost thought in her heart was the future of her child. When with the ladies of the Home, she turned to her husband’s family home as the surest and most certain place of refuge for her orphan child, and she begged 'the ladies to see that it was sent thither. Afterward, when she passed into the kindly care of the good Sisters, and found what faithful friends they were to her in her time of need, she believed the same kind care would be extended lo her little one, and begged of them to take it. In other words, thinking only of her child, she ever turned to that which at the time seemed the nearest and surest succor for its helplessness, and prayed for the care which she was no longer able to give it. Evidently, from a letter written by her while at the hospital shortly before her death, her affection for her husband’s family and her friends was strong to the last, and she committed her little one to the care of the respondent through no aversion to them.
If from the calm and peaceful heights of - heaven the departed look back with loving interest upon the things of earth, I can but think that she will look down approvingly upon the conclusion I have reached. I know she will approve the spirit with which I act, even though she may not the wisdom of my conclusion. The order then that will be • made, is: that the prayer of the petition be granted, and the child be given into the custody of Mr. Bullen, to be by him sent to its grandmother in London.
As the opposition of the respondent to this petition’has not been from any factious spirit, but under a sense of obligation springing from a promise to a dying mother, I think the costs of this proceeding should be paid by the petitioner.
All the Justices concurring. | [
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-114,
-6
] |
The opinion of the court was delivered by
Brewer, J:
The Atchison, Topeka & Santa Fé Rid. Co., defendant in error, instituted proceedings to condemn certain lands owned by the Central Branch U. P. Rid. Co., plaintiff in error, in the county of Atchison, and to fhat end procured the appointment of three commissioners by the judge of the district court. These commissioners duly discharged their duty, assessed the damages, and filed their report with the county clerk on the 24th day of January, 1882. On the same day the defendant company deposited with the county treasurer of Atchison county,- $3,600, the amount of damages awarded to the plaintiff company.. The plaintiff company filed its undertaking for appeal from the award and assessment of said commissioners, and thereupon the defendant company executed and filed its undertaking under § 86, ch. 23, -Comp. Laws 1879, to pay all damages and costs which said company might be adjudged to pay by said district court. Thereafter said defendant company being about to enter upon the land, the plaintiff company applied for a temporary injunction. _ After a hearing the district court refused the injunction, to reverse which ruling the plaintiff company brings the-case here.
The single question presented is, as to the constitutionality of that part of said § 86 which authorizes a railroad company, notwithstanding the appeal, to take possession of and ■use the land and construct its road over the same; and its unconstitutionality is claimed on the ground that it conflicts with §4, article 12 of the state constitution, which provides:
“No right of way shall be appropriated to the use of any corporation until full, compensation therefor be first made in money or secured by a deposit of .money to the owner.”
It is contended on the one side, that the language of the constitution is clear and unambiguous; that its provisions are absolute and controlling; that no argument from inconvenience can make against the controlling force of those provisions; that before any land can be appropriated, the ■compensation therefor must .be paid in money or secured by a deposit of money; that the giving of a bond is in no sense the payment of money or the deposit of money; that when the assessment is appealed from, that assessment is vacated, and there remains no determination of the compensation which is to be paid; and until the amount of that compensation is determined, it is impossible-to say what amount of money should be tendered or deposited. Thus in the case at bar, though $3,600 in money was' deposited with the county •treasurer, no one can say that it will be finally determined that that amount is full compensation. It means that which •is in fact full compensation, and not what it is conjectured may thereafter be found to be full compensation. The constitution is not satisfied by a deposit of an amount of money supposed to be large enough to cover the compensation which may thereafter be found to be full, but requires payment or deposit of an amount which is at present knbwn and determined to be full. On the other hand, the argument is that ■the power of eminent domain is not granted by the constitution to the state; that it is a power which inheres in every state as one of the attributes of sovereignty; that the provisions of the constitution simply restrict the exercise of that power, .and that except as restricted thereby, the power of the legis lature is supremej that this power may be exercised by the state directly or delegated to a private corporation of its own creation ; that the exercise of this power is not restricted by the provision that the right of trial by jury is inviolate because a jury has never been considered essential to the exercise by the state of such inherent powers of sovereignty as taxation, eminent domain and the like; that the legislature-might have made the award of the commissioners final and conclusive, giving to neither the railroad company nor the land-owner any right of appeal or review, as was in fact done by the law of 1864; that as it had the discretion to withhold any appeal from the action of the commissioners, any reexamination of the amount of assessment by ajury, it had a right to grant such a review and reexamination upon such terms as it saw fit; and that giving the right of appeal, coupled with the privilege to the railroad company of taking possession ad interim, was a mere act of favor to the land owner, and not the enforcement of a constitutionally'guaranteed right. Further, it is contended that if this privilege of entr3r pending the appeal is unconstitutional, then the whole matter of appeal must fall, because it is evident that such temporary possession was in the thought of the legislature a condition of and an inducement to the giving of the appeal; that the land-owner may not claim the privilege of appeal and at the same time repudiate the conditions upon which the legislature has given it to him.
This question has been argued before us with an ability and zeal worthy of its importance. On the .one hand, we have been urged to uphold this constitutional guaranty in its letter and spirit, in order that the land-owner may be fully protected against the eagerness and greed of railroad corporations. And on the other hand, it has been pointed out that to sustain the views of the plaintiff would put it in the power of a single obstinate land-owner to long delay the building of any railroad. We are fully sensible of the importance of the question, and have given it the most careful considera tion. It is obvious that the question is not free from difficulty. At the present time there are pending before us two cases involving the same questions, coming from two of the most learned, able and distinguished district judges of the state, upon which question they are divided — one sustaining the views of the present plaintiff in error, and the other the reverse. The question is for the first time presented in this court; for while many cases involving the condemnation of the right of way have been before us, and while this question has been many times suggested to our minds, we have never been called upon to decide it, and have carefully refrained from expressing any opinion thereon. And now we remark in the first place, that while it is undoubtedly true that a statute may be constitutional in part and unconstitutional in part, yet as a general proposition it has its limitations. The mere fact that the one part standing alone would be within the scope of the legislative power, does not prove that it can be upheld when coupled with other matter. If such other matter conflicts with the constitution and must fall, then the constitutionality of the first depends upon the extent and closeness of its connection with the second. If the first be conditioned upon the se'cond, or if it is apparent that the legislature would not have enacted the first but for the second, that the latter was as it were an inducement ■ to the former, and that only by virtue of a concurrence of the two would it be presumed that in the judgment of the law-making power the respective rights of antagonistic parties would be preserved, then with the fall of the second falls also the first. It is not enough to say that the legislature might have legally enacted the first alone. When it has coupled the two together the failure of the latter invalidates the former; and this for the reason that because of the mutuality of the two, the relation inter sese, the dependence of the one upon the other, the correspondence of blessing and burden, it must be presumed that the one was an inducement to or a condition of the other; that the legislature would not have enacted one but for the other. As Cooley, in his work on Constitutional Limitations, says, page 179:
“And if they are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would, not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.”
This doctrine is fully sustained by all the authorities. In the case of Warren, et al., v. The Mayor, &c., 2 Gray, 84, Chief Justice Shaw, speaking for the supreme court of Massachusetts,- thus states the rule:.
“It is no doubt true, as has been argued by the learned counsel for the prosecutors of this writ, that the same act of legislation may be unconstitutional in some of its provisions and yet constitutional in others. It was so decided in the case of Fisher v. McGirr, just cited, in which it was held that all that part of the act of 1852, respecting the manufacture; and sale of spirituous liquors, which authorized a seizure of liquors on the terms and in the manner there provided, was unconstitutional; and yet we are every term rendering judgments against persons for, selling spirituous liquors contrary to other provisions of the same statute. There is no inconsistency in this. Such act has all the forms of law, and has been passed and sanctioned by the duly-constituted legislative department of the government; and if any part is unconstitutional, it is because it is not within the scope of the legitimate legislative authority to pass it. Yet other parts of the same act may not be obnoxious to the same objection, and therefore have the full force of law, in the same manner as if these several enactments had been made by different statutes. But this must be taken with this limitation, that the parts so held respectively constitutional and unconstitutional must be wholly independent of each other. But if they are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them.”
See also Slauson v. The City of Racine, 13 Wis. 398, in which Judge Paine thus discusses the question:
“It is undoubtedly true that parts of a.statute may be unconstitutional, and yet other parts, capable of being executed independently, held valid. But the counsel for the plaintiff contends that where parts of a statute are unconstitutional and other parts valid, the-former being evidently designed as compensation for or inducements to'the latter, so that the whole taken together warrants the belief that the legislature would not have passed the valid parts alone, then the whole act should be held inoperative. This position is fully sustained by the case of Warren, et al., v. Charlestown, 2 Gray, 84, and it seems to us to rest upon .solid reasons. We think also it is fairly applicable to this case.
“The first section of the act [ch. 83, Pr. Laws of 1856] provides that the tracts in question shall be annexed to the city. The second defines the new boundaries of the city, and then follows a proviso that the farming and agricultural lands annexed should be exempt from certain taxes, and should be taxed for city and ward purposes only, at the rate of oné-half of one per cent. There is no doubt that in many instances, by the annexation of farming lands to a city, hardships are inflicted upon their owners by the increased rates of taxation to which they are subjected. If they are annexed, they must be taxed as other lands in the city; and that is a matter proper to be considered by the legislature in .determining whether they shall be annexed. In this act it is evident the legislature had it under consideration, and that they annexed these lands with the idea that they might protect them against such hardships by a proviso for a less rate of taxation. The proviso was clearly intended as a compensation for the annexation, and stronger language could not well be selected to show that the legislature intended the one to be subject to the condition stated in the other, and that they would not have annexed these lands unless they had supposed that effect could be given to the proviso. For these reasons, we think the principle stated applies and the act should be held inoperative.”
See further the case of Meshmeier v. The State, 11 Ind. 482, in which the court says:
“The legislature pass an entire statute on the supposition, of course, that it is all valid and to take effect. The courts find some of its essential elements in conflict with the constitution, strip it of those elements, and leave the remaining portion mutilated and transformed into a different thing from what it was when it left the hands of the legislature. The statute thus emasculated is not the creature of the legislature, and it would be an act of legislation on the part of the courts to put it in force. The courts have no right thus to usurp the province of the legislature.”
In Lathrop v. Mills, 19 Cal. 529, Judge Baldwin uses this language:
“In order to sustain the excepted clause, we must intend that the legislature, knowing that the other provisions of the statute would fall, still willed that' this particular section should stand as the law of the land.”
See also Reed v. Omnibus Rld. Co., 33 Cal. 212; Campau v. The City of Detroit, 14 Mich. 275; State v. Wheeler, 25 Conn. 290; State, ex rel., &c., v. Dousman, 28 Wis. 541. It may also be added that we need never expect to find the connection or dependence expressed in the statute. The legislature never enacts laws upon the supposition that one part of them is in conflict with the constitution and must fail; it always proceeds upon the supposition that all that it does is within its constitutional power. Hence it never in terms says that if one portion of its statute fails the other portion must also fail, nor that it rests one part upon the supposed validity of another part. It legislates as if all that it attempts to do was within its constitutional power; and when in pursuance of its constitutional duty the court ascertains that one part of its legislation conflicts with the constitution and must fail, the inquiry is, not whether the balance of the statute is said by the legislature to depend and rest upon the unconstitutional part, but whether in the nature of things and by reason of the evident interdependence of the two, one upon the other, the courts can fairly say that the legislature intended the two to stand together as a single entity, the one dependent upon the other, or the one an inducement or compensation for the other, or the two together making ¿ single compact and harmonious whole; and whenever that appears, then the unconstitutionality of either invalidates both.
With this statement of the rules by which the validity of statutes is to be determined, we pass to the consideration of the statute in question; and here it will be noticed that the statute of 1864 made the award' of the commissioners final. When that award was made and the amount of the compensation by them determined paid or deposited, the right of the railway company was complete, and the land-owner was powerless to challenge the occupation by the company. For reasons heretofore suggested, (the exercise of the Right of eminent domain not being conditioned 0 ^ ° upon a jury trial,) the legislature had the power to make the full exercise of the right of eminent domain close with the action of the commissioners. Under that statute no appeal was allowed, and upon the payment or deposit of the award of the commissioners by the railway company, its right of occupation became unchallenged. The law of 1868 changes the law of 1864 so far as to allow an appeal from the decision of the county board as to the value of the land appropriated. The law of 1870, which is the law under which these proceedings were had, provided for an appeal, but limited the scope and effect of the appeal as follows:
“And an appeal shall be had from the determination of the board of county commissioners as to the value of the land, crops, buildings and other improvements on said land, and for ail other damages sustained by such person or persons by reason of such right of way so appropriated, in the same manner as appeals are granted from the judgment of a justice of the peace to the district court; and said appeal and all subsequent proceedings shall only affect the amount of compensation to be allowed, but shall not delay the prosecution of the work on said railroad, upon said company paying or depositing the amount so assessed by said commissioners with the county treasurer of the county within which the said lands are situated; and upon the payment or deposit, as aforesaid, of the amount so assessed by said commissioners, and upon said company, executing a bond with sufficient security, to be approved by the county clerk, to pay all damages and cost which said company may be adjudged to pay by said district court, said company may, notwithstanding said appeal, take possession of and use the said land and construct its road over the same.” .
Now it is obvious from this statute that the legislature never intended that an appeal from the assessment of damages should work any delay in the occupation of the land, or the construction of the road by the railroad company. Language could not be used which more clearly indicates the intention and thought of the legislature. “Said appeal and all subsequent proceedings shall only affect'the amount of compensation to be allowed, but shall not delay the prosecution of the work on said railroad.” Could language make clearer the intent of the legislature? Would it not practically nullify that intent to uphold the appeal, and at the same time make the appeal operative to delay the occupation of the land and the construction of the railroad? Was not the railroad company equally with the land-owner within the thought of the legislature, and the intended protection of this statute? And may the courts wipe out all of benefit and advantage to the one, and at the same time sustain the benefit and protection to the other? Beyond the letter of the statute we must also consider the ordinary facts of railroad building. Eailroads are not initiated and railroad enterprises undertaken with the large sums of money needed therefor secured, except upon the idea that such roads shall speedily and without interruption be pushed to completion. In many counties of the state, district courts are held but twice a year. Can it be that the legislature intended that all railroad enterprise in such counties should wait the tardy processes of appeal, continuances, and trials in the district courts? Can it be supposed that the legislature would expect the investment of money in railroad enterprises, with such certainties of delay, or the equivalent of submission to the exorbitant demands of any unprincipled and obstinate land-owner? Is it not more consonant with fair dealing, and the presumption of honesty on the part of the legislature, that it coupled with protection to the land-owner the rapid consummation of any intended railroad enterprise? Having regard to both the letter of the statute and the ordinary facts of railroad building, we cannot conclude.otherwise than that the'legislature intended that the appeal of the land-owner should be conditioned, and dependent upon the present occupation of the land by the railroad company, and the immediate completion of the railroad enterprise. Hence within .the principles so clearly and forcibly shown by the authorities heretofore cited, we are forced to ^he conclusion that the legislature based the appeal upon the condition of the present occupation by the railroad of the land, and that if such present occupation must fail by.virtue of any constitutional inhibition, then the appeal must fall, and the award of the commissioners must stand as the final arbitration and determination of the amount to be paid for the land appropriated.
This conclusion - would necessitate an upholding of the ruling of the district court, and a judgment against the plaintiff in error.. But we are not content to rest the decision of this case upon this possibility of denying the validity of the appeal, and so we pass to the consideration of the other question presented by’counsel, and upon that we are forced to sustain the statute as a whole.
We premise here, that the right of eminent domain carries with it no constitutional guaranty of a jury trial; it is a power which may be exercised whenever the necessities of the public require, and in such manner and through such machinery as the legislature may see fit to prescribe, the only limitations thereon- being the constitutional restrictions as to the time, kind and amount of: compensation. The legislature may provide for a jury-trial of the damages in the first instance, or it may withhold such a trial altogether and leave to any commissioners or court the sole and final determination as to the amount of damages. ' In Cooley’s Constitutional Limitations, page £¡63, the author says:
“What the tribunal shall be which is to assess the compensation, must be determined by the constitution or by the statute which provides for the appropriation. The case is not one where as a matter of right the party is entitled to a trial by jury, unless the constitution has provided that tribunal for the purpose.”
See also Mills on Eminent Domain, §§ 84, 91; Plank Road Co. v. Pickett, 25 Mo. 535; Ross v. Comm'rs, &c., 16 Kas. 411.
The law of 1864,. heretofore cited, was an exercise of this power, for by it the legislature made the award of the commissioners final, gave no right of appeal, and provided for an appropriation of the right of way upon the payment or deposit of their award. Now if the legislature violates no constitutional provision in making the award of the commissioners final, if the land-owner has no constitutional right to an appeal from such an award, it would seem- to follow necessarily that that which the legislature may withhold altogether it may grant upon conditions. The appeal being a matter of favor and not a matter of right, the power that grants it may prescribe the terms upon which it shall be taken. How can it be held that a land-owner who has no right to an appeal can, when one is tendered to him upon conditions, accept the tender and repudiate the conditions? Can he. of his own volition enlarge the scope of a grant, which is a mere matter of legislative favor? Many words cannot make this clearer; the land-owner’s constitutional guaranty terminates with the award of the commissioners. The appeal is a favor, and carries with it all the conditions the legislature has seen fit to impose. An examination of the statute leaves no doubt as to the extent of these conditions; it provides that the appeal shall only be as to the amount'of damages, and that it shall not delay the prosecution of the work. But we are met here with the objection that the appeal sets aside the award of the commissioners; that there then exists no adjudication of the amount of compensation; that upon the trial of the appeal it not infrequently happens that the jury award a much higher sum than the commissioners; and that if the railroad company be already in possession of the land, having constructed its road over it, it may result that the railroad appropriates the land without prior payment or deposit of the compensation. To that we reply, that the land-owner is under no obligations to appeal. His compensation has been determined by a competent and constitutional tribunal, and the amount of that compensation is paid or deposited for him, and hence he has no right to complain if of his own .volition he initiates further proceedings. Secondly, the occupation of land by the railroad, pending the appeal, is provisional merely; its entry is not a permanent appropriation of the right of way, and it acquires by such entry no vested rights. It takes upon itself all the risks of the final award by the jury on the appeal. If the verdict of the jury and the judgment of the court exceed theaward of the commissioners, therailroad company must promptly pay such increased amount or the land-owner may maintain ejectment. (Railroad Co. v. Callender, 13 Kas. 496.) Such provisional occupation by the railroad company is not an anomalous proceeding. A railroad company may by statute, (Comp. Laws 1879, ch. 23, § 47,) enter by its officers and agents upon the lands of any person for the purpose of examination and survey bf its proposed route; in other words, in its behalf the law of trespass is temporarily suspended, or at least limited in its operation. It is true, this is but a trivial matter compared with the actual occupation of the land, and yet it is kindred in principle. Again, in replevin actions the claimant by giving a bond may obtain possession of the property pending a litigation, and this notwithstanding the fact that the final judgment may show that he never had any right thereto. Still again, in many proceedings the court takes possession of the property in dispute and places it in the hands of a receiver. All these possessions, entries and occupations are simply provisional; and while doubtless under cover of them the legislature may not defeat the land-owner’s ° J ' _ . . . that guaranty has once been secured to him, he constitutional guaranty of compensation, yet when may not question the validity of subsequent provisional proceedings. Our conclusion therefore is, that so far as any ques tion in the present case is involved, the statute as a whole is valid and must be sustained:
Before closing this opinion it may be proper to notice the various cases decided by this court which counsel seem to think conflict with this decision, or the opinions which at least are thought to contain language incpnsistent with the views herein expressed. The first case is that of the Railroad Company v. Weaver, 10 Kas. 344. That was an action for damages, begun in a justice’s court on the ground that the railroad company had constructed its road over the plaintiff’s land and paid no damages therefor. The defense was that the land-owner’s only remedy was a proceeding under the statute to have his damages assessed. We decided against this claim, holding that the railroad company under the constitution acquired no rights until after it had initiated proceedings, and paid or deposited the amount of the compensation awarded, and that in the absence of such proceedings and such payment or deposit, the land-owner had all legal remedies against the company, as against any other trespasser, and was not limited to the statutory proceeding for the assessment of damages. The next case is that of the Rld. Co. v. Ward, 10 Kas. 352, in which the railroad company sought to defend an action of trespass brought against it by evidence of condemnation proceedings subsequent to the trespass, and we held that such condemnation proceedings did not relate backward or cure trespasses committed before they were had; that until the compensation-money is paid or deposited, the railroad company acquires no rights, and is liable for any trespass committed theretofore. Nothing in the language of the court in either of these cases touches upon the validity of this section of the statute. It is true tire language referring to the constitutional provision is emphatic and decided, and we reiterate the same language here. Compensation in money, or by a deposit of money, must be made before the railroad company acquires any rights in the land. The next case is that of the Rld. Co. v. Callender, 13 Kas. 496. In that case it appeared that after the award of the commissioners the land-owner appealed, and on the trial in the district court recovered a much larger compensation than that given by the commissioners. Pending the appeal the railroad, company having deposited the amount of the award, but without giving the bond required by the statute, entered upon the land and constructed its road. After the recovery of judgment in the district court the amount thereof not being paid, Callender, having waited eight months, commenced his action of ejectment, and we held that such action could be maintained. In that case even the provisional occupation by the railroad company was not authorized by statute, the company having failed to execute the bond required as a condition precedent thereto. The validity of this section was not passed upon. It was assumed to be valid. The fact that the railroad company had not complied with its terms was noticed, and hence it was called a trespasser ab initio. We did not then think that even if the company had given the bond the judgment should have been otherwise than it was, nor do we think so now. If, after the final adjudication of the amount of compensation, the railroad company fails promptly to pay the-amount thereof, the provisional occupation ceases to be rightful, and the land-owner may recover the possession of the land, as well as all damages for the injuries done thereto. The next case is that of Blackshire v. The Rld. Co., 13 Kas. 514. In that case the land-owner appealed, and recovered a larger amount in the district court than had been awarded by the commissioners. The railroad company had deposited that amount with the county treasurer. Pending the appeal the treasurer defaulted, and the railroad company sought to have the amount deposited with him credited upon the judgment in the district court, claiming that the money while in the hands of the county treasurer was at the risk of the landowner. We dissented from this claim, and held that it remained there at the risk of the railroad company. Considerable stress has been laid upon this case, as though the argument made by the court in its opinion in support of the conclusion there reached, committed it to different views of the question now before us than we have here expressed; but the scope of the argument made in that case will be better understood, when we bear in mind the claim of the railroad company. It was substantially, that when the company had deposited the amount of the commissioners’ award, the money became the money of the land-owner and the land the property of the railroad company. And the company also claimed that -whatever further proceedings might be authorized, the title to neither land nor money was affected thereby, and hence that the money while it remained in the hands of .the county treasurer, so remained at the risk of the landowner. In the opinion we endeavored to show that there was no final appropriation of the land, and that the title did not pass until the full amount finally adjudicated to be the compensation was paid or deposited; that the appeal, like the appeal from the judgment of a justice, vacated the award, and left pending no adjudication upon which the company could base title. We shall not restate the argument then made; we have reviewed the question, and notwithstanding the argument of the counsel for defendant in error, we think the argument then made is sound, and the conclusion reached in that Gase correct. We think now as then, that there is no final appropriation of the right of way until that compensation, which as a final result of all litigation by appeal, error or otherwise is adjudged to be full and complete, is paid. Up to that time all occupation which may be permitted is merely provisional. Yet, while the title to the right of way does not finally pass till the end of the litigation, still the constitutional guaranty is satisfied when the award of the commissioners is made and deposited. The railroad company may not question the land-owner’s right of appeal, because the legislature has the power to give it. If the land-owner does not appeal at the end of ten days, the title to the land and the money are respectively transferred; but if he does appeal, and avail himself of the privileges granted by the legislature, he takes them oum onere. See also as to the matter of appeal, the case of the Rld. Co. v. Hammond, 25 Kas. 208. This same idea of no final appropriation of the right of way — no absolute transfer of title until the end of all litigation as to the amount of compensation — is recognized in the case of the Rld. Co. v. Wilder, 17 Kas. 239. The last case referred to is that of the City of Kansas v. Rld. Co., 18 Kas. 334. That was a case in which the city of Kansas attempted to open a street, and condemn land therefor. The statute referred to authorized an appeal from the award of the householders, but nowhere authorized any possession of the land sought to be condemned pending the appeal. Hence we held, and we think very correctly, that pending such appeal, as the statute gave no right of temporary occupation, the city had none. These are all the cases to which we have been referred by counsel in which any expression or conclusion is thought to appear antagonistic to the views expressed in this case. We see nothing that conflicts, and we certainly intended in those various cases to avoid any decision of the question now presented. Authorities upon this question cannofbe expected directly in point, in view of the difference between our constitution and those of other states; and yet there are one or two authorities which deserve to be cited. See the case of Peterson v. Ferreby, 30 Iowa, 327, in which the court uses this language:
“The views herein expressed are not in conflict with the constitution, which provides that ‘private property shall not be taken for public use without just compensation first being made, or secured to be made, to the owner thereof), as soon as the damages shall be assessed by a jury/ (Const., art. 1, § 18.) The property is not taken in an absolute sense, until the amount assessed upon appeal is paid. If the appellate jury in this case shall assess less than the sheriff’s jury have assessed, the amount is secured to plaintiff, being in the sheriff’s hands; if they shall assess more, the plaintiff can, by injunction, prevent the absolute appropriation of his property until the increased sum is paid.” (Richardson v. Des Moines Valley Rld. Co., 18 Iowa, 260.)
“In either event the land-owner is fully protected. We are clearly of the opinion that the money paid the sheriff should remain a deposit in his hands until the damages are finally assessed in the appellate court. The demurrer to the answer of defendant was improperly sustained.”
See also the case of Doughty v. Rld. Co., 1 Zab. (N. J.) 442, in which Randolph, Judge, says:
“ But if the legislature have a right to say that a tender of the amount found by a jury shall be considered compensation, they must also have the right to say that a tender of the amount awarded by the commissioners will have the same effect, and the additional trial allowed cannot render that unconstitutional which before was constitutional.”
We have given this question the fullest consideration, and our conclusion upholds the validity of this statute. We think the constitutional guaranty has been satisfied by it both in letter and spirit; that the rights of the land-owner are protected, and at the same time no unreasonable obstruction placed in the way of railroad enterprises. It follows, therefore, that the judgment of the district court was correct, and must be affirmed; and it is so ordered.
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The opinion of the court was delivered by
Horton, C. J.:
Prior to the convening of the legislature of 1881, §19, ch. 39 Gen. Stat. 1868, fixing the fees of certain officers and persons therein named, read:
“In all cases where the fees prescribed by this act, in criminal cases, for the sheriff and clerk, are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted :■ Provided, That no such fees.shall be paid by the board of county commissioners before the next term after conviction, and not until the sheriff and clerk of the district or criminal court shall file their affidavits that such fees cannot be collected from any other source.”
And § 27, ch. 83, Gen. Stat. 1868, regulating the procedure before justices of the peace in cases of misdemeanor, read:
“No costs shall be paid by the county in any case of misdemeanor of which a justice of the peace has jurisdiction, under this act, when the complainant or defendant shall be adjudged to pay them.”
By ch. 108, Laws of 1881, it was provided:
“That section 19, of chapter 39 of the General Statutes of 1868 be amended so as to read as follows: Section 19. In all cases where the fees prescribed by this act, in criminal cases, for the sheriff, clerk, constables, justices of the peace, witnesses for the state, and j urors, are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted: Provided, That no such fees shall be paid by the board of county commissioners until the sheriff shall have filed his affidavit that such fees cannot be collected from any other source.”
This last expression of the legislature not only amends and changes §19 of ch. 39, Gen. Stat. of 1868, but repeals by implication also § 27 of ch. 83, Laws of 1868, and by express terms creates a liability against counties in which criminal prosecutions are instituted, not existing prior to the enactment of ch. 108 of the Laws of 1881.
Counsel for plaintiff in error refer to the case of Comm’rs of Osborne Co. v. Honn, 23 Kas. 256, and contend that as counties were not liable in misdemeanor eases for sheriffs’ fees prior to the amendment of 1881, there is no liability-now for such fees or for the fees of the other officers and persons named in the amendment. Sec. 19 of ch. 39, Gen. Stat. 1868, was subsequent legislation to § 27, ch. 83, Gen. Stat. 1866, the former having been approved March 2, 1868, and the latter February 29,1868, and such original section in no way conflicted with said § 27. This was the condition- of the law at the time of the rendition of the decisions in Comm’rs of Osborne Co. v. Honn, supra; The State v. Campbell, 19 Kas. 481; and Comm’rs of Johnson Co. v. Wilson, 19 Kas. 485. But ch. 108, Laws of 1881, does not embody the restrictions or limitations contained in the original §19 of ch. 39. Constables, justices of the peace, witnesses for the state and jurors are expressly named therein, as well as the sheriff and clerk. Sec. 1 thereof provides that in all cases where the fees prescribed in criminal cases for such officers and persons are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted. The scope of this section is amply broad enough to contradict and conflict with said § 27 of ch. 83, and therefore we think the intention of the legislature was to set aside the provisions of said § 27.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of ejectment, brought in the district court of "Wyandotte county, to recover the possession of a tract of land in Kansas City, Kansas. The case was tried by the court without a jury, and judgment rendered in favor of. the defendants in error for the possession. The defendants, as plaintiffs in error, bring the record here for reveiw. The record is very voluminous, comprising 714 pages. The facts are numerous and complicated, and the questions of law intricate and difficult. The petition in error contains 89 separate allegations in error, and in support of these allegations counsel have filed a careful and elaborate brief. Perhaps a general history of the title to the tract in controversy, and a statement of the claims of the respective parties, may help to a clearer understanding of the merits of the case, and the separate questions as they are severally considered.
In 1860, David E. James was the owner of an undivided three-eighths interest in a portion of what is known as “Armstrong’s Reserve, No. 1.” In that year he executed a title' bond for ten acres, which bond became the property of Joseph E. Snyder. Thereafter, in 1864, he executed and delivered to said Snyder a carte-blanche deed — a deed in which the name of the grantee and description of the property were omitted, and authorized Snyder to fill it up at such time as he might desire, with six acres on the bank of the Missouri river, somewhere between the state line and the mouth of .the Kansas river. In 1867, in the district court of Wyandotte county, a partition was made of said portion of Armstrong’s Reserve, No. 1, and a tract of forty-three and one-half acres allotted to James. In 1868, Snyder filled up this carte blanche deed with his own name as grantee, and with a description by metes and bounds of six acres on the banks of the Missouri river, and filed the deed, thus apparently perfect and complete, for record in the office of the register of deeds of Wyandotte county. In April, 1869, he conveyed this property back to James, and James conveyed to him a tract of four acres. Two acres were embraced within the description in each of these three deeds, but a part of the four-acre tract, the southwesterly half of it, was not embraced within the six-acre tract. The land in controversy is in this portion of the four-acre tract. In 1874, one Lafayette Traber commenced two actions of attachment in the district court of Wyandotte county, and in such actions seized and sold this property, purchasing it himself at the sheriff’s sale, and thereafter sold it to plaintiffs. This, then, is plaintiffs’ chain of title: a deed from James to Snyder; a sheriff’s deed from Snyder to Traber, and a deed from Traber to plaintiffs. On the other-hand, these facts appear: On December 2, 1867, Snyder filed his voluntary petition in bankruptcy in the western district of Missouri, setting up under oath in his original schedule therein filed, that he had no property except his tools and trade and certain exempt property. The title bond though belonging to him was not standing in his name, and the cart-blanche deed had not then been filled out or recorded, so that there was nothing of record to show his interest in this land. On September 25, 1868, he obtained his discharge in bankruptcy. In 1870/one Joseph L. Norman purchased an outstanding claim against J. E. Snyder, and filed his bill in equity in the district court of the United States against Snyder, alleging that Snyder was the owner of the six-acre tract, and had obtained his discharge of bankruptcy through perjury and fraud, and praying to have/ such discharge set aside and canceled. Upon a hearing, this bill in equity was sustained and the discharge set aside, and the assignee in bankruptcy ordered to schedule the property of the bankrupt and proceed according to law. The assignee filed the schedule,' embracing within it not merely the land covered by the six-acre conveyance, but also that within the four-acre deed, and thereafter upon petition he was ordered to sell the bankrupt’s real estate, and did sell and convey both tracts to Byron Judd. The latter conveyed to Cobb and Bartlett, who conveyed to N. McAlpine, one of the defendants. Besides this, defendants held two tax deeds, and also a quitclaim deed from the heirs of David E. James. This was their title.
With this general statement, we 'proceed to examine the particular questions involved, and of these there are four which are controlling. As they are decided, so goes the case.
First, is the description of the last deed from James to Snyder, the deed which purports to convey four acres, a good and sufficient description, and such as embraces the land in controversy? Second, were the proceedings in the attachment cases regular? and if not, are the defects therein such as to vitiate the attempted transfer of title to Traber? Third, did the proceedings in bankruptcy operate to transfer to Judd any title to this land? Fourth, were the tax deeds valid to pass title? Of these in their order.
I. And first as to the description. That is as follows:
“All that tract or parcel of land situated in the county of Wyandotte, and state of Kansas, and described as follows, to wit: (Var. 11° E.) Beginning at the southwest corner of a tract of land conveyed by said James to one James F. Joy, and now known as railroad land, said southwest corner being the northwest corner of a certain parcel of land now owned by said James, thence running south sixty-one degrees, fifty minutes (61° 50'), west five hundred and eighty and eight-tenths (580.8) feet; thence south 28° 10; (300 feet); thence north 61° 50', east five hundred and eighty and eight-tenths (580.8) feet; thence north 28° 10' west, (300 feet), to the place of beginning, and all to contain four (4) acres; said land being township (11) eleven, range (25) twenty-five, in the above-mentioned county and state.”
It is difficult without the aid of a diagram to make clear the full nature and force of the’objection to this description. It hinges on the initial point. That is the southwest corner of a tract of land known as railroad land. It is claimed that, to make the description cover this land, the initial point should be the northwest corner of said land. The railroad land was a tract of about ten acres, running lengthwise along the bank of the Missouri river in a northwesterly and southeasterly direction. Its length was a good deal more than double its width. It was the entire northeasterly end of the tract set off to James in the partition suit above referred to. Its boundaries, except along the river bank, are straight lines. Its southwesterly boundary-line ran at an angle of only 28° 12' from a north-and-south line. ■ Now if the initial point is at the most southerly corner of this tract, the description would not embrace the land in question; but if it is at the most westerly corner, it will. One surveyor looking at the plat testified that the most westerly corner was the southwest corner, while four testified that the most southerly was. Evidently there is some uncertainty as to which is properly called the southwest corner. We are inclined to think that, as the tract lies, the most southerly corner is more properly called the southwest corner. But the very doubt which attends this fact, coupled with other portions of the description and other facts in the case, compel us to sustain the sufficiency of the description as embracing the land in question. First, it must be presumed that the grantor intended to convey the land he owned, rather than that he attempted to convey'land to which he had no pretense of title; second,.the initial point is not merely the southwest corner of the railroad land, but also “the northwest corner of a certain parcel of land now owned by said James.” That is, it is a point which ‘is at the same time the southwest corner of one tract and the northwest corner of another. Now while something of the same question may be raised as to what is properly the northwest corner of the James land, there is no other point which has any pretense of answering both descriptions. Further than that, twenty-one days after executing this conveyance, David E. James and others signed and acknowledged the plat of Kansas City, Kas., and on such plat this land was marked as the property of Snyder. Placing all these things together, it seems to us that there can be no reasonable question as to the sufficiency of this description. (Schmitz v. Schmitz, 19 Wis. 207; Peck v. Mallams, 10 N. Y. 532; Hathaway v. Power, 6 Hill, 453; 1 Greenl. Ev., § 301, note 2; Waterman v. Johnson, 13 Pick. 267; Stone v. Clark, 1 Metc. 378; Craft v. Hibbard, 4 Metc. 438.)
II. As to the attachment proceedings, there are three principal defects alleged. As the defendant was a non-resident, and served only by publication, the validity of the judgments must depend primarily on the sufficiency of these attachment proceedings. The property was sold under executions issued upon both judgments, so that if either judgment is valid the sale must be sustained, and the title conveyed is good. The objections are, that the affidavits for attachment do not state that the plaintiff’s claim is just; that the sheriff’s returns on the orders of attachment are not signed by him, and that neither return states in so many words that the sheriff left a copy of the order with any occupant of the land attached, or in any conspicuous place thereon. The code (§191) requires that the affidavit for attachment shall show — n.ot that it shall state — that the plaintiff’s claim is just. A mere statement that it is just, is doubtless sufficient; but if there be no such statement, and the facts as stated in the affidavit show that the claim is just, that is also sufficient. Now in one case the affidavit alleges that the plaintiff’s claim is “for the amount of money he was compelled to pay for and on account of a judgment rendered against the plaintiff on a bond or writing obligatory, wherein the said defendant was principal, and the said plaintiff was security, and which said plaintiff did pay for the benefit of said defendant; that the sum so paid, and for which defendant is indebted to him, amounts,” etc. Now these facts thus sworn to clearly show a just and valid claim. That is all that the statute requires. (Ludlow v. Ramsey, 11 Wall. 581.) As to the other matters, the return and appraisement were fastened to the order of attachment, and thus as one instrument returned to the clerk’s office. The appraisement is signed by the sheriff as well as the appraisers. The return states that the' officer attaches the property as the property of the defendant, by declaring on the premises that he attached the property at the suit of the plaintiff named, and by taking the same into his possession and now holding it subject to the order of the court. Then it states that he with two householders appraised, and that the appraisement is attached and returned with this order. This return is not signed. We think it ought to be. A return to be complete requires the signature of the officer, authenticating the statement of facts made in it. The mere fact that a paper is filed containing a recital of certain acts, which paper is unsigned by anyone, contains no evidence either that the acts so stated-were in fact done, or if done, by whom they were done. Process in the nature of an order of attachment must not only be executed in a certain way, but also by a certain officer, and the signature of the officer is essential to show both what was done and by whom it was done. This return in no manner discloses by whom the acts stated in it were in fact done — whether by the sheriff, or the plaintiff’s attorney, or an entire stranger to the court or the case. Now without the signature of an officer, is it evidence that anything was in fact done? Counsel argue, that because the statutes of some states explicitly require that the return be signed by the officer, while ours does not, the failure to attach such signature is an immaterial omission. We cannot concur with this argument, because we think the signature is inherently an essential part of the return. See the following . authorities as throwing some light on this question: Burnett v. Vinyard, 34 Mo. 216; Ditch v. Edwards, 1 Scam. 127; Joyce v. Joyce, 5 Cal. 449. Nevertheless, the defect is one which is amendable. It is something which does not affect the fact of service, but simply the evidence of it. And generally amendments are permissible when they simply run to perfecting the proof of a service which was in fact made. (Kirkwood v. Reedy, 10 Kas. 453.) But still the amendment is one which should be made. As the record stands, it fails to show service. We may not presume that service was in fact made; the record should show it. The return may be amended, but until amended, we cannot presume that the facts were done and by the proper officer. As to the other defect, the failure to state in so many words that the officer'left with the occupant, or if there were no occupant, in a conspicious place on the real estate, a copy of the order, the case of Sharp v. Baird, 43 Cal. 577, is an authority directly in point, and holding the defect fatal. Notwithstanding this authority and. the great ability of the court by which it was pronounced, we are not prepared to yield full assent to it. The return states that the officer took possession of the property. ■ The code, § 226, declares that “ from the time of the issuing of the order of attachment, the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings under the attachment.” Now if the attachment was properly issued, and the officer in fact took possession of the property, we are inclined to think that the failure to leave with the occupant or on the place, a copy ->of the order, is a mere irregularity, and not a fatal defect. At any rate, if the officer did in fact so leave the order, the return may be so amended as to state the. fact, and thus all question removed as to the regularity of the service.
III. The third question is by far the most difficult and embarrassing. If we are controlled by the face of the record, clearly the ruling of the district court was right. The assignee in bankruptcy takes only the property of the bankrupt which was his at the time of the filing of the petition in bankruptcy. The record shows a deed, executed in 1864, of the six-acre tract; this was before the commencement of the bankruptcy proceedings. The deed to the four-acre tract was not executed until April, 1869, and after the discharge in bankruptcy; so on the face of the record, this four-acre tract never belonged to the estate in bankruptcy. Counsel for plaintiffs in error contend that as the assignee scheduled this four-acre tract, as it was included in his petition for an order of sale, and also in the order of sale made by the bankrupt court, and in fact sold and conveyed to Judd, that such proceedings operate as an adjudication by the bankrupt court, a court with full jurisdiction, and an adjudication conclusive upon the bankrupt and all claiming under him; that such tract did in fact belong to the bankrupt at the time of the filing of the petition in bankruptcy, and as such became a a part of the estate in bankruptcy. We do not so understand the scope and effect of bankruptcy proceedings. There was no distinct-issue raised between the bankrupt and his assignee, and upon which the decision of the bankrupt court was asked and obtained, as to whether or not this tract was a part of the estate in bankruptcy. Perhaps if a controversy had arisen between them, and an issue been made and presented to the bankrupt court, its adjudication thereon might be final and conclusive. But the mere fact that the assignee of his own volition scheduled it, and upon his own application obtained an order for its sale, does not conclude the bankrupt. All that the order of tfie court determined is the fact of bankruptcy, the regularity of the proceedings, and that whatever title the bankrupt had at the time of filing the petition in bankruptcy has been transferred to the purchaser. There is no warranty of title in a sale by the assignee in bankruptcy, any more than in any other judicial sale. (In re Goodfellow, 1 Lowell, 510.) A sheriff levies upon real estate and sells it, and the sale is confirmed. This is not conclusive as to the title.,of the defendant in execution; neither is it conclusive that the real estate, if the property of the defendant, was not a homestead, and therefore exempt. All that is determined is, that whatever interest of the defendant in the real estate was subject to execution and sale, has been duly and properly sold. The purchaser takes his chance as to the title. Caveat emptor applies to such sales. Until the question of title or exemption is in some manner distinctly presented to the court for adjudication, it remains an open question — in no manner concluded by the fact of sale. Generally speaking, an order of a court to sell and a confirmation of a sale only settle questions as to the regularity of proceedings, and determine no matters of title or exemptions. Counsel further argue, that as Traber, who instituted these attachment cases, was jointly interested with Norman in his claim against the bankrupt estate, he was estopped by those proceeding in the bankrupt court from thereafter saying that the four-acre tract was not a part of the bankrupt’s estate. Clearly this claim is not tenable, and for several reasons: Norman in his petition to set aside the bankrupt’s discharge, simply alleged that the six-acre tract was the property of the bankrupt, and he would not be estopped by the subsequent action of the assignee in bankruptcy in scheduling other property. He never asked that the four-acre tract be seized and sold as a part of the bankrupt’s estate; and he' certainly cannot be estopped by the voluntary and unsought action of an officer of the bankrupt court.
Further, although Norman instituted proceedings which resulted in the setting aside of the bankrupt’s discharge, and in the sale of the real estate as the property of the bankrupt, yet long before the determination of those proceedings, Norman had sold his claim against the bankrupt’s estate, and had no further interest in the result of those proceedings. Whatever was done in the bankrupt court after his sale of the claim, and which he had never in terms asked, in no manner wrought any estoppel upon him. But finally, it is claimed by counsel that equitably and in fact this four-acre tract belonged to the bankrupt’s estate, and therefore that the purchaser under the bankrupt sale acquired a good title. A little further statement of facts is necessary to present clearly the basis of this claim. As heretofore stated, Snyder in 1860 became the owner of a title bond of ten acres. This bond stood in the name of Henry R. Seeger, his brother-in-law., so placed to keep the property out of the reach of Snyder’s creditors. In 1864 Snyder received the ccirte-blcmche deed, with authority to fill it up with a description of six acres on the banks of the Missouri river. This six acres, as testified to by Dr. Wood, was to be in fulfillment of the ten-acre title bond, change in location of the land being perhaps the basis for the reduction in the quantity. After the partition heretofore referred to, and in 1868, the owners of the land partitioned made an arrangement with James F. Joy, representing the Hannibal & St. Joseph railroad company, by which, in consideration of the conveyance of a certain portion of land along the bank of the Missouri river, the latter was to rip-rap the bank so as to prevent any further washing of the land into the river. In pursuance of this contract, James made a deed of his entire Missouri river front to Joy. This deed, with similar deeds from other owners, was deposited in a bank in Kansas City, in escrow, to be delivered to Joy on the completion of the rip-rapping. While the deeds were thus in escrow, James went away to Michigan; and Snyder during his absence hearing of the arrangement with Joy, and that James was proposing to convey to him his entire river front, where by the prior arrangement with James he was entitled to locate his six acres, filled out his carte-blanche deed and had it recorded. The six acres therein described comprised part of the land which James by his deed in escrow was proposing to convey to Joy. On his return from Michigan, James, fearing that this act of Snyder’s would complicate his transaction with Joy, persuaded him to deed back the six-acre tract, and in lieu thereof deeded to him the four-acre tract, a tract outside of the proposed conveyance to Joy. Now upon these facts, counsel argue that the four-acre tract was in fact the mere fulfillment of the ten-acre title bond; or as one counsel expresses it, it was the final partition between the owners of certain undivided interests, the final location by the parties interested of land which since 1860 equitably belonged to Snyder; that in all such transactions the courts will look beyond the mere form and letter of instruments to ascertain the substance and fact of the transaction. They further urge that the carte-blanche deed was void, and that the only legal conveyance in fulfillment of the title bond, the only one which in fact operated to vest title in Snyder, was the conveyance of the four-acre tract. This, as we have said, presents the most difficult and embarrassing question in the case. We have spoken of these last matters as facts. They are testified to by Dr. Wood. They do not appear upon the face of the record, nor do they come to us from the immediate parties to these transactions, for both Snyder and James are dead. The testimony of Dr. Wood springs not from being a party to the transaction, but from information received through conversation with the .parties, .and from his familiarity with the dealings of the various parties interested in this reserve, in connection with their respective interests. Now we remark that prima facie the record controls; that where transactions are reduced to writing and placed upon record, the presumption is that those writings speak the truth. Parties dealing with the property have a right to act upon the presumed verity of those writings, and courts will deal with them as though they were true.
Second: As to the property, which is ápparently after-acquired property, the burden is on the assignee' and those claiming under him to show that it in fact and equitably belonged to the bankrupt at the time of filing his petition. (Mays v. National Bank, 64 Pa. St. 74.) No presumption arises from the fact that the assignee claimed a.nd scheduled it, but the burden is on him to overthrow the evidence of the record.
Third: When the immediate parties to a transaction are dead, courts will be slow to disturb titles founded upon writings they have made and conveyances they have executed, upon the testimony of a mere outsider, for it is always a matter of doubt whether such outsider. knows fully all the conditions and the - circumstances of the dealings between the respective parties. They may have withheld a part of the facts from him; considerations may have existed, personal to the parties, of which they gave no information, and of which he may have been all the while entirely ignorant.
Fourth: While the carte-blanche deed.may have been in the first instance, and when delivered by James to Snyder, of no validity as a deed, and while the act of Snyder in filling out the description and name of the grantee may also have been impotent to perfect the instrument as a conveyance of title to the land described, yet it was possible for James, after the instrument had been formally completed, to ratify the act of Snyder, and thus to make in effect a subsequent delivery of a complete and perfect' deed. (Tucker v. Allen, 16 Kas. 319.) There was evidence tending to show such ratification and redelivery. Months after this deed had been placed on record, James sought and obtained a reconveyance of the land. Instead of challenging the instrument as void, he treated it as good, and obtained from the, grantee in it a reconveyance of the title. Further than that, about two weeks after the conveyance of the four-acre tract, he obtained from the party in whose name the-ten-acre title bond stood a release attested by Snyder, which release recites that it is made “in consideration of one dollar to me in hand paid, and the absolute fulfillment of the within bond by conveyance of six acres of land to Joseph E. Snyder, by deed dated July 27, 1864, and recorded,” etc. This tends strongly to show that James ratified the act of Snyder, redelivered the deed, and treated it as a valid conveyance, although seeking by a new arrangement with him to avoid any disarrangement of his negotiations with Joy.
Fifth: The two deeds from James to Snyder are different, and differently conditioned. The deed of 1864 is a conveyance direct and absolute of the six acres, without limitations or conditions, and without covenants of warranty. The deed of 1869 is a conveyance of the four acres with warranty, but subject to the payment of a mortgage of $50 per acre, given to Silas Armstrong by James, and also subject to the payment of $125 due C. F. Welland, and also to unpaid taxes., This also tends to show a new dealing, with new considerations between the parties.
Sixth: By the bankruptcy proceedings, the title' bond passed to the assignee, and Snyder had no right to. locate it; nevertheless, when he did in fact act, the assignee might accept and ratify his actions. By scheduling the six acres, he did in effect accept and ratify it. It may be said that by scheduling the four acres he also accepted and ratified Snyder’s act in respect to that tract, but both tracts did not belong to Snyder as a part of his estate in bankruptcy. If the six-acre tract belonged to the estate in bankruptcy, the four-acre tract did not. Whatever consideration passed to James, and whatever inducement he received for making this four-acre conveyance, if the six acres belonged to the estate in bankruptcy, the four-acre tract did not, but was after-acquired property of Snyder. The assignee could not take both. By scheduling and selling the six acres'he ratified Snyder’s action in that respect, and could not reach out and take more. Even if it was a purely voluntary conveyance from James to Snyder, it would still be after-acquired property.
Seventh: Not only did the assignee in bankruptcy schedule and sell the six acres — the purchaser from him also asserted his rights thereto, conveyed the whole land to Bartlett and Cobb, who, on August 15, 1872, sold that portion within the limits of the Joy conveyance to the railroad company for $850. Not only did they thus assert a right to the six-acre tract and receive the benefit which flowed from ownership, but they also practically abandoned all claim to the land in controversy, and conceded that they had no title to it. They sought to obtain tax titles on the land in controversy, and out of this effort resulted their subsequent quitclaim to McAlpine. They purchased at the tax sale with their own money, but in the name of a friend, and caused ' subsequent taxes to be paid upon the same certificate. By a mistake of McAlpine, then the county treasurer, the payment of these subsequent taxes was not credited to them on the sale book, and so when Traber redeemed the land he obtained the certificate of redemption without the payment of the last year’s taxes. When they came for their redemption-money, they_ consequently found in the treasury only a part of the amount due them. After some negotiations, McAlpine agreed to pay the balance due, providing they would execute a quitclaim to him. Thus McAlpine acquired his interest. In other words, he in fact paid nothing for the land, but obtained a quitclaim by making good the loss occasioned by his own omission of duty; a loss for which he would be either directly or indirectly responsible to the grantors in the quitclaim. Putting all these things together, we think the district court rightly' held against the bankrupt-proceedings title. The face of the record is against it. The parties in interest on each side all finally rejected it, and now to permit a mere speculator, paying nothing, but simply making good a loss occasioned by his omission of official duty, to come in and appropriate valuable land which all the real parties in interest conceded to belong to the plaintiffs, would, we think, be rank injustice.
IV. The remaining question is of little difficulty. The defendants offered in evidence two tax deeds. The description in one deed is as follows: “Five acres out of the following described tract, viz.,” (here deed described thirty-eight acres by metes and bounds, being the entire James tract,) “ five acres; said land assessed in name of and as belonging to Jos. E. Snyder, excepting two acres off the easterly end, said land fronting on the Missouri river, redeemed February 8, 1873, by H. & St. J. R. R. Co.” This deed was based on the taxes of 1868. .The assessment roll describes only the thirty-eight-acre tract belonging to James, and describes it by metes and bounds. The notice of sale follows the assessment roll. The sale certificate simply says five acres out of the thirty-eight-acre tract, without giving by ownership or otherwise any further description. The deed as above copied, attempts to perfect the description by reciting that the land was assessed in the name of and as belonging to Jos. E. Snyder. But there was no land assessed in the name of Snyder, and at the time of the making of the tax roll, the six-acre conveyance had not been filled out and recorded; so that there was in fact at that time not the slightest pretense of any location of Snyder’s interest in the land. Furthermore, the four-acre conveyance was not made until April, 1869. But beyond all this, it is impossible to ascertain what land was included within these five acres. Snyder’s two deeds called for six acres and four acres respectively. Neither of them described a five-acre tract, and only by mere guessing could it be determined that the laud ifi controversy was intended to be embraced within the description in this tax deed. But tax titles never rest on guesses. Tax collections are proceedings in invitum, and must describe the land so that “with ordinary and reasonable certainty it can” be determined exactly what land has been seized and sold. (Comp. Laws 1879, ch. 107, §153.) The other deed is for the taxes of 1869. The description is as follows: “Commencing at the N. W. corner of tract conveyed to J. F. Joy by D. E. James, S. 28° 10', E. 300 feet, S. 62° 10, 580 feet, N. 28° 10', W. 300 feet, N. 62° 10'; E. 580 feet, to beginning. - Four acres same land assessed in name of and as belonging to Jos. E. Snyder, excepting two acres off the easterly end fronting on the Missouri river, redeemed February 8, 1873, by the H. & St. Jo. R. R. Co.”
There is in this description the same question as in the four-acre conveyance to Snyder, as to what was intended by the “northwest corner,” etc. I-f the initial point in that conveyance-was technically and correctly the southwest corner of' the railroad land, then the northwest corner was on the river; and that this is the corner intended in this tax deed, is strengthened by the recital of a redemption by the railroad company of two acres on the river front. But again, conceding that the description in the deed is sufficient to cover the land in controversy, so that the deed on its face is good, still the title was challenged within a few months after the record of the deed, and defects were shown in the prior proceedings. The sale book, the notice of sale, and the sale certificate, are all defective in omitting these words' from the description: “ W. 300 ft., N. 62° 10'” — which leaves a description obviously imperfect and incomplete. Hence, the title attempted to be conveyed ,by the tax deed must fail. See the following authorities, upon defects in the description of tax deeds: Orton v. Noonan, 23 Wis. 102; Winker v. Higgins, 9 Ohio, 500; Larrabee v. Hodgkins, 58 Me. 412; Griffin v. Creppin, 60 Me. 270; Bingham v. Smith, 63 Me. 450; Onkendorf v. Taylor, 4 Pet. 349.
This disposes of all the vital questions in the case. We see nothing in the minor matters requiring comment. For the reasons indicated while discussing the regularity,of the attachment proceedings, the judgment in favor of the plaintiffs upon the record as it stands, was improper. Nevertheless, as the ca!se seems to have been fully tried, and all available testimony introduced, it would seem unnecessary and wrong to simply reverse the judgment and remand the case for a new trial; providing, of course, that the facts as they existed will permit an amendment of the sheriff’s returns upon the attachment orders. It is perhaps a novel way of disposing of the case, but we think substantial justice requires the order which will be made, which is that the case be remanded to the district court with the instructions that if within such reasonable time as the district court or judge shall prescribe, the sheriff’s returns on the attachment orders shall be amended in conformity to the views expressed by this'court in this opinion, the judgment shall be affirmed. On the other hand, if such amendment cannot be obtained, the judgment will 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
Brewer, J.:
This action was founded on the following written instrument:
“Olathe, Johnson County, Kas., Nov. 6, 1880.
“ We, the undersigned, agree to pay to W. H. Golden one hundred and fifty dollars, provided a certain claim can be bought, situated on what is known as ‘ Black Bob7 — the north one-half of southwest, section 17 — 14—24. Supposed to be an oil spring or oil seep on said land; supposed to be the claim of one Mr. Ketchum. This money is to be paid for the knowledge of said oil well or spring to the undersigned.
C. H. Reed.
Wm. Baxter.77
Judgment was rendered in favor of the plaintiff, and defendants allege error. This case has been once before to this court, and is reported in 26 Kas. 500. At that time we reversed the judgment in favor of the plaintiff, on the ground that it did not appear that the particular tract described could be purchased without the purchase of a larger tract. On the-new trial it sufficiently appeared that the tract described could have been purchased, and now the defendants allege as error' the giving of one instruction and the modification of another.
The instruction given reads as follows:
“ If you believe from the evidence that the plaintiff showed the defendants or either of them the oil spring or seep on the-eighty acres, in said written contract mentioned, before said contract was entered into, and that said eighty acres could have been purchased as therein alleged, then plaintiff is entitled to recover the sum of $150. The plaintiff going-on said lands, if you find he did, and showing to defendants said spring or seep, is a sufficient consideration to support said contract.”
The defendants insist that the last sentence of said instruction is erroneous, and that the plaintiff going on the lands and showing the defendants the spring or seep is not a sufficient consideration. We think the defendants are mistaken, and that the giving of the information was a sufficient consideration to support the contract. Plaintiff was under no obligation to give this information, and if the defendants desired it and considered it of value, the giving of such information was sufficient consideration to support a contract. One who knows the locality of oil wells, of mines, or of other-valuable properties, may sell his knowledge to any one willing to buy, and the disclosure of the locality of such properties is a sufficient consideration for the purchaser’s promise to pay. These purchasers supplemented the disclosure of the locality with the proviso that they should be able to purchase the tract in which the oil spring was situate, and the testimony shows not only the giving of the information, but also the fact that the tract could be purchased. The defendants-asked this instruction:
“If the jury find from the evidence that that there was no supposed oil well or oil seep on the north half of the southwest quarter of section 17, town 14, range 24, in Johnson county, Kansas, at the time of executing the obligation sued on, then you will find for the defendants;”
— which the court gave, but attached to it this further matter:
“ Whether there was a supposed oil well, or not, as alleged in said written contract, is a fact to be determined by the jury from all the evidence. The jury will look to the written agreement for the contract and determine from the evidence, and determine whether the plaintiff has complied with his part of it or not.”
We do not see that they have any cause of complaint on account of the court’s action. It did not change the import of the instruction, but simply added a matter which was perfectly proper for the consideration of the jury. .
These being the only matters complained of, and in them appearing no error, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The single question in this case is, as to the constitutionality of chapter 146, Laws 1881. That act established a state road from Grantville to Topeka, and cast the cost thereof on the two counties of Shawnee and Jefferson, in which the road was to lie. No discretion was given to any county officer in respect to the establishment of the road, but after the commissioners named in the act had finished their work, and located the road, then the county commissioners of the two counties were directed and required to pay the expense thereof out of their respective treasuries; and on this ground alone the constitutionality of the act is challenged. No minor question is presented — nothing suggested as to the title of the act, the manner of its passage, or any 'particular section or provision; but counsel urge this alone, that the legislature has no power to establish a state road, and then compel a county to bear the cost and expenses thereof. We quote from the brief:
“We cannot see by what authority the legislature can establish a state road, and compel Shawnee county to pay for it. It takes away, or attempts to, the discretion vested in the tribunal transacting county business, and compels them to appropriate out of the county fund a large sum of money to pay for a road over which they have nothing to say as to whether it shall be established or not. We submit the legislature is not clothed with any such unlimited power.”
Now upon this we remark: First, that if compelling a county to bear the expense of a state road is a violation of the constitution, it has been a frequent sin. There has been scarcely a single session of the legislature since the admission of the state in which similar acts have not been passed. In the very first session, by ch. 70, Laws 1861, forty-two state roads were authorized, whose expenses were wholly cast upon the counties through which they ran. In 1862, three acts of a similar nature were passed. (Ch. 177-8-9.) In 1863, there were also three similar acts. (Ch. 51-3-4.) In 1864, by ch. 110, sixty-four state roads were thus established. This act differed slightly from those previously cited, in this respect, that the approval of the county board of commissioners was required before land damages were to be paid, and that to this extent it gave the county officials some control; but as to other expenses there was no discretion. In 1865, by ch. 65, fifty-one state roads were established in the same manner and upon the same conditions as prescribed by the act of 1864. In 1870, by ch. 97, thirty-four state roads were thus established. In 1871, by ch. 132, sixty-one state roads were thus established. In 1874, by ch. 113, eight roads were thus established. In 1877, by ch. 164-5-9, three roads were thus established. In 1879, by eh. 183, one road was established. In 1881, besides the act jn question, ch. 147 established another state road, and in a similar way cast the burden on the counties through which it.passed. It will be seen from this enumeration that it has beén the constant practice ever since the admission of the state, and hitherto unchallenged, to establish state roads and cast the cost and expense thereof upon the counties through .which they ran. It is true, the number of these acts does not determine their constitutionality, but it shows at least the general understanding of the scope of legislative power, and, after such repeated action by the legislature and such general acquiescence throughout the state, the courts may well hesitate before declaring such action in conflict with the constitution.
Second, it will be borne in mind that the purpose for which this expense is cast upon the county is a purely public purpose — one that is universally and without question recognized as such. It is not like compelling a county to take stock in a railroad corporation, or to aid in the building of a railroad, or to invest its public moneys in any enterprise in which there is something of private interest. A public highway is a matter solely of public interest. The laying-out and keeping in order of highways is one of the ordinary duties of counties and cities.
Third, we remark, that while the road is open to the use of all citizens from all parts of the state, it is yet of special benefit and value to the county upon which the burden of its establishment is cast. There is no casting upon one community the burden of a public enterprise which is specially beneficial to the citizens of some other community. It is not like an attempt to tax the citizens of Topeka with the cost of improving the streets of Lawrence. It simply casts upon the "counties of Shawnee and Jefferson the cost of roads wholly within their territorial limits, and it is making each county bear the burden of public improvements within such limits. It is true, it is called a state road, but there is no intrinsic difference between a state road, a county road, and a township road — nothing which makes one more than the other of value to the public^ This road is of none the less value to the people of Shawnee county because it is called a state road, than it would be if called a county roa.d. We know of no reason why the legislature might not pass an act declaring all highways state roads, and place the management and control of them in commissioners appointed directly by the state; and yet if such an act were passed, the special value and benefit of each road to the community in which it is located would be unchanged.
Fourth, we remark that there is in this legislation no usurpation on the province of the judiciary. It does not adjudge any existing claim to be a legal demand against the county. It does not attempt to pass as to the validity of any such claim. It touches no past transaction, but simply orders that certain work be done in the future, and provides what public organization shall bear the burden of the work. In this respect it differs from such cases as that of Hoagland v. Sacramento, 52 Cal. 142; State v. Hampton, 13 Nev. 439.
And finally we remark that counties are purely the creation of state authority. They are political organizations, whose powers and duties are within the control of the legislature. That body defines the limits of their powers, and prescribes what they must aud what they must not do. It may prescribe the amount of taxes which each shall levy, and to what public purpose each shall devote the moneys thus obtained. It may require one county to build a certain number of bridges at certain specified places, and of a particular size and quality. It may require another to open roads in given localities, and another to build a court house and to levy a tax to a prescribed amount for the purpose of paying therefor. In short, as a general proposition all the powers and duties of a county are subject to legislative control; and provided the purpose be a public one and a special benefit to the county it may direct the appropriation of the county funds therefor in such manner and to-such amount as it shall deem best. It may give a discretion to the county commissioners or other officers elected by the citizens of the county, or it may itself appoint the officers who shall determine the improvement or the amount of expenditure. Authorities are not wanting to sustain these views. Cooley, .in his work on Constitutional Limitations, p. 232, after referring to several cases, adds these words: • ’•
“If these cases, which are referred to in the note, are sound, the limitations which rest apon .the power of the legislature to compel municipal corporations to assume and discharge obligations, can only be such as spring from the general principles governing taxation, namely, that the demand or purpose for which the tax is levied shall be such as to constitute a proper charge or burden upon the state, or portion of the state, taxed to pay or to accomplish it. But upon this question the legislature is vested with discretionary and compulsory power, and its decisions are not subject to review in the courts. They must be final, unless in clear cases, where, there being no ground to adjudge the purpose to be a proper one for taxation, the legislature may be held to have proceeded unwarrantably; and perhaps there is still a further limitation, that if the claim is unadjusted and in dispute, the legislature has no authority to adjudicate upon it, but must leave the exercise of the judicial function to the ordinary tribunals.”
See in support of these views the following authorities: Kimball v. City of Mobile, 3 Woods’s Circuit Court, 555; New Orleans v. Clark, 95 U. S. 644; Kirby v. Shaw, 19 Pa. St. 258; City v. Field, 58 Pa. St. 320; Thomas v. Leland, 24 Wend. 67; Guilford v. Supervisors of Chenango, 18 Barb. 615, (13 N. Y. 143;) People v. Mitchell, 35 N. Y. 551; People v. Mayor, &c., of Brooklyn, 4 N. Y. 419; People, ex rel., v. Flagg, 40 N. Y. 401; City v. Home for Friendless Women, 50 Ind. 215; People v. Power, 25 Ill. 187; Slack v. Rld. Co., 13 B. Mon. 26; Mayor, &c., v. Sehner, 37 Md. 180; O’Brien v. Co. Comm’rs, 51 Md. 15; Guilder v. Otsego, 20 Minn. 74; State, ex rel., v. County Court of St. Louis, 34 Mo. 546; Rld. Co. v. Napa County, 30 Cal. 435; and 1 Dillon on Municipal Corporations, ch. 4.
Our conclusion therefore is, that the act in question is constitutional. The judgment of the district court will there fore be reversed, and the case remanded with instructions to overrule the motion to quash.
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The opinion of the court was delivered by
Valentine, J.:
The petition of the plaintiff in the court below, who is now defendant in error, was drawn up very much like a petition in an action of replevin; but the action was not an action of replevin. No affidavit for a writ of replevin was made or filed, no undertaking was given, and no writ of replevin was asked for or issued or served. The defendant did not have possession of the property in controversy at the time the action was brought, and the action was not tried upon the theory that he did have any such possession; and the defendant' filed a lengthy and voluminous answer, setting up a large number of new and independent facts as a defense to the plaintiff’s action, which he need not have done if the action was simply one of replevin. In an action of replevin a general denial is a sufficient defense in any case. As before stated, the action was not tried upon the theory that it was an action of replevin; but it was in fact tried upon the theory that it was an action in the nature of trespass de bonis asportatis, or trover. The petition of the plaintiff, it is true, was drawn up to a very great extent in the form of a petition in an action of replevin; yet the facts attempted to be stated therein, with a liberal construction, were sufficient to constitute an action in the nature of trespass de bonis asportatis, or of trover. Among the facts which it attempted to allege, and which by a very liberal reading of the petition may be said to have been alleged, are that W. E. Brown made a legal assignment of the property in controversy to the plaintiff for the general benefit of his creditors, and that the plaintiff was afterward duly and legally appointed as such assignee by the probate judge, and that he qualified as such assignee and took possession of the property in controversy, and while holding the same in his lawful possession the defendant broke into the place where the goods were stored and unlawfully took the possession of the same; that the plaintiff was entitled to the immediate possession of the property; and that the defendant unlawfully detained the possession of the same from him for the period of one hundred days, to his damage in the sum of $1,000; and the petition prayed for a return of the property to the plaintiff, or for the value of the same, with damages.
The defendant’s answer set forth, among other things, that he was a constable, and that by virtue of certain executions, which he held in his hands against Brown, he levied upon the property in controversy, took it into his possession and sold it at public auction, and applied the proceeds in satisfaction of said executions; and further alleged that the assignment of Brown to the plaintiff was fraudulent and void, having been made for the purpose of hindering, delaying and defrauding the creditors of Brown. The plaintiff filed a general denial to the new matter set forth in defendant’s answer. The case was tried before the court and a jury. The evidence has not all been brought to this court; but sufficient evidence has been brought to this court to show that the material allegations of both the plaintiff’s petition and the defendant’s answer, except the alleged fraud, were proved, and it would also seem that such of the material allegations of new matter contained in the defendant’s answer as set forth and charged that the assignment was fraudulent or void were not proved. The verdict of the jury and the judgment of the court below were in favor of the plaintiff and against the defendant; and the defendant, as plaintiff in error, now brings the case to this court and ásks for a reversal of such judgment.
The first alleged error is, that the court below erred in refusing to give the following instruction, asked for by the defendant, to wit:
“The jury are instructed that the burden of proof is upon the plaintiff to establish by evidence the allegations of his petition and his right to recover herein, and unless he has shown by a preponderance of the evidence his right to recover herein, the jury will find for the defendant.”
We do not think that the court below committed error in refusing to give this instruction. The plaintiff admitted that the burden of proof rested upon him, and for that reason there was but little necessity for the instruction. Besides, the instruction was itself erroneous and misleadinThe purport of the instruction'was, that unless the plaintiff proved by a preponderance of the evidence all the allegations of his petition he could not recover, and that the jury should find for the defendant. Now the plaintiff alleged several things in his petition which it was not necessary for him to prove, and some things which were not in fact true; and yet we think the evidence showed that he was entitled to recover. For instance, the following allegation is found in the petition, to wit: “ The said goods and chattels are wrongfully detained by the defendant.” Now this allegation was not true; and it was not necessary, in order to authorize the plaintiff to recover, (if the action be considered as one in the nature of trespass de bonis asportatis or trover,) that it should be true. The defendant had sold the goods and parted with their possession a long time prior to the commencement of this action, and at the time of the commencement of this action he did not have the possession of the goods, and did not claim to be entitled to their possession; .and the plaintiff was perfectly cognizant of these facts.
We do not think that the court below erred in giving in structions numbered 3, 4, 5 and 6, asked for by the plaintiff, nor in refusing to give instructions numbered 4 and 9, asked for by the defendant. These last-mentioned instructions were, substantially, given in other instructions.
We do not think that the general charge of the courUbelow was erroneous, or given to the jury upon an erroneous theory of the case. The action was not distinctively a replevin action, and was not so treated by the parties. Both parties really treated it as an action in the nature of trespassjA^onis asportatis, or trover, and so did the court; and we think it was an action in the nature of both of these actions. The defendant certainly committed a trespass — a trespass quare clausum fregit, a trespass vi et armis, and a trespass de bonis asportatis — when he broke open the store of the plaintiff, took the possession of the goods and carried them away; and he certainly converted the goods and laid the foundation for an action of trover, when he took the possession of the goods for the purpose of selling the same under the executions. When the defendant sold the goods under the executions, the plaintiff was present, protesting against such sale; but the defendant ignored such protest, and sold the goods notwithstanding the protest. This was in furtherance of the trespass, and was a final completion and consummation of the conversion. All those allegations in the plaintiff’s petition which are proper and necessary only in an action of replevin, may be treated as surplusage. The court and the parties below so treated them; and this court will so treat them. It does not appear that the defendant claimed in the court below that the action was merely an action of replevin; and it would seem that he now raises the question for the first time, in this court. But even if he had raised the question in the court below, it is questionable, at least, whether it would have availed him anything. The plaintiff would undoubtedly have amended his petition so as to meet any objection that might then have been urged against it. The defendant might, by proper motions, have required the plaintiff to amend and reform his petition, by striking out all unnecessary allega tions, and by making the other allegations more specific and more definite and certain. But the defendant did not make any such motions. The court below and the parties in that court treated this action as an action in the nature of trespass de bonis asportatis, or trover; and this court will also so treat the action. The facts alleged and admitted in the petition and answer, and proved on the trial, would certainly constitute either of the actions, trespass de bonis asportatis, or trover, at the election of the plaintiff. Some of the allegations of the petition, it is true, are very defective, even when the action is considered as one in the nature of trespass de bonis asportatis, or trover; but these defective allegations of the petition were cured and made good by the allegations of th.e answer and the proof; every one of the defects of the petition were amply supplied by the allegations of the answer and the proof. The action was fairly tried as an action of trespass or trover. Neither party was deceived or surprised. And we should think that substantial justice was done.
We think that the judgment of the court, below ought to be affirmed; and as we perceive no substantial error in the rulings of the court below, the judgment will he affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The petition filed in this case alleges that .the defendants in error (plaintiffs below) are the surviving heirs of John and Mary Pigeon, who died intestate; that the lands described in the petition were patented to John and Mary Pigeon, under a treaty of the United States and the Miami tribe of Indians, bearing date June 5,18'54; that during their lives John and Mary Pigeon never conveyed said lands, and since their decease, their heirs and legal representatives have not conveyed them; that they have a legal estate in and are entitled to the immediate possession of the said real estate, and that the plaintiffs in error (defendants below) unlawfully keep them out of the possession of the real estate, and have unlawfully kept them out of the possession thereof since July 23, 1869; that during all of said time plaintiffs in error (defendants below) have received to their own use all the issues and profits thereof, to the damage of plaintiffs below in the sum of $2,960. The prayer of the petition is, that plaintiffs below recover the possession of the premises described in the petition, and also the sum of $2,960, their damages. This petition was not attacked in the court below in any manner except by demurrer. The demurrer alleged, first, that in said petition several causes/ of action were improperly joined; second, that in the cause of action in said petition set forth and numbered one, several causes of action were improperly joined; third, that in the cause of action in said petition set forth and numbered two, several causes of action were improperly joined. . This demurrer was overruled by the court below, and this is the ruling now complained of by the plaintiffs in error.
Sec. 83~of the code provides:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore'been denominated légal or equitable, or both, where they all arise out of either one of the following clásses: . . . Sixth Claims to recover real property, with or without damages for the withholding thereof, and the rents and. profits of the same.”
Under this section, there can be no question but that a cause of action in the nature of ejectment, and one for rents and profits, may be united in the same action; therefore, the court did not err in overruling the demurrer. (Scarborough v. Smith, 18 Kas. 399.)
The order and judgment of the district court, will be affirmed, and the case remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The judgment of the trial court, which we are asked to review and reverse, is based upon the validity of a prior judgment, rendered May 31,1878, in the action of The State of Kansas, on the relation of Daniel Hammond, against the plaintiff in error as county clerk of Rush county, allowing a peremptory writ of mandamus to issue against Garner as such county clerk, commanding him to remove immediately all the books, papers, documents, effects and things belonging to the office of county clerk of the county of Rush, to La Crosse, and thereafter to keep the office of county clerk at said town, and adjudging the town of La Crosse to be the county seat of Rush county. In that action, Hammond, the, relator, set forth in his alternative writ that he considered himself aggrieved at the result of the election held in Rush county on the 12th of February, 1878, for the purpose of relocating the county seat of Rush county; that there was malconduct and fraud on the part of the board of commissioners in said county in its action in ordering the election, in this: that the county seat had been, by a vote of the electors of the county, relocated on the 27th day of February, 1877, at the town of La Crosse; that there was no petition having the legal number of petitioners presented to the board, or filed in the office of the county clerk of the county, at the time the order for the new election was made; that the legal number of electors in the county, as ascertained from the last assessment rolls preceding the filing of the pretended petition, asking for a relocation of the county seat, was three hundred and eighty-one; that the number of names on the pretended petition was two hundred and forty-two ; that of the number appearing on the pretended petition, there were the names of forty-five persons who were not at the time of presenting the petition or signing the same, legal electors of the county, and there were also on the petition the names of five persons who did not sign the petition, or authorize anyone to sign their names for them. The petition contained the names of the alleged illegal petitioners, and also the names of the petitioners whose names were forged thereto. The petition further set .forth that at the election, the town of Alexandria received one vote for the county seat; that the town of La Crosse received one hundred and twenty-seven votes, and the town of Walnut City received two hundred and thirty-four votes; that certain illegal votes were oast and counted 'for Walnut City, giving the names and. numbers thereof; that certain legal votes were - offered in favor of La Crosse and refused, giving names of the parties offering to vote and the number thereof; that a majority of all the legal votes cast were in favor of La Crosse for the county seat; and that Walnut City was illegally declared the chosen county seat.
It is contended by counsel for plaintiff in error that as no-evidence was introduced upon the trial of the cause had on May 31, 1878, and as the'court failed to make any special findings of fact as prescribed by § 9, ch. 79, Laws of 1871, the judgment was and is utterly void. ■ ' Counsel overlook the proposition that a judgment may be irregular or erroneous, and not void. Conceding for the purpose of argument that the judgment was erroneous, it cannot be said to be void, as the court had jurisdiction of the parties and the subject-matter. Therefore the judgment is binding and conclusive until vacated or reversed, and we must hold it operative for all that that term implies. To illustrate: Section 290 of the code requires a court, upon the trial of questions of fact, on the request of either of the parties to the action, to state in writing the conclusions of fact found separately from the conclusions bf law. Now if a district court having jurisdiction of the parties and subject-matter enters judgment in a case where •questions of fact are involved, and a jury is waived by the parties, but fails to state conclusions of fact and of law in accordance with the request of one of the parties, the judgment rendered by it would be erroneous, but clearly not void. In such a case the right of a party to have the court make separate conclusions of fact and law is a substantial right, and a judgment will be reversed for a refusal to grant such a right. (Briggs v. Eggan, 17 Kas. 589.) But this is a very different thing from a void judgment. Likewise, the action •of the court in allowing a peremptory mandamus upon the failure of the defendant, to answer the alternative writ without the introduction of evidence, at most was only error, but not a sufficient ground to declare the judgment a nullity. The court had jurisdiction, and whether all of its proceedings were strictly in accordance with the provisions of the act under which the action was prosecuted, and whether proper proof was introduced to sustain that judgment, we need not inquire. The defendant was present in person upon the rendition of the judgment, and also appeared by counsel. He then excepted to the judgment, and was allowed by the court fifty days in which to make a case to have the rulings and judgment of the district court reviewed. He neither took advantage of his exceptions, nor prosecuted any writ of error, and therefore he is not now in any condition to insist that the judgment can be treated as a nullity by him. We think, ¡moreover, that this judgment is continuing as against the plaintiff in error as long as he continues in office as county-clerk of Rush county, whether it be under his first election, or a subsequent reelection. It is moreover contended that plaintiff in error satisfied the judgment of the 31st of May}> 1878, by removing and keeping his office at La Crosse for a time. The original action of mandamus is likened by counsel to one of forcible entry and detainer, where A gets a judgment against B, and upon a writ of restitution B is ousted from the premises, and after his eviction reenters and assumes possession. Not so. The judgment of the 31st of May, 1878, was a continuing one, not merely for the plaintiff in error to remove to La Crosse with his office, but to keep it there. A temporary removal to La Crosse, followed soon after by a change to Walnut City, was not substantial compliance with the terms of the judgment. We suppose, upon proper application having been madé by the relator in the first action, that the plaintiff in. error might have been punished after his return to Walnut City for his refusal and neglect to perform the duty enjoined by the peremptory writ of mandamus. It is said, however, that the plaintiff is excused from a further compliance to the writ of mandamus of May 31, 1878, because on the 7th of June, 1878, one of the justices of this court issued an alternative writ commanding him as county clerk of Rush county to go to Walnut City with his books, papers and records, and to keep his office there or to show cause for not so doing. That proceeding does not figure in this controversy, because upon the final judgment entered in that case, it was expressly provided that the judgment-rendered “was not to conclude--or be a bar to the action of any other person, in any suit properly brought by such person concerning the subject-matter of the dispute.” This judgment, therefore, in no way affected the rights of the relator in the first action, or the rights of any'other person. To the alternative writ issued by this court, the plaintiff in error did not set up the judgment of the district court, nor any matter affecting the proceeding in which that judgment was rendered, and this court simply adjudged the costs against him, without affecting thereby the rights of any other action or party. It is suggested that if the judgment of May 31, 1878, is valid and still in force, that the subsequent proceedings upon the relation of P. Moon are wholly supererogatory, and therefore improper. It is certainly true that the relator in this case either had the right to the benefit of the judgment of May 31, 1878, or that he had the right to commence an original action under ch. 79, Laws of 1871, and the amendment thereto, (Laws of 1872,) for the purpose of compelling the defendant below, as county clerk, to remove his office, and the books, papers and records thereof, to La Crosse, which the relator claims to be the county seat of Rush county. For the purposes of this case, the action commenced by the relator may be deemed and considered an original action. The defendant below (plaintiff in error) did not attack the alternative writ by demurrer, motion or otherwise, and based his defense in bis answer upon a general denial, and the removal of his office from La Crosse on the 10th of June, 1878, to comply with the terms of an alternative writ of mandamus awarded by one of the- justices of this court. In the agreed statement of facts, the judgment of May 31,1878, is recited, and as this judgment was subsequent to the election of the 12th of February, 1878, and the canvass and'declaration of the result thereof, and as such jüdgment was not wholly void, the same was properly considered by the trial court, and of itself was prima facie evidence/ (even if not conclusive,) until overthrown by competent evidence that La Crosse was the legal county seat.
It is finally asserted that at the time of the rendition- of the judgment, plaintiff in error was out of office; therefore that the judgment cannot affect him. Again, that the judgment was rendered in vacation, and therefore utterly void. There is not anything in the answer of plaintiff in error or in the record that shows that plaintiff had vacated or left the office of county clerk; nor does it appear from the record that the judgment was rendered in vacation. The journal entry of the judgment purports that the court at its rendition was actually in session. Even if the judgment was rendered on the 21st day of March, 1881, which is not clearly apparent from the record, it is by no means conclusive that it was rendered when there was no court in session in Rush county. It is true, that the times fixed by law for holding court in that county are the fourth Tuesday in May and the fourth Tuesday in November each year, but the court has authority to hold adjourned terms from time to time, and unless there .is something in the record tending to show that the judgment was rendered in vacation, we are not to assume such to be the fact. In the first place, judges and other officers are supposed to perform their duties in accordance with the provisions of law; and in the second place, error must affirmatively appear in the record before we can interfere. We are not to presume error, or that a judgment is wholly void.
Counsel very forcibly suggest that if several different actions were commenced, and that each relator set up a different statement of facts, one establishing that the county seat was at Alexandria, another at Brookdale, another at Hampton, another at Pioneer, another at La Crosse, another at Walnut City, and so on, that the result above declared would cause great confusion, and instead of one county seat, several different county seats might be located in the county by judgments of the district court. To this we reply, that while the statute permits any elector who considers himself aggrieved by the result of any election held for removing, locating, establishing, or relocating the county seat of a county, to contest by an action in the district court such election, yet if different actions are brought, and different judgments are rendered, it is possible that the attorney general or county attorney in the interest of the public might, in a proper action instituted for that purpose, have all. of these different judgments reviewed and superseded by a general adjudicating as to which town, city or place was the legal county seat of the county, and thus bring together all of the county offi cers, with their books, papers and records, to such town, city, or place, as the county seat.
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
Herd, J.:
This is a tort action for actual and punitive damages. The jury awarded John Sieben separate judgments against Thomas Sieben, Robert Coffey and the H. J. Sieben Construction Company. It also awarded the H. J. Sieben Construction Company a judgment against John Sieben on the company’s counterclaim. All parties appealed. The Court of Appeals, in an unpublished opinion, reversed the judgment against H. J. Sieben Construction Company and the judgment against John Sieben on the company’s counterclaim. These issues were remanded for a new trial. The judgment of the trial court was affirmed in all other respects. We granted review.
The essential facts are as follows: H. J. Sieben owns the construction company. He has two sons, John and Thomas. John works for Tri-State Roadboaring Company and Thomas is president of H. J. Sieben Construction Company. John leased a hi-loader and tamper from H. J. Sieben Construction Company through H. J. Sieben the first of April, 1977. Thomas was not advised of the lease because of bad feelings between the brothers. In early May, Thomas learned of the lease from his mother. He then checked the company records and concluded John had not paid the rental on the equipment. Thomas decided to recover the equipment for breach of the lease.
In furtherance of his objective, Thomas hired Haggard Heavy Hauling and enlisted the aid of Robert Coffey, a Sieben employee, to help with the repossession. They made their move on May 6. John was at a service station near the entrance to the property on which he was working when he observed the rental equipment being hauled away. He chased the entourage in his pickup and flagged them down. Coffey was driving the hiloader. Thomas was not present.
John called the police and Coffey called Thomas. Thomas Sieben and the officers arrived where the equipment was parked at approximately the same time. A fight immediately erupted between the brothers with Thomas hitting John in the face several times and John biting Thomas’ finger. John then got in his truck and drove it to a position which blocked further removal of the equipment. Coffey, under Thomas’ direction, attempted to move the truck out of the way, with John inside, by ramming it with the hiloader. The hiloader struck the truck more than once and at one point the truck nearly tipped over with John in it. John then informed a police officer he was pressing charges against Thomas Sieben and Robert Coffey. He later signed a complaint against both.
Damages to the truck totaled about $1500. John suffered pain in his nose, back and kidneys and swelling in his mouth. His hospital bill for x-rays was $78 and his dental bill for a broken plate was $325. He testified he suffered embarrassment, humiliation and deterioration of his relationship with his parents.
John sued Thomas Sieben and Robert Coffey for battery, asking actual and punitive damages in excess of $10,000. He also sued Coffey for trespass. The company was sued on the theory of respondeat superior. It counterclaimed against John for breach of lease.
The "jury returned verdicts in favor of John as follows:
Actual Punitive
Thomas Sieben $20,000 $8,000
Robert Coffey $10,000
H. J. Sieben Constr. Co. $20,000 $8,000
Sieben Construction Company was awarded $650 on its counterclaim. This appeal followed.
The first three issues raised by appellants all involve evidentiary matters and can be dealt with briefly.
It is first argued the trial court erred in receiving evidence of the deterioration in the relationship between John and his parents after the incident between Thomas and John. John offered this evidence in his attempt to prove punitive damages. Appellants objected, arguing John could not prove the hiloader incident was the proximate cause of his subsequent problems. The trial court, in ruling on the objection, stated:
“THE COURT: I will allow you to testify to the before and after relationship, and so forth; but when we get into why people do or don’t send Christinas cards, or who is upset by not getting a phone call, or whatever, I don’t see that that is an element of damages, Dennis.”
The issue of whether the deterioration in the relationship between John and his parents was proximately caused by the incident in question is one of fact for the jury. See Popejoy Construction Co. v. Crist, 214 Kan. 704, 706, 522 P.2d 180 (1974); Elliott v. Chicago, Rock Island & Pac. Rld Co., 203 Kan. 273, 284, 454 P.2d 124 (1969). The question here was one of weight to be given the evidence, not admissibility.
Appellants also challenge the admission into evidence of tax returns of Sieben Construction Company and Robert Coffey. When this evidence was offered no contemporaneous objection was made by defense counsel. K.S.A. 60-404 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
See, e.g., Schlatter v. Ibarra, 218 Kan. 67, 71, 542 P.2d 710 (1975). Since there was no contemporaneous objection, this issue is without merit.
Appellants further contend the trial court erred in failing to give an instruction limiting the jury’s use of evidence regarding the wealth of Sieben Construction Company and Robert Coffey to punitive damages only.
K.S.A. 60-251 states:
“(a) When made. At the close of the evidence or at such earlier time during the trial as the judge reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The judge shall instruct the jury at the close of the evidence before argument and the judge may, in his or her discretion, after the opening statements, instruct the jury on such matters as in the judge’s opinion will assist the jury in considering the evidence as it is presented.
“(b) When waived. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.”
Again the record reveals appellants made no request for such an instruction and no objection to the instructions given before the jury retired, thus rendering the issue without merit.
Appellants next argue the trial court erred in directing the jury to find H. J. Sieben Construction Company liable as a matter of law if either Thomas Sieben or Robert Coffey, or both, were found liable.
The controverted instruction (#14) states:
“The defendants are sued as employer and employee. The defendant H. J. Sieben Construction Company, Inc. is the employer and the defendants Thomas Sieben and Robert Coffey are its employees. If you find that either defendant, Thomas Sieben or Robert Coffey, is liable, then you must find that the defendant H. J. Sieben Construction Company, Inc. is also liable. However, if you find neither Thomas Sieben nor Robert Coffey is liable, then you must find that H. J. Sieben Construction Company, Inc. is not liable. In any event, actual damages assessed against the corporation, if any, cannot exceed actual damages found against the corporate employees.”
Instruction #14 followed the substance of instruction #3 which stated, in pertinent part: “The defendants admit Thomas Sieben and Robert Coffey were acting for the interest of their employer H. J. Sieben Construction Company, Inc. at the time of the occurrence.” Appellants specifically objected to the foregoing instruction, arguing they made no such admission and that Thomas Sieben and Robert Coffey were not acting within the scope of their employment. Consistent with that position they asked that the mandatory “must” language in instruction #14 be changed to the permissive “may.”
This issue is simplified by the language of the pretrial order. It provides: “At all times relevant herein, defendants Thomas Sieben and Robert Coffey were acting within the course or scope of their employment with the H. J. Sieben Construction Company, Inc.” Appellants posed no objection to the order. The first time a question was raised about the scope of employment of Thomas Sieben and Robert Coffey was at the close of appellee’s case in chief. K.S.A. 60-216 pertains to pretrial orders and states:
“The court in its discretion may, and shall upon the request of either party make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to nonjury actions or extend it to all actions.”
Supreme Court Rule No. 140(f) states: “Should counsel object to the pretrial order, he shall state his objections in writing and forward his objections and the pretrial order to the court within ten (10) days.” 228 Kan. lxxvi.
In Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 442, 581 P.2d 372 (1978), we discussed the effect of the pretrial order:
“As a general rule a pretrial order entered by the trial court, pursuant to K.S.A. 60-216, controls the subsequent course of action unless such order is modified at the trial to prevent manifest injustice. This proviso reposes in the trial court large discretionary powers. [Citations omitted.]
“Furthermore, in Annot., 22 A.L.R.2d 599, 603 (1952), it is stated:
‘Where the pretrial order frames the issues to be tried, and the order is not modified, the court may, and should, refuse any request for an instruction which is incpnsistent with the order or which is not within the scope of the issues stated in the order.’ ”
As noted, appellants here made no attempt to modify the pretrial order. It follows that the order controls the subsequent course of the litigation. The instructions, in this respect, were correct. See also Querry v. Montgomery Ward & Co., Inc., 217 Kan. 104, 111, 535 P.2d 928 (1975); Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 746, 457 P.2d 1 (1969).
A question arises whether instruction #14 was a correct statement in another sense. The last sentence of the instruction directed the jury it was precluded from assessing damages against Sieben Construction Company in a greater amount than those damages found against the employees. Contrary to the general rule, the instruction did not make clear where a third party seeks to render an employer liable for the torts of the employee on the doctrine of respondeat superior, the liability of the employer is derivative of the liability of the employee. See 3 Am. Jur. 2d, Agency § 267, p. 632. Ideally, then, the trial court should have instructed the jury the liability of the appellant-employees fixed the measure of the appellant Sieben Construction Company’s liability.
Appellants objected to instruction #14, but on other grounds. Where no contemporaneous objection is made the instruction as given constitutes the law of the case by which the jury must be guided. Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 649, 567 P.2d 856 (1977); Martin v. State Highway Commission, 213 Kan. 877, 885, 518 P.2d 437 (1974). Here the jury properly followed the instructions as given. In addition, the actual damages assessed against the corporation were less, not more, than the total damages assessed against the employees, resulting in no prejudice to appellants. This issue is without merit.
Appellants’ final contention is that appellee’s total recovery should not have exceeded $28,000. Appellants argue the trial court erred in allowing the jury to apportion appellee’s damages among the three appellants. We agree. Although this problem has become rare with the onset of comparative fault legislation, it manages to occasionally occur in cases involving intentional torts such as battery. This is because our comparative fault statute, K.S.A. 60-258a, has done nothing to change the common-law rule of joint and several liability for defendants in intentional tort actions. See, e.g., Lynn v. Taylor, 7 Kan. App. 2d 369, 373, 642 P.2d 131, rev. denied 231 Kan. 801 (1982); Sandifer Motors, Inc. v. City of Roeland Park, 6 Kan. App. 2d 308, 317-18, 628 P.2d 239, rev. denied 230 Kan. 819 (1981).
The general rules regarding the issue are well stated in 74 Am. Jur. 2d, Torts §§ 73-80, pp. 680-90. In pertinent part they are:
“It is the generally recognized rule that there is no line of separation in the joint liability of joint tortfeasors; the tort is a thing integral and indivisible, and any claim for injuries arising therefrom runs through and embraces every part of the tort, so that the liability of one cannot be carried into any portion of the joint tort that is not followed by an equal liability of the other tortfeasors. Under this principle, either or any of the wrongdoers may be held liable for the whole of the damages resulting from their tortious acts.” § 73.
“The overwhelming weight of authority is to the effect that in the absence of statutory authorization, no apportionment of compensatory damages may be incorporated in the judgment establishing the liability of joint tortfeasors, generally on the theory that the plaintiff should not be denied the possibility of collecting the full amount of his judgment from any one of the defendants. Therefore, in actions against two or more persons for a single tort, it is improper to return two verdicts for different sums against different defendants upon the same trial; there may be only one verdict for a single sum against all who are found guilty of the tort, irrespective of the degree of culpability. This is true even though the defendants plead separately, or are charged with distinct and different acts contributing to the injury.” § 76.
“The general principle that compensatory damages may not be apportioned among tortfeasors jointly and severally liable is applicable to situations where the defendants’ joint and several liability is based upon an employer-employee relationship, giving rise to the application of the doctrine of respondeat superior. The general rulé against apportionment is not altered in an action against a master and servant for injuries resulting from the negligence of the servant by the fact that joint tortfeasors may be entitled to contribution from another, while a servant has no right of contribution against his master.” § 77.
“Where a jury apportions damages as between tortfeasors without stating the total amount of the awards, the courts have in a number of cases held that the aggregate amount of the separate assessments could not be awarded jointly, at least where the jury’s intention to award the aggregate was not demonstrated. In other cases, the verdict assessing equal amounts of damages against each of several tortfeasors without stating an aggregate amount has been held to have been intended as an award against all of the tortfeasors jointly of a sum equivalent only to the amount assessed against each.” § 80.
This court has most recently dealt with the problem in Hubbard v. Havlik, 213 Kan. 594, 518 P.2d 352 (1974), a negligence case resulting from a vehicle accident. There we stated:
“It is well settled that in actions for damages against two or more tort-feasors the jury has no authority to apportion the damages among the defendants, in the absence of a statute specifically authorizing such apportionment, and this for the reason that if defendants are found guilty of negligence which produced the injury, the matter of the degree of negligence as between the defendants is so uncertain as not to form a proper basis for division of damages.” p. 603.
The same general rule is applicable to punitive damages. See 22 Am. Jur. 2d, Damages § 262, pp. 356-57; Annot., 20 A.L.R.3d 666.
We hold Thomas Sieben, Robert Coffey and H. J. Sieben Construction Company, Inc., jointly and severally liable to John Sieben for $20,000 actual damages and $8,000 punitive damages and modify the judgment accordingly.
On cross-appeal John Sieben contends the trial court erred in allowing Sieben Construction Company to amend its claim against him from one of conversion to breach of lease after the evidence was in.
In Kiser v. Gilmore, 2 Kan. App. 2d 683, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979), it was stated:
“Under K.S.A. 60-215(0), when an issue not raised in the pleadings is tried by express or implied consent of the parties, the issue is treated as if it had been raised in the pleadings, and the failure to formally amend the pleadings to conform to the evidence does not affect the outcome of the litigation.” Syl. f 2.
“Introduction of or failure to object to the introduction of evidence tending to prove an issue not raised in the pleading constitutes implied consent to try that issue.” Syl. ¶ 3.
H. J. Sieben, major stockholder in H. J. Sieben Construction Company, Inc., and father of both appellee and appellant Thomas Sieben, testified the agreement to lease the construction equipment was made between himself, on behalf of Sieben Construction Company, and appellee personally. As a defense to Sieben Construction's conversion claim, appellee testified tó the existence of a lease agreement covering the equipment, but contrary to the testimony of H. J. Sieben, contended at all times that he entered the agreement on behalf of his employer in his capacity as construction manager.
Motions for leave to amend are directed to the sound discretion of the trial court. Walker v. Fleming Motor Co., 195 Kan. 328, 330, 404 P.2d 929 (1965). The trial court did not err in allowing Sieben Construction to amend its counterclaim to conform with the evidence presented. A question of fact was presented for jury determination.
Neither did the trial court err in refusing appellee’s counsel’s request that the court include instructions guiding the jury regarding the establishment of the terms of the lease. The evidence adduced at trial and even statements of appellee’s counsel himself established the existence of the lease. Indeed, the existence of the lease was the heart of John Sieben’s defense against H. J. Sieben Construction Company’s claim of conversion of the equipment involved. The trial court’s action was supported by the evidence and will not be disturbed on appeal.
The judgment of the trial court in favor of John Sieben against Thomas Sieben, Robert Coffey and H. J. Sieben Construction Company is affirmed as modified. The judgment of the trial court in favor of the H. J. Sieben Construction Company is affirmed. That part of the judgment of the Court of Appeals inconsistent with this opinion is reversed.
McFarland, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is an appeal from an order nonconfirming and setting aside a tax foreclosure sale. The appellant is Monty Campbell, the purchaser at the foreclosure sale. The cross-appellant is the Board of County Commissioners of Johnson County. The appellees are John Anderson, Jr., and David Carson, who claim to own an interest in the real estate which was the subject matter of the tax foreclosure sale.
For purposes of this appeal, the facts are not in dispute and were determined by the trial court to be as follows:
“1. The subject matter of the tax foreclosure action in Tract No. 90 is a dry-land lake bed so situated as to be surrounded on three sides by platted lots. All said surrounding platted lots are owned by John Anderson, Jr. and David Carson and they have paid the taxes on said lots and special assessments for many years.
“2. Plaintiff filed a tax foreclosure proceeding for unpaid taxes on the lake bed in Case No. 83754, and John Anderson, Jr., although not a party to the action, filed a pleading in said action setting forth a claim of ownership by John Anderson, Jr. and David Carson to said lake bed land.
“3. The tax foreclosure suit was dismissed as to the tract of lake bed land in Case No. 83754 and thereafter the Board of County Commissioners instituted this action for foreclosure of the same tract of land.
“4. Neither John Anderson, Jr. or David Carson were made parties to the foreclosure proceeding.'
“5. The plaintiff, Board of County Commissioners, through the County Counselor had notice by the record in the previous foreclosure proceedings and by actual notice that John Anderson, Jr. and David Carson claimed ownership of said tract of land in Case No. 83754, although no such claim of ownership was made in the subsequent instant action, prior to the Sheriff’s sale.
“6. John Anderson, Jr. had actual notice by telephone and in writing of the pendency of a tax foreclosure action with respect to the real estate described in cause of action No. 90, as well as the time and place of the Sheriff’s sale. John Anderson, Jr. attempted to redeem the land and pay the full taxes due prior to the sale by tendering payment to the County Treasurer and the Clerk of the District Court but could not do so on the advice of the County Counselor that he could not redeem because he was not a party to the action and did not have an interest in the real estate.
“7. John Anderson, Jr. appeared at the sale and bid on Tract No. 90.
“8. The bidding was recessed briefly and a record was made of the colloquy at the recess among John Anderson, Jr.; James W. Bouska, Assistant County Counselor; Bing Carter, the auctioneer; Jim Kearney, a bidder; and Billy Ray Pine, a prospective bidder.
“9. At the recess, Mr. Anderson inquired whether he would receive the surplus of the proceeds of the sale of tract No. 90 if the successful bid exceeded the amount of taxes, penalties and interest. Mr. Anderson stated that he had prepared a quiet title action suit to the real estate because he and David Carson claimed ownership of it and asked that the sale be set aside. He further said that if all bids were withdrawn, he would quiet the title and pay taxes on the real estate.
“10. Mr. Bouska stated that when the sale was completed, Mr. Anderson would probably file a petition challenging the validity of the sale and that, in the alternative, Mr. Anderson might make a claim for any excess by which the bid exceeded the amount of taxes, interest and penalties. Mr. Anderson said that the statement was correct.
“11. Mr. Bouska directed the auctioneer to proceed with the sale. A record was made of the conversation between Mr. Bouska and Monty Campbell, the highest bidder, after the sale of Tract No. 90 had been completed.
“12. John Anderson, Jr. attempted to bar or stop the sale as to the tract of land No. 90 but was not allowed to do so, and the purported purchaser at the sale was advised that action would be instituted to non-confirm the sale as to such tract.
“13. The Clerk of the District Court and the Sheriff received the payment for such tract from Monty Campbell and have held the same subject to this Court’s order pending action on this motion.”
The district court, on the basis of these undisputed findings of fact, nonconfirmed and set aside the foreclosure sale, holding that the sale was defective and irregular by reason of the failure of the county to join John Anderson, Jr. and David Carson as parties defendant, and by failing to have those parties served with process. The district court also ordered the clerk of the court or the sheriff to refund to Monty Campbell, the purchaser at the sale, the amount of the purchase price he paid with interest. The court further ordered the sheriff to issue a tax deed to John Anderson, Jr. and David Carson upon the payment of all taxes due.
In reaching that result the trial court made the following conclusions of law:
“1. The entire matter of taxation, including levy, collection and foreclosure of land for taxes is statutory and does not exist apart from statute.
“2. The methods prescribed for recovery of delinquent taxes are purely statutory and the requirements of the statute are not merely directory, they must be strictly complied with.
“3. K.S.A. 79-2801 requires the County Counselor to join as a party defendant in a tax foreclosure proceeding ‘all persons having or claiming to have any interest’ in land foreclosed upon.
“4. John Anderson, Jr. and David Carson as claimants of record based on their answer filed in Case No. 83754 and as owners and in possession of the lots surrounding said lake bed were in constructive possession of said property and as owners of record and persons personally known to the County Counselor were entitled to service of process and could have been served.
“5. The law requires that any person required as a party defendant have service of process and notice of the proceeding prior to an order of sale of the land for taxes.
“6. John Anderson, Jr. and David Carson were claimants of record and actual notice of their claim was known to the County Counselor prior to the order of sale herein made.
“7. The sale was defective and irregular by reason of failure to make John Anderson, Jr. and David Carson parties defendant and to have said parties served with process. Under the principles and authorities as set out in Walker v. Hutchinson, 352 U.S. 112 and Board of Leavenworth County Comm’rs v. Cunningham, 5 Kan. App. [2d] 508, the sale should be non-confirmed and set aside as to Tract No. 90.
“8. The sale as to Tract 90 is set aside and non-confirmed and the Clerk of the District Court or the Sheriff of Johnson County are ordered to refund to Monty Campbell the payment of purchase price, together with interest thereon at the rate of eighteen percent (18%) per annum or one and one-half percent (1 %%) per month if computed monthly as prescribed by 79-2804c and 79-2968(6).
“IT IS FURTHER ORDERED that the Sheriff issue a tax deed to John Anderson, Jr. and David Carson as to Tract 90 upon payment of the taxes due therein.”
The purchaser at the sale, Monty Campbell, appealed, contending that the tax foreclosure sale should not have been set aside and further that Anderson and Carson should not have been allowed the right to redeem the property. The two basic issues presented for determination on the appeal are these:
(1) Whether the trial court erred in ruling that Anderson and Carson were entitled to be named parties defendant and served with process in the foreclosure proceeding under K.S.A. 79-2801 and in setting aside the foreclosure sale because they were not so named as parties or served with process?
(2) Whether the trial court erred in holding that Anderson and Carson were entitled under K.S.A. 79-2803 to redeem the property by paying the taxes before sale and, upon payment of the same, to receive a tax deed from the sheriff for the property?
We will first consider whether the district court erred in setting aside the tax foreclosure sale because of the county’s failure to name Anderson and Carson as parties defendant and to serve them with process. In so holding, the trial court relied upon the provisions of K.S.A. 79-2801 which provides in part as follows:
“79-2801. Action to enforce lien for unredeemed real estate bid in by county; summons; service by publication. In all cases in which real estate has been or shall be sold and bid in by the county at any delinquent tax sale and shall remain unredeemed on the first day of September of the third year after such sale, or any extension thereof as provided in K.S.A. 79-2401a or any amendments thereto, the board of county commissioners shall order the county attorney or county counselor and it shall be the duty of the county attorney or county counselor to institute an action in the district court, in the name of the board of county commissioners, against the owners or supposed owners of such real estate and all persons having or claiming to have any interest therein or thereto, by filing a petition with the clerk of such court: . . . Said petition shall contain a description of each tract, lot or piece of real estate, subject to the provisions of this act, including, if in a city of the first or second class, the street number or location, and stating, as far as practicable, the amount of taxes, charges, interest and penalties, chargeable to each tract, lot or piece of real estate, and the name of the owner, supposed owner, and party having or claiming to have any interest therein or thereto, and giving the year such property was sold for delinquent taxes under the provisions of K.S.A. 79-2302 or any amendments thereto, together with a prayer that the court determine the amount of taxes, charges, interest and penalties chargeable to each particular tract, lot or piece of real estate, and the name of the ov/ner or party having any interest therein, and that the court adjudge and decree the amount so found due to be a first and prior lien upon such property, and that the same be sold at public sale for the satisfaction of such lien, costs, charges and expenses of the proceedings and sale, and other necessary relief. . . .
“Thereupon, summons shall issue and shall be personally served or publication made as provided in other cases under the code of civil procedure, but in the event service is made by publication, the notice, in addition to the requirements prescribed by the code of civil procedure, shall contain a description of the real estate. Any member of the board of county commissioners or any county attorney or county counselor who shall fail to perform the duties required of him or her by this section shall forfeit his or her office.” (Emphasis supplied.)
It should be noted that K.S.A. 79-2801 states without equivocation that where there is a tax lien on unredeemed real estate bid in by the county, the county attorney or county counselor is required to institute an action in the district court, in the name of the board of county commissioners, “against the owners or supposed owners of such real estate and all persons having or claiming to have any interest therein or thereto.”
We have concluded that the trial court was correct in holding that Anderson and Carson were persons having or claiming to have an interest in the real estate involved here within the meaning of K.S.A. 79-2801 and were thus necessary parties to the tax foreclosure action. It is well established that judicial foreclosures of real estate for nonpayment of taxes are creatures of statute and must be complied with to give a court jurisdiction to proceed. The entire matter of taxation, including the levy and collection of taxes, is statutory and does not exist apart from statute. See Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967); Crawford County Comm’rs v. Radley, etal., 134 Kan. 704, 8 P.2d 386 (1932); Ness County v. Light & Ice Co., 110 Kan. 501, 204 Pac. 536 (1922). The trial court correctly held that the controlling statute in this case is K.S.A. 79-2801, which is set forth in full above. Anderson and Carson were clearly persons having or claiming to have an interest in the property. Their claim to the property had been asserted in case No. 83,754, the prior foreclosure action, and Mr. Bouska, the assistant county counselor, had actual knowledge of their claim. Under the circumstances, the failure to join Anderson and Carson as parties defendant and to serve them with process was not a proper compliance with K.S.A. 79-2801; hence, the foreclosure sale was defective and the district court properly set it aside. This result is required by Board of Leavenworth County Comm’rs v. Cunningham, 5 Kan. App. 2d 508,61 9 P.2d 525 (1980), rev. denied 229 Kan. 669 (1981); Chapin v. Aylward, 204 Kan. 448, 464 P.2d 177 (1970); and Pierce v. Board of County Commissioners, 200 Kan. 74.
The appellant, Monty Campbell, the purchaser at the foreclosure sale, maintains that the rule should not be applied in this case on the theory of waiver and estoppel. In presenting this contention, appellant Campbell points out that Anderson and Carson had actual notice of the present proceeding and the sale and should have intervened or objected prior to the foreclosure sale. They chose not to do so but, instead, appeared at the sale, raised no objection at the commencement of the proceeding, bid, and only objected when the bids exceeded their expectations. We agree with the trial court that the theory of waiver and estoppel is not applicable in this case. There was no waiver because, at all times, Anderson and Carson objected to the foreclosure sale on the basis that they had not been made parties to the litigation in violation of K.S.A. 79-2801. Furthermore, the doctrine of estoppel has no application because Campbell, the purchaser, had full knowledge of Anderson’s and Carson’s claim of interest before and during the sale and in no way changed his position in reliance on any representations made by Anderson and Carson. This court, on several occasions, has held that a purchaser at a tax foreclosure sale does not occupy the status of an innocent purchaser or a purchaser in good faith but is one to whom the rule of caveat emptor applies. See Montgomery County v. Wilmot, 114 Kan. 81 9, 823, 221 Pac. 276 (1923); and Pierce v. Board of County Commissioners, 200 Kan. at 78. Under the undisputed facts in this case, the appellees, Anderson and Carson, were not barred from asserting their right to have the tax foreclosure sale set aside on the basis of a claim of either waiver or estoppel.
Thus, the trial court was correct in holding that the sale was defective and irregular by reason of the failure of the plaintiff to make Anderson and Carson parties defendant and to have them sérved with process. The foreclosure sale was thus properly set aside and nonconfirmed. The trial court was also correct in holding that Monty Campbell was entitled to a refund of the money which he paid as purchaser at the foreclosure sale together with interest.
The second issue raised on the appeal presents a more difficult question. As noted above, the issue is whether the trial court erred in allowing Anderson and Carson to pay the taxes, interest, and penalty in full and then ordering the delivery to them of a tax deed from the sheriff. The applicable statute, which controls the redemption of property in a tax foreclosure action by payment of the taxes after an action is filed, is K.S.A. 79-2803 which provides in part as follows:
“79-2803. Joinder of issues; trial; judgment; redemption before day of sale; duties of clerk and sheriff; apportionment of costs, charges and expenses. Issues may be joined in said action as in other civil actions, but after such issues are so joined said actions shall stand for trial and shall have precedence over all other actions except criminal cases and it shall be the duty of such district court, in as summary way as possible, to investigate and to decide what taxes, charges, interest, and penalty thereon, to the date of the filing of the petition, shall have been legally assessed and charged on such tract, lot, or piece of real estate, and to render judgment therefor, together with the interest, charges and penalty thereon, as provided by law, together with and including in such judgment any taxes, interest charges and penalties which became a lien on such tract, lot, or piece of real estate after the filing of the petition in the same manner as if set out in the petition, together with the cost and expenses of the proceeding and sale and to charge the same as a first and prior lien on said tract, lot or piece of real estate, subject, however, to valid covenants running with the land and to valid easements of record or in use, whether the holder thereof appears or not, and to order the sale of the said real estate for the payment of such taxes, charges, interest and penalty and the costs, and expense of such proceedings and sale; which sale shall be made and conducted as hereinafter provided: Provided, That any person interested in any tract, lot or piece of real estate as owner or holder of the record title, his or her heirs, devisees, executors, administrators, assigns, or any mortgagee or his or her assigns may before the day of sale hereinafter provided for, make redemption in the following manner: Such redemptioner, his or her agent or attorney shall file with the clerk of the court an application to redeem, identifying the parcel to be redeemed, and paying to said clerk, to cover its equitable share of all costs and expenses of the proceedings and sale, such amount as the court may order, or if no order be made then an amount equal to five percent of the amount set forth in the petition as the lien for taxes, charges, interest and penalties chargeable to each tract, lot or piece of real estate plus such charges if any as may be chargeable separately against said parcel.
“Upon receipt of such payment the clerk shall issue a receipt therefor which shall be forthwith exhibited to the county treasurer, who shall forthwith calculate the amount of taxes, charges, interest and penalties chargeable against said real estate as of such date, which amount shall be forthwith paid to said treasurer, who shall thereupon issue in triplicate a certificate showing such redemption, one copy of which he or she shall forthwith deliver to the clerk of the district court, the other to such redemptioner, and the third to the county attorney. Such payments shall be a full satisfaction and redemption of such tract, lot or piece of real estate from the lien and shall stay all further proceedings for the collection of such lien as against the particular tract, lot or piece of real estate so redeemed.” (Emphasis supplied.)
It should be noted that the proviso in the first paragraph of K.S.A. 79-2803 provides, in substance, that any person interested in the real estate as owner or holder of the record title, or any mortgagee may make redemption of the property before the sale.
The specific issue presented is whether a person other than the owner or holder of record title or a mortgagee may redeem before the day of the sale. It is important to note that in K.S.A. 79-2803 the terms “supposed owners” or “persons having or claiming to have any interest therein” as previously used in K.S.A. 79-2801 are not used in describing the parties who are entitled to redeem the property before the day of the foreclosure sale. It was the position of the plaintiff, board of county commissioners, that a person who is not the owner or holder of the record title or mortgagee has no right to redeem. To the contrary, the defendants, Anderson and Carson, contend that they are entitled to redemption simply because they were persons who claim to have an interest in the real estate.
In this regard, we note that K.S.A. 1981 Supp. 79-2901 also provides that a mortgagee may pay the taxes or redeem any land sold for taxes and is entitled to have a lien for the taxes. Likewise, we note K.S.A. 1981 Supp. 79-2902 which provides:
“Lands in controversy; payment of taxes; recovery, when. In case taxes are paid by any party whose lands are in controversy in any of the courts of this state, and the party so paying shall fail to recover said land, such party shall be entitled to collect from the parties recovering the taxes so paid, with interest thereon at the rate prescribed by K.S.A. 1980 Supp. 79-2968(b); and the taxes so paid shall be a lien on any such land.” (Emphasis supplied.)
K.S.A. 1981 Supp. 79-2902 clearly recognizes that taxes may be paid by any party whose lands are in controversy in any of the courts of this state and the party so paying is entitled to a lien on the land.
Construing all of these statutes together, we have concluded that under K.S.A. 79-2803 only a person interested in the land as owner or holder of the record title or a mortgagee is entitled to redeem prior to the foreclosure sale. Under K.S.A. 1981 Supp. 79-2902, a party to the proceeding, other than the owner or holder of record or a mortgagee, may redeem after the tax foreclosure action has been filed and prior to the sale only where that party is a party in another action pending in a court of this state in which his claim of ownership in the property has been asserted. Thus, a mere stranger, claiming title to the property, but who has no actual case pending to determine his interest therein, has no right to redeem in the tax foreclosure
Applying this construction of the statutes to the case now before us, it is undisputed that Anderson and Carson claimed title to the property through their ownership of the platted lots which surround the dry-land lake bed which was the subject of the tax foreclosure action. Anderson and Carson were not, at the time the judgment for foreclosure was entered, parties in any proceeding then pending in a court of this state where their claim of ownership to the dry-land lake bed was being asserted against others. Under the circumstances, the trial court should not have authorized Anderson and Carson to redeem the property by payment of the taxes due thereon and to receive a tax deed from the sheriff upon the payment of the same. Since the foreclosure sale was properly set aside by the trial court, the board of county commissioners and Anderson and Carson are in the same position they were before the action was filed. To comply with K.S.A. 79-2801, the board of county commissioners must either file an amended petition or a new foreclosure action naming Anderson and Carson as parties defendant and serve them with process, since they are persons claiming to have an interest in the real estate which is subject to the delinquent taxes. To assert a right of redemption by payment of the taxes, Anderson and Carson would be required in any new proceeding to show that they are parties to an action pending in a court of this state where they have asserted their claim of title against others claiming to be the owners of the property.
The judgment of the district court is affirmed as to the court’s order setting aside and nonconfirming the foreclosure sale held in this case. The trial court is affirmed in its order directing the clerk of the district court or the sheriff to return to Monty Campbell the purchase price paid in the foreclosure sale, together with interest.
The order of the district court permitting the appellees, John Anderson, Jr. and David Carson, to redeem the property by payment of the taxes due and requiring the issuance of a tax deed by the sheriff is set aside and reversed. The case is remanded to the district court with directions to cancel the tax deed and for further proceedings. | [
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The opinion of the court was delivered by
Fromme, J.:
This action was filed to obtain a revocation of acceptance under terms authorized by K.S.A. 84-2-608 and a judgment for the amount of the purchase price. The case was tried to the court, revocation of acceptance was decreed, and judgment in favor of the plaintiff and against the defendant was entered in the sum of $4,120.00 plus costs.
K.S.A. 84-2-608 reads:
“(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it
“(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
“(b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
“(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
“(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.” Emphasis supplied.
A “commercial unit” as used in the above statute is defined in K.S.A. 84-2-105(6) as follows:
“ ‘Commercial unit’ means such a unit of goods as by commercial usage is a single whole for purposes of sale and division of which materially impairs its character or value on the market or in use. A commercial unit may be a single article (as a machine) or a set of articles (as a suite of furniture or an assortment of sizes) or a quantity (as a bale, gross, or carload) or any other unit treated in use or in the relevant market as a single whole.”
Under the provisions of these statutes this court held in McGilbray v. Scholfield Winnebago, Inc., 221 Kan. 605, Syl. ¶ 1, 561 P.2d 832 (1977):
“The purchaser of a motor vehicle who seeks to enforce a revocation of acceptance pursuant to K.S.A. 84-2-608 must establish (1) the nonconformity of the vehicle, (2) the needs and circumstances of the purchaser, and (3) that the nonconformity in fact substantially impairs the value of the vehicle to the purchaser.”
Revocation of acceptance is a remedy which allows a buyer to get rid of defective goods by returning them to the seller. Revocation, however, occurs at a later stage of the sales contract: after acceptance. Also, while a buyer may nominally reject for any defect, he or she may revoke acceptance only when the nonconformity is substantial. Rasor, Kansas Law of Sales § 10-3 (1981).
Under the terms of section 84-2-608 at paragraph (1), revocation of acceptance is possible only when the nonconformity substantially impairs the value of the machine to the buyer.
Under paragraph (2) of 84-2-608 notification of revocation of acceptance must be accomplished within a reasonable time after discovery of the grounds for such revocation, and the buyer may not revoke his acceptance if the machine has materially de teriorated while in the hands of the buyer except when deterioration has occurred by reason of defects inherent in the machine. See the official UCC Comment following the statute, paragraphs 4 and 6.
Under the provisions of this section the buyer must also have accepted the goods under circumstances which bring him within either paragraph (1) (a), reasonable assumption of cure, or paragraph (1) (b), difficulty of discovery.
In other words the purchaser of a machine who seeks revocation of acceptance pursuant to K.S.A. 84-2-608 must establish (1) the nonconformity of the machine to the needs and circumstances of the purchaser when purchase was made, (2) that such nonconformity in fact substantially impaired the value of the machine to the purchaser, and (3) that the purchaser accepted the machine under circumstances which bring him within either paragraph (1) (a), reasonable assumption of cure, or paragraph (1) (b), difficulty of discovery.
The trial court heard the evidence in this case and made complete findings of fact from which the following facts were gleaned:
The plaintiff, Fred L. Newmaster, now 79 years of age, did on or about April 28, 1978, purchase a John Deere Powr-Till Seeder from the defendant, Southeast Equipment Company, Inc., for the sum of $4,000.00 plus sales tax of $120.00. Such a tiller is designed to break the soil with spiked wheels and drop the seed into the soil in one operation. This was what Mr. Newmaster perceived as the machine’s desirable quality since it eliminated passing over the field with a disc to break the soil and then passing over it again with a conventional seed drill, saving topsoil and fuel. Mr. Newmaster intended to use the machine to sow sudan grass seed.
Mr. Newmaster dealt with Stan Gavin, an owner of Southeast Equipment, Inc., during and after the purchase. Mr. Newmaster requested delivery, and delivery of the machine was made on May 15, 1978. The machine was new but had been demonstrated for less than an hour for another potential purchaser. These facts were related to plaintiff by Mr. Gavin and the plaintiff was advised that the warranty would be in effect from the date of delivery.
Plaintiff took delivery of the Powr-Till Seeder and he and his son, Paul Newmaster, tried it near plaintiff’s home. They loaded it with sudan grass seed and pulled it with Mr. Newmaster’s tractor for a short distance. After pulling the Powr-Till Seeder for approximately 40 feet, plaintiff got down and looked for the sudan grass seed in the furrows. Mr. Newmaster and son, Paul, both concurred and the trial court found that there was an insufficient number of seeds deposited by the machine per foot to secure a proper crop. Paul replaced the rubber seed-drop tubes, lubricated a chain on the machine and discovered that a cutting wheel wobbled. However, the only defect that plaintiff was concerned with was that the tiller deposited too few seeds per foot. Paul sowed from two to three acres with the tiller and later only 1/10 of that acreage produced sudan grass.
After the initial test, Mr. Newmaster never tried to use the tiller again and sowed his ground using a conventional disc and drill.
On May 18, 1978, Mr. Newmaster contacted Mr. Gavin by phone and told him that the tiller did not work properly. Mr. Gavin told plaintiff the warranty was in effect and that he would stop by when he was in the neighborhood and repair the tiller. Mr. Gavin had commitments ahead of plaintiff for repair work. It was near wheat harvest time and he said his other customers were needing his services. Between May 18,1978, and August 1,1978, Mr. Newmaster placed calls to either Mr. Gavin’s home or to Southeast Implement, Inc., a total of 14 times. The record does not disclose how many times out of those 14 calls plaintiff actually spoke with Mr. Gavin. No repair was attempted and Mr. Newmaster returned the tiller to the defendant near the end of July, 1978.
Although evidence at trial was conflicting as to the date, Mr. Newmaster did advise Mr. Gavin of his intention to revoke the acceptance. The court found the notification occurred on or about July 31,1978, after the machine had been returned to defendant’s place of business. Approximately two and one-half months had elapsed after the first notice to Mr. Gavin of the defect.
On the basis of the evidence it was concluded this Powr-Till Seeder was purchased for the purpose of planting sudan grass seed on some 400 acres of ground in the spring of 1978. The needs of the purchaser dictated that planting be accomplished in April and May. The plaintiff was unable to plant sufficient sudan grass seed with this machine to make a proper stand of grass. The defective nature of the machine was difficult if not impossible to discover without attempting to use it. Plaintiff and his son attempted adjustment and repair of the machine but to no avail. Rubber hoses, through which the seed was supposed to pass, were rotted and had to be replaced. There was evidence that, because of the inherent nature of these rubber hoses, replacement may have been required on an annual basis. The buyer could and did reasonably assume the seller would cure the defective condition within a reasonable time.
The seller was notified of the defect three days after buyer received delivery and accepted the machine. Repeated requests were made to have seller service and repair the machine. Nothing was done and no service was attempted by seller for approximately two and one half months. Then the machine was returned to the seller and demand was made for a refund of the purchase price.
One policy of the UCC is to encourage the parties to work out their differences in order to minimize losses resulting from defective performance. White & Summers, Uniform Commercial Code § 8-2, p. 299, n. 23 (2nd ed. 1980). When a tender has been accepted the buyer must, within a reasonable time after he discovers or should have discovered any breach, notify the seller of breach or be barred from any remedy. K.S.A. 84-2-607(3)(a). This notice requirement of -the code fits in with 84-2-608(2) which requires notification of revocation of acceptance within a reasonable time.
In White & Summers § 11-10, p. 421, the authors point out the first and most important reason for requiring notice is to enable the seller to make adjustments or replacements or to suggest opportunities for care to the end of minimizing the buyer’s loss and reducing the seller’s own liability to the buyer.
Although the following cases were prior to passage of the UCC, see Steele v. J. I. Case Co., 197 Kan. 554, Syl. ¶ 1, 419 P.2d 902 (1966), where it was said the buyer is not required to allow seller to tinker with a defective machine indefinitely to comply with a warranty; and Allen v. Brown, 181 Kan. 301, 308, 310 P.2d 923 (1957), where it was held the seller’s liability does not attach for a breach of warranty until he or she has a reasonable opportunity to remedy defects.
The code provides:
“Every contract or duty within this act imposes an obligation of good faith in its performance or enforcement.” K.S.A. 84-1-203.
“What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action.” K.S.A. 84-1-204(2).
So, it appears any attempt to repair defects should be allowed, if attempted within a reasonable time after notice of nonconformity. In McGilbray v. Scholfield Winnebago, Inc., 221 Kan. 605, revocation of acceptance was not permitted but it is noteworthy the repeated repairs by the seller were of a minor nature which did not prevent the purchaser from making use of the vehicle. The vehicle was driven 8700 miles during the 50 weeks plaintiff had owned it. In our present case two and one-half months was surely a reasonable time in which to allow a cure or repair of defects.
Summarizing the present case, plaintiff gave notice of nonconformity three days after tender had been accepted. This was within a reasonable time as required by K.S.A. 84-2-607(3)(a). The defects could not have been discovered without using the machine. Buyer mitigated his damages by using another implement to sow the sudan grass seed. See K.S.A. 84-2-711(l)(c). He notified seller and allowed a reasonable time for seller to effect repairs. There was substantial impairment in the value to the buyer. 84-2-608(1). When no repairs were made by the seller for a period of over two months the time for sowing sudan grass seed had passed. Buyer then gave notice of revocation of acceptance. 84-2-608(2). Buyer appears to have justifiably revoked acceptance and was therefore entitled to recover the purchase price. 84-2-711(1).
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The opinion of the court was delivered by
Fromme, J.:
Tracy B. Korbel appeals from a jury conviction of rape (K.S.A. 21-3502) and of aggravated kidnapping (K.S.A. 21-3421).
A young lady whom we will refer to as R was employed at K-Mart in Wichita. She got off work in the afternoon and was planning on a trip to Derby, Kansas, where her parents resided. As R proceeded to the parking lot to get her car she noticed a young man sitting on the curb in front of the store. She went to her car and while unlocking the car door she noticed the curb-sitter was standing a few feet from her. She entered the car and while fumbling through her purse for cigarettes the car door on the drivér’s side was opened. R noticed the curb-sitter had opened the car door and was holding a handgun which he pointed at her face. The man was later identified as Korbel.
Korbel pushed the car seat forward, entered the car and sat directly behind R. He directed her driving and threatened her with the' gun. He said he was in the crime syndicate and killed people for a living. During the next few hours Korbel ordered four different stops, generally at abandoned farmhouses in south Sedgwick County. Each time they stopped he would take the car keys and the gun, and then he would inspect the area. At the fourth stop he ordered R to remove all her clothing. This stop may have been in Sumner County. R was having her menstrual period. After obtaining an erection Korbel inserted his penis in R’s vagina. R indicated that Korbel was hurting her, whereupon Korbel quit and informed R he was a killer, not a rapist. Korbel got out of R’s car at Caldwell, Kansas. R drove to Wellington and tried to phone her mother, was not successful, and then drove to Derby.
The Wichita police were called, made a report, and started an investigation by 11:00 p.m. that evening. Korbel was arrested two weeks later at Stillwater, Oklahoma. He was charged, tried and convicted. Korbel testified he attempted sexual intercourse, it was with the consent of R but that he stopped when she expressed pain.
Korbel was sentenced to life imprisonment for aggravated kidnapping and to not less than five nor more than twenty years for rape. The sentences were made to run concurrently and the judge found a firearm was used and the mandatory sentencing act, K.S.A. 21-4618, applied. Seven issues are raised.
1. The first issue concerns the failure to instruct the jury on the lesser offense of attempted rape. Appellant Korbel argues there was some question in the evidence whether a rape was completed because he made no further advances when R expressed pain.
Rape is defined by statute as follows:
“(1) Rape is the act of sexual intercourse committed by a man with a woman not his wife, and without her consent when committed under any of the following circumstances:
“(a) When a woman’s resistance is overcome by force or fear.” K.S.A. 21-3502.
“(1) ‘Sexual intercourse’ means any penetration of the female sex organ by the male sex organ.” K.S.A. 21-3501.
Under these statutes the crime of rape may occur and be complete if there is any penetration, even though slight. State v. Ragland, 173 Kan. 265, 268, 246 P.2d 276 (1952). In the present case the victim testified there was penetration for á couple of minutes. The defendant testified at trial:
“Q. You don’t deny having some sort of sexual activity with her, do you?
“A. No.
“Q. How far did your penis penetrate her vagina?
“A. I couldn’t even tell it did, really, I — as soon as I started to put it in she said, ‘Take it easy, it’s hurting.’ And that’s when I withdrew.
“Q. There was a slight degree of penetration, but not very much?
“A. I guess there probably could have been.
“Q. Just enough to make it hurt, probably?
“A. Probably.”
Under the testimony of both the accused and the victim there was the required penetration of the female sex organ by the male sex organ. This constituted sexual intercourse and it was proper to refuse an instruction on attempted rape.
2. The next issue raised concerns the refusal of the trial court to grant defendant’s motion in limine. The victim testified of defendant’s use of a firearm. Defendant testified he did not use a gun and that he did not even own a gun. The State had a witness available who would testify he was present when the defendant told of “taking his gun out and shooting it.” Defendant moved to suppress this testimony on the ground it was hearsay. The evidence was admitted.
It is true the testimony was hearsay but it concerned a prior admission or statement made by the defendant, a party to the action. This testimony comes under the exception found in K.S.A. 60-460(g) as an admission by a party. 4 Vernon’s Kansas Statutes Annotated § 60-460(g), p. 476.
It is generally agreed a protective order issued on a motion in limine should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at trial under the rules of evidence; and (2) the mere offer of the evidence or statements made during trial concerning the evidence will tend to prejudice the jury. State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979).
The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible and prejudicial evidence and improper questions by counsel. In the present case the testimony was admissible and in no way improper. The point is without merit.
3. Appellant raises an issue on appeal concerning the court’s instructions regarding venue on the rape charge. There was evidence the act of sexual intercourse occurred in Sumner County. Appellant points to Instruction No. 12 which sets forth the elements necessary to prove the charge of rape. This instruction, in the concluding sentence, advised the jury that to establish the charge, the rape must have occurred “within this state.” We note, however, that a more general Instruction No. 2 advised the jury: “It is incumbent upon the prosecution, before conviction can be had, to prove to your satisfaction that the crime alleged in the Complaint/Information has been committed in Sedgwick County, Kansas.”
In the present case one element of the crime of rape is overcoming the woman’s resistance by force or fear. This act first occurred in Sedgwick County even though the sexual intercourse may have been committed in Sumner County. When two or more acts are requisite to the commission of any crime and such acts occur in different counties, the prosecution may be in any county in which'any of such acts occur. K.S.A. 22-2603; State v. Zimmer, 198 Kan. 479, 498-99, 426 P.2d 267, cert. denied 389 U.S. 933 (1967). Venue was properly laid in Sedgwick County.
4. The omission of Sedgwick County from the element instruction, although irregular, is not erroneous as a matter of law. The appellant failed to object to Instruction No. 14 in the trial court. K.S.A. 22-3414(3) provides in pertinent part:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous.”
The instruction not being objected to in the trial court, any error is waived and no error on appeal may be predicated thereon.
5. Appellant challenges Instruction No. 12 on the theory that the words “if you cannot agree” coerced the jury into returning a verdict of guilty on aggravated kidnapping. We do not agree.
This instruction reads:
“The offense of Aggravated Kidnapping with which the defendant is charged includes the lesser offense of Kidnapping. If you find the defendant guilty of Aggravated Kidnapping then you need not consider the lesser offense; however, if you cannot agree that the defendant is guilty of Aggravated Kidnapping you shall consider if he is guilty of Kidnapping.
“To establish this charge of Kidnapping the following claims must be proved:
“1. That the defendant took [R] . . . by force or threat;
“2. That it was done with the intent to hold [R] ... to facilitate the commission of the crime of Rape; and,
“3. That this act occurred on or about the 14th day of January, 1981, in Sedgwick County, Kansas.
“When there is reasonable doubt as to which of two offenses defendant is guilty, he may be convicted of the lesser offense only.” Emphasis supplied.
It is clear from a literal reading of the instruction it has no such effect as attributed to it by appellant. The words “if you cannot agree” when used to preface an instruction on a lesser charge are not coercive and do not require the members of a jury to unanimously find the accused innocent of the greater charge before proceeding to consider a lesser charge. The words “if you cannot agree” presuppose less than a unanimous decision and no inference arises that an acquittal of the greater charge is required before considering the lesser.
The cases from the State of Michigan on which appellant relies are not in point for the instructions in the Michigan cases did require unanimity and required a finding of not guilty on the principal charge before allowing deliberation on lesser charges.
6. Appellant makes a general challenge to Instructions 10 through 14 saying they were suggestive of a guilty verdict because they were improperly arranged, hard to read, and not in logical order. (We note in passing that appellant’s brief is hard to read or follow because he has failed to index and give the pages on which the particular issues appear in his brief. See Rules of the Supreme Court, Rule No. 6.02 [a] [228 Kan. xlvi].)
However, the propriety of the instructions to the jury is to be gauged by consideration of the whole, each instruction to be considered in conjunction with all other instructions in the case. State v. Childers, 222 Kan. 32, Syl. ¶ 5, 563 P.2d 999 (1977). See also State v. Ferguson, Washington & Tucker, 228 Kan. 522, Syl. ¶ 2, 618 P.2d 1186 (1980). The objection to the propriety of these instructions is made for the first time on appeal and error was, therefore, waived in the trial court since they are not erroneous as a matter of law.
7. The final issue raised by the appellant concerns the failure of the trial court to order a presentence investigation. The legislature in passing the laws regarding sentencing expressed the following philosophy applicable to sentencing:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.” K.S.A. 21-4601.
K.S.A. 21-4604 provides:
“(1) . . . Whenever a defendant is convicted of a felony, the court shall require that a presentence investigation be conducted by a probation officer or in accordance with K.S.A. 21-4603, unless the court finds that adequate and current information is available in a previous presentence investigation report or from other sources.” Emphasis supplied.
K.S.A. 21-4603 in part provides:
“(1) Whenever any person has been found guilty of a crime and the court finds that an adequate presentence investigation cannot be conducted by resources available within the judicial district, including mental health centers and mental health clinics, the court may require that a presentence investigation be conducted by the Kansas state reception and diagnostic center or by the state security hospital.”
Just prior to sentencing the trial court in this case stated:
“[Tjhere is no need for a presentence investigation in this case. I don’t think I made a record of that when the jury’s verdict came in, and I will do so at this time. I find it to be ludicrous to ask somebody to do a presentence investigation when I have no choice, when I know there’s a firearm involved and the penalty involved is life imprisonment.”
The trial court is correct in its assessment that in this particular case the sentence was mandatory and the court had little, if any choice as to the length of sentence, except perhaps as to running the two sentences concurrently or consecutively. However, what the court overlooks is the additional purposes the presentence report is designed to serve. The information compiled is not only to assist the sentencing court but also to help the Department of Corrections when the offender is sentenced to the custody of the Secretary of Corrections. The investigation and report provide both the court and the department with needed information concerning the offender’s background, social history, past criminal activities, if any, medical and psychological data, and other relevant factors which may be used to effect a knowledgeable disposition of the case or to develop a suitable program of treatment, rehabilitation, and incarceration for the offender. See Report on Kansas Legislative Interim Studies to the 1978 Legislature, p. 52 (Feb. 1978).
The American Bar Association project on Standards for Criminal Justice recommends that a presentence investigation report be made in every case. ABA Standards Relating to Sentencing Alternatives & Procedures §§ 4.1, 4.3 (Approved Draft 1968).
K.S.A. 21-4605(2) provides that if the defendant is committed to the custody of the Secretary of Corrections all presentence reports shall be sent to the Secretary of Corrections and to the director of the state correctional institution to which the defendant is conveyed.
The requirement of the statute is mandatory. K.S.A. 21-4604(1) states that whenever a defendant is convicted of a felony, the court shall require that a presentence investigation be conducted, unless the court finds that adequate and current information is available in a previous presentence investigation report or from other sources.
In the present case the trial court did not find on the record that adequate and current information was available. It did not find the information was available from other sources. Therefore, the court erred in failing or refusing to require presentence reports.
However, we do not believe the error was prejudicial to the defendant. Any information obtained could not have affected the length of this sentence under the mandatory firearms act. The court did run the sentences concurrently. The only possible prejudice to the defendant, who was sentenced to the custody of the Secretary of Corrections, would be from the lack of information as to defendant’s background, social history, and other relevant factors which might help to develop a suitable program of treatment, rehabilitation or incarceration for the offender.
K.S.A. 1981 Supp. 75-5262 provides:
“(a) The primary function and purpose of the Kansas state reception and diagnostic center shall be to provide a thorough and scientific examination and study of all felony offenders of the male sex sentenced by the courts of this state to the custody of the secretary of corrections so that each such offender may be assigned to a state correctional institution having the type of security (maximum, medium or minimum) and programs of education, employment or treatment designed to accomplish a maximum of rehabilitation for such offender. All such offenders shall be delivered to said center as provided in K.S.A. 1978 Supp. 75-5220, upon being sentenced by the court.
“(b) Each inmate so delivered to the Kansas state reception and diagnostic center shall be examined and studied and shall have a rehabilitation program planned and recommended for him. An inmate shall be held at the Kansas state reception and diagnostic center for a period not exceeding sixty (60) days except that an inmate may be held for a longer period of time at said center on order of the secretary. Upon the completion of the case study, diagnosis and report on an inmate, the inmate shall be assigned to one of the state correctional institutions or facilities for confinement, which shall be selected as the secretary shall prescribe, based on the examination and study of the inmate, or the inmate may be paroled or he may be assigned to one bf the state hospitals for further treatment not exceeding sixty (60) days where an ultimate parole is indicated at the expiration of said additional time.”
Since in this case the defendant did come within the provisions of the above statute and all reports and studies of the Kansas State Reception and Diagnostic Center were available to the Secretary of Corrections they would adequately serve the purposes normally served by a presentence report. No prejudicial error occurred under the circumstances of this case.
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The opinion of the court was delivered by
Schroeder, C.J.:
This case presents a question of Kansas law certified to this court by the United States District Court for the District of Kansas under authority of the Uniform Certification of Questions of Law Act, K.S.A. 1981 Supp. 60-3201 et seq., requesting an interpretation of the Kansas Wrongful Death Act.
The statement of facts set out in the memorandum and order from the district court provide the following relevant facts. On September 15 or 16, 1977, Otis W. Mason was diagnosed by his treating physician as having acute myelocytic leukemia, potentially related to exposure to the chemical benzene in his work environment. On October 16, 1977, Otis Mason signed a statement to this effect. During this time Otis and Diana Mason discussed consulting a lawyer about Otis Mason’s leukemia, but it is not clear from the record whether they did. Otis Mason died on December 10, 1979, and is survived by his widow Diana Mason (plaintiff).
The defendant Texaco was and is engaged in the manufacturing, distribution, marketing and sale of benzene. The defendant Gerin Corporation purchased benzene manufactured by Texaco from intermediary chemical distributors. Gerin sold “Gerin Lube Oil Test Kits” to the United States Coast Guard and periodically supplied it with small quantities of “Gerin Solvent,” which consisted of either benzene or toluene. The plaintiff contends Otis Mason contracted leukemia as a result of exposure to benzene contained in the Test Kit while instructing students in the proper use of the kit while in the Coast Guard in 1974 and 1975.
The question before us is limited to the defendant Texaco. While it is not clear from the record before us when the plaintiff’s original action was initiated, Texaco was not named as a defendant until plaintiff filed her second amended petition on July 8, 1980. The plaintiff sought damages for Otis Mason’s pain and suffering and her loss of consortium, comfort, services and society, in addition to a wrongful death claim.
Texaco moved for summary judgment on two grounds. The ground relevant to the issue here presented is that the plaintiff’s actions for personal injuries and wrongful death as to Texaco were barred by the statute of limitations. The district court properly dismissed Otis Mason’s cause of action against Texaco for personal injuries, holding it was clearly barred under K.S.A. 60-513. Otis Mason’s action for personal injuries accrued when the injury became ascertainable to him, which was, at the latest, in October 1977. The two years expired in October 1979, and since Texaco was not brought in as a defendant until July 1980, Otis Mason’s action for personal injuries was time barred.
Whether plaintiff’s wrongful death claim is time barred raises a more difficult question. The Kansas wrongful death statute, K.S.A. 60-1901, provides:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased.” (Emphasis added.)
In Graham v. Updegraph, 144 Kan. 45, 58 P.2d 475 (1936), the court interpreted the above-emphasized clause in the then existing wrongful death statute, R.S. 1923, 60-3203, to mean that where the injured party could not have brought an action had he lived because the statute of limitations had run against his claim, an action by his personal representative under the wrongful death statute was also barred. The Federal District Court was hesitant to apply the Graham rule, expressing “great doubts” as to the precedential value of Graham. It stated the following reasons: (1) The wrongful death statute and the statute of limitations have been changed since Graham; (2) the current statute of limitations and case law construing same would indicate that the cause of action accrued at Mr. Mason’s death; and (3) it is probable that Graham was wrongly decided and the Kansas Supreme Court would repudiate Graham.
The district court certified the following question to this court, which it deemed to be determinative of the issue before it:
“Does the cause of action accrue and the statute of limitations for a wrongful death action begin to run at the date of death, so that a wrongful death action brought within two years of the date of death is not time barred, even though the action was brought more than two years after the deceased’s action for personal injury accrued?”
Essentially the issue before us is one of statutory interpretation. Our question for determination is: What construction should be put on the words “if the former might have maintained the action had he or she lived”?
This question has been answered in different ways elsewhere, see Annot., 167 A.L.R. 894; Annot., 97 A.L.R.2d 1151. This is the first time the question has been raised in Kansas since Graham.
At common law no cause of action existed for wrongful death. In 1846 in England a wrongful death act was enacted, commonly known as Lord Campbell’s Act, S. 9 and 10 Viet., ch. 93, after which many state wrongful death statutes were patterned. See Prosser, The Law of Torts, § 127 (4th ed. 1971); Speiser, Recovery For Wrongful Death 2d §§ 1:8, 1:9 (1975); Goodyear, Administratrix v. Railway Co., 114 Kan. 557, 220 Pac. 282 (1923). This act provided that whenever a person’s death was caused by a wrongful act, neglect or default of another, an action could be brought on behalf of the heirs if the decedent would have been entitled to maintain an action and recover damages for the injuries if death had not ensued. This act was held to have created a new cause of action which allowed the heirs to recover the damages they sustained upon the injured party’s death which were different from those damages recoverable by the decedent for his injuries. Goodyear, Administratrix v. Railway Co., 114 Kan. at 562; Speiser, Recovery For Wrongful Death 2d §§ 1:8, 1:9.
The Kansas wrongful death statute has been construed similarly to Lord Campbell’s Act. In Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 552 P.2d 1363 (1976), while discussing the Kansas automobile injury reparations act, this court recognized that a cause of action for wrongful death is a separate and distinct type of action from a survival action authorized by K.S.A. 60-1801 et seq. A survival action allows the personal representative to recover damages accrued by the injured party between the date of injury and death for the benefit of the decedent’s estate. On the other hand, the wrongful death action authorized by 60-1901 et seq., is for the exclusive benefit of the heirs, and allows them to recover damages accruing after death for such things as loss of support, companionship and mental anguish. See also Flowers, Administratrix v. Marshall, Administrator, 208 Kan. 900, 494 P.2d 1184 (1972).
The statute of limitations considered in Graham was contained in the body of the wrongful death statute in existence at the time, R.S. 1923, 60-3203, providing “[t]he action must be commenced within two years.” This was deleted from the wrongful death statute and relocated in Article 5 of the Kansas Code of Civil Procedure governing limitation of actions. K.S.A. 60-510 provides that civil actions provided for in the article can only be commenced within the period prescribed after the cause of action has accrued. K.S.A. 60-513(a)(5) provides an action for wrongful death shall be brought within two years.
This change in the statute does not appear to be anything more than a transfer of the statute of limitations provision from the wrongful death statute to the article in the Code of Civil Procedure which generally governs the statute of limitations for all actions. See Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-1901 (1979). The change was made by the 1963 Legislature when our new Code of Civil Procedure was revised and enacted in its present form. We do not attach any significance to the deletion of the statute of limitations provision from the wrongful death statute. It appears to have been made for convenience and organizational purposes rather than to effect a change in the application of the wrongful death statute.
In Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504,470 P.2d 797 (1970), it was held that a cause of action accrues at the point in time when the plaintiff first had the right to file and prosecute the action to a successful conclusion. This court recognized as early as 1912 in Nesbit v. City of Topeka, 87 Kan. 394, 124 Pac. 166, that a cause of action for personal injuries accrues to the injured party when he is injured, and a cause of action for wrongful death accrues to the heirs at the death of the injured party.
However, this does not eliminate the qualifying condition in 60-1901 that the wrongful death action may be brought if the decedent might have maintained the action had he or she lived. Accordingly, it must be noted our decision does not involve the statute of limitations applicable to the plaintiff’s wrongful death action.
The plaintiff asserts that Graham should be overruled and cites a line of decisions which have construed statutes similar to 60-1901 holding that the wrongful death action is not barred where the statute of limitations has run against the decedent’s claim for personal injuries. The plaintiff cites Hugh Breeding Inc. v. Daniel, 373 P.2d 75 (Okla. 1962), overruled in part 503 P.2d 871 (Okla. 1972); and cases cited in Annot., 97 A.L.R.2d 1151, § 3(b). Many of those cases involve statutes that differ materially from 60-1901.
Many cases from other- jurisdictions involving statutes with qualifying language similar to that in question here have used two approaches. These courts hold there is no effect on the right to bring the wrongful death action where the decedent’s claim is time barred. Some courts have refused to recognize the condition and hold that because the wrongful death statute creates a separate and distinct cause of action for the benefit of the heirs which accrues upon the death of the decedent, it is inconsistent to permit the actions of the decedent prior to his death to defeat the cause of action in favor of his personal representative. Marks v. Reissinger, 35 Cal. App. 44, 169 Pac. 243 (1917); St. Francis Hospital, Inc. v. Thompson, 159 Fla. 453, 31 So. 2d 710 (1947); McKee, Admrx. v. New Idea, Inc., 36 Ohio L. Abs. 563,44 N.E.2d 697 (1942). Other courts have construed the condition as relating to the nature of the injury giving rise to the cause of action, and refuse to consider the time relation of the injury and subsequent death as relevant. Causey v. R.R., 166 N.C. 5, 81 S.E. 917 (1914); Hoover’s Adm’r v. Railway Co.. 46 W. Va. 268, 33 S.E. 224 (1899).
The holding in Nesbit v. City of Topeka, 87 Kan. at 396, decided prior to Graham merits comment. There, before an action for personal injury could be brought against a city, notice of the circumstances surrounding the injury must have been given to the city within four months of the injury, pursuant to statute. The decedent died more than four months after the injury and failed to give the required notice to the city. The decedent’s widow filed a wrongful death action and the court held failure of the decedent to give the city notice within the required period, thus precluding him from filing an action, would not bar the wife’s wrongful death action. The court said the widow was given a statutory cause of action at her husband’s death, and that she was not the person injured and so was not required to give the city notice within the four-month period. The court strictly construed the notice statute. The Nesbit case was not cited in Graham, and it does have distinguishing characteristics.
Under the condition here applicable in the wrongful death statute, Graham holds that where the injured party could not have brought an action had he lived because the statute of limitations had run against his claim prior to his death, an action by his personal representative under the wrongful death statute cannot be maintained. Many cases in other jurisdictions with statutes having the same language as 60-1901 support this position. Ellis v. Black Diamond Coal Mining Company, 268 Ala. 576, 109 So. 2d 699 (1959); Milford Memorial Hospital v. Elliott, 58 Del. 480, 210 A.2d 858 (1965); Kelliher v. N.Y. C. & H. R. R. R. Co., 212 N.Y. 207, 105 N.E. 824 (1914); Myers v. City of Plattsburgh, 13 App. Div. 2d 866, 214 N.Y.S.2d 773 (1961); Biglioli v. Durotest Corp., 44 N.J. Super 93, 129 A.2d 727 (1957); Coulter v. New Jersey Pulverizing Co., 11 N.J. Misc. 5, 163 A. 661 (1932); Piukkula v. Pillsbury Flouring Co., 150 Or. 304, 42 P.2d 921 (1935); Street v. Consumers Min. Corp., 185 Va. 561, 39 S.E.2d 271, 167 A.L.R. 886 (1946). See also Prosser, The Law of Torts § 127, pp. 910-13; Speiser, Recovery For Wrongful Death 2d § 11:17; 25A C.J.S., Death §§ 24, 56.
In Goodyear, Administratrix v. Railway Co., 114 Kan. at 568, the court recognized a wrongful death action could not be maintained where the decedent’s claim was satisfied by a settlement during his lifetime. There the court said:
“The courts in many of our states, having statutes worded identical with, or in effect the same, as the Lord Campbell Act, have reached the same conclusion. And from this line of authorities has grown the definite rule, that the personal representative cannot maintain the action for wrongful death, unless the injured person had a right of action for his injuries immediately before his death,”
Accord, Speiser, Recovery For Wrongful Death 2d § 11:17 at 193-94; 25A C.J.S, Death § 24.
Our wrongful death statute in effect when Graham was decided in 1936 has been subsequently republished or revised in 1939, 1947, 1955 and 1963. It must be noted the legislature has not changed or amended the wrongful death statutes in any way which is material to the condition here applicable. Under these circumstances there is a presumption the legislature did not intend to make any change in the wrongful death statute as construed by the court in Graham. See State ex rel. Stephan v. U.S.D. No. 428, 231 Kan. 579, 582, 647 P.2d 329 (1982). Other reasons exist for construing the wrongful death statute tp require that the action be conditioned upon the right of the injured person to maintain an action for personal injuries at the time immediately prior to his death.
The possibility that the injured person may die five, ten or even twenty years after the injuries were sustained without having filed suit or otherwise settling the case would force the party responsible for the wrongful act or omission to defend acts long forgotten and for which evidence and witnesses may no longer be available. See Piukkula v. Pillsbury Flouring Co., 150 Or. at 315-16; Howard v. Bell Telephone Co., 306 Pa. 518, 160 A. 613 (1932).
The situation where a person fails to bring an action for his personal injuries within the statute of limitations period and dies is analogous to situations where the injured person settles his claim for personal injuries and releases the defendant prior to the death of the injured person, or where he pursues his personal injury claim to trial and obtains a judgment against the wrongdoer. Authorities, under statutes similar to Lord Campbell’s Act, which hold the wrongful death action is extinguished by settlement and release of the defendant from liability for personal injuries sustained by a decedent are Mellon v. Goodyear, 277 U.S. 335, 72 L.Ed. 906, 48 S.Ct. 541 (1927); Southern Bell Tel. Co. v. Cassin, 111 Ga. 575, 36 S.E. 881 (1900); Fuller v. Atchison, T. & S. F. Rly. Co., 124 Kan. 66, 257 Pac. 971 (1927); Haws v. Leuthje, 503 P.2d871 (Okla. 1972); Speiser, Recovery For Wrongful Death 2d §§ 5:13, 5:14; 25A C.J.S, Death § 47.
The Oklahoma Supreme Court in Haws v. Leuthje, 503 P.2d at 874, felt the tortfeasor should be able to pay the injured party totally and completely at one time for his acts without living in fear of future litigation. In the opinion it quoted from Southern Bell Tel. Co. v. Cassin, 111 Ga. at 594, the court pointing out:
“The family stand to him in the relation of heirs, and, like all heirs, have no rights which can interfere with those of the living. They take what he leaves . . . and if, before his death he has settled with defendant, he has, by his own act, transmuted the value of a cause of action into dollars and cents, and deprived his family of any further value growing out of the negligence complained of.”
Authorities supporting extinguishment of the right of the heirs to recover on a subsequent wrongful death claim, where prior to his death the decedent proceeded to trial on his claim for personal injuries and obtained a judgment, either in his favor or in favor of the tortfeasor are: Restatement (Second) of Judgments § 46 (1982); Speiser, Recovery For Wrongful Death 2d §§ 5:19-5:22; 25A C.J.S, Death § 49; Annot, 94 A.L.R.3d 676. See Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (1981).
For the reasons stated we affirm the decision in Graham v. Updegraph, 144 Kan. 45. We hold in construing our wrongful death statute, K.S.A. 60-1901, that where the injured party could not have brought an action for his personal injuries because the statute of limitations had run against his claim prior to his death, a wrongful death action cannot be maintained. The condition specified in the wrongful death statute requiring that the injured party have the capacity to maintain the action had he or she lived is not fulfilled.
As applied to the facts certified to this court we answer the certified question by construing K.S.A. 60-1901 to require the existence of a right of action in the plaintiff’s husband at the time of his death as a condition precedent to the existence of a right of action in the plaintiff wife; and that the fulfillment of that condition became impossible by reason of the expiration, prior to his death, of the period of limitations governing the husband’s claim.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by a creditor bank to recover a deficiency judgment against two debtors after the repossession and private sale of two recreational vehicles (RV) which had served as collateral for the loan. The plaintiff-creditor is Westgate State Bank which we will refer to in the opinion as plaintiff or the bank. The debtor-defendants are Charles K. Clark, Jr. and Barry B. Clark. We will refer to them as the debtors or the defendants.
The facts in the case are not really in dispute and essentially are as follows: The defendants Clarks were engaged in the business of renting recreational vehicles to the general public under the name of R.V. Enterprises, Lenexa, Kansas. The defendants entered into a loan and security agreement with the plaintiff bank on June 21, 1977. The amount of the promissory note was $39,459.42, and the defendants furnished two 1976 Cruise Air Motor Homes as security for the loan. Thereafter, problems arose when the defendants failed to make timely payments on their note. On October 17, 1977, the bank sent the defendants a notice of right to cure on the basis of the defaults. On October 9, 1979, the bank repossessed the two Cruise Air Motor Homes. The following day, October 10, 1979, the bank sent a notice to each defendant by registered mail. Each notice in substance advised the defendants that the bank had repossessed the vehicles on October 9, 1979, and reminded the defendants that the right to cure notice had been sent to them on October 17, 1977, some two years prior to the repossession. The notices advised the defendants that the loan balance due at that time was $22,317.54 and that in ten days from that date the vehicles would be sold to the highest bidder and a lawsuit would be commenced without further notice against them to recover the difference between the balance due and the highest bid received. The notice specifically advised each defendant that he had ten days to contact the bank and that they should talk to a certain named employee of the bank.
Thereafter, the bank sold the two RVs by private sale to the highest bidder on each vehicle. The sale price on each vehicle was $5,000. The bank then filed this action to recover the cost and expenses of repossession and sale and for the deficiency which resulted from the sale of the RVs at a price less than the outstanding debt. The defendants filed an answer alleging that the sale of the RVs by the bank was not done in a commercially reasonable manner and the highest possible price was not secured. The defendants further alleged that the RVs were not properly prepared for sale and that notice of sale was not given to the defendants. The case then proceeded to trial.
At the trial, each of the parties called one witness. The bank presented the testimony of its consumer loan officer who identified the promissory note and security agreement. The loan officer did not supervise the loan in the beginning and was simply the custodian of the records. He testified as to collection problems arising in connection with the loan and that a right to cure notice was sent to the defendants on October 17, 1977. The bank tried to collect the account for two years and finally in October of 1979 repossessed the two RVs. The loan officer identified the repossession notice which was sent to each of the defendants by registered mail advising them that the RVs would be sold to the highest bidder after ten days. He testified that neither of the defendants responded to the notice. He testified that after repossession by the bank, the two RVs were taken to Keith’s Camper Sales on Leavenworth Road in Kansas City, Kansas, to prepare them for sale. Certain expenses and charges were incurred in winterizing the vehicles and preparing them for sale. These charges were added to the balance due on the note.
Prior to the sale, employees of the bank by telephone called various people who they thought might be in the market for the two RVs. The homes were in average condition, according to the loan officer, and prospective buyers had the opportunity to inspect them at Keith’s Camper Sales and then make bids at the bank. A total of six bids were received on the two RVs. Each of the homes was purchased for a bid price of $5,000. On cross-examination, the loan officer testified that he did not know the exact number of people who were contacted about the sale; there were five or six he knew of. After the sale in this case, he never advised the defendants as to the sales price or the amount of the deficiency prior to the suit being filed. He did not know how much the vehicles were worth retail. He did not consider a wholesale block sale in this case because that would cost a fee. There was not public advertising about the sale because of the cost involved. On re-cross-examination, he testified that the notice the bank sends to debtors does not tell the debtor how to bid or the place or hour of the sale. The bank then rested its case.
The only witness presented in support of the defense was the defendant, Charles K. Clark, Jr. He testified that the vehicles were in very good condition and fully equipped and air conditioned and that eight people could sleep in each of the vehicles. Each of the vehicles had been driven 90,000 miles but the engines and drive trains were in excellent condition. Both were 1976 models. The defendants were in the business of renting mobile homes and had previously advertised the homes for sale. They started out by setting a price at $12,000 each but were unable to sell them. At $9,000 each, they were a good buy. At $5,000 each, they were given away. Defendant testified that they had numerous offers for each vehicle in the area of $7500 which they did not accept at the time. Clark further testified that he assumed that the bank would sell the homes at wholesale. If he would have known the homes were to be sold for only $5,000 each, he would have called his contacts in the area. He stated that he had not heard of any of the persons who actually bid. Defendant, on cross-examination, testified that when he got the letter notice from the bank, he filed it. He did not write or call the bank. He assumed that the RVs would be wholesaled, possibly at a place in Belton, Missouri, which has a special sale once a month for RVs. On redirect, he testified that, when defendants were engaged in the RV business they rented out vehicles up to a maximum of nine at a time. They were in the RV business about three years all together.
At the close of the hearing the trial court made brief findings of fact and entered judgment in favor of the defendants. In its findings, the court noted the promissory note and security agreement dated June 21, 1977, that defaults in payments had been made by the defendants, and that the right to cure was sent by the plaintiff in October of 1977. The court also found that notice of sale and repossession was sent by the bank to each defendant in October of 1979; that the bank by word-of-mouth notified five or six persons that the two RVs were for sale; and found that the bank incurred some costs in maintenance and repair after repossession but prior to sale. The court then concluded that the word-of-mouth solicitation of bids was not sufficient to meet the requirements of K.S.A. 16a-5-103 (Ensley) under the Kansas Uniform Consumer Credit Code (UCCC) as a matter of law. The court further stated that, since the bank did not dispose of the goods in good faith and in a commercially reasonable manner, as a matter of law the bank was not entitled to judgment for a deficiency. The trial court then entered judgment in favor of the defendants. The court erroneously relied on the provisions of K.S.A. 16a-5-103, a provision of the UCCC which will be discussed later.
On December 10, 1980, the bank’s motion for a new trial was heard by the court. At that hearing, the trial court was advised for the first time that the provisions of the UCCC were not applicable to the sale, since the defendants, as purchasers engaged in a commercial enterprise, were not consumers as defined in the UCCC. The court then concluded that comparable provisions of the Uniform Commercial Code (UCC) were applicable which precluded, as a matter of law, a deficiency judgment by a secured creditor who repossesses the collateral in any case where the sale of the collateral was not conducted in a commercially reasonable manner. The trial court then modified its findings to show that the transaction was covered by the UCC, not the UCCC, but adhered to its prior findings that the sale of the collateral was not conducted in a commercially reasonable manner. The plaintiff bank has appealed from the judgment of the district court entered in favor of the defendants.
At the outset, it should be stated that the district court was correct in holding that K.S.A. 16a-5-103 (Ensley) of the Uniform Consumer Credit Code was not applicable in determining the rights of the parties in this case. That section, which places a restriction on the right of a secured creditor to secure a deficiency judgment against the debtor, provides in part as follows:
“(1) This section applies to a deficiency on a consumer credit sale of goods or services and on a consumer loan in which the lender is subject to defenses arising from sales (section 16a-3-405); a consumer is not liable for a deficiency unless the creditor has disposed of the goods in good faith and in a commercially reasonable manner. ” (Emphasis supplied.)
It is important to note that under K.S.A. 16a-5-103 a consumer is not liable for a deficiency judgment as a matter of law unless the repossessed creditor has disposed of the goods in good faith and in a commercially reasonable manner. That section is not applicable in this case because the loan was not a consumer loan as defined by K.S.A. 16a-l-301(13). To have a consumer loan, the debt must be incurred by a person, primarily for personal, family, or household purposes. In this case, it was undisputed that the debt was incurred-for the purpose of renting out the vehicles as a part of a business enterprise. Hence, the UCCC was clearly not applicable.
. This case is, therefore, controlled by the provisions of the UCC and requires us to examine certain of its provisions. In particular the following should be noted:
K.S.A. “84-1-102. Purposes; rules of construction; variation by agreement. (1) This act shall be liberally construed and applied to promote its underlying purposes and policies.
“(2) Underlying purposes and policies of this act are:
“(a) to simplify, clarify and modernize the law governing commercial transactions;
“(b) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties;
“(c) to make uniform the law among the various jurisdictions.
“(3) The effect of provisions of this act may be varied by agreement, except as otherwise provided in this act and except that the obligations of good faith, diligence, reasonableness and care prescribed by this act may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.” (Emphasis supplied.)
K.S.A. “84-1-106. Remedies to be liberally administered. (1) The remedies provided by this act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in this act or by other rule of law.
“(2) Any right or obligation-declared by this act is enforceable by action unless the provision declaring it specifies a different and limited effect.” (Emphasis supplied.)
K.S.A. “84-9-503. Secured party’s right to take possession after default. Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides the secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor’s premises under section 84-9-504.”
K.S.A. 1981 Supp. “84-9-504. Secured party’s right to dispose of collateral after default; effect of disposition. (1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing. . . .
“(2) If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for any deficiency. But if the underlying transaction was a sale of accounts or chattel paper, the debtor is entitled to any surplus or is liable for any deficiency only if the security agreement so provides.
“(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods no other notification need be sent. In other cases notification shall be sent to any other secured party from whom the secured party has received (before sending his notification to the debtor or before the debtor’s renunciation of his rights) written notice of a claim of an interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.” (Emphasis supplied.)
K.S.A. “84-9-507. Secured party’s liability for failure to comply with this part. (1) If it is established that the secured party is not proceeding in accordance with the provisions of this part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this part. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten percent of the principal amount of the debt or the time price differential plus ten percent of the cash price.
“(2) The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner. The principles stated in the two preceding sentences with respect to sales also apply as may be appropriate to other types of disposition. A disposition which has been approved in any judicial proceeding or by any bona fide creditors’ committee or representative of creditors shall conclusively be deemed to be commercially reasonable, but this sentence does not indicate that any such approval must be obtained in any case nor does it indicate that any disposition not so approved is not commercially reasonable.” (Emphasis supplied.)
There are two basic issues presented by the bank on this appeal:
(1) Whether the district court erred in barring the plaintiff bank from recovery of a deficiency judgment, as a matter of law, after the court found the bank had disposed of the two RVs in other than a commercially reasonable manner?
(2) Whether the district court erred in finding the private sale of the two RVs with only a telephone solicitation for bids and without advertising to the general public was not a commercially reasonable sale?
The first issue we now address is one of first impression in the Kansas appellate courts. At the trial, the defendants contended, and the district court held, that a sale of the collateral in other than a commercially reasonable manner bars the secured creditor from recovering any deficiency judgment as a matter of law. The issue presented has caused a great deal of controversy in the courts throughout the country. There are two approaches which have been taken by the various courts. One line of cases takes the view that, if the secured creditor fails to give the required notice or sells other than at a commercially reasonable sale, the creditor is barred from obtaining a deficiency judgment as a matter of law. The second line of cases holds that the secured creditor is not barred as a matter of law, but that there is a rebuttable presumption that the value of the collateral was worth the unpaid balance of the debt. In addition, the debtor is entitled to have the trier of fact calculate the damages which he suffered as a result of the unreasonable conduct and to have that amount set off against the amount the creditor would otherwise be entitled to recover. This issue is the subject of a comprehensive annotation which may be found in 59 A.L.R.3d 401, where the cases supporting each position are set forth. As pointed out above, there are no Kansas state cases on this issue. We note, however, that there are two Kansas federal cases which have followed the rebuttable presumption rule. Barbour v. United States, 562 F.2d 19 (10th Cir. 1977); Transport Equipment Co. v. Guaranty State Bank, 518 F.2d 377 (10th Cir. 1975).
A recent and excellent articulation of the rule that a deficiency claim should be automatically eliminated as a matter of law where the creditor misbehaves is Wilmington Trust Co. v. Conner, 415 A.2d 773 (Del. 1980). In adopting this rule, the Delaware Supreme Court focused on the following arguments:
(1) The Uniform Conditional Sales Act, which was replaced by article 9, had been previously construed to make compliance with its terms a condition of recovering any deficiency.
(2) The recovery of any “loss” under § 9-507 (1) is not an exclusive remedy and failure of the drafters of the UCC to include any provision barring a deficiency does not indicate an intent to deny that remedy by negative implication.
(3) The UCC contains several suggestions, particularly in §§ 1-103 and 1-106, that remedies should be construed liberally.
(4) Barring a deficiency claim is not punitive when compliance with article 9 is looked at as a condition precedent to recovery of the claim.
A recent case, which presents the arguments in favor of the rule that creditor misbehavior merely shifts the burden to the creditor to show that the misbehavior was not prejudicial, i.e., that the unpaid balance of the debt exceeds the fair market value of the collateral, is Valley Min. Corp., Inc. v. Metro Bank, 383 So. 2d 158 (Ala. 1980). That case holds that if a creditor fails to dispose of the collateral in a commercially reasonable manner, this does not result in the creditor’s absolute forfeiture of its right to a deficiency judgment, but only requires a reduction of the claimed deficiency by the amount of any loss to the debtor resulting from any such failure. In refusing to bar a deficiency judgment as a matter of law, the Alabama Supreme Court enumerated the following considerations in favor of its position:
(1) Section 9-504 (UCC) allows a deficiency claim by its express terms and says nothing about eliminating the claim because of creditor misbehavior, in sharp contrast to § 2-706, which strongly suggests that a seller of goods must give notice of resale to a defaulting buyer as a condition of obtaining any deficiency.
(2) Eliminating the deficiency altogether for creditor misbehavior runs contrary to the UCC’s philosophy to do away with rigidity.
(3) The keynote of § 9-504 is commercial reasonableness, which cuts against the total-elimination approach.
(4) Snuffing out the deficiency claim conflicts with the policy of § 1-106, which allows full compensation to an aggrieved party but seeks to avoid penal damages.
(5) Most important, the drafters in § 9-507(1) occupied the field when they provided for recovery of “any loss” and a minimum civil penalty covering consumer goods.
For a similar rationale, see Hall v. Owen Co. State Bank, et al., 175 Ind. App. 150, 370 N.E.2d 918, 926-28 (1977), rehearing denied (January 20, 1978).
We have considered these two lines of cases and have concluded that the Kansas courts should distinguish between consumer transactions under the UCCC and nonconsumer transactions under the UCC. In consumer transactions, where there is creditor misbehavior such as failure to sell in a commercially reasonable manner, a claim for a deficiency judgment is absolutely barred. K.S.A. 16a-5-103 specifically so provides. When, however, the debtor is a commercial entity, the Kansas courts should use the rebuttable presumption approach. It cannot be denied that the more sophisticated debtor is in a better position to grapple fairly with the creditor as to whether the sale was commercially reasonable or whether the unpaid balance of the debt exceeds the fair market value of the collateral. Furthermore, since the legislature did not see fit to include in the UCC, K.S.A. 84-1-101 et seq., an express provision barring absolutely a deficiency judgment in cases of creditor misbehavior, the courts should hesitate to adopt such a rule. We further are impressed by the philosophy of the UCC which emphasizes good faith and reasonableness on the part of the parties with a view of avoiding penalty damages.
To summarize, we hold as follows: Where a secured creditor sells the collateral in other than a commercially reasonable manner, the secured party is not absolutely barred from recovering a deficiency judgment from the debtor as a matter of law. In an action brought by a secured creditor for a deficiency judgment after a sale of the collateral in other than a commercially reasonable manner, there is a rebuttable presumption that the value of the collateral was equal to the unpaid balance of the debt and the burden of showing otherwise is on the secured creditor. The debtor is entitled to have the trier of fact calculate the damages which he suffered as a result of the unreasonable conduct and to have that amount set off against the amount the creditor would otherwise be entitled to recover.
The second issue presented is whether the trial court erred in finding, on the evidence presented, that the sale of the RVs was not a commercially reasonable sale? We must first emphasize the generally accepted rule that, where a secured creditor brings an action for a deficiency judgment after sale of the collateral, the burden of proof as to the commercial reasonableness of the sale is on the plaintiff creditor. See 69 Am. Jur. 2d, Secured Transactions § 623, pp. 530-31, and the cases cited in an annotation on the subject at 59 A.L.R.3d 369. This rule was followed in Transport Equipment Co. v. Guaranty State Bank, 518 F.2d 377. This rule is consistent with prior decisions of this court holding that, where a creditor repossesses and disposes of the collateral, it is incumbent on the creditor to account for the collateral sold by him before he can recover a deficiency. Mannen v. Bailey, 51 Kan. 442, 32 Pac. 1085 (1893).
Unfortunately, the UCC does not specifically define the term “commercially reasonable.” Because the statutory definition of a commercially reasonable sale is vague, the cases generally hold that a factual determination as to whether a sale was commercially reasonable must depend on the particular facts of each case. See Hall v. Owen Co. State Bank, et al., 175 Ind. App. 150. We agree that the determination of the issue whether a sale was held in a commercially reasonable manner is a question of fact to be determined in each particular case by the trier of fact, and that, in an action for a deficiency judgment, the secured creditor has the burden of proof to show that the disposition or sale of the collateral was made in a commercially reasonable manner.
In deciding whether or not the sale of the collateral was accomplished in a commercially reasonable manner, the trial court should consider all of the relevant factors together as a part of a single transaction. As pointed out by the court in In Re Zsa Zsa Limited, 352 F. Supp. 665 (S.D.N.Y. 1972):
“It is the aggregate of circumstances in each case — rather than specific details of the sale taken in isolation — that should be emphasized in a review of the sale. The facets of manner, method, time, place and terms cited by the Code are to be viewed as necessary and interrelated parts of the whole transaction.” p. 670.
In the reported cases on the subject, there are many factors suggested to be considered by the courts in determining whether the collateral was sold in a commercially reasonable manner. It should be noted, for example, that in section 2 of K.S.A. 84-9-507 some suggestions are made which should be considered in the determination of commercial reasonableness: “The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner.” That section also suggests that a disposition which has been approved in any judicial proceeding or by any bona fide creditors’ committee or representative of creditors shall conclusively be deemed to be commercially reasonable.
There is an excellent discussion on the factors to be considered in determining the commercial reasonableness of a sale in a treatise by Barkley Clark, The Law of Secured Transactions Under the Uniform Commercial Code (1980). In section 4.8, Professor Clark points out some of the elements of commercial reasonableness. He notes that some factors, such as notice, are specifically provided in K.S.A. 84-9-504(3). Other factors appear as recurrent themes in the decided cases. He suggests the following list of factors to be used as a checklist by a creditor foreclosing under Article 9 of the UCC:
(1) The duty to clean up, fix up, and paint up the collateral. It is suggested that, if the cost of preparing the collateral for sale is small in comparison to the additional price it is likely to generate, the creditor should spend the extra money. Cases are cited holding that washing and cleaning up consumer goods or equipment may be the only commercially reasonable thing to do in order to generate bidder interest at the sale.
(2) Public or private disposition.
Article 9 gives to the secured party an option to sell the property either at public or private sale. Comment 1 to § 9-504 suggests that a private sale should be used whenever such a disposition is likely to result in a higher return. Which type of sale is the more commercially reasonable action to take in a particular case must be determined from the nature of the collateral and the other factual circumstances.
(3) Wholesale or retail disposition.
In many cases, a retail sale of the goods will command a much higher price; however, a retail sale may involve more expenses and usually will take much longer to conclude. This in turn may not be reasonably feasible in view of higher storage expense and higher interest accumulation on the obligation. In some cases, a sale to a dealer on the wholesale market may be the more reasonable approach. Sales to a dealer seem to be suggested under § 9-504 and the official comments under that section and also in the official comment to § 9-507(2) which suggests that sale of repossessed collateral through a dealer may be the better method in the long run since the secured party does not usually maintain his own facilities for making such sales. The answer to the question whether a sale on the retail or wholesale market is commercially reasonable must generally depend upon the circumstances of each particular case and, therefore, is a question of fact for the factfinder to determine.
(4) Disposition by unit or in parcels.
K.S.A. 84-9-504(3) provides that disposition “may be as a unit or in parcels.” Several cases have imposed a duty on the secured party to dispose of certain items of collateral on a piecemeal basis, if a higher price would be likely under such a disposition. Professor Clark suggests that in all cases the secured party should weigh the possible higher realization from piecemeal disposition against the higher cost of multiple sales. Much depends on the nature of the collateral.
(5) The duty to publicize the sale.
One of the most important elements of commercial reasonableness is the duty to surround the sale with publicity sufficient to attract a “lively concourse of bidders.” In publicizing a foreclosure sale, the exact time, place, and terms of a public sale should be published. A number of cases hold that if the collateral is equipment, individual consumer goods, or farm goods, there is a duty to provide prior inspection of the collateral for interested purchasers. Failure to allow prior inspection may influence the court to conclude in a particular case that the sale was not commercially reasonable.
(6) Length of time collateral held prior to sale.
Professor Clark points out cases holding that a sale was not commercially reasonable because the secured parties acted too hastily by failing to take the time to advertise so that additional bidders could have been encouraged. On the other hand, holding the collateral for an extended period of time may be considered as undue delay, causing the collateral to be sold at other than a fair price.
(7) Duty to give notice of the sale to the debtor and competing secured parties.
K.S.A. 84-9-504(3) imposes upon the secured party a duty to “send” to the debtor “reasonable notification of the time and place of the public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made.” Professor Clark suggests that the purpose of notification is both to protect the debtor’s right of redemption and to enable the debtor to enliven the concourse of bidders by any method. Failure to give proper notice can lead to an action for damages by the debtor against the secured creditor under K.S.A. 84-9-507(1). Because of the conflict in the cases as to whether written notice is required, Professor Clark suggests that the foreclosing creditor should reduce the notification of the sale to writing. As to how far in advance of the sale the notification should be sent to the debtor, the standard around the country seems to be ten days prior to either a public or private sale. Comment (5) of K.S.A. 84-9-504 points out that the term “reasonable notification” is not defined in the act, but it should be sent in such time that persons entitled to receive it will have sufficient time to take appropriate steps to protect their interests by taking part in the sale or other disposition if they so desire. If a public sale is involved, the debtor must be told exactly where and when the sale will take place. If a private sale will be held, the notification must be only as to the time after which the sale will be made. However, if the creditor knows specifically the name of the prospective purchaser and the amount of his bid it would be very helpful to the debtor to have such information so that he could better protect himself by exploring other avenues to obtain a better price.
(8) The actual price received at the sale.
The cases indicate that the price actually received by the secured party is definitely one of the most important factors to be considered in deciding whether a sale was commercially reasonable. It is expressly provided in K.S.A. 84-9-507(2), however, that the fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. A relevant factor may be the price received by the buyer of the collateral at a subsequent sale. A showing that the collateral was sold only a short time later at a substantial or disproportionately higher price may strongly imply that the secured party failed to receive a fair price for the collateral. See Mercantile Financial Corp. v. Miller, 292 F. Supp. 797 (E.D. Pa. 1968). It has been suggested that the secured creditor obtain an independent appraisal of the collateral before the sale, so that only bids near the appraised value will be considered.
(9) Other factors to be considered.
Other factors suggested to be considered in deciding whether a sale was commercially reasonable include the number of bids received and the method employed in soliciting bids, particularly in the case of a private sale. In addition, the time and pace of the sale must be such that they are reasonably calculated to bring out a reasonable number of bidders, particularly in the case of a public sale. The above list of suggested factors is not intended to be exclusive and should not prevent a court from considering other relevant factors in a particular case.
As noted heretofore, it is the philosophy of the UCC that the debtor and the secured creditor, in their dealings, should act toward each other in good faith and in a reasonable manner. In every case, that should be the ultimate test to be applied by a trial court in determining the issue of commercial reasonableness. Since the issue of commercial reasonableness is usually one of fact, the decision of the trial court will be sustained on appeal when there is substantial, competent evidence to support its findings. This case was tried by the court, sitting without a jury, and the trial court found that the bank did not dispose of the RVs in a commercially reasonable manner, because only five or six bids were solicited by telephone and there was no advertising directed toward the general public. We have considered the testimony of the two witnesses who testified at the trial and have concluded that there is substantial, competent evidence to support the finding of the trial court that the plaintiff bank did not sell the goods in a commercially reasonable manner.
As noted above, this action being one for the recovery of a deficiency judgment by a secured creditor after repossession and sale of the collateral, the burden of proof was on the bank to show that the two RVs were sold in a commercially reasonable manner. The evidence presented by the plaintiff, which has been summarized at the beginning of this opinion, was very skimpy. The plaintiff did not offer testimony as to how the persons making bids were selected or whether they were dealers or private individuals or whether a sale by wholesale or retail would have brought a better price. The bank’s loan officer testified that he did not know how much the vehicles were worth retail. It was undisputed that the vehicles were in a very good condition. The defendant testified that his business had numerous offers in the area of $7,500 for each of the recreational vehicles. Under the evidence presented, we cannot say as a matter of law that the plaintiff bank sustained its burden of proof or that the trial court erred in holding that the two vehicles were not sold in a commercially reasonable manner.
The case must be reversed, however, because the district court erroneously held that, where a secured creditor sells the collateral in other than a commercially reasonable manner, the creditor is absolutely barred as a matter of law from securing a deficiency judgment. Under the legal principles which we have adopted, a secured creditor is not barred as a matter of law where the sale of collateral is other than in a commercially reasonable manner, but there is a rebuttable presumption that the value of the collateral is equal to the unpaid balance of the debt, and the secured creditor has the burden of presenting evidence to show to the contrary. In this case, the trial court did not determine the actual value of the two RVs at the time they were sold. Thus, it did not determine whether the plaintiff rebutted the presumption. The case is, therefore, reversed and remanded to the district court with instructions to grant the parties a new trial on the issues as to whether the plaintiff rebutted the presumption that the value of the collateral is equal to the unpaid balance of the debt and whether the defendants are entitled to any damages as a setoff due to the .failure of plaintiff bank to dispose of the two RVs in a commercially reasonable manner.
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The opinion of the court was delivered by
Herd, J.:
This is a declaratory judgment action brought by April D. Schmidt, a teacher, against Unified School District No. 497 of Lawrence. Appellee sought a declaration she was a tenured teacher of appellant and that the Board’s notice of nonrenewal of her teaching contract was deficient because it did not state the reasons for her nonrenewal and did not mention her right to a due process hearing. The district court entered judgment for Ms. Schmidt, from which the Board appeals. After judgment and the notice of appeal, appellee filed a petition for further relief, seeking a damages award. Following an evidentiary hearing the district court granted Ms. Schmidt judgment in the amount of $7,914.50 and costs. The Board appeals. Ms. Schmidt cross-appeals, contesting the amount of the damages judgment.
April Schmidt was first employed by U.S.D. # 497 on September 4, 1973, as a part-time teacher under Title I of the Elementary and Secondary Education Act, 20 U.S.C. § 236 et seq., a federally funded program. She taught remedial reading. She worked under this initial contract through the balance of the 1973-74 school year. Because of the uncertain nature of funding and the Board’s awareness of the Continuing Contract Law, appellant gave Ms. Schmidt timely written notice of nonrenewal of her contract in the spring of 1974.
In July of 1974 the Board and Ms. Schmidt entered into a new part-time contract under the same Title I program, with her duties to commence August 19,1974, and continue for the balance of the 1974-75 school year. On December 11, 1974, Ms. Schmidt resigned from that position. On March 1, 1977, Ms. Schmidt and the Board entered into another contract. She was to teach part time under the same federally funded program for the balance of the 1976-77 school year. Notice of nonrenewal of that contract was timely given shortly thereafter. Ms. Schmidt was then hired to teach summer school under the Title I program from June 6, 1977, to June 30, 1977.
On September 20, 1977, Ms. Schmidt interviewed for another Title I teaching position with the Board for the 1977-78 school year. On September 22, 1977, the parties signed an agreement which provides in pertinent part:
“THIS CONTRACT, entered into this 22nd day of September, 1977, by and between Lawrence Unified School District No. 497, Douglas County, State of Kansas, hereinafter called ‘Board’, and April Schmidt, hereinafter called ‘Teacher.’
“The parties hereto agree that the Teacher is employed in the position of Title I Reading (.4 time) and shall perform the duties of such position for the school year 1977-78 on step 8 BS 20 at the yearly contract salary of $4,084.00 to be paid in substantially equal installments paid once (or more often when agreed upon) each month commencing in September of the school year. This contract covers the school year commencing July 1,1977, and ending June 30,1978. The teacher shall report for duty on September 26,1977. 8 BS 2- = $11,732.00 divided by 185 days = $63.42 day x 161 days = $10,210.62 x .4 = $4,084.00.”
Notice of nonrenewal of this contract was given in the spring of 1978. From June 5 to July 14,1978, Ms. Schmidt taught summer school under the Title I program.
On June 6, 1978, Ms. Schmidt was, for the first time, hired by the Board as a regular full-time elementary teacher to commence work on August 21, 1978. On April 11, 1979, the Board gave Ms. Schmidt written notice of nonrenewal of her teaching contract for the 1979-80 school year. Ms. Schmidt complained this notice did not comply with due process protections afforded teachers when nonrenewal is proposed. The Board responded Ms. Schmidt was not a tenured teacher and thus not entitled to those protections. Ms. Schmidt then filed this action for declaratory judgment. The district court agreed with Ms. Schmidt, finding the April 11,1979, notice insufficient.
Preliminary to a discussion of the issues the relevant statutes should be noted. K.S.A. 72-5436 through -5446 provide due process protections for teachers. These protections include the right of a teacher to receive a notice containing the reasons for nonrenewal of a contract and a due process hearing at which the Board of Education must bear the burden of proving by substantial evidence good cause for nonrenewal. See K.S.A. 72-5438 and 72-5442; Gillett v. U.S.D. No. 276, 227 Kan. 71, 605 P.2d 105 (1980). The purpose of the safeguards “is to protect competent and worthy instructors and other members of the teaching profession against unjust dismissal of any kind . . . .” Million v. Board of Education, 181 Kan. 230, Syl. ¶ 1, 310 P.2d 917 (1957). See Gillett, 227 Kan. at 76. K.S.A. 72-5445 provides the statutory protections apply:
“[Ojnly to those teachers who have at any time completed two (2) consecutive years of employment in the school district, area vocational-technical school, or community junior college then currently employing such teacher, except where the teacher alleges his or her termination or nonrenewal is the result of his or her having exercised a constitutional right.”
K.S.A. 72-5436 defines “teacher” as:
“[A]ny professional employee who is required to hold a teacher’s certificate in any public school, and any teacher or instructor in any area vocational-technical school or community junior college, except that ‘teacher’ shall not include supervisors, principals, superintendents or any person employed under the authority of K.S.A. 72-8202b, or amendments thereto, or any person employed in an administrative capacity by any area vocational-technical school or community junior college.”
The Board first contends Ms. Schmidt is not a “teacher” within the meaning of K.S.A. 72-5436 because the Teacher Tenure Law, as it is commonly called, did not intend part-time employment to qualify a teacher for due process protections, especially when the program is federally funded, allowing the school board no control over its continuation.
A cursory examination of the language of K.S.A. 72-5436 reveals no attempt to limit the meaning of “teacher” to full-time employees. Similarly, there is no mention of the source from which a teacher is paid. Before construing the statute, however, we should review the pertinent rules of statutory construction. First, the fundamental rule, 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. Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 367, 582 P.2d 1123 (1978); Easom v. Farmers Insurance Co., 221 Kan. 415, 421, 560 P.2d 117 (1977). If such intent can be determined from the language itself, the court is not warranted in looking beyond the terms of the statute. Callaway v. City of Overland Park, 211 Kan. 646, 650, 508 P.2d 902 (1973). The language of K.S.A. 72-5436 is plain and unambiguous. The legislative intent evidenced by the statute is, with a few specific exceptions, that the term “teacher” includes all professional employees required to hold a teaching certificate.
The out-of-state cases relied on by appellant to support its argument are not persuasive. In Nyboe v. Allen, 7 App. Div. 2d 822, 181 N.Y.S.2d 132 (1958), it was held part-time teachers were not within the protection of the New York tenure law. Although that rule has become well established in New York, it has recently been limited in its application. See, e.g., Matthews v. Nyquist, 67 App. Div. 2d 790, 412 N.Y.S.2d 501 (1979); Schlosser v. Bd of Educ, 62 App. Div. 2d 207, 404 N.Y.S. 871 (1978). Further, the Nyboe case relied on a New York statute stating “[T]he commissioner’s decision on a controversy wholly within the educational system of the State is ordinarily final and conclusive.” 7 App. Div. 2d at 822.
The Board relies heavily on Point Pleasant Beach Teachers Ass’n v. Callam, 173 N.J. Super. 11, 412 A.2d 1352 (1980), a case dealing with what appellant considers the “identical question” involved here. There the court held teachers employed under Title I were not “teaching staff members” within the meaning of the New Jersey Teacher Tenure statute. The court based its decision on the fact there were “many areas where the relationship between petitioners and the board differed substantially from the relationship between the usual teaching staff member and the board.” For example, the Title I teachers were hired annually without a written contract on an “as needed” basis. They were paid by the hour. They were not given a notice of termination each year. Finally, because funding came from the federal government and was therefore uncertain the Title I program required the “flexibility” of not having to grant these teachers tenure. 173 N.J. Super, at 17-18.
The application of the Point Pleasant Beach case has recently been narrowed. Spiewak v. Rutherford Bd. of Ed., 180 N.J. Super. 312, 434 A.2d 1105 (1981), involved denial of tenure to full-time special education and Title I teachers. In holding Point Pleasant Beach was not “intended to constitute a license for the circumvention of the tenure laws,” (p. 320), the court stated:
“We do not, however, regard the Point Pleasant Beach rationale as applicable here. First, in our view the nature of the employment is not as immutably fixed by its original parameters. Indeed, the initial periods of employment of all these petitioners do seem to have been premised on the temporary character of the employment. The indubitable fact, however, is that by the 1973-1974 academic year, if not before, the original temporary character of the employment changed, the programs pursuant to which petitioners were employed became well-established and integrated with the regular instructional program, their employment became regular and continuous, and their services by whomever they might be performed were clearly required indefinitely into the future.
“[2] Furthermore, we are satisfied, considering the nature of these programs, that the immediate source of their funding cannot be regarded as dispositive. We have already pointed out that the special services program for the handicapped pursuant to which Spiewak and Dabinett are employed is mandated by state statute. The district, irrespective of funding, thus has no present choice but to continue this program. The same is apparently true of the remedial reading program, which is presently funded by the Federal Government.” pp. 318-19.
See also Hamilton Tp., Etc. v. Hamilton Tp. Bd. of Ed., 180 N.J. Super. 321, 434 A.2d 1109 (1981), where a different panel of judges followed Point Pleasant Beach and denied tenure based on the belief the legislature did not intend to award tenure “in potentially transient teaching situations such as state programs dependent on never certain federal funding.” p. 323.
The factor weighing most heavily against Ms. Schmidt here is her part-time status. However, other considerations are in her favor. For example, Ms. Schmidt was employed under written contracts and each year the Board gave her notice of nonrenewal. These factors, coupled with the plain language of the statute, establish Ms. Schmidt’s contention she is a “teacher” within the meaning of K.S.A. 72-5436(a). We so hold.
Appellant next contends Ms. Schmidt has not completed the two consecutive years of employment in the school district required by K.S.A. 72-5445 to acquire tenure.
The determination of this issue essentially boils down to an interpretation of the phrase “at any time completed two (2) consecutive years of employment . . . .” contained in K.S.A. 72-5445. The rules of statutory construction apply with equal force here. In addition to those previously mentioned the following maxims are relevant. “In determining legislative intent, courts are not limited to a mere consideration of the language employed, but may properly look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effect the statute may have under the various constructions suggested.” Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. at 367. “Words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute.” Stephens v. Van Arsdale, 227 Kan. 676, 684, 608 P.2d 972 (1980).
The trial court purported to “look to the substance of classroom teaching” and held since Ms. Schmidt was in the classroom teaching from March of 1977 through May or June of 1979 she had achieved tenure under the statute. The trial court determined the summer session she taught in June of 1977 compensated for the late start in the fall of 1977.
Appellee argues “year,” within the context of K.S.A. 72-5445, means calendar year, so the two-year period should be calculated from the date a teacher is employed regardless of whether work begins in the middle of a school term.
However, it should be noted the Missouri court has examined this issue within the context of that state’s teacher tenure law and held in Valter v. Orchard Farm School Dist., 541 S.W.2d 550, 555 (Mo. 1976), “year” referred to a school year commencing July 1 and ending the following June 30 and that a contract for part of such year would not qualify as one of the years required to obtain tenure. A different result was reached in Nazzaro v. Merrimack School Dist., 118 N.H. 287, 291-92, 385 A.2d 230 (1978). There it was held because the legislature did not qualify the term “years” within the context of the New Hampshire Teacher Tenure Law, it meant calendar years.
The Missouri court’s decision is not persuasive. The language of the Kansas act supports the calendar year interpretation. It provides tenure is to be granted a teacher who “at any time” completes two consecutive years of employment. We hold the act means calendar years permitting a teacher to complete the two-year probation period at any time during the school term. K.S.A. 72-5445.
Appellant next claims even if the calendar year interpretation is adopted, Ms. Schmidt still has not met the requirements of K.S.A. 72-5445. The Board contends Ms. Schmidt was not an employee from July 1, 1977, when summer school was over, until September 22,1977, when she was again hired for the Title I teaching position. Since the period from September 22, 1977, to April 11, 1979, when notice of nonrenewal was given, is less than two years, the Board argues Ms. Schmidt could not possibly have had tenure.
There is little authority on this issue. The Board’s position is understandable. Although the “purpose of tenure and continuing contract laws is to give recognition to a constitutionally protect-able interest,” the probationary period is designed to give school boards a chance to determine a teacher’s competency in a certain position before tenure is attained. Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F. Supp. 895, 903 (D. Kan. 1977). As such, awarding tenure to a teacher who has been employed only a portion of two different years gives the statute a tortured construction. Further, “consecutive” is defined as: “Successive; succeeding one another in regular order.” Black’s Law Dictionary 376 (4th ed. 1951). To meet the consecutive years requirement, Ms. Schmidt would thus have had to be employed from March 1, 1977, to February 29, 1978, and from March 1, 1978, to February 28,1979. Here Ms. Schmidt was employed from March 1,1977, to June 30, 1977, and from September 26, 1977, to June 30, 1979. There was a one month gap after the beginning of the school term which destroyed the successive nature of her employment periods.
On the other hand, appellee points to a definite problem with appellant’s argument. She argues “[t]he Board should not be permitted to deny plaintiff tenure by the device of delaying for one month her assignment to a teaching position.” She cites Ricca v. Board of Educ, 47 N.Y.2d 385-391, 391 N.E.2d 1322 (1979), where the New York court stated:
“A school district may not avoid strict application of the statutory scheme for granting tenure to qualified and experienced teachers by the stratagem of unduly delaying formal appointment of a teacher to a position which that teacher is in fact already filling. The tenure system is not an arbitrary mechanism designed to allow a school board to readily evade its mandate by the creation of technical obstacles on a qualified teacher’s trial to tenure (see Matter of Baer v. Nyquist, 34 N.Y.2d 291[, 357 N.Y.S.2d 442, 313 N.E.2d 751 (1974)].”
Although this sort of abuse is possible under the Kansas statute, it is not the case here. A good-faith uncertainty of federal funding was the reason for the gap in Ms. Schmidt’s employment history.
We hold under K.S.A. 72-5445 a teacher’s tenure time clock starts running the first day of employment during the regular school term, whether part-time or full-time, and continues running so long as the teacher is employed as a teacher during the regular school term. Summer employment or unemployment shall be disregarded. Any good-faith gap in employment during the regular school term stops the clock. In the instant case, April Schmidt’s probationary period started running March 1, 1977, but was interrupted from the date school started, August 22, 1977, to September 26,1977, during which time she was not employed. This gap defeated the requirement of employment for “two consecutive years.” There being no evidence of bad faith on the part of appellant, we conclude appellee is a nontenured teacher and not entitled to due process under K.S.A. 72-5445.
In light of the foregoing the issue of awarding attorney fees under 42 U.S.C. § 1988 need not be discussed.
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The opinion of the court was delivered by
McFarland, J.:
The heirs and administrator of the estate of Harold Jermine Smith appeal the involuntary dismissal of their action which sought recovery for the wrongful death and injuries of the deceased. The basis of the dismissal was failure to state a cause of action upon which relief could be granted (K.S.A. 60-212[hj).
The petition filed herein alleges:
“9. That prior to December 30, 1978, plaintiffs’ deceased had been a patient at Topeka State Hospital. That on or about the 30th day of December, 1978, plaintiffs’ deceased requested admission to Topeka State Hospital. That plaintiffs’ deceased was refused admission to Topeka State Hospital. That subsequently plaintiffs’ deceased was removed from the grounds of Topeka State Hospital, at the request of said hospital and its agent Dr. A, by defendant R. Martin, an officer of Topeka Police Department, an agency of the City of Topeka. Subsequent thereto plaintiffs’ deceased was found frozen to death in a bus at Gage Park. That deceased suffered pain.
‘TO. That the actions of the defendants and each of them constitute negligence, which negligence was the proximate cause of plaintiffs’ damages.”
This action was filed November 17, 1980. One group of defendants was dismissed from the action on April 3, 1981, with the balance of the defendants being dismissed on June 19, 1981. The plaintiffs’ appeal was timely filed.
The first issue is whether the trial court erred in applying the Kansas Tort Claims Act (K.S.A. 1981 Supp. 75-6101 et seq.) prospectively.
The death of the decedent occurred on or about December 30, 1978. At this point in time both the state and municipality had immunity from any tort liability therefor, pursuant to K.S.A. 46-901 et seq. [repealed L. 1979, ch. 186 § 33, July 1].
Contemporaneous with the repeal of the governmental immunity statute was the passage of the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq. The act provides:
“(b) The Kansas tort claims act shall be applicable to claims arising from acts or omissions occurring on and after the effective date of this act.”
The effective date of the act was July 1, 1979.
By its own statutory language, the act was to operate only prospectively.
The plaintiffs argue that prospective application of the Tort Claims Act, so as to exclude claims arising before July 1, 1979, creates a classification of claims arising before the date for which no remedy is available. They maintain that this classification is discriminatory and unsupportable under the holding in Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979).
In Flax, the court held K.S.A. 46-901 unconstitutional when applied to the Kansas Turnpike Authority for highway defects as creating a class of motorists who are subjected to invidious discrimination in violation of the equal protection clauses of the federal and state constitutions.
In reaching this conclusion, the rationale of the court can be seen in the following:
"In the present case, the inconsistency in the application of the doctrine, as now established by legislative action rather than judicial fiat, reaches the ultimate in its discrimination against one small segment of the motoring public. Let us assume Jeanette Flax had entered Kansas coming from Denver, Colorado, on Interstate 70 with a destination of Kansas City. She, and her family, would have been protected from highway defects for over three-fourths of her journey in Kansas. Suddenly, by passing through Topeka and the turnpike tollgate, she loses her protection for the remaining few miles of her journey without ever leaving the same highway. Damage caused by'a highway defect five miles west of Topeka would be compensable while the same damage on the same highway from a similar defect five miles east of Topeka would not.” 226 Kan. at pp. 7-8.
In addition, the court looked to the statutory remedy provided in highway defect cases:
“In K.S.A. 1978 Supp. 68-419, allowing recovery from the state for highway defects, the legislature has set forth a detailed procedure to be followed in presenting a claim against the state through the department of transportation. Unfortunately, no such procedure has been established for claims against the KTA and it is not the function of this court to establish such a procedure. Having determined that K.S.A. 46-901 is unconstitutional when applied to the KTA in a turnpike defect case, plaintiff is free to pursue her action as in any other civil case.” 226 Kan. at pp. 11-12.
K.S.A. 46-901 was held to be unconstitutional only when applied to turnpike defect cases.
The plaintiffs try to fit the present situation into Flax by pointing out that under the Tort Claims Act, the state may be liable for damages or injuries suffered by a person on July 1,1979, but not for injuries suffered by the same person on June 30, 1979, or, as herein, for injuries suffered on December 30, 1978.
Flax, however, is readily distinguishable from the situation herein. In the Flax case the constitutional problem arose because motorists using the regular state highway could recover for injuries caused by highway defects while motorists using one particular highway, the Kansas Turnpike, were denied recovery. At the same point in time some motorists had rights denied other motorists. In the case before us, there is no discriminatory classification because all persons in like circumstances are, at any given point in time, treated the same.
In essence, the plaintiffs are contending that the Legislature does not have the authority to determine when a particular act will take effect. The Tort Claims Act, by its express language, is to apply to claims arising from acts or omissions occurring on or after July 1, 1979. The legislative intent is clear — the act is to be applied prospectively.
Even in the absence of such a definite statement of legislative intent, the court has consistently held that a statute does not operate retroactively, but only prospectively, unless the intention of the legislature is clearly expressed by the statute that its provisions are to be applied retrospectively. Thome v. City of Newton, 229 Kan. 375, Syl. ¶[ 6, 624 P.2d 454 (1981); American State Bank v. White, 217 Kan. 78, Syl. ¶ 5, 535 P.2d 424 (1975).
In the case of State v. Dumler, 221 Kan. 386, 391, 559 P.2d 798 (1977), the court acknowledged the legislature’s power to determine the effective date of a statutory enactment. The designation of the time in which a statute will take effect is an inherent legislative power.
In exercising its vested authority to determine the effective date of the Tort Claims Act, the Legislature did no more than what was done by this court in Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969). There, the court abolished judicially imposed governmental immunity and made the decision prospective in effect. The court stated at pp. 851-852:
“There remains the consideration of the time when the abrogation of the immunity as herein stated shall take effect. We are of the opinion that reasonable time should be given the various public bodies to meet the new liabilities implicit in this decision. We find ample authority for the proposition that in departing from the rule of stare decisis, the court may restrict application of a newly established rule to the instant case, and cases arising in the future, where it is clear that the retrospective application of the new rule will result in a hardship to those who have relied upon prior decisions of the court. (See Molitor v. Kaneland Com. Unit Dist., 18 Ill. 2d 11, 163 N.E.2d 89; Holytz v. City of Milwaukee, 17 Wis. (2d) 26, 115 N.W. 2d 618, and cases cited therein.)
“Except for the instant case, the effective date of the abolition of the rule of governmental immunity as applied to proprietary enterprises shall be August 30, 1969. Except for the instant case the new rule shall not apply to torts occurring prior to August 30, 1969. In applying the new rule to the instant case we are impressed with what was said in Molitor v. Kaneland Com. Unit Dist., supra. We quote:
“ ‘. . . At least two compelling reasons exist for applying the new rule to the instant case while otherwise limiting its application to cases arising in the future. First, if we were to merely announce the new rule without applying it here, such announcement would amount to mere dictum. Second, and more important, to refuse to apply the new rule here would deprive appellant of any benefit from his effort and expense in challenging the old rule which we now declare erroneous. Thus, there would be no incentive to appeal the upholding of precedent since appellant could not in any event benefit from a reversal invalidating it.
“ ‘It is within our inherent power as the highest court of this State to give a decision prospective or retrospective application without offending constitutional principles. Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 77 L.Ed. 360.’ (p. 28.)”
We conclude the trial court did not err in: (1) upholding the legislatively mandated prospective application of the Kansas Tort Claims Act; and (2) dismissing the action as to the governmental entities herein on the grounds of governmental immunity.
The next issue is the propriety of the dismissal from the action of Dr. Robert Harder. The reasoning of the trial court was as follows:
“5. [T]he immunity granted by K.S.A. 46-901 does not apply to individuals acting as public officers of the State of Kansas. Kern v. Miller, 216 Kan 724, 533 P.2d 1244 (1975). Under common law public officers, when performing the duties imposed upon them by statute and exercising in good faith the necessary judgment and discretion, are not liable personally in damages to private individuals resulting as a consequence of their official acts. Kern, supra; Gresty v. Darby, 146 Kan 63, 68 P.2d 649 (1937).
“6. Defendant Robert E. Harder as Secretary of Social and Rehabilitation Services of the State of Kansas is entrusted with the enforcement of laws relating to mentally ill persons of this state by authority of K.S.A. 1980 Supp. 75-3307b.
“7. In Gresty v. Darby, supra, the Kansas Supreme Court noted the plaintiff, in an action to recover from state officials as individuals, did not allege actions done by the officials were without the scope of their statutory authority or that they acted through malice, or corruptly, or capriciously. The Court said in the absence of such allegations the plaintiff’s petition failed to state facts sufficient to constitute a cause of action.
“8. The Plaintiff in her petition does not allege any specific acts of Robert E. Harder which were done outside the scope of his statutory authority as Secretary of Social and Rehabilitation Services or that he acted with malice, or corruptly, or capriciously. Further, plaintiff does not allege Robert E. Harder acted without exercising good faith and discretion. Plaintiff has therefore failed to state facts sufficient to constitute a cause of action.”
We agree with the trial court. Public officials have what is sometimes referred to as partial immunity. This is, however, a misleading term. Where applicable, the common law immunity of a public official is just as complete a bar to action as any other type of immunity. Under such circumstances, even with the advent of notice pleading, it is incumbent upon a person asserting a claim against a public officer to make at least some allegation which, if true, would tend to establish that immunity was not a bar to the claim. This requirement, of course, is limited to complained of acts and omissions arising at least under color of the official duties of the public officer as opposed to purely private matters.
This conclusion is in harmony with Kern v. Miller, 216 Kan. 724, cited by the trial court. In Kern this court said:
“As a general rule it has been stated that public officers, when performing the duties imposed upon them by statute and exercising in good faith the judgment and discretion necessary therefor, are not liable personally in damages for injuries to private individuals resulting as a consequence of their official acts. (Gresty v. Darby, 146 Kan. 63, 68 P.2d 649; Tillotson v. Fair, 160 Kan. 81, 159 P.2d 471.) As plaintiffs point out, however; this general rule of immunity is limited to acts performed within their jurisdiction. If public officers act outside the scope of their authority they may be held liable for damages resulting from their acts. (Cunningham v. Blythe, 155 Kan. 689, 127 P.2d 489; Tillotson v. Fair, supra.)
“Plaintiffs’ petition specifically alleges all four defendants were ‘acting outside the scope of the duties’ of the attorney general when they entered into the contract to take over the plaintiffs’ business. The determination of the issue of scope of authority should follow the fact-finding procedures in the trial court.” pp. 728-729
See also Murphy v. City of Topeka, 6 Kan. App. 2d 488, 494, 630 P.2d 186 (1981), which states:
“Even assuming arguendo that such immunity did exist, that immunity would not extend to the individual defendants based upon the allegations of plaintiff’s petition. The common-law rule recognized an exception to the immunity of public officers;
“ ‘The immunity of the sovereign from suit does not protect public officers from personal liability for their wrongful acts in excess of their official authority .. . since the acts of officials which are not legally authorized or which exceed or abuse their authority or discretion are not acts of the state . . . .’72 Am. Jur. 2d, States, Etc. § 115, p. 504.
“This exception has been recognized in Kansas in cases holding that officers were not liable ‘in the absence of malice,’ Kretchmar v. City of Atchison, 133 Kan. 198, 204, 299 Pac. 621 (1931); ‘in the absence of malice, oppression in office or willful misconduct,’ Hicks v. Davis, 100 Kan. 4, Syl., 163 Pac. 799 (1917); for acts unless ‘wholly outside their jurisdiction,’ Evans v. Marsh, 158 Kan. 43, 47, 145 P.2d 140 (1944); or ‘in the absence of malice, oppression, wantonness, or willful misconduct,’ Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, Syl. ¶ 7, 536 P.2d 54 (1975).
“It is not for this court to determine whether the individual defendants have been guilty of any of the exceptions noted above. Plaintiff has, however, alleged willful and wanton misconduct and the allegations of his petition, on a motion to dismiss, must be taken in the light most favorable to him. The question always for the trial court’s determination is ‘whether in the light most favorable to plaintiff, and with every doubt resolved in his favor, the petition states any valid claim for relief.’ ”
In their brief, plaintiffs concede:
“Robert Harder, secretary of the Kansas Department of Social and Rehabilitation Services, was made a party to this action because Topeka State Hospital, the central institution involved in this litigation, is under the jurisdiction of the Department of Social and Rehabilitation Services.”
Dr. Harder, then, was made a defendant solely because of the statutory duties imposed by the public office he holds. For the sake of convenience, the pertinent portions of the petition are repeated herein:
“9. That prior to December 30, 1978, plaintiffs’ deceased had been a patient at Topeka State Hospital. That on or about the 30th day of December, 1978, plaintiffs’ deceased requested admission to Topeka State Hospital. That plaintiffs’ deceased was refused admission to Topeka State Hospital. That subsequently plaintiffs’ deceased was removed from the grounds of Topeka State Hospital, at the request of said hospital and its agent Dr. A, by defendant R. Martin, an officer of Topeka Police Department, an agency of the City of Topeka. Subsequent thereto plaintiffs’ deceased was found frozen to death in a bus at Gage Park. That deceased suffered pain,
“10. That the actions of the defendants and each of them constitute negligence, which negligence was the proximate cause of plaintiffs’ damages.”
We conclude that the trial court did not err in concluding the plaintifFs had failed to state a cause of action against defendant Harder.
The final issue on appeal is the propriety of the order of dismissal entered in favor of police officer R. Martin. The allegations in the petition relative to all the defendants are set forth in each of the preceding issues and will not be repeated. It is agreed that Officer Martin was acting in his official capacity when he responded to the hospital’s call and removed the decedent from the premises. Officer Martin is a public officer and, as such, the general legal principles relative to a public officer’s common law immunity set forth in the preceeding issue concerning defendant Harder are equally applicable to this defendant.
By virtue of the nature of a police officer’s duties and the vast exposure to liability police work entails, some refinements of the basic rules have occurred. Broadly speaking, a police officer has immunity from liability on claims by individuals arising from the performance or nonperformance of an officer’s general duties such as enforcement of law and crime prevention. Liability arises only where an officer breaches a specific duty owed to an individual. Put another way, an officer must owe an affirmative duty to an individual before he may be held liable.
This concept was explored in some depth in Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 53-54, 536 P.2d 54 (1975). The action therein arose out of the firebombing of a store. Recovery was sought against a police detective for failure to disperse an unlawful assembly as defined by K.S.A. 21-1001 and -1002, since repealed. This court, in upholding the detective’s dismissal, reasoned as follows:
“As to Detective Lux, plaintiffs argue that he breached his duty under 21-1002 to order the dispersal of the four boys in front of the Gentry Shop, and that such a breach of a statutory duty made him personally liable for the ensuing damage. It was therefore error, they say, to grant his motion for summary judgment. There is no merit to this contention.
“The statute amounts to a codification of the common law duty of a peace officer to preserve the peace. The duty owed is to the public at large, and not to any particular individual. For the breach of such duty an officer is answerable only to the public acting through its official representatives, and not to any particular individual. Speaking of a sheriff, the original conservator of the peace under the common law, the United States Supreme Court said in 1856:
“ ‘It is an undisputed principle of the common law, that for a breach of a public duty, an officer is punishable by indictment; but where he acts ministerially, and is bound to render certain services to individuals, for a compensation in fees or salary, he is liable for acts of misfeasance or nonfeasance to the party who is injured by them.
“ ‘The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial; but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.
“ ‘The history of the law for centuries proves this to be the case. Actions against the sheriff for a breach of his ministerial duties in the execution of process are to be found in almost every book of reports. But no instance can be found where a civil action has been sustained against him for his default or misbehavior as conservator of the peace, by those who have suffered injury to their property or persons through the violence of mobs, riots, or insurrections.’ (South et al. v. State of Maryland, Use of Pottle, 59 U.S. [18 How.] 396, 402-3, 15 L.Ed. 433.)”
“The rule appears to have been universally followed, in the absence of a constitutional or statutory provision imposing liability. See Anno., Police-Personal Liability, 41 A.L.R. 3d 700, and especially § 4, ’Injuries from riots and mob violence.’
“Our own rule is that ‘executive officers are not liable for errors in the performance of duties involving discretion and judgment, in the absence of malice, oppression in office or willful misconduct.’ (Hicks v. Davis, 100 Kan. 4, 163 Pac. 799, Syl. See also, Evans v. Marsh, 158 Kan. 43, 145 P.2d 140; City of Hutchinson v. Hutchinson, Office of State Employment Service, [213 Kan. 399, 517 P.2d 117]. And cf., Gardner v. McDowell, 202 Kan. 705, 451 P.2d 501, where the element of ‘wantonness’ was included.) No malice, oppression, wantonness or willful misconduct was asserted against this policeman.”
Liability against a police officer may be predicated upon breach of specific promises or representations such as failure to provide promised protection to an informant. See Schuster v. City of New York, 5 N.Y.2d 75, 154 N.E.2d 534 (1958).
The most common class of situations wherein it has been determined an officer breached a specific duty owed an individual involves excessive use of force in making an arrest or against a person in custody.
Under the facts as pled, the decedent was denied admission to Topeka State Hospital by the unnamed Dr. A. The hospital called upon the police department to remove the deceased. It is the theory of plaintiffs that the police officer had some unspecified duty toward the deceased which he breached.
What were the officer’s options? The Kansas Legislature has, in the name of improving patient’s rights, sharply limited a police officer’s options relative to mentally ill persons.
A mentally ill person is defined by K.S.A. 1981 Supp. 59-2902 as follows in relevant part:
“(1) The term ‘mentally ill person’ shall mean any person who is mentally impaired to the extent that such person is in need of treatment and who is dangerous to himself or herself or others and
“(a) who lacks sufficient understanding or capacity to make responsible decisions with respect to his or her need for treatment, or . . . .”
If a police officer believes an individual may be a mentally ill person, i.e., a person in need of psychiatric treatment and a danger to himself or others, a statute specifies what the officer may do. That statute is K.S.A. 1981 Supp. 59-2908 which provides in relevant part:
“(a) Any peace officer who has reasonable belief upon observation, that any person is a mentally ill person and because of such person’s illness is likely to do physical injury to himself or herself or others if allowed to remain at liberty may take such person into custody without a warrant. Said officer shall transport such person to any treatment facility where such person shall be examined by a physician on duty at such facility. If no physician is on duty at the time such person is transported to the facility, such examination shall be made within a reasonable time not to exceed seventeen (17) hours. If a written statement is made by such physician at the treatment facility that after preliminary examination such physician believes such person to be a mentally ill person and because of such person’s illness is likely to do physical injury to himself or herself or others if allowed to remain at liberty, and if such treatment facility is willing to admit such person the peace officer shall present to such treatment facility the application provided for in subsection (b) of K.S.A. 1978 Supp. 59-2909. If the physician on duty at the treatment facility does not believe' such person to be a mentally ill person, the peace officer shall release such person." Emphasis supplied.
The facts pled by the petition show that the physician (Dr. A) on duty at the treatment facility had already determined that such person was not in need of admission and hence not a mentally ill person who was a danger to himself. Under the circumstances pled herein, the officer could not have a duty to override the statute and the physician’s expert opinion as to deceased’s mental condition and ability to care for himself. The officer had no option of keeping the man in custody. The decedent had no right to be arrested. We take judicial notice of the fact Topeka State .Hospital and Gage Park are situated in relatively close proximity to each other and within the Topeka city limits. There is, accordingly, no inference decedent was transported to a remote area and left helpless by the officer.
The trial court, after discussing a police officer’s public duty, reasoned as follows:
“8. The public duty, however, may be narrowed, becoming a special duty owed to an individual. The breach of that special duty may give rise to an action for negligence. Such a special duty arises in two circumstances: 1) where there is an affirmative act by the officer causing injury; and 2) when a specific promise or representation by the police is made under circumstances creating justifiable reliance. McGeorge v. City of Phoenix, 572 P.2d 100, 105 (Ariz. 1977); Doe v. Hendricks, 590 P.2d 647 (N.M. App. 1979).
“9. Examples of situations within the first category are placing an individual under arrest or committing an assault. City of Tampa v. Davis, 226 So.2d 450, 453 (Fla. App. 1969); Crouch v. Hall, 406 N.E.2d 303 (Ind. App. 1980). A line of Kansas cases which recognize that an officer is liable for false arrest or the unnecessary use of force lends support to the existence of a special duty arising from such affirmative acts. Bradford v. Mahan, 219 Kan. 450, 548 P.2d 1223 (1979); Gardner v. McDowell, 202 Kan. 705, 451 P.2d 501 (1969); Bukaty v. Berglund, 179 Kan. 259, 294 P.2d 228 (1956).
“10. The second category, a special duty arising from specific promises or representations, is demonstrated by Schuster v. City of New York, 154 N.E.2d 534 (N.Y. 1958). There the court held that a special duty existed to protect an individual who had assisted the police in the identification of a suspect and there was evidence that the individual was in danger as a result of that assistance.
“11. In the present case the plaintiff has not alleged that the officer committed any affirmative act causing the death of plaintiff’s deceased. Nor are there allegations of any specific promises or representations. Thus there was no special duty owed to the deceased.”
We agree. A police officer is not an insurer against all harm for the people with whom he has official contact. Just as with defendant Harder, the plaintiffs had a duty to make at least some allegation which tended to establish that the breach of some special duty owed decedent caused or contributed to his death and thereby render the officer’s common law immunity inapplicable.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
Upon the hearing of the petition in error in the district court, the plaintiff in error (defendant below) objected to the consideration of the bill of exceptions allowed and filed by the justice of the peace, upon various grounds. We will notice these, seriatim.
It is urged that as the bill of exceptions was not under the' seal of the justice, it was therefore a nullity. Not so. A justice of the peace is not required in any case to use a seal, for there is no provision of law anywhere providing him with a seal. (Stager v. Harrington, 27 Kas. 415.)
It is also contended that as the bill of exceptions was not copied at length in the docket of the justice, it was no part of the record or transcript of the case. This objection is not tenable. After a bill of exceptions has been allowed and signed by a justice, if the same is filed at once by him, it thereby becomes a part of the record. J 3 J C It need not be entered in full upon the docket of the justice, as the law makes no such requirement. (Justices’ Code, §112.)
It is further claimed that the transcript is not properly certified. The transcript contains the following words: “A copy of which bill of exceptions is hereto attached, marked ‘A,’ and made a part hereof.” At the end of the bill of exceptions are these words:
“The State oe Kansas, Mission Township, ss. — I do hereby certify that the above and foregoing is a true copy of the bill of exceptions filed in my office November 21, 1881,
John Y. Owens, J. P.”
At the close of the transcript is the following certificate:
“I do hereby certify that the above and foregoing is a full and true copy from my docket of the proceedings had by and before me at my office, in said township, in the above and foregoing action. John Y. Owens, J. P.”
The statement in the transcript is sufficient to make the-copy of the bill of exceptions a part thereof, and the certificates make the transcript as full and complete as the law requires.
Counsel further attacked the transcript in the district court, upon the ground that the following words, “A copy of which bill of exceptions is hereto attached, marked ‘A,’ and made a part hereof,” were improperly incorporated therein, and renews the attack in this court. It appears from the record that these words were interlined in the handwriting of one of the counsel for defendant in error, after the transcript had ■been made out and certified to by the justice. But it further appears that the counsel saw the justice personally about the interlineation, and that officer fully approved and ratified the insertion of these words in the transcript. It therefore came before the district court the same as if the words had been interlined by the justice before being filed in that court, and the district court committed no error in treating these words as a part of the transcript. There was no necessity for a new transcript to be filed, and all the objections to the validity of the record presented to the district court were properly overruled.
It is insisted that an order of the justice overruling a motion for a new trial is a matter of discretion purely, and not the subject of review on error. This objection is disposed of adversely thereto in Stager v. Harrington, supra; see also Theilen v. Hann, 27 Kas. 778.
Again, it is said that no proper motion for a new trial was filed with the justice. The motion contained the various ■grounds embraced in §110, and also other grounds, which possibly the justice had no authority to consider. Yet as valid and legal grounds for a new trial were contained in the motion of the party aggrieved, the fact that other reasons were alleged therein would not defeat the consideration of the' motion, or authorize the justice on account of the insertion •of such additional matters to refuse a new trial if any of the ■statutory grounds actually existed.
Owing to the absence of a material witness, the plaintiff ■applied to the justice for a continuance of the case for about twelve hours.
The justice seems to have thought that due diligence was ■shown, but when the defendant below consented that the affidavit presented for a continuance might be read and treated as the deposition of the absent witness, the justice of the peace overruled the application, and ordered the trial to proceed. This was against the objection of the party applying for the continuance, who insisted that he did not wish to have the affidavit read as the testimony of the absent witness, as he desired his personal attendance. The justice proceeded with the trial nearly all night, the jury returning their verdict at five.o’clock on the morning of November 12th. Plaintiff' below read the affidavit for continuance as the deposition of the absent witness. But C. A. Cox, one of the attorneys of defendant below, in his argument to the jury, among other things said, with reference to the affidavit: “This is what Campbell swears Layfield will swear to; Campbell has been impeached. His neighbors swear they will not believe him under oath. His reputation is bad. You cannot believe Campbell; what will you say of this deposition?” At this point, one of the counsel for plaintiff below objected to the remarks of Mr. Cox; whereupon Mr. Cox remarked to the jury: “All right; I will withdraw what I have said, and leave that for Mr. Stillwell.” To these remarks plaintiff below at the time exc.epted, and thereupon Mr. Stillwell, counsel for defendant below, said: “.Make such exceptions as you want to. I will go for him worse than that when I get after him.” After Mr. Cox had closed his argument, Mr. Stillwell addressed the jury on behalf of the defendant below, and among other things, said, referring to the affidavit read as a deposition: “We are bound to treat this affidavit as the deposition of Layfield, but you have not seen Layfield’s face; you have not heard his voice; there has been no opportunity for cross-examination ; you have no means of knowing what the witness would have testified to on cross-examination.”
The continuation of the trial during the night was an unusual and unjust proceeding, and one not at all in accordance with a fair or proper administration of justice. Special circumstances might possibly, justify a court in proceeding with a trial until after midnight; but the mere fact that a criminal charge was pending against the defendant below, to which he was required to answer on November 12, 1881, before a justice in another township, was not a sufficient excuse for keeping open the court all night, as the case might have been adjourned, if it were deemed necessary, until after the conclusion of the hearing of the criminal charge. The remarks of counsel concerning the affidavit were greatly out of place,, after the statement to the justice that it should be treated as a deposition. See. 317 of the code, providing that no continuance shall be granted on the ground of the absence ot evidence it the adverse party consent that on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, has no application to justices’ courts. Secs. 81 and 82 of the justices’.code make provisions for the adjournment of trials before justices, and thereby special provision is made by the statute for continuance in justices’ courts.
While an application to a justice of the peace for an order of continuance is not reviewable on petition in error, (Theilen v. Hann, supra,) yet, taking all of the circumstances of the trial before the-justice, including the remarks of counsel upon the affidavit, and the continuation of the trial during the night against the ob~ jection of the plaintiff below, we think we- are noj wrong ¡n characterizing the verdict as having been obtained by undue means. As the conclusion we have reached sustains the action of the district court, and as the case below must be retried, we decline to enter upon an examination of the other questions submitted.
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.:
The defendant in error, J. AV. Young, who was one of the defendants in the court below, moves in this court to dismiss the petition in error and case-made, upon various grounds, none of which we think are tenable, and hence the motion must be overruled. The principal ground upon which the motion is made, and the only ground that merits any special consideration, is the alleged ground that the case-made was not filed in the supreme court within the proper and prescribed statutory time. Now § 556 of the civil code, as amended in 1881, (Laws of 1881, p. 229,) provides among other things that “no proceeding for reversing, vacating or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment or making of the final order complained of;” and it is an admitted fact in this case, that the case-made and pe tition in error were not filed in the supreme court within one year after the final judgment was rendered in the case. Hence the plaintiff claims under said § 556 of the civil code, as amended in 1881, that this court has no jurisdiction to review the judgment of the court below, or any proceedings had in the case prior to the rendition of the judgment. This we think is a mistake; for although the case was not filed in this court within one year after the rendition of the final judgment, yet it was so filed within less than one year after the plaintiff’s motion for a new trial was heard and overruled, and therefore we think that this court has ample jurisdiction to hear and determine any question and every question that was involved in the motion for a new trial. The order overruling the motion for a new trial, we think was a final order within the meaning of said § 556 and § 542 of the civil code; and if it was, then we think that we not only have power and jurisdiction to adjudicate and determine with regard to the distinctive ruling of the court below in making the order overruling such motion, but we also, and as a necessary consequence, have the power and jurisdiction to review and consider every question and every action or ruling of the court below fairly involved in the final determination of such motion. For the decision of a kindred question, see Life Ins. Co. v. Twining, 19 Kas. 349, 366, 367; Ingersoll v. Yates, 21 Kas. 90, et seq. Some of the questions now raised, we think, were fairly involved in the determination of the plaintiff’s motion for a new trial, and hence we shall now proceed to consider the case upon its merits.
The plaintiff in error claims that the record of this case' presents four principal questions, as follows:
“First. Did the district court err in overruling the objections of the plaintiff in error' to the introduction of the ‘case-made’ in the case of Ecton v. Harlan in evidence?
“Second. Did the district court err in overruling the objections of the plaintiff in error to the introduction of oral evidence to prove that upon overruling the motion for a new trial in the case of Ecton v. Harlan, the court allowed the plaintiff there sixty days’ time within which to make and serve a case for the supreme court?
“Third. Upon the facts as found by the court, which is paramount — the mortgage to the plaintiff in error, or the sheriff’s deed to the defendant in error?
“Fourth. Did the plaintiff in error make a sufficient showing to entitle him to a new trial upon the ground of surprise, which ordinary prudence could not have guarded against?”
We shall consider these questions in their order.
I. We do not think that the district court erred in overruling the objections of the plaintiff to the introduction in evidence of the “case’made” in the case of Ecton «. Harlan. While such “case-made” may have contained some things that were incompetent or irrelevant as evidence, yet it- also •contained some competent and relevant evidence; and the-plaintiff’s objections were not specific, but were simply general, for incompetency and irrelevancy, and to the whole “case-made.” The plaintiff should have pointed out the incompetent and irrelevant evidence, but he did not; hence, we do not think that the court below erred in permitting the “case-made” to be introduced in evidence over the objections of the plaintiff.
II. Whether the district court erred in overruling the objections of the plaintiff in error to the introduction of oral evidence to prove that upon the overruling of Ecton’s motion for a new trial inlthe case of .Ecton «.Harlan, sixty days were allowed to make and serve a case for the supreme court, we think is wholly immaterial. The same fact we think was •conclusively proved by other evidence. But as to the validity of the evidence to prove this fact, and the bearing that this fact may have in the case, we shall have more to say further on in this opinion.
III. Upon the facts of this case as found by the court below, we think the plaintiff’s rights under his mortgage are inferior and subsequent to the rights of the defendant, Young, under his sheriff’s deed; but we shall not discuss this question now, for we do not think that the question was fairly involved in the ruling of the court below upon the plaintiff’s motion for a new trial. The court below in overruling said motion, was not called upon to say whether^the facts found by it would sustain the judgment, or not.
IV. Neither do we think that the plaintiff in error made a sufficient showing in the court below to entitle him to a new trial upon the ground of surprise, which ordinary prudence could not have guarded against. The plaintiff claims to have been surprised at the evidence given by the witness Frank Playter. In order to understand the evidence of Playter, at which the plaintiff claims to have been surprised, it will be necessary to state some of the facts of the case, which we shall do concisely; and this we shall do also for the purpose of commenting upon some other questions that might be considered as involved in the case.
It. appears that on November 10, 1876, and prior thereto, Eobert H. Ecton held a mortgage upon the land of Israel G. Harlan — the same land which is now in controversy. This mortgage was recorded in the office of the register of deeds of Crawford county, the county in which the land was situated. No satisfaction of such mortgage has ever been entered uponc.the records in the office of the register of deeds. •Prior to November 10, 1876, Ecton obtained a judgment against Harlan for $250, and costs, and foreclosing the mortgage. Ecton was not satisfied with the judgment, and excepted thereto, and also filed a motion for a new trial, which motion was overruled; and he also excepted to the order of the court overruling his motion for a new trial. Pie also obtained an order from the court extending the time sixty days within which to make a case for the supreme court. The last-mentioned order, however, was not entered upon the journals, or shown by the records of the court. Playter, however, was cognizant of all these things. F. M. Shaw & Co., of Paola, Miami county, were the agents of the plaintiff Osborne for loaning money, and Playter was a partner of F. M. Shaw & Co. for procuring loans in Crawford county. On November 9,1876, Playter and Harlan agreed that Harlan should take a loan from the plaintiff Osborne, and in pursuance of such agreement Piarían executed the note and mortgage now in controversy, which mortgage was duly recorded on the next day; and on that day Playter advanced a sufficient sum of money to pay the judgment rendered in the case of Ecton v. Harlan. Playter paid this money, the amount of such judgment, to the clerk of the district court, and the clerk entered the judgment satisfied. This money remained with the clerk, or subject to his order, for some time, until finally one of Harlan’s attorneys drew it from the clerk’s office and retained the same as attorney’s fees due from Harlan to himself. The note and mortgage were, sometime after November 10, 1876, forwarded to the plaintiff Osborne, who resided in the city of Binghamton, in‘ the state of New York; and immediately afterward, and on November 25, 1881, Osborne drew a check for the amount of the note and mortgage on the Metropolitan bank of New York, to be placed to the credit and advice of the First National bank of Paola. At some time afterward, but just when is not shown, F. M. Shaw & Co. received the amount of the note and mortgage; and, at some still later period of time, but when is not shown, and can scarcely be guessed at, Play-' ter received such amount; and in about one year thereafter, the balance of the amount of the note and mortgage was paid by Playter to Harlan. The evidence of Playter, concerning which the plaintiff claims to have been surprised, is as follows:
“I advanced the money to pay off the Ecton judgment against Harlan, for Harlan. It was advanced the 10th of November, 1876. It was not advanced to him for that purpose until after Harlan and wife signed the mortgage and same was placed on record. I expected to get the money back so advanced from Osborne, when papers, the note and mortgage, were forwarded. I afterward got a draft for the amount of Harlan’s note and mortgage, less a commission retained by F. M. Shaw & Co. I can’t tell just when I got the draft. Could tell by referring to my books over in the bank. . . .
“I have examined my books at the bank, and I think that the draft from Osborne, to pay money on the Harlan mortgage, was received several weeks after the execution of the mortgage. It may have been as long as three weeks. It came to me through F. M. Shaw & Co., of Paola. I cannot state when it did come exactly, but it was several weeks after the note and mortgage were forwarded.”
Playter did not state, however, when the note and mortgage were “forwarded,” and there was no evidence introduced upon the trial showing this fact. Playter was a witness for the plaintiff, and it does not appear that the plaintiff was surprised at his evidence, or that he attempted to prove that it was not true until after the findings and judgment of the court below were rendered against him; and we do not think that any of the evidence contained in the affidavits shows that his evidence was not true. He did not testify that he was the agent of Osborne, but he testified that he was the agent of Harlan; and he testified substantially that the money which he advanced for Harlan on November 10, 1876, was his own, and there is nothing in the record that shows otherwise. There is nothing that shows that the money belonged to Osborne. It is true that Osborne’s counsel file their affidavits stating that they had believed (and that Playter had so stated to them), previously to the time when Playter gave his testimony in the case, that' the money which he had advanced to Harlan belonged to Osborne, and had been advanced to him (Playter) by F. M. Shaw & Co., of Paola, Kansas. Now supposing that Osborne’s counsel did believe this, and supposing that Playter told them so, still there is nothing in the record that shows that it is true, and the affidavit of Osborne himself would tend to show that it is not true. No member of the firm of F. M. Shaw & Co. testified that the money advanced belonged to Osborne, and in all probability it did not belong to him. The evidence would seem to show that Osborne did not advance or pay any money on this note and mortgage until some time after their execution, and that he then advanced or paid the whole of it, less $32 deducted for commissions and expenses. Playter also testified that it was several weeks after the mortgage was executed before he received the money that came from Osborne through the various banks and through F. M. Shaw & Co., of Paola, Kan sas, to him; and there is nothing in the whole record that tends to contradict this, while the evidence of Harlan shows that Harlan did not receive the money for about one year after the mortgage was executed. There is nothing in the case further than we have already stated, that shows that the plaintiff or his counsel had any reason to suppose that Playter would testify differently from what he did testify; and there is really nothing in the case further than we have already stated, tending to show that the plaintiff or his counsel had any good reason for being surprised at Playter’s testimony. And there is nothing in the case that shows that Playter ever will testify differently from what he has already testified. The court below found that Osborne did not part with his money until after the “case-made” in the case of Eeton v. Harlan had been filed in the district court; and we think this finding was founded upon sufficient evidence. The “case-made” itself showed that Ecton had leave from the court to make and serve his ease within sixty days; and the case was so made, served, settled, signed, and authenticated and filed in the district court within that time. The case was afterward taken to the supreme court, where the judgment of the district court was reversed, and the cause remanded for a new trial. (Ecton v. Harlan, 20 Kas. 452.)
Upon the findings of the court below we think its judgment is correct; and we think the findings are sustained by sufficient evidence; and no substantial error was committed. If Playter was the agent of Osborne, then the judgment was certainly correct; and there is considerable in the case tending to show that Playter was the agent of Osborne. F. M. Shaw & Co., of Paola, Kansas, were Osborne’s agents, and Playter was a partner of F. M. Shaw & Co. for procuring loans in Crawford county, Kansas. He procured this loan; he advanced money on it, (and the plaintiff’s counsel admit and would almost seem to claim that the .money advanced was Osborne’s money;) the note and mortgage were forwarded to Osborne, and Osborne accepted them, made them his own and paid for them, thereby apparently ratifying whatever had been done in procuring them; and Playter was afterward reimbursed (provided the amount had not been previously furnished to him) for the amount that he had advanced; and Playter had full knowledge of the proceedings in the case of Ecton v. Harlan and knew Ecton was preparing to take the case to the supreme court. But supposing that Playter was not the agent of Osborne, and supposing that he was in fact the agent of Harlan — and this is just what the plaintiff contends, and is just what Playter testified to, and seemingly this is precisely the theory upon which the court below founded its decision in the case: then still, upon the other facts of the case, we think it must be presumed in law that when Osborne parted with his money he knew just the condition of Ecton’s mortgage and Ecton’s suit against Harlan, and knew that Eeton’s mortgage was not satisfied, and that Ecton was preparing to take his case against Harlan to the supreme court. The present defendant, Young, simply takes Ecton’s place. At the time “that Osborne parted with his money, Ecton’s mortgage stood recorded, in the office of the register of deeds, and was not satisfied or discharged upon the records of the office of the register of deeds, as the law provides that a mortgage shall be whenever it has been satisfied. (Comp. Laws of 1879, pp. 555, 556, §§ 5, 6, 7 and 8.) A judgment was rendered in favor of Ecton and against Harlan, upon such mortgage in the district court; but the record of the judgment showed that Ecton was not satisfied with the judgment; and the “case-made,” which was then on file in the clerk’s office, also showed that Ecton was not satisfied with the judgment, and that he intended to take the case to the supreme court and have the judgment reversed, if he could succeed in so doing; and the “case-made” upon its face showed that it was a valid “case-made;” and although an amount had been paid to the clerk by Playter sufficient to satisfy the judgment, yet by asking the clerk the plaintiff could have ascertained that Ecton had not and would not receive the same.
We think that the judgment of the court below was rightly rendered, and therefore it will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error obtained judgment in the district court of Doniphan county against plaintiffs in error for the sum of $1,798.68, to reverse which judgment this proceeding in error is brought. The pivotal question in the case is, as to how far parol testimony is competent to limit, qualify or explain a certain written bond. In order to fully understand this question, a brief history of the case is necessary. It appears that prior to August 5, 1878, Edmund Bilemick was the ostensible proprietor of the Doniphan vine yards. He was also the real owner, either solely or in partnership, with Adam Brenner. Upon that day he sold his interest therein to Mrs. Martha A. Brenner, the wife of Adam Brenner, the consideration of such sale being $6,000 in money and an assumption by Mrs. Brenner of all the debts of the business. The following bond in writing was executed by Mrs. Brenner and her husband:
“Know all men by these presents, that I, Martha A. Brenner, am held and firmly bound to E. Bilemick in the sum of six thousand dollars to be paid to the said E. Bilemick, his executors, administrators or assigns, to which payment, well and truly to be made, I bind myself, my heirs and administrators, firmly by these presents.
“Sealed with my seal. Martha A. Brenner. [Seal.]
Aram Brenner.
“Dated Aug. 5, 1878. ■
“The condition of this obligation is such, that if the above-bounden Martha A. Brenner, or her heirs, executors or administrators, will well and truly pay or cause to be paid all the bills payable, notes and accounts due and to become due and owing by said E. Bilemick, or his business connected with the Doniphan vineyards, located at Doniphan, Kansas, then this obligation is to be void; otherwise, in full force and effect. „ C. K. Wells.
“Sealed and delivered in presence of
Wm. Haeklenkaemper, Aug. 5, 1878.”
It also appears that while Bilemick was carrying on the business, and in 1876, a quantity of wines and liquors was purchased of the firm of S. Lockman & Co., of San Francisco, California, and that at the request of Bilemick and Adam .Brenner, the defendant in error F. Luth advanced $1,200 in payment thereon. This money was never repaid to him, and to recover it this action was brought. Now that this was a debt against the business connected with the Doniphan vineyards, cannot be doubted; and within the rule laid down in Anthony v. Herman, 14 Kas. 494, Luth could maintain an action against the obligors in this bond to recover that amount. All this is conceded; but on the trial defendant offered to prove by parol testimony, that at the time of the purchase Bilemick stated and represented that this claim of F. Luth was taken out of the business — was no longer a debt against it, but a mere private matter of defendant’s; and also that it •was understood between the parties that this was not to be included within the matters covered by the bond. The trial court ruled out all this testimony, holding that the bond was a contract in writing, clear and unambiguous, and whose terms could not be varied by parol testimony. And this, as we have stated before, is the pivotal question; for if the court erred in its ruling on this, the judgment was plainly erroneous, and must be reversed; and on the other hand, if its ruling was correct, then nearly all the other matters alleged as error by the plaintiffs in error become immaterial. Counsel argues that this bond is not a contract between plaintiff and defendant, but a contract between Bilemick and defendant; that the plaintiff, being no party to it, is not bound by its terms, and has no right to insist upon the conclusiveness of its stipulations; that only the parties to a written contract-can insist upon and are bound by its stipulations as the sole expression of the agreement between them; that third parties have not the right to insist upon, nor are they bound by, such written stipulations. Counsel al'so contends that the actual consideration of any contract may be inquired into, and that in pursuance of this, if the litigation was between Bilemick and the Brenners, parol testimony would be competent to show that this Luth claim was considered, outside of the business and covered by the ,$6,000 paid in cash. While on the other hand, counsel for plaintiff insist that whenever a party who is the beneficiary in a written contract chooses to assert rights under it, he becomes in effect a party to it, and has all the rights of such a party; and further, that while the consideration of a contract may be inquired into for some purposes, yet where the contract contains a promise to pay certain specific claims, or to do certain named things, parol testimony is incompetent to show that any one of those claims, or any one of those things, was not in fact included or intended to, be included within the scope of such stipulation.
We agree with the latter views. While it is doubtless true that a written contract is conclu- . , slve only upon the parties to it, and does riot in any manner affect the rights of strangers, yet it binds privies as well as parties, and he who claims under and by virtue of a contract is, in a general way, to be considered a privy to it.
Thus if a contract is assigned, the assignee, though not one of the original parties, becomes privy to it, c]a¡m all the rights offered by, and is bound by, all the limitations expressed in it. On the same principle, he who is the beneficiary in a contract, whenever he seeks to assert the rights given him by it, becomes, if not in terms a party, yet at least a privy to the contract. He can claim nothing except what is expressed in the writing; and on the othér hand, is entitled to all'that it purports to give him. Supposing Luth was in fact.named, and the amount of his debt expressed in this bond.: can it be doubted that the obligors would be bound by the terms of the bond just as fully as though Luth was a party who signed with them? And yet what is the difference between the naming of plaintiff and a description which necessarily includes him?
Again, counsel does not question the fact that this bond, like any other written instrument, is conclusive between Bilemiek and the Brenners. Suppose that after the execution of the bond, Luth, instead of suing on it, had sued and recovered from Bilemiek the amount of the debt, as unquestionably he might, and that Bilemiek, after paying the debt, had turned around and sued the Brenners on the bond: would they not be bound by the language of the bond to the full extent of their w.ritten promise? — and could they be heard to say that though this debt was a debt of Bilemick’s, connected with the business, they were .under no obligations to pay it? And if this would be the necessary result of the two actions, must not the same result follow when the law recognizes the right of Luth to sue the Brenners directly upon this bond? We conclude therefore that the bond is conclusive as between the Brenners and the plaintiff as to the extent of their liability for this debt — as much so as though he was a party named in and who signed the bond. It is as •conclusive in this action, as though the controverey were directly between Bilemick and the Brenners. Now if the litigation were directly between Bilemick and the Brenners, ■could they in the face of the language of this bond be permitted to show by parol testimony that which they offered to show in this case? It will be borne in mind that the offer was not to show that this claim of Luth’s was in fact no ■claim against the business, but simply to show that Bilemick ■stated and Represented that it was no longer such a claim, and that it was understood between the parties not to be included within the obligations of the bond. It must also be stated that Adam Brenner was acting as agent of Mrs. Brenner in this purchase; that he had been connected with the business of the vineyards, and was fully cognizant of the fact that this debt to Luth had been contracted in the business of the vineyards. As the agent of the purchaser had full knowledge of all the facts, there seems to be no room for the claim of ignorance, fraudulent representations, or estoppel; and it seems to come down to the simple question whether parties, having promised in writing to pay a certain class of •debts, can be permitted to show by parol that they were not to pay a particular one of that class. If, when Luth sues, they may show by parol that his debt was excluded, may they not do the same when the other creditors sue, and so one by one exclude all the claims and thus nullify altogether the written contract? This is not like the case of Ball v. Benjamin, 73 Ill. 39. In that case, upon the purchase of a planing mill, as part consideration was a written promise to pay all debts for material used in the construction of the planing mill. In an action on such promise to recover a debt contracted by the purchase of a double saw-bench, parol testimony was held competent' to show whether such double saw-bench was a part and parcel of the material of the planing mill; that is, parol testimony was admissible to show the question, of fact. So here, if the offer had been to show that this debt of Luth’s was in fact no debt against the wine business, parol testimony would have been competent. It is always competent to show by parol testimony whether a given matter is within the general description or á class named in a written instrument; but here the offer was not to show that this debt was not within the description and did not belong to the class, but conceding that it was within the description and did- belong to the class, that the parties did uot intend to include it.
This plainly contra-diets the language which the parties used. It is jug^ ^e same as though the Brenners in writing had promised to pay A, B and C, and then had sought to show by parol testimony that it was not intended that they pay C. Such testimony does not interpret — it contradicts; and parol testimony is inadmissible for such purpose. We think therefore the ruling of the district court upon this •question was correct. See the following authorities: Banks v. White, 14 Nev. 373; Delavey v. Anderson, 54 Ga. 586; Raum v. Kaltwasser, 4 Mo. App. 573; 2 Whar. on Ev., §§ 920-923.
We think the disposition of this question determines the ■case. There are certain other matters suggested by counsel for plaintiffs in error, and yet in them we see no error, or at ■east none which, in view of the ruling heretofore given upon this pivotal question, can be considered prejudicial to the rights of the plaintiffs in error. In the matter of the amendment of pleadings, large discretion is vested in the trial court, and through all the petitions which were filed, there runs this central claim, that by reason ■of the bond which was given, and which was the basis of this .action, the plaintiffs in error were liable to the defendant in ■error for the amount of this debt. It is true, Martha A. Brenner was the sole defendant in the first petition, and Bilemick and Adam Brenner were subsequently added; and yet this addition did not change the claim of liability upon this bond. We see nothing in the ruling as to these petitions which is .erroneous.
Again, we suppose that it is competent to prove the law of a foreign state by an attorney of that state duly admitted to practice in all its courts. The only matter in respeet to which this testimony was offered, was the-x # J ^1 rate of interest obtaining in California. This was shown by the testimony of an attorney admitted to practice in all the courts of that state, to be. 10 per cent. Whether this was fixed by statute, established by the decision of the supreme court, or grown up as the custom-and usage of that state, the-testimony does not inform us; all that we have is the testimony of that attorney, that open accounts in that state draw 10 per cent, interest. Prima facie, that was competent and' sufficiént. (Kermott v. Ayer, 11 Mich. 181.)
These are all the matters that we deem necessary to notice,, and in them appearing no error, the judgment of the district: court will be affirmed.
Valentine, J., concurring.
Horton, C. J., not sitting. | [
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The opinion of the court was delivered by
Brewer, J.:
This case comes to us on error from the district court of Shawnee county. The principal question in it is the one involved in the case of the Central Branch U. P. Rld. Co. v. A. T. & S. F. Rld. Co., just decided; and to the opinion in that case we refer for- our views thereon.
A second question presented is practically decided, though perhaps not in terms named in the opinion in that case. That •question is this: The defendant in error appealed from the award of damages made by the commissioners. Now she claims the right, notwithstanding her appeal from the assessment of the commissioners, to question collaterally the regularity of the proceedings of the commissioners, the sufficiency of notice, etc., etc. We think this cannot be done. By filing an appeal from the award of the commissioners, she enters her appearance to that proceeding, and cannot thereafter question their jurisdiction, (Haas v. Lees, 18 Kas. 449;) and the statute which regulates appeal from the award of the commissioners, in terms provides “that said appeal and all subsequent proceedings shall only affect the amount of compensation to be allowed.” Hence, as she seeks to avail herself of the privilege of an appeal, she must take it as we held in the case first cited, burdened with all the conditions which the legislature imposed upon.it.
The only other question in this case arises upon these facts: The defendant in error was the owner in fee of certain lots in Crane’s addition to the city of Topeka. On the second day of September, 1881, the city council passed an ordinance vacating the street in front of her lots; this ordinance, by its terms, took effect upon its publication, which occurred on the succeeding day. Afterward the railroad company instituted proceedings for the condemnation of defendant in error’s lots. The report of the commissioners shows that they appraised the lots, naming them, without any survey or any special indication of what was embraced by the terms lots so-and-so; now the defendant in error contends that the portions of the street in front of her lots became her property upon the passage of the ordinance * vacating the street, precisely as though the previous owner had conveyed to her by deed; that as the commissioners did not appear to have appraised that property, as it was not named in nor covered by their report, she is entitled to an injunction restraining the company from occupying such part of her property. On the other hand, the railroad company contends that upon the passage of the ordinance vacating the street, the same reverted to the original proprietor, the party who laid out the addition, and not to the adjacent lot-owners; and secondly, that if this did pass to the adjacent lot-owners, it became in fact a part and parcel of those lots, and was therefore covered by and embraced within the condemnation of those lots. We think it unnecessary to decide whether, upon the passage of the ordinance, the title 'passed to the original proprietor who laid out the addition, or to the adjacent lot-owner. If it passed to the former, of course the present defendant in error has no interest in the question; while on the other hand, if it passed to the lot-owner, then it became something in the nature of an accretion to, and would pass in any conveyance of, the lot. The statutes bearing upon this question are the following: See. 6, ch. 78, Comp. Laws 1879, which has been in force ever since 1859, being §6, of ch. 24, of the Laws of 1859, and which provides that the acknowledgment, filing or record of any map or plat of a city, town or addition, vests absolutely the fee of streets and ot.her ground intended for public uses in. the county in • which such city, town or addition is situated, in trust, however, for the uses intended. (Rld. Co. v. Garside, 10 Kas. 564.) Ch. 37 of the Laws of 1881, the act providing for the organization of cities of the first class, contains in § 34 this provision: “Whenever any street, avenue, alley or lane is vacated, the same shall revert to the owners of real estate thereto adjacent on each side, in proportion to the frontage of such real estate: .... Provided, That when in the opinion of the council of such city it is neceesary to reopen such street, avenue, alley or lane, they may order the same opened, without expense to the city.” Now, the supreme court of Illinois (and its statute is very like ours) have held that the title passes back to the original proprietor and not to the adjacent lot-owner. (Geerhardt v. Reeves, 75 Ill. 301, and cases cited.) The supreme court of Iowa appear to hold that it passes to the adjacent lot-owner. (Day v. Schroeder, 46 Iowa, 546.) Now if the latter rule be correct, it would seem from the proviso to the section we have quoted that there was no absolute cession of the property to such adjacent lot-owner, but only a provisional and temporary giving-up of the public use; for the lot-owner takes it subject to the right of the city to reopen it without expense. In other words, the city permits the lot-owner provisionally and temporarily to hold and occupy the portion of the vacated street in front of his lot. Under those circumstances we think it fair to consider that it becomes, as it were, a.part of the lot — r something in the nature of an accretion to it; and if so, then any conveyance of the lot takes with it this attached portion of the vacated street.
This covers all the points presented, and the judgment of the district court will therefore be reversed; and the case remanded with instructions to vacate the injunction.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by James Smith, an infant, by his next friend, William Smith, against the Atchison, Topeka & Santa Fé railroad company, for damages alleged to have been caused by the negligence of the railroad company. The action was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and -against the defendant for the sum of $5,000 and costs. The defendant, as plaintiff in error, now'brings the case to this court, and asks for a reversal of such judgment. .
With regard to many of the facts of the case, there is no dispute; but with regard to others, the parties do not agree. Among the undisputed facts we would mention the following:
The plaintiff below (defendant in error), at the time he received the injuries complained of, was a child two years and twenty days old. 'The defendant below (plaintiff in error) was at that time and still is a railroad corporation, and was engaged ^ie operation of a railroad through Osage City, Osage county, Kansas. It had constructed upon its right of way,-partially outside and partially inside of the corporate limits of Osage City, a switch or spur track, for the accommodation of itself and the Carbon coal and mining company in loading corn, coal, and other, articles of commerce upon the cars of the railroad company for shipment over the company’s railroad. This side track was wholly on the right of way of the railroad company, and ran in nearly a northerly and southerly direction, connecting with the main track at the northern end of the side track — the side track being so constructed that ears would, of their own weight, descend from the southern end of the track to a point about seventy-five feet from the connection with the main track, from which place there, was an ascending grade to the point of connection, which would generally prevent the cars from running out upon the main track, though sometimes they would in fact run out upon the main track. The shaft and coal chute of the Carbon coal and mining company were situated by the side of this side track, about one hundred and fifty feet north of the south end thereof — the side track being about four hundred and fifty feet-long from one end to the other. This' side track was used by the railroad company, among other purposes, for pushing in empty coal cars to be loaded ^by the coal company — these empty cars being placed at the south or highest end of the side track; then, as the coal company was ready to use the cars, the brakes would be loosened, and the car of its own weight would run down opposite the coal chute, where it would be fastened by setting the brakes, or by placing a piece of wood or coal under one of the wheels; and when loaded, the car would be permitted to descend to a point about seventy-five feet- from the connection of the main track, where it would usually stop, that being the lowest point of the side track; and as other cars were loaded, they in like manner would be permitted to run down the side track and strike against the loaded cars previously permitted to so run down.
The parents of the plaintiff lived in a small house of two rooms, about ninety feet east of, and nearly opposite, the lowest portion of this side track, the door of the kitchen of the house opening toward the track. Neither the right of way of the railroad company nor the house was inclosed by any fence, and the ground between the house and track was level, and no obstruction intervened to prevent a child from going from the house to the side track,, if left unattended. At the time of the accident the child’s parents had been living at that place for about three years, during the whole of which time cars were being handled by the coal company, as above described; and the manner in which cars were loaded and run down the side track was well. known to the child’s parents. At the time of the accident the father of the child was at work for the coal company, in the coal shaft at which the cars were being loaded. The mother was inside of the house, “picking raisins” and talking to a neighbor, in the principal or east room of the house. Just prior to the accident the mother gave the child some raisins and it went into the kitchen, she knowing that the kitchen door was open toward the track, and that there- was nothing to prevent the child from going upon the track. After the child had been out of the east room about four or five minutes, the mother heard the car running down the side track, and got up and went to the door to see what had become of the child, and hearing it cry went out and found it'under one of the cars, it having sustained the injuries complained of. No person saw the child from the time it left.the>east room of the house until after the accident. One car had been loaded aud run down to a point opposite plaintiff’s house before the accident occurred; and the injuries were caused by permitting a second car to run down near the same point.- The second car ran partially over the child — the front'wheels on the east side running over the child’s right arm and left hand, and crushing them. Whether the first car, was -pushed over the child, previous to the second car running over it, is a disputed question of fact. At the time the accident occurred no servant, agent or employé of the plaintiff in error was in sight, the only persons in sight being J. B. Williams, the foreman, in charge of the coal shaft, and »his assistant, Christ. Black, employés and servants of the coal company, over whom the railroad company had no control,, At the time that the second car was loaded, Williams and Black were on top of what they call the “dump.” In other words, they were on top of the platform at the top of the coal shaft, where coal is “dumped” into a chute which conducts it to a car, for the purpose of loading the car. When the--ear was-loaded in the present case — the second car — Williams and Black came down from the “dump” and upon the top of the car; and Wil liams then went down over the south end of the car for the purpose of getting another empty car; and Black went to the wheels at the southeast corner of the car and removed the obstructions from the wheels, thereby permitting the car to start; and the car ran down the grade of the side track as before stated, and caused the injuries complained of. Prior to permitting this car to move, neither Williams nor Black went down to the standing car to look under it or behind it to see whether any person was in danger, or not; nor did either of them stoop down so as to look under the car; nor did either of them move to one side or the other, so as to look behind it. If the child had been at any point between the standing car and the second car, it would have been in plain view from the coal shaft and from the second car.
The only disputed questions of fact are the following:
1. Was the child between the standing car and the second car, or was he north of the standing car or under it, so that he could-not have been seen from the coal shaft or from the second car?
2. Did Williams or Black, or either of them, look down the side track toward the standing car, for the purpose of seeing whether the track was clear or not, before they loosened the second car?
The plaintiff in error (defendant below) claims that the child was north of the first car, or under it, so that it could not have been seen from the second car or from the coal shaft, and that the second car when it ran down the side track, struck the first car and caused it, as well as the front wheels of the second car, to run over the child and injure it; while the defendant in error (plaintiff below) claims that the child was not run over by the first car, but only by the second car.
The plaintiff in error (defendant below) also claims that both Williams and Black, and certainly Williams, looked down the side track toward the standing car, for the purpose-of seeing whether the track was clear or not, before Black loosened the second car, and that at that time the track was entirely clear; while the defendant in error (plaintiff be low) claims that neither Williams nor Black looked down the ■side track at that time.
Nearly all the questions of law involved in this case have ■already been decided by this court; for this is the second time that the case has been to this court. (Smith v. Atchison, Topeka & Santa Fé Railroad Company, 25 Kas. 738.) It has virtually already been decided-’ by this court that the child was too young to be held responsible for any contributory negligence of its own. It has also been held by this court that the question whether the parents, under the circumstances of this case, were guilty of contributory negligence or not, was a question of fact, which •Should be submitted to the jury, and could not be determined one way or the other as a question of law by the court. It has also-been determined by this court, that if neither Williams nor Black looked down the side track for the purpose of seeing whether the track was clear or not, before they loosened the second car, and if the plaintiff was at the time in such a situation that he could have been seen by them, if they had looked, then that they were guilty of negligence, (the question however being one of fact for the jury,) for which negligence the railroad, company should be held responsible. The facts with reference to these questions appear at this time to be substantially the sarrm as they appeared to be then; and hence it is not necessary to restate the facts specially with reference to these particular questions, but only to say that we reaffirm the decision of añ the questions which were decided by us when the case was here before, and that we shall now consider specially only Such questions as are new.
The only questions of law or fact now to be considered or to be decided are the following T
1. Did Williams or Black, before Black loosened the second car, look down the side track) toward the standing car, to see whether the track was clear or not?
2. Was the plaintiff in such actuation that he could have been seen if Williams or Black had looked down the side track for the purpose of seeing whether the track was clear or not? Or was was he north of or under the standing cár, so that he could not have been seen from the coal shaft or from the second car?
3. And supposing the plaintiff to have been north of or under the standing car, and in such a situation that he could not-have been seen by either Williams or Black from the coal shaft or from the second car, then was it negligence to leave such standing car in the condition in which it was left, and in permitting the second car to run down against it with such force as to push it over the plaintiff and injure him as he was injured?
4. And were these questions fairly submitted to the jury?
There is no claim that the court below erred with reference to the admission or exclusion of evidence. It is claimed, however, that the court below erred in giving instructions to the jury; but we do not think that the court below so erred; and even if it did, no proper exception was taken, and hence the error was waived.
It is also claimed that the court below erred in refusing to give instructions to the jury, and in overruling the motion of the defendant for a new trial.
I. The first question above mentioned — that is, whether Williams and Black (before they permitted the second car to move) looked to see whether the track was clear or not — we think was fairly submitted to the jury, and the jury found against the defendant and in favor of the plaintiff thereon. The jury found a general verdict in favor of the plaintiff and against the defendant, which is presumptively a finding in favor of the plaintiff and against the defendant upon all disputed or contested questions of fact. The jury also found specially as follows:
“Q,. 19. Did not J. B. Williams, at the time he and Christ. Black came out of the coal shaft over the loaded car, look to the north toward the standing car on the track near plaintiff’s house for the purpose of seeing whether there were any children on the track or in a place of danger? A. We think not.”
The defendant (plaintiff in error) however claims that this special finding is against all the evidence introduced in the case upon this subject. Williams testified directly and positively that he did look while he was at the coal shaft and just .¡before the second car was loosened, to see whether the track was clear or not, and that it- was clear; and there was no evidence contradicting this,testimony of Williams except the circumstances of the case. We shall revert to some of these circumstances hereafter. - „ ,, .
Under the general verdict of the jury and the evidence, we must consider it as settled that Black did not look to see whether the track was clear or .ribt. •
■ II. The second question above mentioned cannot be answered as the case is now presented to this court. No person saw the child fro.m the time it left its mother’s kitchen until after it was injured; and what its situation was with respect to the standing car, no one had any positive knowledge. The weight of the testimony, however, would seem to indicate that the child was at the north end; of the 'Standing car, and behind it from where Williams and Black were at work, so that they could not see it. The mother of the child, who was the first person to see it after it left her kitchen and after it was injured, testified that she thought that the standing car ran entirely over it; and the testimony of Williams and Black' would clearly indicate the same thing, while some of the circumstances of the case would seem to-indicate that only the front wheels of the second car ran over the child. The jury could not answer the question. . In answer to the question, “How many wheels passed over the child’s arm at the time it was injured?” the jury answered, “We do not know,” indicating clearly that even the jury could not tell where the child was before it was injured, or what its situation was with reference to the standing car. As the record furnishes no answer to this second question, we shall have to pass it without giving any answer thereto. ,„
III. But supposing the plaintiff to have been north of or under the standing car, and in such a situation that he could not have been seen by either Williams or Black from the coal shaft, or from the second car: then was it negligence to leave such standing car in the condition in which it was left, and in permitting the second car to run down against it with such force as to push it over the plaintiff and injure him as he was injured?
This question may be viewed in two different aspects: First, was the question, and is it one of law, tó be submitted to the court? or, second, was and is it a question of fact, to be submitted to the jury? And if the .question is one. of law, to be submitted to the court, then the question may be subdivided as follows: Did the acts and omissions of Williams and Black constitute culpable negligence per se, or were they excusable, acts and omissions, or acts and omissions not constituting any culpable negligence?
The members of this court all agree, that, upon the theory that Williams and Black could not have seen the plaintiff from the coal shaft or from the second car, and had no reason to believe or suppose that he was behind or under the standing car, then that the supposed negligence of Williams and Black was not nor is culpable negligence per se, whatever may have been the other facts of the case. The mere failure on the part of Williams and Black to look to see that the ■track was clear, provided they did so fail to look, could not have constituted culpable negligence per se, if their failure to look did not cause or contribute in any manner to the production of the injury to the plaintiff. Whether the supposed negligence of Williams and Black under such circumstances is not culpable negligence at all, or whether the question is one of fact, to be submitted to the jury for their determination, the members of this court have not up to this time been able to agree. But as the case is now presented, we think it is unnecessary that we should agree, or that we should express any opinion upon the question; for, in whichever way we might view the question, we would still think that the judgment of the court below should be reversed, and the cause remanded for a new trial.
The plaintiff in error, defendant below, claims that the question of negligence which we are now considering is one purely of law; that the supposed negligence of’the defendant or the said employés is per se not culpable negligence at all, and cites the following, among other cases, upon which it seems specially to rely: Van Schaik v. H. R. Rld. Co., 43 N. Y. 527; C. B. U. P. Rld. Co. v. Henigh, 23 Kas. 347; Lafayette &c. Rld. Co. v. Huffman, 28 Ind. 287. But these cases would hardly seem to be in point. In the case of Van Schaik v. H. R. Rld. Co., the party injured was a man “of mature years, of acute and trained mental faculties, of large experience, and acquainted with the ways of travel and the localities over which he was then passing;” and in that case the decision was against the plaintiff, on the ground of the contributory negligence of the' person injured; while in the present case the person injured is a child of scarcely any understanding, being only two years and twenty days old, and his parents had no knowledge that he was On the railroad track. In the Henigh case, the car which did the injury was not near a city, but was situated near only a small village of only five or six houses. In that case the car was properly fastened by the employés of the railroad company, and was not afterward put in motion by any person having any connection with the railroad company, but was put in motion by the party injured himself; while in th'e present case the cars that did the injury were within the vicinity of an incorporated city, in a comparatively populous place, where children occasionally played, and the north car was not fastened at all; and both cars were set in motion by persons for whose acts in this respect the railroad company is responsible. In the case of the Lafayette &c. Rld. Co. v. Huffman, 28 Ind. 287, the reasons for the child’s being upon the railroad track playing were wholly unexplained, and, from anything appearing in the case, the parents of the child may have known that it was there playing upon the railroad track, and may have been guilty of the grossest contributory negligence; and the case was decided upon this theory.
The defendant in error (plaintiff below), in support of his side of the case, cites the case of K. C. Rld. Co. v. Fitzsimmons, 22 Kas. 686; but we do not think that that case is applicable-to this case. In that case the machinery which did the injury was of that alluring character which would naturally entice boys to play with it and upon it; while in the present case nothing of that kind can be claimed.
As to when the question of negligence must be submitted to the jury as a question of fact, and when it must be decided by the court as a question of law, we would -refer to the following cases: C. B. U. P. Rld. Co. v. Hotham, 22 Kas. 41, 50-52, and cases there cited; K. P. Rly. Co. v. Richardson, 25 Kas. 391. We would also refer to the following authorities as having some reference to this same question and to this particular case: N. P. Rld. Co. v. Kirk, 90 Pa. St. 15; same case, 1 Am. & Eng. Rly. Cases, 45, 52, and cases cited; Frick v. St. L. K. C. & N. Rld. Co., 5 Mo. App. 435; Johnson v. C. & N. W. Rld. Co., 49 Wis. 529; same case, 1 Am. & Eng. Rly. Cases, 155; Cheeney v. N. Y. C. & H. R. Rld. Co., 23 S. C. (16 Hun,) 415; Costello v. Syracuse &c. Rld. Co., 55 Barb. 95; C. B. & Q. Rld. Co. v. Payne, 59 Ill. 534.
If the accident in the present case had occurred at a great distance from any human habitation, at a place where children or other persons were seldom, if ever, seen; and if the employés of the Carbon coal and mining company, or of the railroad company, had not known, orí had any reason -to suppose, that any person was present of in danger, then we could say as a matter of law, that no culpable negligence was committed; but on the other hand, if the accident had occurred within the heart of a populous city, where children frequently played, then we could say as a matter of law', that culpable negligence was certainly committed, and that the facts themselves under such circumstances would constitute culpable negligence per se. But neither of these supposed cases is the present case. The present case occupies a place somewhere intermediate between (these two supposed cases. It occupies such a place that we. think we can say that the facts of the case do not constitute> culpable negligence per se. But supposing tbe plaintiff to have been under or behind the standing car, and out of sight from the coal shaft and second car: then as to whether the facts are such that we could say that they do not constitute any culpable negligence, or that they should be submitted to the jury to determine whether they constitute culpable negligence or not, this court has not as yet fully agreed.
IY. We do not think that the second and third questions above mentioned were fairly submitted to or considered by the jury. It does not appear from the record that the jury had any opinion as to where the plaintiff was, with reference to the standing car, at the time he was injured, or any opinion as to whether it was culpable negligence on the part of Williams and Black to leave the standing car in the condition in which it was left, and in permitting the second car to run down against it with such force as to push it over the plaintiff and injure him — provided the standing car was pushed over him and did injure him. s
The defendant’s counsel submitted to the court numerous instructions in writing, numbered respectively, 2, 3, 6, 9,11, 16, 17, 18, 21, 22, and 23, for the purpose of having these questions submitted to the jury for their determination; but the court refused to give them. The defendant’s counsel also submitted a question to the court to be submitted to the j ury, for the purpose of ascertaining the opinion of the jury substantially as to whether the standing car was pushed over the child’s arm or not, and substantially as to what was the relative position of the plaintiff and the standing car immediately preceding the accident; but the jury simply answered the question, “We do not know.” Indeed, the whole case would seem to indicate that the jury had no intelligent opinion with respect to the relative position or situation of the plaintiff' and the standing car immediately antecedent to the injury complained of, or whether it was negligence or not for Williams and Black to leave the car standing in the condition in which they did leave it, and permit the second car to run down against it — provided the plaintiff-was behind or under the standing car, so that he could not have been seen by Williams and Black from the coal shaft, or from the second car, at the time they permitted the second car to run down the side track. Indeed, it would seem that the case was not decided by the jury upon the real facts of the case; for the real facts of the case would seem to indicate that the plaintiff was behind and north of the standing car, and out of sight from Williams and Black, just prior to the time when he received the injury; while it would seem that the jury supposed that that fact made no difference in the case, and that if they found that neither Williams nor Black looked to see whether the track was clear, just before they permitted the second car to move down the side track, that then they, the jury, should find in favor of the plaintiff and against the defendant, although it might have been impossible for Williams and Black to have seen the plaintiff from the coal shaft or from the second car, and although they may have exercised the greatest possible care and diligence in every other respect. Now it may have been negligence for Williams and Black to have permitted the second car to move down the side track, without first looking down the' track to see that it was clear —provided they did so fail to look; but if their failure to so look did not cause the injury complained of, nor contribute thereto, or in other words, if they could not have seen the plaintiff by looking down the side track, and if they exercised due care in every other respéct, then the railroad company should hardly be held to be responsible for such failure on the part of Williams and Black to look. Their negligence in such a case could hardly be held to be culpable-negligence per se, with respect to the injury that actually occurred.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The question before us is, whether the money on deposit in the bank of Morrill & Janes to the credit of C. H. Orth, on April 1, 1881,'the date of the service of the garnishment process, was subject to be applied to the satisfaction of the judgment obtained by the creditor of Orth. It is certainly true the relation at that time between the bank and its depositor Orth was merely that of debtor and credi tor, and the balance due on the account was only a debt. The bank had no knowledge that the deposit was a trust fund, and the account was made to be checked against in the usual and ordinary way. Notwithstanding all this, upon the hearing it was the duty of the court to decide to whom in equity the deposit beneficially belonged. The evidence upon this question is not conflicting or contradictory. The money advanced by Speer & Co. to Orth, to pay for the purchase of corn, was to be deposited in the bank and to be used by him to pay for corn, and for no other pnrpose. He had the right to deposit it in his own name, but not to use it or any part of it to satisfy his prior creditors. On April 1, 1881, his account with Speer & Co. showed that he ought to have had $692.12 of their money which he had not expended, and his account with the bank at that date showed on deposit $586.50. Orth, in February, 1881, had formed a partnership with one Benner, and after February, 1881, they kept the money of ■ the firm in their safe at their office. Although other moneys had been deposited by Orth in the bank, along with moneys advanced by Speer & Co., yet in February Orth drew out of the bank all the moneys belonging to the other persons, and after that date the deposit account was only the money of Speer & Co. The money, therefore, on April 1st so deposited in the bank, belonged in equity to Speer & Co., and Orth held it in a fiduciary capacity. Its character was not changed by being placed to his credit in his bank account. Before Morrill & Janes, the garnishees, answered, the notice of ownership was given them by Speer & Co. Thereafter the bank had notice of the claim of Speer & Co., and very properly made answer to the garnishment process that the money standing to the credit of C. H. Orth was claimed by Speer & Co. as their own. The money on deposit was Speer & Co.’s, not Orth’s. When the answer of Morrill & Janes was filed, on. April 12th, 1881, all the parties to this action had knowledge of this fact. A creditor of Orth, therefore, was not entitled either by attachment or garnishment to have the deposit in the bank held by Orth as a fund for the use and as the property of Speer & Co. applied to the payment of Orth’s debts. Orth had no right to apply this fund in whole or in part,-to pay or reduce the judgment of Eaymond against him, and the judgment creditor stood in no better position than the depositor. The judgment of the court therefore is wholly unsupported by the evidence. (See Central National Bank of Baltimore v. Conn. Mutual Life Ins. Co., U. S. Supreme Court MSS., October Term, 1881, and the cases there cited.) If the claim of Eaymond had accrued originally upon the faith and credit that the money on deposit was Orth’s individual property, another and a different question would be presented for adjudication; but this we find to be distinctly and fully negatived by the fact that Eaymond’s judgment was obtained long prior to the deposit, and for the conversion of a portable steam engine. The circumstance of the account at the bank, in favor of Orth, had no connection with any transactions between Orth and Eaymond before the rendition of the judgment of the 17th of February, 1879. All the deposit was subsequent to such judgment. The judgment of the district court must therefore 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
Valentine, J.:
On July 19, 1881, Daniel Walter commenced an action in the district court of Johnson county,, against Thomas J. Kay, on a certified transcript of certain proceedings had in the court of common pleas of Bedford, county, Pennsylvania. The plaintiff below (who is now de fendanfc in error) calls these proceedings a “judgment,” and for the purposes of this case, and by courtesy, we shall also call them a judgment. All of said proceedings are certified to be found “among the records and proceedings enrolled in the court of common pleas in and for the county of Bedford, in the commonwealth of Pennsylvania, to No. 34, August Term, 1864,” and the supposed judgment is certified to be a “copy of continuance docket entry.” The supposed judgment reads as follows:
“John Hafer v. H. H. C. Kay, Thos. Kay and Jas. E. Kay. — Prot. Shannon $153; atty. M. & 8. 3.00; atty. Spang & tax .50; prot. Shannon .30; D. S. B. And now, to wit, May 26, 1864, the defendants, by their attys. Mann and Spang, appear and confess judgt. to the pltff. for the sum of four thousand five hundred dollars, payable as follows: $500 on the 1 June, 1864; $1000 the 1 Dec., 1864; $2000 1 June, 1865; $1000 on the 1 Dec., 1865, with costs of suit and stay of execution on each payment until due, with waiver of exemption laws as per statements and confessions filed. (Note stamped.)”
The only papers or proceedings upon which this supposed judgment was rendered, read as follows:
“In the Couet of Common Peeas of Bedfoed County. — No.— of August Term, 1864. — Bedford County, ss. — John Hafer v. H. H. C. Kay, Thos. J. Kay and Jas. E. Kay.— The demand of the plaintiff, John Hafer, in this cause, is founded upon a single bill under the hands and seals of the above-named H. H. C. Kay, Thomas J. Kay and James E. Kay, defendants, duly executed, bearing the — day of May, A. D. one thousand eight hundred and sixty-four, (the said single bill having thereon an internal revenue stamp of the United States of America, of the denomination of two dollars and thirty cents,) by which said single bill the said defendants jointly and severally acknowledged themselves to owe and stand indebted to the said John Hafer, plaintiff, his heirs and assigus, viz.: Five hundred dollars on the 1st day of June, 1864; one thousand dollars ón the 1st day of December, 1864; two thousand dollars on the 1st day of June, 1865, and the balance thereof, being one thousand dollars, on the 1st day of December, 1865, for value received; in which said single bill, in consideration of the credits given and for other good and valuable considerations, the said defendants waived any advantage they might have had under the exemption laws of Pennsylvania, particularly the act of assembly of 1849, exempting $300 worth of property, real or personal, from levy and sale upon execution, which said sum of four thousand five hundred dollars, payable as aforesaid, is certified by the said John Hafer, plaintiff, to be justly due him from the said H. H. C. Kay, Thomas J. Kay, and James E. Kay, defendants, and yet unpaid, for which he prays judgment, etc.
Mann & Spang, Attorneys for Plaintiff.”
“ By virtue of a power of attorney contained in the foregoing single bill, we appear for the above-named H. H. C. Kay, Thomas J. Kay and James E. Kay, defendants, and confess judgment against them to the above-named John Hafer, plaintiff, for the sum of four thousand five hundred dollars, payable, viz.: $500 on the first day of June, 1864; $1,000 on the first day of December, 1864; $2,000 on the first day of June, 1865, and the balance thereof, being one thousand dollars, on the first day of December, 1865, with the costs of suit and stay of execution on each payment until due; and I hereby waive all benefits which the said defendants might have under the exemption laws of Pennsylvania, particularly of the act of assembly of 1849, and hereby release all errors in entering the judgment.
Mann & Spang.
“ To O. E. Shannon, Esq., prot. atty’s for dePts, May 26, 1864.”
Indorsed: “No. 34, Aug. 1, 1864. John Hafer vs. H. H. C. Kay, Thos. J. Kay and Jas. E. Kay. Filed May 26, 1864. O. E. Shannon, Prot.”
It does not appear that any summons was ever issued in the case, or that any appearance was ever made by either of the defendants; nor does it appear that any judgment was ever rendered by the court itself; but if any judgment was ever rendered, it was simply rendered by the prothonotary of the court, and during vacation. The judgment, or supposed-judgment, seems to have been rendered on May 26, 1864; and it also seems to have been rendered as of the August term of the common-pleas court of that year. Now, how a judgment could be rendered in vacation by a prothonotary as of a subsequent term of the court, does not appear; nor does it appear that this supposed judgment, rendered by the prothonotary on May 26,1864, was ratified or confirmed by the court itself at or during its subsequent August term. Indeed, it does not appear that anything was in fact done with reference to the case, either by the court itself or by the prothonotary, at or during the August term of the court of that year. Such proceedings, if had before any of the courts of this state, would not be valid. Possibly, however, proceedings had in Pennsylvania may be valid there; and for the purposes of this case we shall treat them as valid, not only in Pennsylvania, but valid here. At the time that this judgment was rendered, the defendant, Thomas J. Kay, resided in Bedford county, Pennsylvania; but on November 1, 1865, he became a resident of Johnson county, Kansas, where he has resided continuously ever since, and has never since been in the state of Pennsylvania.
The defendant answered to the petition filed by the plaintiff in the district court of Johnson county, setting up: First, nul tiel record; second, a general denial; third, the two-years statute of limitations; and fourth, the five-years statute of limitations.
We shall consider only the fourth and last of these defenses. Was the plaintiff's supposed cause of action barred by the five-years statute of limitations?
As before stated, the judgment sued on was rendered on May 26, 1864, and of course the plaintiff's cause of action, if he ever had any, then accrued. The defendant arrived in Kansas on November 1, 1865, and of course the statute of limitations in Kansas then commenced to run, and has continuously run ever since. But the plaintiff did not commence any action in Kansas on this supposed cause of action until July 19, 1881, being more than fifteen years after the supposed cause of action accrued. The plaintiff, however, claims that his original judgment was revived in the common-pleas court of Bedford county, Pennsylvania, at intervals, within the meantime, so as to prevent the Kansas statute of limitations from so running as to bar his action. It seems that there were two such revivals. The first was had on November 8, 1867, and the second was had on February-26, 1877. It therefore appears that over nine years, and indeed nearly ten years, elapsed from the first revival to the second revival. Therefore, was not this second revival invalid ?
Under the statutes of Pennsylvania, it would seem that a period of not more than five years should elapse between revivals; but it is possible that the second revival would not be void if a longer period were allowed to elapse between the two revivals, provided everything else with respect to the revivals were regular and valid. In the present case, however, ¿hese revivals cannot have any force or effect beyond the jurisdiction of the state of Pennsylvania; for the common-pleas court of Bedford county, Pennsylvania, had no jurisdiction of the person of the defendant, Thomas J. Kay. The defendant did not reside in that state at the time of these revivals, nor was he within its boundaries or its jurisdiction; but all the time and continuously he resided and remained within the territorial jurisdiction of the state of Kansas. No summons was ever served upon the defendant personally, nor did he make any appearance in the case, and there is no pretense that he ever had any actual notice of these revivals until after they had actually occurred. These revivals were had upon what they call in Bedford county, Pennsylvania, “two nihils,” which simply mean that the sheriff has made two returns upon separate writs, that service cannot be made. These revivals in this case are therefore nothing but the purest ex parte proceedings; and therefore, for the purpose of enforcing them in other jurisdictions, are absolute nullities.
With reference to judicial proceedings had without jurisdiction, see the following cases: Litowich v. Litowich, 19 Kas. 451, 455, et seq., and cases there cited; Mastin v. Gray, id. 461, et seq., and cases there cited; Ferguson v. Crawford, 70 N. Y. 253, et seq., and cases there cited.
It appears that the plaintiff in the present case, Daniel Walter, who is now defendant in error, is the owner of the supposed judgment rendered in Bedford county, Pennsylvania, in favor of John Hafer, and against H. H. C. Kay, Thomas J. Kay and James E. Kay. This present case was tried in the district court of Johnson county, Kansas, on January 5,1882, before the court and a jury, and all the foregoing facts, with some additional facts, were proved and presented to the court and jury. The court then instructed the jury as follows:
“1. By the judgment in evidence, the plaintiff has a cause of action, unless the same is barred by the statute of limitations.
“2. If you find from the evidence that this action was commenced within five years from the 26th day of February, 1877, then such action is not so barred.”
Afterward, the jury found a- verdict in favor of the plaintiff and against the defendant, and assessed the amount of the recovery at $3,063.55. The jury also found specially as follows:
“Q,. 1. When did Thomas J. Kay become a bona fide resident of the state of Kansas? A. November, 1865.
“ Q,. 2. Has he been a bona fide resident of the state of Kansas ever since? A. Yes.
“Q,. 3. Since January, 1876, has Thomas J. Kay paid anything on said alleged judgment, or have any credits been placed thereon by a sale of his property in Pennsylvania ? A. No.”
The jury found that the defendant, Thomas J. Kay, has not paid anything on the judgment sued on since January, 1876. There is nothing, however, in the case to show that he ever paid anything on the judgment, and in all probability neither he nor any person for him has paid anything on the judgment since he removed to Kansas.
Upon the pleadings and special findings of the jury, we think the court below should have instructed the jury to find in favor of the defendant; but the court below, in effect, instructed the jury to find for the plaintiff. And upon the pleadings and the special findings of the jury, we think the court below should have rendered judgment in favor of the defendant, notwithstanding the general verdict; for upon the pleadings and special findings of the jury the claim of the plaintiff was unquestionably barred by the five-years statute of limitations. (Civil Code, § 18, subdiv. 6.)
It makes no difference, as we think, whether the revivals of said judgment were in effect new judgments of themselves, or whether they were simply revivals of the prior judgment; for in either case, we think the plaintiff’s case is barred. In neither case can the revivals have any force or effect beyond the jurisdiction of the state of Pennsylvania, because at the time of such revivals the state of Pennsylvania did not have any jurisdiction of the person of the defendant, who was then in Kansas, and a bona fide resident of Kansas.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the defendant and against the plaintiff for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: In the year 1872, one G. P. Smith was the owner in fee simple of seventy acres in the south half of section 9, township 26, range 18, situate in Allen county. In that year he and his wife, Margaret C. Smith, mortgaged the premises to Henry Gay for a loan of money from the firm of Gilbert & Gay, of the state of Connecticut, who were the agents of Nicholas Leitzbach. After the maturity of the note, Leitzbach prosecuted an action for the.foreclosure of the mortgage and for a personal judgment against Smith, in the United States circuit court for the district of Kansas, and judgment was rendered in that court on June 11, 1878, against Smith for the sum of $3,938.75, and a decree was also entered for the sale of the mortgaged property to satisfy the judgment. The decree of the United States circuit court ordered the master of the court to advertise the mortgaged premises for sale in the Leavenworth Times, in the county of Leavenworth, for thirty days prior to the day of sale, and to sell the same at public auction at the east door of the court house in the city of Leavenworth, and report the proceedings to the court for confirmation. Afterward, the master advertised the lands’for sale in the Leavenworth Times, and on the 29th day of the publication .thereof he sold the premises to Leitzbach. , The master’s report to the court stated that the lands had been advertised for sale for more than thirty days prior to the day of sale, when in fact the proof of publication attached thereto showed that the sale was made on the 29th day of the publication. The court confirmed the sale and ordered á deed to be executed to Leitzbach, and on the 29th day of April, 1879, the master’s deed was so executed. The land in controversy had been sold for taxes in the year 1876 for the taxes of 1875, to Blackwood & Hand, and a tax-sale certificate issued to them, which was afterward assigned to one Nancy E. Físher. The taxes on the land for the years 1876,1877 and 1878 were paid by the holder of the tax certificate, and duly indorsed thereon. On September 14, 1879, Gilbert & Gay paid .into the county-treasury of Allen county, for the purpose of redeeming the land from the tax sale of 1876, the sum of $421.80, that sum being the full amount necessary to redeem the land at that time, and received from the treasurer of the county, signed by him and countersigned by the clerk of the county, a certificate of redemption of the land from the tax sale in due form, and in the name of Gilbert.de Gay. Said Gilbert & Gay were the agents of Leitzbach for paying the taxes and for taking measures for acquiring possession of the land, and at that time they charged the amount of money for the redemption to the account of Leitzbach at their bank. On the 9th day of February, 1880, Leitzbach brought an action in ejectment in the United States circuit court for the district of Kansas as plaintiff against G. P. Smith, Margaret C. Smith, Garrett Smith, Paul Fisher and Garrett Worther, for the recovery of the possession of the land so conveyed to him by the master’s deed of April 29, 1879. In the action, all the defendants were personally served. Trial was had thereon at the November term of the court, and on December 3, 1881, final judgment was rendered in favor of Leitzbach against all of the defendants for the recovery of the possession of the land. In the trial, defendants made the objection that the plaintiff’s title was invalid under the master’s deed, by reason of the master advertising the sale only twenty-nine days instead of thirty days, and because the sale was made and the advertisement had in the county of Leavenworth instead of the county of Allen; all of these objections were overruled by the court. On the 25th day of March, 1880, and after Gilbert & Gay, as agents for Leitzbach, had redeemed‘the land from taxes, the county clerk of Allen county executed to Nancy E. Fisher a tax deed, which tax deed was recorded in the office of the register of deeds for Allen county. On January 15,1881, she executed a quitclaim deed to Jack-man, defendant in error (plaintiff below), and Jackman on the 27th of April, 1881, commenced this action to quiet title as against Leitzbach. Upon the trial in the court below, the court found as a conclusion of law, that at the time of the commencement of this action Jackman was the owner in fee simple of the premises described in the petition, and that the defendant’s claim of title thereto was a cloud upon the title of plaintiff. This conclusion of law is not supported by the findings of fact, and is wholly erroneous. Whether we regard Leitzbach as the holder of the mortgage executed by Smith and wife, or as the owner in fee simple of the premises by virtue of the conveyance of April 18,1879, the tax deed of March 25, 1878, was void, and transferred no title. (Sec. 127, ch. 107, Comp. Laws 1879; §§ 140, 141, ch. 107, Comp. Laws 1879; § 148, ch. 107, Comp. Laws 1879; Mathews v. Buckingham, 22 Kas. 166,) This conclusion defeats the title of Jackman, and strips him naked of any interest or estate, legal or equitable, to the land in controversy. If he went into possession under the original owner, G. P. Smith, and after the commencement of the action in ejectment in the federal court, he is bound by the judgment of that court rendered on December 3,1881, as he is thereby in privity with Smith’s title. If he bases his title and possession upon the quitclaim deed of Nancy E. Fisher of the date of January 15, 1881, he has nothing whatever to stand upon, as that tax deed is null and void. (Mathews v. Buckingham, supra.) Coun- ■ sel representing the defendant in error (plaintiff below) have filed an elaborate brief, setting forth at great length various objections to the master’s deed of the date of April 29,1879, and to the validity of the proceedings in the federal court upon which this deed is based.- In our view of this case, the validity of that deed and the proceedings in the federal court ■concerning the foreclosure of the mortgage executed by Smith and wife, and the sale thereunder, are not material. After the master’s deed was executed, Leitzbach commenced his action in the federal court in ejectment against Smith and wife and other parties, for the purpose of recovering the land in •controversy. The identical objections now made to the master’s deed, and to the sale under the decree of foreclosure, were presented in that court. These objections were decided adversely to Smith and the other defendants in the ejectment action; and as to Smith and all parties in privity with him, that judgment is conclusive. If erroneous, an appeal, must be taken in accordance with the provisions of law. So long as the judgment stands unfeversed, it must be respected and •obeyed. Smith wa.s the original owner of this land. The •decree of the federal court and the master’s deed, together with the subsequent ^proceedings in that court, gave to Jack-man all of Smith’s title, and as neither Nancy E. Fisher nor •Jackman acquired any title or right of possession by virtue •of the void tax deed of March 25, 1880, Jackman.was not ■and is not entitled to be decreed the owner of the land, and -was not and is not entitled as against, Leitzbach in the proceedings commenced by him to any judgment whatever.
The judgment of the district court will be reversed, and the cause remanded, with direction to the court below to ■enter judgment in favor of plaintiff in error, decreeing- the alleged title of Jackman to be void.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The plaintiffs in error, plaintiffs below, were-respectively the widow and children of A. R. Jeffers, deceased, and filed their petition in the district court of Doniphan county, seeking to set aside six several deeds executed by themselves separately to the defendant W. H. Forbes, and also a subsequent deed from W. H. Forbes to his co-defendant, B. N. Forbes.
The deeds from the plaintiffs were, respectively, a deed from the widow, four separate deeds from the adult children,.and a. guardian’s deed from the widow as guardian for the minor children. These deeds were executed at different dates and places, and all taken together conveyed a full title to the land described therein. To the petition defendants demurred on the ground that several causes of action were improperly joined, and also-that the petition did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiffs-now bring the question here for reexamination. The facts as disclosed in the petition are briefly as follows: On October 1,1875, A. R. Jeffers was the owner in fee simple of a tract of' about 310 acres in Doniphan county, Kansas, and on that day he and his wife executed a mortgage to the Phoenix Insurance company to secure the payment of $3,300, with interest at 10-per cent. They also executed a second mortgage on the land to the defendant W. H. Forbes, for $428. In August, 1878,. A. R. Jeffers died intestate, his death being sudden and from accident, while away from home, leaving the plaintiffs as his heirs, and also leaving personal property more than enough to pay and discharge all debts against the estate, as well as all expenses of administration. Besides the above property, he was also the owner at the time of his death of an unimproved tract of forty acres in Doniphan county, worth $10 per acre. Interest had been paid on the insurance company’s mortgage up to April 1, 1878. The mortgaged tract had been occupied by A. R. Jeffers and his family for several years as a homestead, and continued to be so occupied by the widow and younger children after his death until the 12th day of March, 1879, when by fraud, fraudulent representation, threats and duress on the part of the defendant W. H. Forbes, they were dispossessed by him. The mortgaged tract was worth at the time of the death of said A. R. Jeffers the sum of $12,380, and the annual profits were $1,500. This value continued up to the time of the execution of the deeds complained of, and was well known to the defendants. A few weeks after the death of said A. R. Jeffers, W. H. Forbes purchased the insurance company’s mortgage, representing that he was-doing so as a matter of friendship for the widow and children. After obtaining possession of this mortgage, the attitude of Forbes toward the family suddenly changed. He became hostile, and demanded immediate possession of the property so mortgaged, falsely representing that the indebtedness of the estate was many thousands of dollars more than it was two years after found to be, and that its aggregate was so great that no property, either real or personal, would be left to the widow or children. The widow being old and infirm, little .versed in business matters, paralyzed, and overwhelmed with distress on account of her sudden bereavement, ignorant of her husband’s real financial condition or of her rights under the law, being without means at that time to procure counsel of her own, and each and all of her children being young and unskilled in business, and fearing that defendant Forbes could and would proceed to dispossess the plaintiff and her family, and under the duress and threats of said defendant Forbes, the widow and adult children conveyed by deeds of quitclaim their interest in the mortgaged tract, and the widow was persuaded to become guardian of the minor children, and to institute and carry through proceedings in the probate court by which the interests of said minor children were also conveyed to said Forbes — the sole consideration above the mortgage debts received by said grantors being a tract of forty acres, costing $350, which said Forbes caused to be conveyed to said widow. The prayer of the petition was that all of said six deeds from the plaintiffs to W. H. Forbes, and that from W. H. Forbes to his brother, be canceled and declared void and of no effect; that the defendant be compelled to account for the use and occupation of the lands since March 12,1879; and for such, other and further relief as might be deemed just and equitable.
The first ground of demurrer, as heretofore stated, is that several causes of action were improperly joined; and the contention is, that the setting aside of each of the six several deeds from the plaintiffs to the defendant W. H. Forbes'was a separate and independent cause of action, in which only the grantor in such deed had any interest. On the other hand, it is insisted that the plaintiffs together were the owners of a single tract; that but a single contract and agreement was entered into between them and the defendant. W. H. Forbes; that in pursuance of such single contract and agreement the various interests held by the several plaintiffs were conveyed to said Forbes; that if such contract and agreement was fraudulent and void, the plaintiffs had a joint interest in having it so adjudged, and all instruments executed to carry it into effect canceled and declared null and void; and that therefore there was but a single cause of action, in which all the parties plaintiff were interested, and to enforce which they may unite in a single action.
We think the contention of the defendants in error is correct, and that the ruling of the district court must be sustained on this ground. Sec. 35 of the code prescribes the .rule as to the joinder of parties plaintiff. It reads: “All persons having an interest in the subject of the action and in detaining the relief demanded may be joined as plaintiffs, except as otherwise provided in this article.” Now the title by which the plaintiffs held this tract was that of tenants in common. Each owned an individual interest, and his ownership was not affected in the slightest degree by the question as to who held the title of the other interests. Either owner might sell or refuse selling, and his right and title could not be abridged by any action of his co-tenants. Whatever may have been the wrong in the agreement, the transfer of title was effected only by these separate conveyances. The deed of the widow passed no title away from any of her children. That deed may stand or fall without in the least affecting any of the other conveyances. Suppose, for instance, an action was brought to set aside the widow’s deed alone, can it be claimed for a moment that the children would be necessary or proper parties to such an action ? Whatever the consideration received by the widow, whatever inducements she received for the execution, whatever threats or promises were made to her, they would have no right to challenge the deed, they would not be interested in having the deed set aside, they would have absolutely no right to take part in the litigation. This would be a matter concerning herself alone. If she had been wronged, she and she alone could bring an action to right that wrong, and beyond question they would be improper parties to such an action. If successful, they would gain nothing; if unsuccessful, they would lose nothing. The same may be said in reference to each of the other deeds. The grantors therein would be the only parties interested in having those deeds set aside. It is not enough under the section quoted that all the plaintiffs should have an interest in the subject of the action; it is essential that they should all have an interest in obtaining the relief demanded. But only the grantor in each deed is interested in obtaining the cancellation of that deed. As each grantor is alone interested in obtaining the cancellation of his own deed, and as all the other plaintiffs would be improper parties in an action brought by the one alone to set aside his individual deed, so where all the parties unite in an action to have set aside six several deeds by separate grantors conveying separate interests, they unite six several causes of action in one suit, and six several causes of action in each of which only a portion of the plaintiffs is interested.'
This does not assimilate an action in which the possession of the land owned in common is disturbed, for there each of the owners is alike interested in the possession. Jointly interested in the possession, they may jointly sue for any disturbance of their possession. But while jointly interested in the possession, they are not jointly interested in the title. Each owns his title separate and apart from the other — owns it absolutely and alone. The fact that they take by inheritance from a common ancestor, in no manner unifies their title. They hold by the same complete, separate and independent title as though each had purchased his interest from a different party. Nor does the case ■ assimilate that in which by a single instrument, as a tax or other deed, a cloud is cast upon the title to the entire tract, or one in which owners of different tracts unite in a single action to abate a common nuisance. In such cases there may be said to be a unity of action, a unity in the relief demanded; either the single cloud is to be removed from the title, or the common nuisance is to be abated. But here each party’s title is affected by a separate deed executed at a different time and place, and purporting to convey only his own separate interest, and the sole relief he can obtain is the cancellation of his own deed.
Again, it is not true that there was but a single contract or agreement in reference to the transfer of this land. The petition alleges that under threats, duress, etc., as above stated, the widow made her deed, and that under li/ce threats, duress, etc., and for the sake of saving some small pittance, if they could, for their mother, the other adult plaintiffs made their deeds. So that there is in fact no unity either in the cause of action or in the relief demanded. In 1 Daniell’s Chancery, 395, the author says: “Thus, if an estate is sold in lots to different purchasers, the purchasers cannot join in exhibiting one bill against the vendor for a specific performance; for each party’s case would be distinct, and there must be a distinct bill on each contract.. Hudson v. Madison, 12 Sim. 416; Coop. Eq. Pl. 182; Story Eq. Pl. 272, and notes.” If separate vendees cannot unite in a single bill against a common vendor, neither can separate vendors unite in a single bill against a common vendee. See further the following authorities from this court: Harsh v. Morgan, 1 Kas. 293; Winfield Town Co. v. Maris, 11 Kas. 147; Hudson v. Comm’rs Atchison County, 12 Kas. 147; Swenson v. Plow Co., 14 Kas. 388. Also the cases of Bort v. Yaw, 46 Iowa, 323, and Tate v. Rld. Co., 10 Ind. 174, in which last case the court in the syllabus lays down the doctrine thus: “Two or more persons, having separate causes of action against the same defendant, though arising out of the same transaction, cannot unite; nor can several plaintiffs in one complaint demand several distinct matters of relief; nor can they enforce joint and separate demands against the same defendants.”
We conclude, then, that upon this ground-the ruling of the district court is correct, and must be affirmed.
We might stop here, but inasmuch as under § 292 of the code the court upon application of the plaintiffs must allow them to file separate petitions for the different causes of action, it is due to the parties that we should examine further, and determine whether the second ground of demurrer, namely, that the petition does not state facts enough to constitute a cause of action, is sustainable. Counsel for plaintiffs in error have filed an elaborate brief, citing many authorities upon the general proposition that a conveyance extorted by undue influences from a party in a dependent condition will always be set aside on application to a court of equity. Of this general doctrine there can be no doubt, and we shall concede its application in a general way to the case at bar. We shall not stop to inquire whether the allegations in the petition are sufficiently full in showing the circumstances of the duress, the nature of the fraud, the exact false representations, the threats, or in explaining why the fraud was not discovered any sooner than it is alleged to have been discovered, because even if the allegations as they stand are sufficient as against a general demurrer, the court, on a motion to make them more specific and definite, would undoubtedly rule the plaintiffs to a fuller statement. But there are one or two matters to which we deem it necessary to call special attention. It appears from the allegations in the petition, that as part consideration for these conveyances, or some of them at least, the defendant caused to be executed and delivered to the widow a deed to a certain tract of forty acres. The only allegation in the petition in respect to that is, that the plaintiffs say they bring that deed into court for the defendant to do what he pleases with it. As this deed had once been delivered, and was not a deed from the defendants or either of them, the title to the land had thereby become vested in the widow; and merely tendering that deed to the defendants is not equivalent to a conveyance to them of the property. Now the rule is, that where parties seek to set aside a conveyance on the ground that it is fraudulent, they must return or offer to return all that they have received under it. A party who has received certain consideration, no matter how small and inadequate, for any contract or conveyance, must return that consideration or offer to return it before he is entitled to have the contract or conveyance set aside. He cannot, while retaining the benefits of a transaction, repudiate it as null and void; and plaintiffs in this case should tender a conveyance of the forty acres as a condition of recovery. See in support of this general doctrine the cases of Tisdale v. Buckmore, 33 Me. 461; Bisbee v. Ham, 47 Me. 543; Evans v. Gale, 17 N. H. 573; Nichols v. Michael, 23 N. Y. 264; Cobb v. Hatfield, 46 N. Y. 533; McDonald v. Neilson, 2 Cow. 139; Ford v. Harrington, 16 N. Y. 285; Bainter v. Fults, 15 Kas. 323.
. This doctrine also goes further in. this case. A part of the consideration was the cancellation of these mortgages, and before a decree can be rendered setting aside those mortgages it must appear that the defendants have received as profits for the use of the land the full amount of such mortgages, or else a restoration of the mortgages must be adjudged. In other words, where land subject to a mortgage has been conveyed to the mortgagee, the satisfaction of the mortgage being a part consideration of the conveyance, the conveyance will be set aside only on condition that the parties are restored to the position they occupied before the conveyance. He that seeks equity must do equity. Counsel for plaintiffs in error challenge this proposition in these words:
“That plaintiffs were not bound to make tender, is evident, first, from the fact that Forbes held no legally allowed, valid claim against the estate under the laws of Kansas; and second, because under the analogies of the law to say that Forbes is entitled to a tender for the amount- of the two mortgages, or anything else, is a contradiction in terms. His title, being void, falls like an empty sack, because it has nothing to support it, and it cannot support itself. The proposition that one who is detected in sucia a transaction, by which he has acquired no title, shall nevertheless be placed on the footing of one who has a good title, unless the money he claims to have expended in the perpetration of this fraud be paid, or tendered, to him by those he has so grossly injured, shocks the ordinary sense of right as much as it violates the analogies of the law.”
We cannot agree with these views in either respect. We know of no(reason why heirs may not convey real estate they’ have inherited from their ancestor, in payment and discharge of a debt due from the estate., even though, the same has never been allowed in the probate court. As between the heirs and the creditor receiving the conveyance, the transaction is valid and binding. Whether other creditors may intervene, and to what extent they may challenge such a conveyance, is not a question in this case. Neither is it true that the money that was due upon this mortgage was money paid in the perpetration or accomplishment of this fraud. There is nothing in. the petition which shows that these mortgages were not just and valid claims in the hands of Forbes against the land. They were just debts, and ought to have been paid. The fraud was not in securing the payment, but in securing an excessive amount of property therefor; and when the transaction is set aside it is set aside in toto, and the parties must be restored to their former condition. These are matters, however, to be more fully considered when the new petitions are filed. We make these suggestions in order that new petitions may guard against these defects, and be sufficiently full and specific to enable the parties to go to trial upon the real facts of the case.
Without going further into detail, and for the reasons heretofore given, the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The substantial question in this case arises upon these facts: Dr. Gibbony was the owner of some, property in the city of Osborne, and on May 22, 1880, conveyed the same to defendant, now plaintiff in error, by warranty deed. The property at that time was subject to a mortgage of $418, given to secure a note due September 1, 1880, and signed by Dr. Gibbony and one J. A. Wilson. In this note Wilson was the principal debtor, and Dr. Gibbony merely surety. The deed contained a covenant that the grantors were to pay this mortgage and get a release of said incumbrance. The consideration was $2,000, and all paid at the time of the conveyance except $418, the amount of the incumbrance. On the 1st of September, the note and mortgage not being paid, there was substituted for them a new note, signed by Wilson and Dr. Hudson, the defendant, and secured by a mortgage by Dr. Hudson on the property conveyed. By the execution of this new note and mortgage, further time was. obtained for the payment of the debt. Thereafter, plaintiff, as the executrix of Dr. Gibbony, deceased, brought this action against Dr. Hudson to recover the amount of $418 and interest, claiming that by this arrangement both the estate of Dr. Gibbony and the property were released from the note and mortgage executed by Dr. Gibbony; that therefore the covenant in the deed had been performed, and the grantee, Dr. Hudson, was liable for the amount of such mortgage. That this new note and mortgage executed by Dr. Hudson were for the same debt as the former, and without any new consideration, is clear from the testimony. Wilson, who was the principal debtor, testified in reference to it: “I never got any money at Osborne county bank; I understand I made a change simply, and Dr. Hudson and wife secured the debt by giving their mortgage.”
Substantially the same testimony was given by C. W. Crampton, Wilson’s clerk and book-keeper, and also by Dr. Hudson. It is true in the. latter’s testimony he speaks of paying off the old note and mortgage and borrowing money from the bank therefor, but taking his whole testimony together, it is clear that the new note and mortgage were simply in exchange for the old note and mortgage, and as security for the same debt. Now under these circumstances, have the grantors in that deed complied with their covenant in súch a manner and to such an extent that they can recover from the grantee the amount of such mortgage? Technically, and tried by the letter of their covenant, it is possible they have. That particular note has been canceled, and the property released from the incumbrance of that mortgage; but looking beyond the form of the transaction and at the substantial equities of the parties, it is clear they have not. Dr. Hudson purchased this property burdened with this mortgage. The covenant of the grantors was that they should pay the mortgage and have the property released therefrom. Now a mere change of papers does not extinguish the debt, nor release the property. The papers are but evidences of the debt, and the debt remains, no matter what changes may be made in the mere evidences thereof. Dr. Hudson was entitled to that property upon the payment of $2,000. Now if Dr. Hudson is compelled to pay this judgment, he may thereafter be compelled' to pay the mortgage given by him, and thus the property may cost him twenty-four hundred instead of two thousand dollars. If this debt were primarily the debt of Dr. Gibbony, there would be little doubt that the ruling of the district court was incorrect. But counsel argue that the debt was the debt of Wilson; that Dr. Gibbony was only security; and that when any change is made by the principal debtor, with the assent of the creditor, in the terms of the obligation, the security is equitably as well as legally discharged from further liability. This fact makes the question more difficult; and yet even with this fact wé are constrained to think that the district court erred, and that upon the testimony as it stands the act of Dr. Hudson cannot be considered as a voluntary payment. The debt was due; it was an incumbrance upon the property; neither the principal debtor, Wilson, nor the security, Dr. Gibbony, paid or offered to pay it unless something was done. A foreclosure was imminent; and the property might be sacrificed to pay the debt and the costs of foreclosure. Under those circumstances we think Dr. Hudson was warranted in the steps he took to secure fur Iher time. The new mortgage was giv.en on the day that by its terms the old note became due; and the district court seemed to think that, because the parties did not wait until the three days of grace had expired, the transaction amounted on the part of Dr. Hudson to a voluntary payment. Upon this we remark, that the note is not copied in the record, and unless it were a negotiable note, there were no days of grace. But assuming it to have been a negotiable note, as from the instructions of the court it probably, was, and still the note was due and payable on the 1st of September. Parties have a right to treat it as due and payable then, and the three days ■of grace are only limitations of the right to sue, so that in fact Dr. Hudson took no action until the note was due and payable. But further, even if Dr. Hudson did not wait until such time as an action could have been commenced on the note, still we think his action was not so premature as to make it a voluntary payment. The m'ere matter of time is not decisive. He was not compelled to wait until an action had in fact been commenced and costs-incurred, or indeed until the very moment when an action could have been commenced, because then the payee might not have been willing to give time or Dr. Hudson able to obtain the money. A party with such an incumbrance on his property is not always master of the situation, and must do the best which the circumstances of the case will permit; and if Wilson were unable to pay the debt and no other means of discharging the incumbrance were apparent, Dr. Hudson was justified, after the note by its terms became due and payable, in securing further time by the execution of a new note and mortgage. But it may be said that by the execution of the new papers Dr. Gibbony ceased to be a security, and has no further voice as to the duration of the debt; that Wilson and Dr. Hudson can by repeated renewals indefinitely prolong the payment of the debt, and thus unnecessarily keep the Gibbony estate out of the money. This is not strictly true. If it should appear on - the further trial that at the time of this transaction Wilson could have paid this debt or had property out of which the debt could have been made, then the giving of this second note and mortgage must be considered a voluntary payment by Dr.. Hudson; and action will now be maintainable; for only on-the ground of necessity,- and to save the property from sacrifice under judicial- proceedings, could Dr. Hudson interfere. So, also, if on the maturity of the present note the plaintiff desires to take it up and to close the transaction with Dr.. Hudson, all that the estate will have to do will be to give reasonable notice of such intention, and then if the parties a second time renew the mortgage lien it will be a voluntary transaction on their part which releases the estate from any legal or equitable obligation, and then this action will be maintainable. In other words, and to close .this opinion,, equity always looks beyond the mere form of a transaction, the mere paper evidences, and goes to the substantial merits and equities. In this case Dr. Hudson purchased this property burdened with a mortgage. His obligation was to pay the amount of that mortgage when the property was released from its burden. He was not called upon to incur costs, or make sacrifices, or to pay the amount of that mortgage twice.. It was the duty of the grantor or the grantor’s estate to protect him; if it failed to do that, to any extent that was-reasonably necessary for his own protection Dr. Hudson had a right to act.' Whenever he goes beyond the necessity of his own protectipn, then the estate of Dr. Gibbony is released, and it may maintain its action against Dr. Hudson; but it must act; it must in some way assume the burden of this mortgage, or it must obtain the release of the property from such burden. Until it does so, it has no right to ask from Dr. Hudson that, amount. This we consider the substantial and vital question in the case. The district court, seemed to place its ruling upon legal and technical grounds,, rather than upon the substantial equities. In this we think the court erred, and for this error the judgment must be reversed, and the case .remanded for a new trial.
Whether the plaintiff’s action is prematurely brought, or whether the estate must wait until further action on its part,. is a question which must be remanded for further consideration. 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 of replevin, brought by plaintiff in error (plaintiff below) to recover the possession of six head of cattle. On the trial in the district court verdict and judgment were for defendant, and the plaintiff brings the case here for review. Four errors are alleged, two only of which do we deem it necessary to consider. The first arises on the ruling of the court in respect to the admission of the testimony. In order to fully understand this question, a brief statement of some of the principal facts is necessary. Defendant owned and managed a farm, on which she kept quite an amount of stock. From 1875 to 1880 plaintiff had been working for her, a part of the time on his own place and part of the time living with her on her farm. According to his testimony he worked the first three and a half years by the month, and after that he lived upon her place and • looked after the business, but did not work by the month, though the exact' nature of the arrangement between them is not stated. During all this time he had more or less stock, which, part of the time at least,, was kept on her farm. Of the six cattle in controversy she claimed to own five, and also claimed a lien on the sixth for its feeding and care, and this claim was sustained by the verdict of the jury. In her defense she testified that in the winter of. 1879 the plaintiff had six head of cattle, but only one of them was in this suit. She was then asked by plaintiff on cross-examination this question: “Did you tell Mr. A. Hayes and his wife, in the month of August, '1879, that Kelsey then had thirteen head of cattle at your place, and could not have them until he settled with you?” And she answered thatjshe did not tell them that, or any such thing, then or at any other time or place, or any other thing of the kind. She was also asked this question: “Did you say to Jake Eosebaugh, in the presence of plaintiff Kelsey, in the winter of 1879 and 1880, at your house, that Kelsey had twelve head of cattle at your place, and that if Kelsey would go away from home and attend to some business for you, you would have your son Jimmy and Don Owen attend to Kelsey’s cattle while he was gone?” To which she answered: “I never did tell him that then, or at any other time, or anything of the kind.” After the defendant had finished, plaintiff called A. Hayes, who testified that in August, 1879, he had a talk with the defendant at his house about the cattle Kelsey owned. Plaintiff then asked the question: “State whether or not the defendant told you- and your wife in your house in the month of August, 1879, that Kelsey had thirteen head of cattle at her place, and could not have them until he settled with her.”
This question was objected to, and the objection sustained. A corresponding question was asked to Jake Eosebaugh, and a similar ruling was made. Was this ruling erroneous? Counsel for defendant contend that it was not, for two reasons: First, because no proper foundation was laid; and second, because it was not impeaching evidence, but a part of plaintiff’s original case. It is conceded that the general rule prevailing in. this country, recognized in all the states with perhaps one or two exceptions, and in force in this state, is, that before impeaching testimony of that character can be offered, the attention of the witness who is sought to be impeached must first be called to the time, place and person involved in the supposed contradiction. (1 Greenl. Ev., 13th ed., § 462.) In each of these cases in the preliminary question to the defendant, the exact place and person were named. The only indefiniteness was as to the time. In the one case simply the month was given, and in the other the winter season. Is this such indefiniteness as prevents the introduction of impeaching testimony?
We think not. The purpose .of requiring these preliminary questions is, to call the attention of the witness to the matter, so that if any explanation can be given it may then be given; and all that is necessary is to make the time, place and person so definite that with reasonable certainty the memory of the witness may be refreshed and directed to the circumstances of the alleged •conversation. Now if the defendant at the house of Mr. Hayes had had, during the month of August, 1879, any conversation in respect to the cattle owned by plaintiff, she could hardly have forgotten it. Her recollection would have been little if any refreshed if the exact hour and exact day had been named; and the same may be said as to her conversation in her own house with the witness Rosebaugh, in the presence of the plaintiff. It is a universal rule that the circumstances of a transaction are more easily remembered than the exact hour or day upon which they took place, and if for •the purposes of impeachment absolute exactness of date is required, it would often render such testimony immaterial. It is not to be presumed that witnesses who may remember a ■conversation will always be able to state the exact day or hour upon which it took place. We think therefore this •ground for sustaining the ruling of the court is not tenable. (Wharton’s Ev., §§ 536-555.) As this was the only ground of objection raised in the court below to the introduction of this testimony, it is perhaps not really necessary to consider ■the further point for the first time presented in this court, yet that ground we also think is untenable. We understand that the rules in respect to the impeachment of witnesses by proof of contradictory statements are not changed by the fact that the witness sought to be impeached is also a party, (Varona v. Socarras, 8 Abb. Pr. 302,) and the fact that the ■admissions of the defendant might have been introduced by the plaintiff in his evidence in chief, does not necessarily prove that they are not also admissible as testimony in rebuttal. It may also be very much doubted whether these statements in reference to the number of cattle owned by Kelsey and kept by defendant, bear so directly upon the question of plaintiff’s ownership of these cattle in controversy, as to have been admissible as original evidence. They contained no direct reference to these cattle, and it is only in connection with her testimony as to the number of cattle Kelsey had that her different statements outside the court room became material. Taken in connection with such testimony they are material, and where a case rests upon such contradictory and conflicting testimony as the one at bar, they might have weight with a jury in reaching a conclusion. We think the court erred in ruling out this testimony; that the error' was material, prejudicial to the rights of the plaintiff; and upon this account the case must be reversed, and the case remanded for a new trial.
The only other question we deem it necessary to notice arises upon defendant’s claim of a lien for feeding and care upon the single animal which the jury found belonged to the plaintiff. Plaintiff contends that notwithstanding the defendant had kept this animal and fed and cared for it, she had, in the absence of a special contract therefor, no lien fqr the value of such feeding and care. This contention is based upon the proposition that at common law the agister had no lien for the pasturage of cattle, and that the statute only gives such a lien to those who make a business of feeding cattle. It may be conceded that at common law one who had pastured cattle had, in the absence of special contract, no lien therefor. Edwards in his work on Bailments, page 279, thus states the law in respect to bailments: “The bailee for hire has his lien for his reasonable charges whenever by his labor and skill he has imparted additional value to the goods. This rule does not extend to the farmer who receives the horses or cattle of another to pasture, unless there be an agreement to that effect.” In-support of this he cites Chapman v. Allen, Cro. Car. 271; Yorke v. Grenaugh, 2 Lord Raymond, 868; Judson v. Etheredge, 1 Cromp. & Mees. 743. See also the American cases of Lewis v. Tyler, 23 Cal. 364; Goodrich v. Willard, 7 Gray, 183; Willis v. Barrister, 36 Vt. 220; Bissell v. Pearce, 28 N. Y. 252. Our statute (Comp. Laws 1879, ch. 58, § 2) reads: “The keepers of livery stables and all others engaged in feeding horses, cattle, hogs, or other live stock, shall have a lien upon such property.” Counsel would construe this as reading, keepers of livery stables and all others engaged in the business of feeding horses, etc., and argue that these last words include only those who make it a regular business, either exclusively or partially, to feed stock. As the first term is a term descriptive of an employment, the other words must also refer to a similar employment; and they urge that it would be an unwarranted extension of the language to apply it to the case of a farmer who takes a single steer or horse of his neighbor to pasture. (Conklin v. Carver, 19 Ind. 226; Alt v. Weidenberg, 6 Bosw. 176.)
There is force in this argument, and especially when we consider simply the grammatical arrangement of the words; and yet we shall not absolutely decide this question, for we are constrained to think that even upon the plaintiff's theory, the defendant must be adiudged to be within the . ° ° protection-of the statute. And first we may remark that the rule of the common law, though unquestionably established as above stated, does not rest upon the soundest foundation, and has at least been questioned. In the later editions of Story on Bailments the rule is stated as above, but with a query. (Story on Bailments, § 443.) In the case of Hoover v. Epler, 52 Pa. St. 522, the court, by Thompson, Judge, uses this language :
“Gibson, C. J., in Steineman v. Wilkins, 7 W. & S. 466, in treating of the doctrine of liens by warehousemen and bailees, notices, with seeming satisfaction, the extension of it to other than bailments for skilled labor, or locatio operi faciendi, when something is to be done upon the thing bailed by one skilled, citing Bevan v. Waters, Moo. & M. 235, in which a trainer was allowed to retain for fitting a race horse for the turf, and doubts the doctrine of the cases in England which deny that the agister of cattle has a lien. The foundation upon which this seems to rest is the idea above stated, to wit, that the lien results from labor and skill, and not from the improved condition of the thing bailed by the labor and care of an unskilled bailee. cIt is/ he said, ‘difficult to find an argument for the position that a man who fits an ox for the shambles, by fattening it with his provender, does not increase its intrinsic value by means exclusively within his control.’ Certain it is, that the doctrine of liens in favor of bailees is not retrograding, but advancing, and is a wholesome restraint ■on the credit system, which is generally injurious in individual transactions to both parties. Ch. J. Best, in Jacobs v. Latour, 5 Bingham, 132, said that ‘the doctrine is so just between debtor and creditor, it cannot be too much favored.’ So in Kirkman v. Shawcross, 6 T. R. 17, Lord Kenyon said ‘it had been the wish of the courts in all cases and at all times to -carry the lien of the common law as far as possible.’ ”
In that case a party who hired as a groom to take charge ■of a horse, while refused a lien for his services as groom was awarded a lien for the feed, keeping and shoeing of the animal, which should have been furnished by the owner. See also Lord v. Jones, 24 Me. 439; Harris v. Woodruff, 124 Mass. 205. Again, the theory of the common law was, that if the labor and skill of the bailee increased the value of the article bailed, he had a lien. In other words, it was the profit of the bailor and not the loss of the bailee which determined the lien. Now it would seem far more just that when the bailee parted with anything, either property or labor, at the instance of the bailor, he should be protected irrespective of the question whether such property or labor increased the value of the thing bailed, or simply preserved it in existence. Oftentimes indeed, as suggested by C. J. Gib' son in the quotation just made, the feeding and care of the agister actually increase the intrinsic value. Further, it may be remarked that the general tendency of all legislation and adjudication is to afford protection to him who parts with labor or material for the benefit of another. Witness the various mechanics-lien laws for the protection of those who ■bestow labor or furnish material for the improvement of real •estate, the law requiring railroads to give a bond to secure the payment of all laborers, and the statutes like the one now in consideration before us. These statutes, which rest •upon obvious considerations of justice, are to be reasonably •construed in order to accomplish the ends intended. Now it appears from the plaintiff’s testimony that the defendant had for a series of years been keeping and feeding his stock. This is not a case where a farmer has only for a single season pastured a single head of stock for a neighbor, but where for year after year the party has pastured and fed several head •of stock. It is true that she only did this for one person, but still she did it to such an extent and for such a length •of time, that it seems to us she comes fairly within the protection of the statute. She was engaged in feeding his stock. That, pro hao vice, may be considered her business. No one would for a moment seriously contend that a party must engage in it as an exclusive business before becoming entitled to the protection of the statute. Suppose, as in the case of Brown v. Holmes, 13 Kas. 482, that 92 cattle were wintered for a single person: could it be said for a moment that the agister was not engaged in the business of feeding and taking •care of cattle, simply because he had only the cattle of one person ? So in this case, while the number of cattle is not so great, yet the length of time is much greatér. We think therefore the ruling of the district court was right, and that the defendant was fairly within the protection of the statute.
The other two matters complained of will probably not arise on a subsequent trial, and need not therefore be noticed. For the error above mentioned the judgment of the district court will be reversed, and the case remanded with instructions 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 conviction for aggravated robbery. K.S.A. 21-3427.
On August 18, 1980, at 12:35 p.m. Steve Coltharp, chief of police in Cherryvale, received an anonymous telephone call at the police station from what sounded like a middle-aged, Caucasian female. The caller stated that an accident had occurred out near the cemetery and the drivers of the cars were fighting. Coltharp went to the cemetery, which is two miles east of the Town and Country Market, and found no such accident and no fight. Upon arriving back at the police station at 12:50 p.m., Coltharp received another telephone call, this one from the Town and Country Market, advising him they had just been robbed. The robbery occurred while Coltharp was investigating the false tip from the anonymous caller.
Sheila Milam was cashier at the Town and Country Market on the day of the robbery. Between 12:00 noon and 1:00 p.m. on that day she was approached by a man with a gun who demanded money. The man was described as middle-aged, wearing brown pants and a checkered shirt. His hair was black with streaks of silver and he had a bandaid on his face. Milam stated the robber was in a hurry and almost ran into George Montgomery while leaving the store.
Montgomery testified he had been in the Town and Country Market just after 12:30 p.m. on August 18,1980. While he was in the store a man he described as wearing brown slacks and a checkered shirt, with a bandaid on his cheek and sandy grayish hair, brushed past him. Montgomery proceeded to the checkout stand where the crying Sheila Milam informed him she had just been robbed. Montgomery identified the appellant at trial as the man he had seen in the store on the day of the robbery.
Sue Johnston, an employee of the Town and Country Market, was in the parking lot of the store between 12:00 noon and 1:00 p.m. on August 18, 1980. She observed a man with a bandaid on his cheek run out of the store and climb into a green Pontiac. Johnston thought perhaps the man was a shoplifter. Johnston left the parking lot in her vehicle and proceeded south on U.S. Highway 169. She stopped to talk to her son along the highway in town, and while there she was passed by the vehicle she had seen in the parking lot. Johnston described the vehicle as a green Pontiac with a California license plate; she believed the license number contained 9’s and 0’s. She testified when shown State’s exhibit number four, California license plate 909 WKX, she believed it could have been the tag she saw. Her observations were reported to Chief Coltharp.
At about 1:20 p.m. on the same day, County Commissioner Ray Caldwell was on his way home from a commission meeting. He had just heard an announcement on KGGF radio that the Town and Country Market in Cherryvale had been robbed by an armed robber and that a green Pontiac with California plates was involved. At that point, Caldwell observed a green Pontiac with California license number 909 WKX headed south on Sunflower, a county road. Caldwell followed the vehicle to a rural farmhouse. He called the sheriff and proceeded back to the driveway of the farmhouse to wait for the law enforcement people.
Sheriff Art Schenk and members of his department were notified of Caldwell’s observations. Since they had already been advised of the armed robbery, they were out patrolling the county roads. Schenk and his deputies proceeded to the farmhouse and surrounded it. They soon took its three occupants, appellant, his wife and son, into custody. Sheila Milam was brought to the farmhouse for an attempt at identifying the appellant. She was crying and shaking and hid behind deputies when asked to look at the appellant. She was unable to make the identification, explaining later that during the robbery she looked primarily at the weapon. The appellant and his wife and son were then incarcerated.
In due course appellant was tried and a jury convicted him of aggravated robbery. He appeals.
Appellant first contends his warrantless arrest was improper and the evidence obtained from the farmhouse subsequent to the arrest, including the money, gun and license plates, should therefore be suppressed.
After Commissioner Caldwell notified authorities of his observations, the farmhouse was surrounded. A deputy observed Barbara and Rick Morgan, appellant’s wife and son, in back of the house, along with the green Pontiac. The sheriff then shouted for everyone in the house to come out. Appellant, his wife and son followed his order and surrendered. The house was checked for other persons. No one else was found. A search warrant was then obtained and the house was searched and evidence seized.
There is no contention the search itself was unlawful. Appellant argues only the arrest was improper and any subsequent evidence obtained is inadmissible. K.S.A. 22-2401 states: “A law enforcement officer may arrest a person when . ... (c) He has probable cause to believe that the person is committing or has committed (1) A felony . . . .” “Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances and exists when the practical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed.” State v. Brocato, 222 Kan. 201, 203, 563 P.2d 470 (1977).
There is obviously ample evidence to support a finding of probable cause for arrest. The officers had evidence a person driving the getaway car was in the farmhouse. Further, they had a description of the robber which matched Morgan at the time he surrendered. There is no merit to appellant’s contention.
Appellant next maintains the district court erred in admitting into evidence a statement made by him to the county attorney outside the presence of defense counsel.
Appellant’s first appearance before the Montgomery County District Court came on August 19, 1980, the day after the robbery. At that time counsel was appointed. During the first appearance appellant made statements to the effect he had committed the crime, that he would take the blame for it and his wife and child should go free.
Immediately following his first appearance, while still in the courtroom, Morgan requested to be taken to the county attorney so he could give a complete statement. He was immediately escorted to Montgomery County Attorney Paul Oakleaf’s office where he was administered a Miranda warning. He waived his right to remain silent and have counsel present. He had not yet consulted his court-appointed attorney. Subsequent to the waiver, Morgan gave a statement implicating himself in the robbery. The statement was later introduced in evidence at trial over appellant’s objection.
It should first be noted appellant is not claiming the statement he made to the county attorney was not given voluntarily. Nor is there an allegation his Miranda rights were violated. He does contend, however, that in talking with Morgan outside the presence of defense counsel, the county attorney violated DR 7-104(A)(1) of the Code of Professional Responsibility and that evidence taken in violation of this rule should have been suppressed. DR 7-104(A)(l) (228 Kan. cxv), states:
“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 the matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”
The contested issue has been dealt with by various state and federal courts. Appellant relies mainly on the 10th Circuit case United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied 412 U.S. 932 (1973). There the defendant was charged with several violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Defense counsel was appointed September 22, 1971. On October 18,1971, a narcotics agent obtained a statement from defendant in the absence of and without the knowledge of defense counsel. The court noted the unethical conduct of the prosecution in attempting to use the statement in question. It also agreed with the defendant that DR 7-104(A)(l) was applicable in both civil and criminal cases. The court then held:
“[0]nce a criminal defendant has either retained an attorney or had an attorney appointed for him by the court, any statement obtained by interview from such defendant may not be offered in evidence for any purpose unless the accused’s attorney was notified of the interview which produced the statement and was given a reasonable opportunity to be present. To hold otherwise, we think, would be to overlook conduct which violated both the letter and the spirit of the canons of ethics. This is obviously not something which the defendant alone can waive.
“A violation of the canon of ethics as here concerned need not be remedied by a reversal of the case wherein it is violated. This does not necessarily present a constitutional question, but this is an ethical and administrative one relating to attorneys practicing before the United States courts.” 474 F.2d at 112.
Cf. United States v. Crook, 502 F.2d 1378 (3rd Cir. 1974), where the court held the federal statute requiring a trial judge to admit into evidence a statement made voluntarily controlled over the provisions of the Code of Professional Responsibility.
More recently a federal district court has provided some rationale for the Thomas ruling. In United States v. Batchelor, 484 F. Supp. 812 (E.D. Pa. 1980), the court held that in a situation such as that in the case at bar the government’s argument the defendant waived the presence of counsel is irrelevant because DR 7-104(A)((1) does not contemplate waiver. The court noted “the important societal interest at stake in insuring that laypersons not make decisions of major legal implication without the advice of counsel.” As such “the Rule to some degree promotes values of constitutional dimension.” 484 F. Supp. at 813.
This court has never considered the specific question raised. In State v. Johnson, 223 Kan. 237, 573 P.2d 994 (1977), the defendant voluntarily made statements to an undersheriff outside the presence of his appointed counsel. The court quoted the two paragraphs from Thomas set out above, but then stated at page 243:
“This court has held, under somewhat different circumstances, that failure to have counsel present does not ‘ipso facto’ make a defendant’s statement involuntary. [Citations omitted.]
“ ‘An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the defendant in his counsel’s absence.’ ”
More recently, in State v. Costa, 228 Kan. 308, 314, 613 P.2d 1359 (1980), we held:
“An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the defendant in his counsel’s absence.”
The Colorado appeals court touched on the issue and has seemingly followed the same rule as this court. In People v. Pierson,-Colo. App._, 633 P.2d 485 (1981), it stated:
“Thus, it is our view that once a criminal defendant has either retained an attorney, or had an attorney appointed for him by the court, any statement obtained by interview from such defendant may not be offered into evidence for any purpose unless the accused’s attorney has been notified of the pending interview and given a reasonable opportunity to be present [citation omitted], or unless the defendant has expressly waived his right to have his attorney present during the specific questioning session at which the statement is obtained.” p___ 633 P.2d 488.
A well-reasoned and detailed discussion of the problems raised by appellant’s contention can be found in People v. Green, 405 Mich. 273, 274 N.W.2d 448 (1979). There the facts were essentially the same as the case at bar. Defendant made a statement in the presence of the assistant prosecuting attorney which was used against him at trial. On appeal he did not argue the authorities failed to comply with Miranda but that the assistant prosecutor had violated DR 7-104(A)(l) and as such the statement should be inadmissible.
The court unanimously agreed the assistant prosecutor violated the Code of Professional Responsibility. On the issue of whether the statement should be suppressed because of this misconduct the court split four to three. The majority opinion stated:
“The defendant has argued that the violation of DR 7-104(A)(l) was a violation of his rights and that unless his statements are suppressed, he will have no effective remedy to redress the wrong done to him.
“This argument rests upon a basic misconception of the Code of Professional Responsibility. The provisions of the code are not constitutional or statutory rights guaranteed to individual persons. They are instead self-imposed internal regulations prescribing the standards of conduct for members of the bar. Although it is true that the principal purpose of many provisions is the protection of the public, the remedy for a violation has traditionally been internal bar disciplinary action against the offending attorney. The sanctions available are by no means trivial. The attorney faces permanent disbarment. In these respects the provisions of the code are no different from the provisions found in the codes of conduct for other professions, such as medicine or architecture. They are all self-governing in-house regulations.
“The admissibility of evidence in a court of law, on the other hand, is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions.” 405 Mich, at 293-94.
The opposite view is found in People v. Hobson, 39 N.Y.2d 479, 481, 348 N.E.2d 894 (1976), where the court held:
“Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer [citations omitted]. Any statements elicited by an agent of the State, however subtly, after a purported ‘waiver’ obtained without the presence or assistance of counsel, are inadmissible.”
Here there was clearly a violation of DR 7-104(A)(l) which cannot be condoned. Neither can we permit a defendant to waive an ethical violation, thereby allowing admission of evidence obtained in violation of the Code. It is not a right secured to him to waive. The prosecutor is a lawyer first; a law enforcement officer second. The provisions of the Code of Professional Responsibility are as applicable to him as they are to all lawyers. We agree with the Michigan court, however, that the function of the Code of Professional Responsibility is to prescribe the standards of conduct for members of the bar. The provisions of the Code are unrelated to the admission of evidence. We therefore adopt the Michigan rule and hold the trial court did not err in admitting the evidence adduced by the prosecutor. Sanctions for violation of DR 7-104(A)(l) are irrelevant to this case.
Appellant next argues it was error not to discharge prospective jurors when he appeared briefly before them in jail garb.
On February 24, 1981, the first day of trial, the appellant was brought from the county jail to the courtroom without having changed into civilian clothes. At that time the prospective jurors were sitting in the courtroom. The clothes Mr. Morgan was wearing were described by the judge as follows:
“[W]hite short-sleeved shirt with two breast pockets and a nameplate tag type of cloth — type of cloth nameplate that you see in mechanic’s garages, other places that usually have the name on it, and either that or the name of the firm. But, in this particular case it does have the letters M.P. and the letters are large, but the lines are thin. The trousers are blue. The defendant is wearing black socks and kind of a chukka boot, three-quarters height desert boot type thing, suede leather. They are worn, but they’re not in tatters. They are not excessively worn, in other words. I see there are no numbers visible on the uniform that I can see.”
Prior to juror selection appellant moved the court to discharge the prospective jurors. The judge denied the motion finding appellant was not prejudiced by his appearance in jail clothes. Before the trial started, however, civilian clothes were obtained for Mr. Morgan to wear. The trial judge offered to admonish the jury but defense counsel made no such request. Voir dire was then conducted and defense counsel never inquired of the jury panel whether any of the prospective jurors had noticed the jail clothing or had been prejudiced by it.
This case is directly in point with State v. Hall, 220 Kan. 712, 556 P.2d 413 (1976). There, prior to jury selection the defendant appeared in jail garb. Defense counsel moved for a mistrial. The trial judge denied the motion but declared a recess and allowed the defendant to obtain civilian clothing. The trial then resumed. This court affirmed, noting “the appearance of an accused in prison garb at a trial or some portion thereof, does not in and of itself constitute reversible error. It must be shown that the accused was prejudiced by such appearance in that such appearance resulted in an unfair trial.” 220 Kan. at 715.
Here there was no showing of prejudice by the appellant. The trial court’s ruling was proper.
Appellant finally argues the evidence was insufficient to support a conviction for aggravated robbery. This court in State v. Carr, 230 Kan. 322, 326, 634 P.2d 1104 (1981), recently noted the oft-repeated standard of review on appeal for determining whether evidence is sufficient to support a conviction: “Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt?” Clearly the great amount of evidence against appellant, including an eyewitness identification, is sufficient to support his conviction. The fact that the clerk at the store, who was frightened and stared primarily at the robber’s gun, could not identify Morgan does not detract from this conclusion.
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The opinion of the court was delivered by
Miller, J.:
This is a divorce case. The defendant, Eula A. Cook, appeals from the trial court’s approval of a property settlement agreement. The matter was heard by a panel of the Court of Appeals and its opinion, reversing the trial court, appears as Cook v. Cook, 7 Kan. App. 2d 179, 638 P.2d 980 (1982). The issues are whether the trial court abused its discretion in approving the property settlement agreement entered into by the parties, whether noncompliance with Supreme Court Rule No. 164 (228 Kan. lxxx) is jurisdictional, and whether defendant’s attorney fees were excessive. The Court of Appeals held that noncompliance with Rule 164 is not jurisdictional, but that the trial court abused its discretion in approving the property settlement agreement and in approving the fees. We granted review.
The facts are set out in some detail in the opinion of the Court of Appeals, and those facts need not be restated at length here. The marriage of the parties lasted for thirty years, during which they accumulated substantial property including but not limited to two homes, over 4,000 acres of crop and pasture land in Kansas and Colorado, mineral interests, machinery, livestock, growing crops, feed, grain, credits and investments. Plaintiff filed a detailed and itemized list of these assets with the trial court, but did not estimate the value. It is agreed that no factual statement as required by Rule No. 164 was furnished to the trial court.
The parties, with the knowledge of their attorneys, engaged a third attorney, Mr. Milliken, to prepare a property settlement agreement. The parties went to his office and he prepared it at their direction. Both plaintiff and defendant signed it. Both asked the trial court to approve it.
Mr. Cook testified that the value of the property going to Mrs. Cook under the property settlement agreement was in the neighborhood of $850,000 to $900,000 and that it was clear and unencumbered. He estimated the value of the property going to him to be in the neighborhood of $2 million dollars, with indebtedness against that property of approximately $1 million dollars, all of which was to be assumed and paid by him. Mrs. Cook did not estimate the valué of the property, and no other evidence of value was presented to the court.
The trial judge examined the agreement very carefully, and he conducted a lengthy examination of Mrs. Cook at the close of her testimony, as set forth in the Court of Appeals’ opinion. The judge then said:
“[DJivorces are sometimes emotional things and particularly where parties have been married for some thirty (30) years as in this case. I am going to grant the divorce to each party from the other on the grounds of incompatibility. Now, insofar as the property settlement agreement is concerned, I want to make some comments. I don’t find from the evidence presented and from the questions that I asked both Mr. and Mrs. Cook any indication of actual duress or coercion in the signing of this property settlement agreement. I think the defendant is a competent person, I think that she understands the nature of the farming operation, she has been involved in it for some thirty (30) years and I think she is aware of the business as you would expect her to be. There are — in fact, I am saying that I feel both the plaintiff and the defendant understand the nature and extent of the property involved in this case. There are many factors which go into an agreement and certainly I am probably not aware of all of those factors. Mrs. Cook referred to the fact that this case and its continuation was upsetting to her and certain members of her family, I’m sure that that is probably true, but I do feel that both parties entered into the agreement, which apparently was prepared by Mr. Milliken and, in fact, states that it was prepared by Mr. Milliken at the direction of the parties, and I feel that they knowingly and voluntarily entered into that property settlement agreement and that both parties have specifically asked me from the witness stand to approve the property settlement agreement today. And these two people are competent adults and they understand and know the nature of their property better than, I’m sure, either of the attorneys and certainly me, and so I’m going to approve the property settlement agreement as it is prepared and based on the questioning and taking into consideration the objection that Mr. Oglevie [defendant’s attorney] has registered to the property settlement agreement. But those are the findings that I am going to make in this case in approving the property settlement agreement. Insofar as attorney’s fees are concerned, apparently that’s been discussed between the clients and counsel, there was no objection registered to that and the attorney’s fees may be journalized in accordance with the property settlement agreement and included in the decree in accordance with the testimony entered concerning attorney’s fees.”
The principal issue is, of course, whether the trial judge abused his discretion in approving the property settlement agreement. K.S.A. 1981 Supp. 60-1610(J) [formerly K.S.A. 1610(c)] requires the trial judge to examine a property settlement agreement to determine whether it is “valid, just and equitable.” If the trial court approves the agreement, then pursuant to the statute, the agreement is incorporated in and becomes a part of the final decree. See In re Estate of Sweeney, 210 Kan. 216, 223, 224, 500 P.2d 56 (1972).
Many cases have held that upon appeal, a trial court’s division of the property in a divorce case will not be disturbed unless the division is such as to constitute a clear abuse of discretion. McCain v. McCain, 219 Kan. 780, 785, 549 P.2d 896 (1976); Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976); Downing v. Downing, 218 Kan. 549, 542 P.2d 709 (1976); LaRue v. LaRue, 216 Kan. 242, 531 P.2d 84 (1975); Stayton v. Stayton, 211 Kan. 560, Syl. ¶ 1, 506 P.2d 1172 (1973).
A trial court has the initial duty of examining a property settlement agreement to determine if it is “valid, just and equitable.” Once the trial court has made this finding and has approved the agreement, at the request of both parties, then upon appellate review we are limited to a determination of whether the trial court’s action in approving the agreement was a clear abuse of discretion. In Lewis v. Lewis, 4 Kan. App. 2d 165, 603 P.2d 650 (1979), the trial court had refused to approve an oral separation agreement, but had modified it in order to make it “valid, just and equitable.” The modified agreement was then made a part of the final order, judgment and decree. The Court of Appeals, in reviewing the judgment, said:
“In conformance with the general rule of appellate review of a division of property . . . our review of the trial court’s modification of a separation agreement made prior to its incorporation in the decree is limited to considering whether the modification constitutes an abuse of discretion.” 4 Kan. App. 2d at 167.
The same standard of review is logically applicable to a trial court’s approval of a proposed property settlement agreement.
We have discussed and defined abuse of judicial discretion many times in our opinions. In Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973), a divorce case in which the appellant challenged the trial court’s division of property as an abuse of discretion, we said:
“The discretion of the trial court is, of course, subject to appellate review and correction where there has been a clear-cut abuse of discretion. In its exercise a judge may not be arbitrary or whimsical. We have held on a number of occasions that abuse of judicial discretion, as that term is ordinarily used, implies not merely an error in judgment, but perversity of will, passion or moral delinquency when such discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence. (Goodman v. Goodman, 188 Kan. 41, 44, 360 P.2d 877.)
“In Reedy v. Reedy, 175 Kan. 438, 264 P.2d 913, we described judicial discretion in the following language:
‘. . . Discretion may be defined as the freedom to act according to one’s judgment. Judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence — to act upon fair judicial consideration, and not arbitrarily. When so acting in a matter committed to the discretion of the court by the law the judgment ought not to be overruled by a reviewing court, for to do so would be to deny the right to exercise the discretion given by the law itself . . .’ (p. 440.)
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” 211 Kan. at 561-62.
The Court of Appeals found that there was no duress or coercion, and we concur in that conclusion. The plaintiff, defendant’s mother, her brother, and her children all urged defendant to get the matter settled. She made the appointment with the third attorney for the preparation of the agreement, she went to the office of that attorney in company with her husband, she was present during the preparation of the agreement, she signed it, and she asked the trial court to approve it. Though she was anxious to have the matter resolved, the record does not disclose that she was under duress or coercion.
The Court of Appeals found that the agreement “fails to include the parties’ interest in a large acreage they worked as tenant farmers.” We have reviewed both the inventory filed by the plaintiff some six or seven weeks prior to trial, as well as the property settlement agreement of the parties, and find that both enumerate some six farm leases, covering 2,839 acres of land which the parties leased from other persons. The property settlement agreement is twenty-three pages in length, is quite detailed, and specifically assigns the farm leases to the plaintiff.
The trial judge was very patient, careful, and thorough in discussing the proposed settlement agreement with the defendant, in order to make sure that she understood the agreement and her right to litigate the matter if she did not want the judge to approve it. At the conclusion of this lengthy exchange, she asked the judge for approval of the agreement. Viewing the record as a whole, we cannot say that the trial judge abused his discretion in approving the property settlement agreement.
The Court of Appeals found that noncompliance with Supreme Court Rule No. 164 (228 Kan. lxxx) was not jurisdictional, but that the rule mandates compliance by counsel, subject to the trial court’s discretionary waiver. We agree. Though compliance with the rule is not mandatory, compliance is certainly the better and more preferable rule. The record in this case would be much clearer, had the rule been followed.
Finally, we turn to the matter of attorney fees. The property settlement agreement provides that “each of the parties hereto shall pay his or her own attorney fees but the amount of such fees shall be subject to approval by the Court and shall be included in the journal entry of judgment . . . .” (Emphasis supplied.) The trial court was thus called upon to approve the attorney fees, not to fix the attorney fees. The trial judge noted in his remarks that fees had apparently been discussed previously by the parties and their attorneys, and there was no objection to the amount of the fees as stated. The amount of property involved was in the neighborhood of $3 million dollars; the case had been pending for about six months at the time of trial, and the court was aware of the matters presented prior to trial. Under all of the circumstances we cannot say that the trial court abused its discretion in approving the fees.
The judgment of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.
Herd, J., not participating. | [
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The opinion of the court was delivered by
Holmes, J.:
This appeal involves three cases that were consolidated at the trial court level and they are consolidated on appeal. Plaintiffs in each case are landowners who in Count I of the petitions are claiming damages, due to flooding of their properties, on the theory that the defendants have created and are maintaining a nuisance which results in periodic flooding. The defendants are the City of Kansas City, Kansas (City), the Secretary of Transportation, State of Kansas, and L. Frank Wilcox. Plaintiffs, in Count II of their petitions, also assert a claim against the Secretary of Transportation of the State of Kansas on the theory of inverse condemnation. The trial court sustained motions for summary judgment by all defendants in each case and the various plaintiffs have appealed.
The underlying facts in each case are similar and will be set forth as they apply to all plaintiffs. Additional facts as they apply to the plaintiffs in each separate case will be set forth as the various arguments and points on appeal are considered. The plaintiffs, when referred to individually, will be done so by name and when all of the plaintiffs are being referred to as a group, they will be called the plaintiffs or the appellants.
The plaintiffs are owners of tracts of land located in the vicinity of 55th Street and State Avenue in Wyandotte County. State Avenue runs generally in an east-west direction while 55th Street runs generally in a north-south direction. Plaintiffs separate properties lie to the north and east of the 55th Street and State Avenue intersection and front upon 55th Street. To the rear of the properties is located a natural watercourse or drainage ditch, which runs in a southwesterly direction toward 55th Street where it passes through a box culvert under a bridge and then makes its way to State Avenue where the water passes through a culvert constructed by the State of Kansas in 1934. Thus plaintiffs’ properties lie in a triangular area formed by 55th Street in front and the drainage ditch at the rear. During times of heavy rains, silt and debris, which have accumulated at the culverts and in the ditch bed, block the flow of water under both 55th Street and State Avenue causing the water to back up and flood the properties of the plaintiffs. Plaintiffs also allege the 55th Street culvert is further obstructed by sewer and other pipes installed by the City. The City is responsible for the maintenance of 55th Street and the Secretary of Transportation, State of Kansas, for the maintenance of State Avenue. Poole and Brunker own two duplexes located on 55th Street north of State Avenue. McGowen owns rental property north of Poole and Brunker and the Bowens own and reside in property just north of the McGowen property.
These actions are based upon flooding of the properties of all of the plaintiffs on August 25,1975, September 10 and 11,1975, and June 28, 1976. The McGowen petition was originally filed February 18, 1976; the Bowen petition on August 20, 1976, and the Poole and Brunker petition on January 13,1977. Various supplemental and amended petitions were filed thereafter.
The various plaintiffs allege that the City has created and maintains a nuisance which obstructs the flow of water under 55th Street; that the State of Kansas has created and maintains a nuisance which obstructs the flow of water under State Avenue and, as an alternative, allege a cause of action for inverse condemnation, asserting that the impounding of water on their premises creates a taking of their property for which they have not been paid just compensation; and finally, that L. Frank Wilcox, a dirt contractor, moved a quantity of rock and dirt in the area between the 55th Street and State Avenue culverts in such a manner that it obstructs the natural flow of water and therefore constitutes a nuisance.
Defendants filed appropriate pleadings asserting various defenses and after some discovery, defendant Wilcox filed a motion for summary judgment on February 15, 1979; the Secretary of Transportation filed a motion for summary judgment on February 16, 1979, and on June 5, 1981, the City filed its motion for summary judgment. No formal response controverting the allegations of Wilcox and the Secretary of Transportation, or request for oral argument was ever filed by the plaintiffs, although the record reflects several letters from various counsel advising the court that the case was ripe for a pretrial conference and reminding the court that there were several motions for summary judgment that should be heard. On June 5, 1981, the same date the City filed its motion for summary judgment, the trial court ruled on all three motions and granted summary judgment in favor of all defendants on various grounds.
It appears that defendant Wilcox, under contract with the then owners of the property west of 55th Street and north of State Avenue, had done some dirt work along the west bank of the watercourse at times between 1962 and 1969. Wilcox owned no part of the property and had no control over it after completing his duties in moving the dirt and rock for the owners. Poole and Brunker, along with the predecessor in title to McGowen, previously sued Wilcox and the City for flooding which occurred in 1969. The Honorable Joe Haley Swinehart, now judge of the Court of Appeals, directed a verdict in both cases for Wilcox and entered judgment on a jury verdict that the City was maintaining a nuisance and enjoined the City from the further maintenance of the nuisance.
With the foregoing facts before us we now turn to a consideration of the points on appeal and whether the trial court committed error in granting summary judgment in favor of the various defendants.
At the outset we pause to note that this case is one that could be aptly described as falling in the category denominated by one of our colleagues as a “litigant’s nightmare.” The plaintiffs in these various actions filed their cases in 1976 and 1977, and now over five years later the issues have not been finally resolved.
The first point raised by appellants on appeal is that the trial court committed error in making its rulings on the various motions for summary judgment without hearing oral argument. Insofar as the motions of the defendants Wilcox and the Secretary of Transportation are concerned, plaintiffs’ arguments lack merit. Their motions were filed in February, 1979. Between April of 1979 and June, 1981, very little was done by counsel to get these cases determined. On June 5, 1981, the trial court sustained the motions for summary judgment. Plaintiffs argue that under the local rules and customs of the court, they were entitled to oral argument and that the trial court erred in ruling on the motions without first hearing oral argument. Without going into a detailed recitation of the procedural facts over the years these cases have been pending, suffice it to say we have examined the record and conclude the court did not commit error in ruling on the motions for summary judgment of Wilcox and the Secretary of Transportation without first hearing oral argument. See Supreme Court Rules 133 and 141.
The motion of the City for summary judgment raises additional questions. The City filed its motion on June 5,1981, and merely stated it was adopting the statement of facts and principles of law in the motion and brief filed two years earlier by the Secretary of Transportation. The appearance docket of the trial court reflects that the summary judgment motions of all defendants were ruled on June 5, 1981, and the court’s letter decision was dated and filed June 8, 1981. Obviously the plaintiffs were given no oppor tunity to respond to or request argument on the motion of the City. Despite the unreasonable delays that occurred in this case, once the City filed its motion for summary judgment, the plaintiffs had the right to respond. The trial court’s ruling on the City’s motion for summary judgment was premature and the judgment of the trial court as to the City must be reversed.
We now move to the merits of the rulings of the trial court in sustaining the summary judgment motions of Wilcox and the Secretary of Transportation. The action against Wilcox was for a nuisance allegedly created by Wilcox sometime prior to 1969. Plaintiffs allege that each time a flooding of their properties occurs, a new cause of action arises as a result of the nuisance created in part by Wilcox. Plaintiffs rely upon our decisions which state that where there is a nuisance which is a temporary condition that is abatable, a new cause of action arises each time damage occurs. This is undoubtedly the law insofar as a person who maintains an abatable nuisance is concerned. This court has considered numerous cases where periodic flooding resulted from the acts of another and we have held that the statute of limitations begins to run at the time each loss resulting from the maintenance of the nuisance occurs and not from the time the nuisance was first created. Gowing v. McCandless, 219 Kan. 140, 547 P.2d 338 (1976), and cases cited therein. However, the rule of Gowing and its predecessors is predicated upon the defendant’s ability and duty to abate the existing conditions which constitute the nuisance. Gowing was a case in which periodic flooding of plaintiff’s property occurred due to an alleged diversion or damming of waters by the defendant. This court stated:
“It has frequently been said the principle upon which one is charged as a continuing wrongdoer is that he has a legal right, and is under a legal duty, to terminate the cause of the injury.” p. 145.
Wilcox was merely a dirt contractor who moved dirt and rock sometime prior to 1969 for the owners of the land lying downstream from the plaintiffs’ property. Assuming Wilcox was a party to creating a nuisance, any cause of action against him would accrue at the first loss following his work on the property. He had no right to reenter upon those properties and abate any nuisance which he might have created and he is not a continuing wrongdoer. When he completed his contract with the landowner, his right to control or alter the alleged nuisance ceased. All agree that the appropriate statute of limitations is two years under K.S.A. 60-513(a)(4) and as there was no continuing obligation on the part of Wilcox, the summary judgment in his favor was correct. For an early discussion of the rule set forth above, see K.P. Rly. Co. v. Mihlman, 17 Kan. 224 (1876).
Summary judgment for the Secretary of Transportation on the nuisance claim was properly granted on several grounds including the theory of governmental immunity. See K.S.A. 46-901 (Weeks, now repealed), and Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219 (1970).
Plaintiffs’ additional cause of action against the Secretary of Transportation is based upon the theory of inverse condemnation and seeks recovery based upon a taking of plaintiffs’ property and permanent diminution of the value of the property. In the instant case, the floodings of plaintiffs’ lands did not result in a permanent taking but were intermittent or periodic in nature. The periodic floodings were temporary, transient, recurring and subject to abatement and would only support temporary damages for each occurrence based upon an abatable nuisance. Summary judgment on Count II was proper. Gowing v. McCandless, 219 Kan. 140; 26 Am. Jur. 2d, Eminent Domain § 165. For a recent discussion of what constitutes a taking that will support an inverse condemnation action, see Ventures in Property I v. City of Wichita, 225 Kan. 698, 594 P.2d 671 (1979). Other grounds supporting summary judgment for Wilcox and the Secretary of Transportation, although meritorious, need not be considered further.
The judgment of the trial court granting summary judgment in favor of the defendants Wilcox and the Secretary of Transportation is affirmed and the judgment granting summary judgment in favor of the City of Kansas City is reversed and the cases are remanded for further proceedings as to the City. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This case involves a dispute between two assignees of portions of an oil and gas lease farmed out to them by Cities Service Oil Company, over the use and maintenance of roads on the leased land. Kaiser-Francis Oil Company and its district superintendent Ray Youtsey (defendants-appellants) appeal the district court's injunction against interference with plaintiff’s use of a road across the Kaiser-Francis portion of the lease and the award of damages for temporary obstruction of that road. Richard Mai d/b/a Mai Operations (plaintiff-appeliee/cross-appellant) appeals a damage award of 60% of the sum defendant Kaiser-Francis expended on rock to improve the road.
The land involved in this litigation was originally leased from the Ginther family by Cities Service Oil Company for oil and gas purposes under a base lease covering 320 acres described as: The East half of Section 22, Township 12 South, Range 16 West in Ellis County, Kansas. In 1955, Cities Service assigned a portion of the lease to Mai consisting of 40 acres in the Southeast corner. In 1973 another portion of the lease, consisting of 60 acres in the Southwest corner, was assigned by Cities Service to Kaiser-Francis Oil Company. Prior to the current dispute, all oil and gas lease operators in the area informally and amicably maintained private roads for use by all. There are no public roads in the area.
The Mai lease currently has two producing wells on the southern portion of the lease and a tank battery north of the Mai lease in question. Between the producing wells and the tank battery is a deep gully. Dispute exists between the parties whether the gully could be crossed to gain access to the tank battery. The Kaiser lease currently has two producing wells, a tank battery, and a saltwater disposal well.
Shortly after the assignment by Cities Service of the portion of its lease to Mai and Mai’s drilling of two producing oil wells, Mai used a road (hereafter referred to as the Cities Service road) across the portion of the lease retained by Cities Service Oil Company to go to its tank battery. Cities Service likewise used this road. By mutual consent Mai’s tank battery was located north of the Mai lease on the portion of the lease retained by Cities Service Oil Company. Cities Service used a road along the south side of the Mai tract which was also used by Mai and Kewanee (an operator of an oil lease south of the Ginther land), hereafter referred to as the Mai road. Originally, Mai had an agreement with Cities Service to use a saltwater disposal well located on the portion of the lease retained by Cities Service for $25 per month per well. The salt water from Mai’s two producing wells was delivered through a pipeline to the disposal well.
In 1973 when Cities Service assigned a portion of its original oil and gas lease above described to Kaiser-Francis, the saltwater disposal well and the Cities Service road were on the portion of the lease assigned to Kaiser-Francis. Thereafter, Mai and Kaiser used the Cities Service road and Mai, Kaiser and Kewanee used the Mai road. In February 1974 Kaiser-Francis increased the cost to Mai for use of the disposal well to $50 per month per well. For 25 years Mai had used the Cities Service road as a means of ingress and egress to its tank battery, and for most of that time Mai also had an agreement, which could be terminated at the will of either party, to use the saltwater disposal well now on the Kaiser lease. The saltwater disposal agreement is indirectly related to this action.
In March and April of 1980, Kaiser voluntarily and without consulting Mai rocked the Cities Service road at an expense of $5,844.38, and Mai, using the same contractor, spent $1,827.90 on the Mai road without consulting Kaiser.
In July 1980 Kaiser increased the saltwater disposal rates to $150 per well per month to every company with whom it did business. This was a prohibitive price to Mai, whose two wells were only producing four barrels of oil and eighteen barrels of salt water per day. Rather than pay the increased prices, Mai stopped using the saltwater disposal well on the Kaiser lease and began trucking its salt water off the lease. The activity of the saltwater trucks admittedly increased the traffic as well as the weight load on the Cities Service road in question, although the parties do not agree on the extent of the increase. Kaiser then approached Mai about paying one-half of the cost of the Cities Service road. Mai declined.
On October 10, 1980, Kaiser blocked the Cities Service roadway with a padlocked gate. Mai was forced to stop production and, shortly thereafter, commenced this action in district court for injunctive relief and damages. The trial court issued a temporary restraining order against Kaiser and set the case for hearing.
Kaiser answered, requesting damages and an injunction against Mai’s use of the Cities Service road. The trial court heard the injunction issues November 12, 1980, and enjoined Kaiser from interfering with Mai’s use of the road for customary oil operations, including saltwater trucks. The court further denied Kaiser’s application for injunctive relief and ordered all matters relating to damages to be heard within 30 days. Kaiser requested such a hearing and, by order filed February 24, 1981, the court awarded Kaiser $3,050.62 for the road improvements and Mai $1,416 for lost production with costs to be divided equally between the parties. The court further ruled as to future repairs the parties should agree beforehand or, in the alternative, the party incurring the expense would be liable for the entire amount.
The dispute in this case is between two assignees of portions of an oil and gas lease given by the Ginther family as lessors to Cities Service Oil Company and concerns the use of roads on the leased land. Neither Cities Service nor the lessor landowners are parties to this litigation and it must be assumed they have no objection to the use of the road in question by any party to the litigation.
Kaiser appeals the injunction order and the damage judgment; Mai cross-appeals the damages awarded Kaiser. The action was originally filed in the Court of Appeals and subsequently transferred to the Supreme Court on this court’s own motion pursuant to K.S.A. 20-3018(c).
The appellant states the issue in the case as follows:
“The basic underlying issue is whether or not the plaintiff has any right to drive large saltwater hauling trucks on defendants’ oil lease road. The answer to this question centers upon the nonexistence or existence of a prescriptive easement to use defendants’ oil lease road which is allegedly vested in plaintiff.”
The appellant attempts to simplify the broader question by asking whether Mai is “merely a permissive user of defendant’s road or does he actually possess prescriptive easement?”
The trial court awarded damages to Kaiser by giving it 60% of the cost of rocking the Cities Service road on the theory of unjust enrichment.
In our view the law of prescriptive easement has no place in this factual setting. See Taylor Investment Co. v. Kansas City Power & Light Co., 182 Kan. 511, 322 P.2d 817 (1958). The equitable theory of unjust enrichment does not apply either under these facts. Because the trial court based its award to Kaiser on a theory of unjust enrichment, we will explain in greater detail our rejection of that theory.
Fundamental contract principles applied to the facts of this case reveal no basis for recovery on a theory of unjust enrichment. Neither party claims a true contract exists, either express or implied. Confusion does seem to exist, however, over the nature of implied contracts. A contract implied in fact arises from facts and circumstances showing mutual intent to contract. Such is clearly not the case here. A contract implied in law, or quasi contract, exists regardless of assent. It is a fiction of the law designed to prevent unjust enrichment. Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 708, 549 P.2d 1376 (1976); Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, Syl. ¶ 1, 507 P.2d 268 (1973); Witmer v. Estate of Brosius, 184 Kan. 273, Syl. ¶ 3, 336 P.2d 455 (1959). See generally 17 C.J.S., Contracts §§ 4,6. As this court stated in Sharp v. Sharp, 154 Kan. 175, 178, 117 P.2d 561 (1941), “[a] quasi contract is no more than a legal device to enforce noncontractual duties.” Restitution and unjust enrichment are the modern terms for the doctrine of quasi contracts. Wheat v. Finney, 230 Kan. 217, 220, 630 P.2d 1160 (1981); United States Fidelity & Guaranty Co. v. Marshall, 4 Kan. App. 2d 9, 10, 601 P.2d 1169 (1979).
In determining whether a contract should be implied in law under the circumstances of this case, we need go no further than to note one prerequisite for unjust enrichment is a benefit conferred by the defendant on the plaintiff. 17 C.J.S., Contracts § 6. Other prerequisites to such recovery exist, see, e.g., Hyland v. Dewey, 146 Kan. 797, 73 P.2d 1038 (1937), but we need not examine them because admittedly no benefit was conferred on the plaintiff. Testimony revealed no problems with the road which required rocking. In fact, on cross-examination, Kaiser’s production superintendent testified Mai could have used the road in its prior condition. No basis in fact existed for application of an unjust enrichment theory.
The appellant Kaiser has taken the position in testimony given at the trial, through its production superintendent, and in its brief, that Mai had the right to use the Cities Service road for every purpose in operating the Mai lease except driving saltwater disposal trucks on it. This appears to be an obvious attempt to coerce Mai into using the Kaiser saltwater disposal well at Kaiser’s price. We turn now to an analysis of the lease and relevant oil and gas principles to determine whether Kaiser can so limit Mai’s access.
The original lease by the Ginthers to Cities Service Oil Company recited that it was given for the following purpose:
“[F]or the sole and only purpose of mining and operating for oil and gas, and laying pipe lines, and building tanks, power stations and structures thereon to produce, save and take care of said products, all that certain tract of land [E/2 of 22-12-16] . . . situated in the County of Ellis State of Kansas . . .
The lease further provides:
“If the estate of either party hereto is transferred, and the privilege of transferring in whole or in part is expressly allowed . . . the covenants hereof shall extend to and be binding on the . . . assigns . . .
No express provision was made for right of ingress and egress.
It is generally held that an oil and gas lease creates by implication what is necessary to effectuate the grant.
“If in the grant or reservation of a separate interest in oil and gas the grantor does not expressly grant or retain such legal relations as are necessary for the production and operation of the land for oil and gas purposes, these relations are held to be created by implication.” 1A Summers, The Law of Oil and Gas § 133, pp. 229-31 (1954 rev.).
It is generally held the mineral lessee may make reasonable use of the surface of the leased land in carrying out the legitimate object of the lease. McLeod v. Cities Service Gas Company, 131 F. Supp. 449, 452 (D. Kan. 1955), aff'd 233 F.2d 242 (10th Cir. 1956). See also Wiser Oil Company v. Conley, 346 S.W.2d 718 (Ky. 1960); Gulf Oil Corporation v. Walton, 317 S.W.2d 260 (Tex. Civ. App. 1958); Craft v. Freeport Oil Co., 563 S.W.2d 866 (Tex. Civ. App. 1978); 4 Summers, The Law of Oil and Gas § 652 (1962 rev.); Annot., 53 A.L.R.3d 16; 38 Am. Jur. 2d, Gas and Oil § 116. There seems no question that Cities Service, as original lessee of the mineral rights, acquired by implication a right of ingress and egress over the surface of the land. The question before us concerns the right of ingress and egress when one tract is farmed out to two assignees.
The original lease specifically provided that either party had the privilege of transferring its estate in whole or in part. It necessarily follows, if the worth of the mineral estate is to be maintained, that the implied rights of the lessee-assignor also pass to the assignee. See, e.g., Skaggs v. Heard, 172 F. Supp. 813 (S.D. Tex. 1959); Sun Oil Company v. Whitaker, 483 S.W.2d 808 (Tex. 1972); Gulf Oil Corporation v. Walton, 317 S.W.2d 260. As a result of subsequent assignments from Cities Service, Mai and Kaiser both have a right of ingress and egress to produce oil.
A further question arises, then, as to Mai and Kaiser’s relationship to one another. We find no case directly on point, but the early case of Compton v. Gas Co., 75 Kan. 572, 89 Pac. 1039 (1907), provides some guidance. In that case two oil and gas leases were granted on land occupied as a homestead by a widow and her minor children. The widow individually executed an oil and gas lease to the Pennsylvania Oil Company who subsequently assigned it to the defendant People’s Gas Company. The widow and children, then of age, later entered into an oil and gas lease for the same property with the plaintiff O. W. Compton, who sought to have the first lease declared void. The trial court found each lessee owned an undivided one-half interest in the mineral estate and each was entitled to possession of the premises as to the other. Neither was entitled to exclusive possession. The Supreme Court affirmed.
Although the issue in Compton dealt with the rights of lessees to the same tract of land rather than adjacent tracts, it involved leases emanating from a common source and a subsequent lessee who took with notice of the circumstances of the prior lease. In the case at bar, the lease from Cities Service to Mai was prior in time to that of Kaiser. Kaiser was on notice of the use being made of the Cities Service road by Mai. Kaiser, therefore, cannot now complain of the road use. It follows that Kaiser’s prohibiting Mai access to its lease was wrongful. The question is whether and to what extent Mai was damaged. Based on testimony that Mai lost eleven days production because of the barred gate, the trial court awarded $1,416 in damages to Mai. There is no other evidence in the record upon which the trial court could have awarded damages to Mai. Damages awarded Mai were based on the value of the oil that could have been produced for those eleven days.
Actually Mai has lost no oil from delayed production because the oil reserve is still available to him. Mai’s damage on his theory, if any, was the delay in recovering the oil from the reserve. The record, however, is barren as to what this damage may have been. Accordingly, Mai has failed to sustain his burden of proof to show that he was damaged.
Still unresolved is the issue of damages on Kaiser’s cross-claim for improvement of the Cities Service road. We find ourselves in disagreement with the trial court regarding damages on this cross-claim. Kaiser, in arguing its damage claim, emphasizes the use made of the road by both Mai and Kaiser. Kaiser does not claim the road has been damaged but rather argues Mai should pay for improvements to the road because Mai uses the road. Kaiser also expresses concern that Mai’s saltwater trucks will in the future damage the road. Both arguments miss the point. Kaiser voluntarily improved the oil lease road without consulting Mai. We find no theory under which Kaiser can recover for that voluntary improvement. As to prospective damage to the road surface, any duty owed by either party for maintenance of the surface of the land or damage to the land would be a duty owed to the landowner. See Annot., 53 A.L.R.3d 16. At this point any damage to the surface is purely speculative. Furthermore, the owners of the surface land who would suffer the loss are not parties to this action. See Nelson v. Hedges, 5 Kan. App. 2d 547, 619 P.2d 1174, rev. denied 229 Kan. 670 (1980).
The evidence clearly reveals Kaiser undertook voluntary improvement of the road on its lease without seeking Mai’s consent or contribution and with knowledge that such improvement was not necessary to Mai’s operation. There is no substantial evidence in the record to support the award of damages to Kaiser for improvement of the road bed either on the theory of unjust enrichment or under general principles of oil and gas law.
The judgment of the lower court awarding Kaiser $3,050.62 for road improvements and awarding Mai $1,416.00 for lost oil production is reversed; in all other matters the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is a comparative negligence action wherein Union Pacific Railroad Company (defendant-appellant) appeals the district court’s dismissal of Union Pacific’s claim for contribution in proportion to the percentage of causal negligence attributable to the governmental entities, City of Onaga, Mill Creek Township, and Pottawatomie County, Kansas (defendants-appellees), joined in the action pursuant to K.S.A. 60-258a(c).
Pursuant to Supreme Court Rule No. 3.05 (228 Kan. xlii), the parties to this appeal have agreed upon a statement of the case to be submitted to this court in lieu of an ordinary record on appeal. From that statement, the facts and procedural posture of the case emerge.
Four tort actions, later consolidated, were brought against Union Pacific and its freight train engineer Lewis Hendricks as a result of a single automobile-train collision in which three occupants of the automobile were killed and the driver of the automobile suffered personal injuries. The collision occurred in Pottawatomie County, Kansas, on January 21, 1979.
Within the two-year statute of limitations on the plaintiffs’ claim, defendant Union Pacific joined, pursuant to K.S.A. 60-258a(c), the City of Onaga, Mill Creek Township, and Pottawatomie County, asserting that certain conclusions of an expert indicated possible liability on the part of the governmental entities. Plaintiffs did not amend to make claims against the defendants so joined. Those defendants then moved for a ruling of the district court that the entities were joined solely for purposes of proportional determination of fault. A hearing upon the “motions for determination” was held March 13, 1981, and the district judge found that no one in the lawsuit sought recovery of monetary damages from the City of Onaga, Mill Creek Township and Pottawatomie County and that those defendants would remain parties to the lawsuit for the sole purpose of permitting the jury to consider comparative fault, if any. The governmental unit defendants directed the defendants Union Pacific and Hendricks not to settle the case on behalf of the governmental units.
Thereafter, defendants Union Pacific and Hendricks reached a settlement and compromise of claims with the plaintiffs. In return for the sum of $275,000, the plaintiffs released all parties, specifically including the City of Onaga, Mill Creek Township, and Pottawatomie County, from all claims or rights of action arising from the collision. In addition, the plaintiffs consented to cooperate with Union Pacific and Hendricks in the prosecution of any action for implied indemnity or contribution against the non-settling governmental entities. At a hearing held for that purpose, the court approved the settlement of the combined cases. The court, however, subsequently dismissed Union Pacific’s claim for implied indemnity or contribution against the governmental defendants because no valid claim had been asserted by the plain tiffs against those defendants within the time allowed by the applicable statute of limitations.
Union Pacific appeals from that dismissal, arguing that it has preserved a right to comparative implied indemnity as announced by this court in Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), and asserting that this case involves a question with respect to the procedure to be followed in pursuing a claim for comparative implied indemnity. Union Pacific states the issue: May appellant Union Pacific proceed against the governmental codefendants in a suit for comparative implied indemnity where the plaintiffs made no claim against those defendants and the statute of limitations for any claim by the plaintiffs has passed?
Defendants-appellees filed separate briefs with this court, and each argues vigorously in opposition to recognition of Union Pacific’s cause of action. Mill Creek Township, in its brief, argues the concept of comparative implied indemnity as established in Kennedy should be abolished. Pottawatomie County seeks abolition or, in the alternative, limitation of the right announced in Kennedy. The City of Onaga attempts to distinguish Kennedy.
This court has determined that the case at bar is distinguishable from the situation presented in Kennedy and, for reasons set forth below, the action for comparative implied indemnity against the governmental entities should not be allowed.
We digress briefly to comment upon the use of the term “comparative implied indemnity.” In the Kennedy case, the third party petitions filed below sought indemnification against other parties in the manufacturer’s chain of distribution and supply. The relief granted by this court, in light of the facts in the Kennedy case and the interplay of principles of comparative negligence, indemnity, and settlement, was termed an action for comparative implied indemnity. We recognize the term is not appropriate to the case at bar in which post-settlement contribution, rather than indemnity, is at issue. However, while proportional contribution is a more appropriate term in the instant case, we have no desire to belabor that distinction and cloud the issue before us which concerns procedural prerequisites to any claim for post-settlement proportional payment, regardless of the nomenclature used. We leave to future opinions the development of appropriate terminology as well as examination of the scope of causes of action for post-settlement proportional payment.
Union Pacific contends the Kennedy case itself establishes that a claim by plaintiff against the non-settling defendants is not a prerequisite to pursuit of a post-settlement comparative implied indemnity action. While it is true the plaintiffs in Kennedy did not sue the non-settling defendants, the procedural posture of the Kennedy case before the appellate courts was out of the ordinary, and generalizations regarding the procedure to be followed in pursuing a claim for comparative implied indemnity as announced in Kennedy must be tempered by reference to the facts in that case. Statements made in a judicial opinion must be read and interpreted in light of the facts which gave rise to them. See, e.g., McKinney, Administrator v. Miller, 204 Kan. 436, 437, 464 P.2d 276 (1970); Steck v. City of Wichita, 182 Kan. 206, 209, 319 P.2d 852 (1958).
The term “comparative implied indemnity” is new and, so far as we can ascertain, unique to Kansas although the concept of “partial indemnity” has been employed in other jurisdictions. See, e.g., American Motorcycle Assn. v. Superior Court, 20 Cal. 3d 578, 583, 146 Cal. Rptr. 182, 578 P.2d 899 (1978). Either term is a departure from traditional definitions of the term “indemnity” and creates the risk of confusion with traditional concepts of contribution.
Traditional indemnity contemplates shifting 100% of a loss from one tortfeasor to another, Prosser, Handbook of the Law of Torts § 51 (4th ed. 1971); 41 Am. Jur. 2d, Indemnity § 3, and may arise as the result of either an express or implied contract. Kennedy v. City of Sawyer, 228 Kan. at 454-55. Traditional contribution, on the other hand, contemplates shifting only a portion of the loss from one tortfeasor to another. Cullen v. Atchison, T. & S. F. Rly, Co., 211 Kan. 368, 375, 507 P.2d 353 (1973); Prosser, Handbook of the Law of Torts § 50 (4th ed. 1971); 18 Am. Jur. 2d, Contribution §§ 1, 2.
Both indemnity and contribution theories ameliorated the harshness of the rule of joint and several liability in tort actions prior to the advent of comparative negligence; however, their application was limited in scope. Kansas followed the common law rule of no contribution between joint tortfeasors, Alseike v. Miller, 196 Kan. 547, 550, 412 P.2d 1007 (1966), subject to a limited statutory exception for joint judgment debtors. McKinney, Administrator v. Miller, 204 Kan. 436; K.S.A. 60-2413(b). Thus, a defendant could not settle then seek contribution to distribute the loss among tortfeasors.
The implied indemnity theory presented a limited means of avoiding the application of the common law ban on contribution between tortfeasors. Kennedy v. City of Sawyer, 228 Kan. at 455. It offered, in addition, the possibility of settlement rather than the necessity of proceeding to judgment. A right to indemnification, while available to a joint judgment debtor under K.S.A. 60-2413(b), was not lost by voluntary payment of plaintiff’s claim although the proposed indemnitee did bear the burden of proving his legal liability on the claim paid. Cason v. Geis Irrigation Co., 211 Kan. 406, 507 P.2d 295 (1973); 41 Am. Jur. 2d, Indemnity §33.
In Kennedy, this court confronted the task of reconciling relatively new comparative negligence principles with established principles of settlement in tort actions. Settlements had been possible in tort actions in which a defendant intended to pursue a right of indemnification, yet traditional indemnity was not compatible with principles of comparative negligence. The court redefined the indemnity right in light of comparative negligence principles and coined the phrase “comparative implied indemnity.” It is a form of indemnity which can operate in harmony with comparative negligence and effectuate complete rather than partial settlements with plaintiffs. The Court of Appeals in Geier v. Wikel, 4 Kan. App. 2d 188, 603 P.2d 1028 (1979), recognized that one defendant can settle with the plaintiff and remove himself from the action without foreclosing the plaintiff’s options to later pursue other non-settling defendants for their proportionate responsibility. Kennedy v. City of Sawyer recognized that, under certain circumstances, complete settlement may be made with the plaintiffs and the defending parties allowed to determine their proportionate responsibility in an action for comparative implied indemnity. Kennedy recognized this right to indemnity among parties in the manufacturer’s chain of distribution and supply following settlement by one defendant of the plaintiffs’ entire claim.
The facts in the Kennedy case are of some consequence. The Kennedys, whose land lay adjacent to a tract owned by the City of Sawyer, filed a negligence action against the city and its councilman Gene Aubley after Aubley’s application of a herbicide solu tion along the city’s fence led to arsenic poisoning of the Kennedys’ cattle. The city and Aubley, pursuant to K.S.A. 60-214, filed a third-party petition against the seller of the herbicide, Continental Research Corporation, alleging Continental’s active negligence as a basis for 100% indemnification by Continental of any sums recovered by the Kennedys against the city and Aubley. Continental, in turn, filed a third-party petition against its manufacture, the Huge Company, Inc., alleging Continental’s negligence, if any, was passive and secondary to that of Huge. Continental sought 100% indemnification by Huge of any sums recovered by the city and Aubley against Continental. The trial court found the defendant Aubley guilty of active negligence in application of the herbicide so as to preclude, under principles of active and passive negligence since abrogated in Kennedy, the city’s right to indemnity from Continental. Since Continental had no liability to the city, Huge had no liability to Continental. The trial court dismissed the third-party claims in which Continental and Huge, respectively, were defendants. The city and Aubley appealed the orders of dismissal while the Kennedys’ claim was pending.
Up to this point, the parties had proceeded on the assumption that if the original defendants were found negligent, those defendants would bear the full loss unless principles of active-passive negligence allowed them to recover 100% indemnity from the third-party defendants. See, e.g., Denneler v. Aubel Ditching Service, Inc., 203 Kan. 117, 453 P.2d 88 (1969); Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P.2d 783 (1967). On this assumption, the City of Sawyer settled the entire liability with the Kennedys, obtained a release of all parties who might have contributed to the damage, and pursued the appeal of the orders dismissing the potential indemnitors, Continental and Huge.
The applicability of comparative negligence principles to the action was raised sua sponte by the appellate courts. This court ultimately determined that comparative negligence principles applied to products liability actions, that the active-passive dichotomy of tort indemnity actions did not survive the statutory adoption of comparative negligence, and that the City of Sawyer acquired a right of comparative implied indemnity against the non-settling tortfeasors. The order dismissing the third-party defendants was reversed and the case remanded to the trial court for further proceedings in accordance with this court’s views expressed in the Kennedy opinion.
In Kennedy, this court determined that, given the adoption of notice pleading, third-party practice pleadings pursuant to K.S.A. 60-214 were sufficient in form and content to raise questions of comparative negligence and indemnity as to parties served with third-party pleadings. 228 Kan. at 446-47. It was not necessary to the decision in Kennedy and this court did not attempt to decide whether joinder pursuant to K.S.A. 60-258a(c) in a comparative negligence action subjects the added party to proportional liability for any settlement made by a defending party who settles and secures a complete release of plaintiff’s claims against all those contributing to the occurrence. Although joinder is not the central issue, a decision in the case at bar requires such an examination of the position occupied by a party joined pursuant to K.S.A. 60-258a(c).
K.S.A. 60-214 and K.S.A. 60-258a(c) both promote judicial efficiency by settling all claims in one suit. See, e.g., Lester v. Magic Chef, Inc., 230 Kan. 643, Syl. ¶ 3, 641 P.2d 353 (1982); Eurich v. Alkire, 224 Kan. 236, 237, 579 P.2d 1207 (1978); Russell v. Community Hospital Association, Inc., 199 Kan. 251, Syl. ¶ 1. There are, however, significant differences in the two procedures, the significant difference for purposes of this discussion being the position occupied by the party so joined.
Under K.S.A. 60-214(a), the defending party brings into the action a person who may be liable to that defending party for all or part of the plaintiff’s claim against the defending party. From the time of service of summons and complaint in the third-party action, the third-party defendant is on notice that a judgment may be entered against him. The tortfeasors in Kennedy whose negligence would eventually be compared were, from the beginning, on notice that an action had been filed against them. Recovery of damages was the avowed purpose of the third-party action.
K.S.A. 60-258a(c), on the other hand, gives the defending party an opportunity to reduce the damages recoverable against him by the plaintiff through joinder of other parties potentially liable to the plaintiff. The legislative purpose in enacting K.S.A. 60-258a was “to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages . . . Brown v. Keill, 224 Kan. 195, 207, 580 P.2d 867 (1978). Subsection (c) removes from the plaintiff any possibility of defeating proportionate liability by suing only one defendant “when more than one party arguably contributed to plaintiff’s injuries.” Nagunst v. Western Union Telegraph Co., 76 F.R.D. 631, 633 (D. Kan. 1977). That subsection provides:
“On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.”
The statute does not specify the position to be occupied in the litigation by the joined party; however, the purpose of the provision clearly is to facilitate apportionment of fault. That purpose can be achieved without restructuring the plaintiff’s lawsuit.
Two prior decisions of this court on comparative negligence suggest the action of the defendant in joining additional parties pursuant to subsection (c) benefits only the defendant through potential reduction of the percentage of fault attributable to him rather than benefiting the plaintiff through increased recovery. In Brown v. Keill, an automobile accident case, the owner of one car sued the driver of the second car to recover his property loss. The owner’s son, who was driving the car at the time of the accident, was found 90% negligent. The owner did not, however, seek to have his son joined as a party to the action. The court found that, under K.S.A. 60-258a, the plaintiff could not avoid determination of proportionate fault by choosing his defendants. The defendant could join other tortfeasors for purposes of percentage determination; however, the court remarked “[i]t is doubtful if the plaintiff in such a case can be forced to make a claim against the added party.” 224 Kan. at 206. In Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978), an accident case involving an alleged highway defect, the defendant was allowed to join the Secretary of Transportation for comparative purposes pursuant to subsection (c) even though the plaintiff made no claim against the Secretary. The court, in dicta, stated:
“The plaintiff makes no claim against the Secretary and has not complied with the procedural prerequisites for maintaining such a claim. Accordingly, any percentage of fault attributable to the Secretary is lost to plaintiff so far as recovery is concerned. Any other defendant found at fault will be liable on the basis of percentage of fault found attributable to such defendant.” 224 Kan. at 463.
The plaintiff can, of course, assert a claim against parties added by the defendant and recover damages, providing no other principle of law precludes recovery.
This court’s decision in Kennedy was announced while the present action was pending in the district court of Wyandotte County. Pursuant to a suggestion in the Kennedy case, Union Pacific and Hendricks filed pleadings entitled “Petition for Adjudication of Fault Pursuant to K.S.A. 60-258a(c)” against the governmental entities. In those pleadings, the defendants Union Pacific and Hendricks set forth the basis for their claim of right to comparison of liability with the governmental entities. Their prayer was in the alternative: that the action be dismissed as to Union Pacific and Hendricks or that the trier of fact consider the causal negligence of the governmental entities and reduce the liability of Union Pacific and Hendricks accordingly. In their answers, the governmental entities denied liability to either plaintiffs or defendants in the action.
The critical factors which distinguish this case from Kennedy are that this case was a comparative negligence action from the outset and no party asserted claims against the governmental entities which could subject them to monetary liability. Petitions and answers pursuant to joinder under K.S.A. 60-258a are certainly good practice, but in and of themselves they do not state a claim for recovery. They do, as the petitions filed by Union Pacific and Hendricks in this case indicate, protect the original defendants by reducing their liability in proportion to the percentage of causal negligence attributed to others. There is no doubt, had this case gone to trial, that the purpose of the subsection would have been fulfilled.
As illustrated by the Kennedy case, in some instances, one defendant can settle a claim, obtain a release of all tortfeasors, and pursue a right of comparative implied indemnity against the other potential tortfeasors. Union Pacific argues public policy demands a right of proportional contribution in the case at bar. In Kennedy, the defendants themselves had stated a cause of action on which relief could be granted, indemnity under third-party practice. When the case was remanded for comparison of negligence, this court in essence reinstated those indemnity claims with the proviso that comparative rather than complete indemnity was to be considered. In the case at bar, neither the defendants nor the plaintiffs state a cause of action against the joined parties.
The principle is well-established in Kansas that joint and several liability among tortfeasors does not exist under comparative negligence. Lester v. Magic Chef, Inc., 230 Kan. 643, Syl. ¶ 2; Wilson v. Probst, 224 Kan. at 462; Miles v. West, 224 Kan. 284, 286, 580 P.2d 876 (1978); Brown v. Keill, 224 Kan. at 204; Comment, Brown and Miles: At Last, An End to Ambiguity in the Kansas Law of Comparative Negligence, 27 Kan. L. Rev. 111 (1978). By suing one defendant, the plaintiff knows that he will recover only the percentage of damage for which that defendant is responsible. After the original defendants’ joinder of the governmental entities for purposes of comparison, the plaintiffs in this action were aware of the identity of the joined parties, the allegations of negligence attributed to each, and how such allegations, if proved, could affect their recovery from the original defendants at trial. And yet, the plaintiffs were proceeding to trial against only those original defendants. This court cannot speculate why the plaintiffs did not sue additional parties, but that is the plaintiffs’ prerogative. It is inconsistent then to suggest the action of one defendant in settling the claim can broaden another defendant’s liability beyond what it would have been had the case gone to trial.
Broad language in the Kennedy opinion, 228 Kan. at 460-61, outlining the defendant’s role in bringing “into the action all tortfeasors against whom comparative liability through indemnity is sought” (p. 461) goes far beyond the facts of the Kennedy case and is disapproved to the extent that it suggests a defendant can enlarge the liability of other defendants.
Kennedy predicated the right of comparative implied indemnity on actual legal liability on the part of the defendants to the plaintiffs. If plaintiff cannot recover against any defendant because his own causal negligence exceeds 49%, then the settling defendant cannot pursue an action for comparative implied indemnity. 228 Kan. at 460. In the case at bar the defendants against whom contribution is now sought were not subject to actual liability since the plaintiffs had made no claim against them. Union Pacific argues the potential for recovery existed because of the possibility of amendment of the plaintiffs’ petition to state a claim under the relation back provisions of K.S.A. 60-215 despite the running of the statute of limitations under K.S.A. 60-513. We need not reach that issue because plaintiffs did not attempt to amend their petitions either before or after the running of the statute of limitations.
Our decision today in no way jeopardizes settlement of actions. Settlements are favored in the law. See, e.g., Fieser v. Stinnett, 212 Kan. 26, 31, 509 P.2d 1156 (1973); Rymph v. Derby Oil Co., 211 Kan. 414, 418, 507 P.2d 308 (1973); Connor v. Hammer, 201 Kan. 22, 24, 439 P.2d 116 (1968). The settling defendant cannot, however, create liability where there is none. One defendant in a comparative negligence action cannot settle a claim on behalf of a party against whom the plaintiff could not recover and then seek contribution from that party in proportion to the percentage of causal negligence attributable to that party. The plaintiff may choose to forego any recovery from other tortfeasors. In that event, a settling defendant has no claim to settle but his own.
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The opinion of the court was delivered by
Herd, J.:
This is an action for damages arising out of a May 31, 1974, automobile-truck collision between Bonnie S. Cansler, appellee, and appellant, Dennis Bartkoski. Allen Harrington, owner of the truck, was joined as a party defendant-appellant. At trial in February 1980, appellee obtained a $25,000 judgment against Bartkoski, who appeals after denial of his motion for a new trial. Appellee obtained an order of garnishment against Bartkoski’s insurance carrier, Farmers Insurance Company, in the absence of a stay. Farmers appeals that order.
The first issue on appeal is whether the threshold requirement of $500 medical treatment expense provided for in K.S.A. 40-3117 must be met within the period for filing actions under the statute of limitations in order for appellee to recover non-pecuniary losses. K.S.A. 40-3117 states;
“In any action for tort brought against the owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of five hundred dollars ($500) or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this section upon a showing that the medical treatment received has an equivalent value of at least five hundred dollars ($500). Any person receiving ordinary and necessary services, normally performed by a nurse, from a relative or a member of his household shall be entitled to include the reasonable value of such services in meeting the requirements of this section. For the purpose of this section, the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value. Evidence that the reasonable value thereof was an amount different than the amount actually charged shall be admissible in all actions to which this subsection applies.”
Appellant relies on Key v. Clegg, 4 Kan. App. 2d 267, 604 P.2d 1212 (1980). There, unlike the present case, the trial was held within the two-year period of limitation. In holding the plaintiff had to have accrued medical treatment of $500 or more by date of trial to meet the threshold, the court stated:
“Without restating the well-settled rules of statutory construction, when the applicable rules are applied we are convinced it was the legislature’s intent when it drafted 1978 Supp. 40-3117 that the monetary threshold must be met not later than the date of trial or the date the cause of action is barred by the statute of limitations, whichever first occurs.” p. 273.
In the present case the trial court in examining the pertinent language from Key v. Clegg observed:
“If one construes the language ‘or the date the cause of action is barred by the statute of limitations,’ to be equivalent to the language, ‘or the date the cause of action would have been barred by the statute of limitations,’ a serious problem would indeed have visited this case. As it is, no statute of limitations ever ran against plaintiff’s cause of action, her remedy did not change nor did the theory of her case, and the only result of continued medical expense was to alter the ultimate measure of damages.”
The trial court interpreted the language in Key to mean the date the cause of action is actually barred controls; thus, if the case is filed within the limitations period the statute of limitations becomes irrelevant, leaving only the requirement that the threshold amount be met before the date of trial. If the case is not filed within the limitation period, the entire cause of action is barred. In effect the trial court adopted the trial date as the controlling date for meeting the threshold damage issue.
We think the trial court’s reasoning is sound and consistent with Key v. Clegg. Further, Cappadona v. Eckelmann, 159 N.J. Super. 352, 388 A.2d 239 (1978), the case relied on in Key, consistently refers to plaintiff meeting the threshold amount by the time of trial. 159 N.J. Super, at 356-57. One of the purposes of the automobile injury reparations act is to limit actions for losses from pain and suffering to those actions where “the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of five hundred dollars ($500) or more . . . .” K.S.A. 40-3117. See Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974); Dineson v. Towle, 3 Kan. App. 2d 505, 507, 597 P.2d 264, rev. denied 226 Kan. 792 (1979). Key accomplishes that purpose. We so- hold. Appellant’s first issue is without merit.
Next appellant urges the trial court erred in permitting appellee to reopen her case and offer documentary evidence of medical expenses. At the conclusion of appellee’s case in chief, appellant moved for a directed verdict because appellee had failed to offer evidence of medical treatment reaching the threshold amount under K.S.A. 40-3117. Up to that time appellee had offered evidence of total medical bills of only $431. Upon appellee’s motion for leave to reopen which was sustained, she introduced appellee’s exhibits 8, 10, 11 and 12 which showed additional medical treatment in the amount of $714.84.
The parties agreed the decision to allow a party to reopen a case after having rested is within the sound discretion of the trial court and will not be reversed in the absence of a showing of abuse. Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 306, 520 P.2d 1262 (1974). Here, there is no showing of abuse. Appellant’s real argument lies in his claim it was error to admit the exhibits without having laid a proper foundation as to the reasonableness or necessity for the treatment. In Anderson v. Berg, 202 Kan. 659, 661, 451 P.2d 248 (1969), we held:
“The fact that a case is reopened for admission of additional evidence in the form of an exhibit furnishes no basis for the abandonment of the necessary preliminary proof to make it admissible.”
The issue, then, is what sort of foundation evidence is necessary preliminary to the admission of medical bills offered to prove the threshold amount under K.S.A. 40-3117. This issue has not been specifically addressed in Kansas. In Key v. Clegg, 4 Kan. App. 2d at 274, the Court of Appeals touched on the problem:
“It is not mandatory that the services be recoverable as damages for the plaintiff to include the reasonable value of them in order to meet the monetary threshold requirement. Plaintiff was not required to prove accrued recoverable damages of $500 or more; he was only required to prove that he had received medical treatment with a value of at least $500 . . . .”
This statement of the court, however, is not extremely helpful on the issue we are addressing. It is axiomatic that a foundation must be laid establishing the competency, materiality and relevancy of all evidence prior to admission. Here, however, appellant urges no evidence of reasonableness or necessity of the medical bills was offered. An examination of the record shows appellee testified voluntarily and in detail about her injuries, hospitalization and the doctors she saw as a result of the accident. She discussed bills for medical treatment of injuries resulting from the accident. She merely overlooked offering the identified exhibits prior to resting her case. Appellant’s argument essentially is that the admitted exhibits were not relevant because there was no showing of reasonableness and necessity. Relevant evidence is statutorily defined as evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). Unless provided otherwise, all relevant evidence is admissible. K.S.A. 60-407(f). Here the exhibits clearly tended to prove the threshold amount had been met. As such, the evidence was properly admitted. The questions of reasonableness and need for the medical care were questions for the jury which they resolved by finding appellee had proven her medical care exceeded the threshold amount of $500. The appellee, Dr. Brooks and Dr. Whitehead all testified the appellee’s treatment was needed, supporting the jury’s verdict. It is presumed in a case such as this a doctor’s charge is reasonable. See D. Bolin v. Grider, 580 S.W.2d 490 (Ky. 1979). Appellant has the right to challenge the reasonableness of the charges, which he did with vigor. The jury believed the appellee. This issue is without merit.
The final issue comes before this court as the result of the consolidation under Supreme Court Rule No. 2.06 of this case and the subsequent garnishment action. The facts are compli cated and are herewith set out in detail. The jury rendered a $25,000 verdict against Bartkoski on February 14,1980. Bartkoski appealed but was unable to post a supersedeas bond. Appellee commenced collection proceedings against Bartkoski and filed a garnishment action against Farmers Insurance Company. Farmers had issued a liability insurance policy to appellant Harrington which covered Bartkoski as a permissive user of Harrington’s vehicle. The liability limit of the insurance policy was $15,000. This presented a dilemma to Farmers. The trial court set the supersedeas bond at $25,000, the amount of the judgment. Had Farmers posted the bond, it would have been placing an additional $10,000 at risk, dependent on the outcome of the appeal. The bond is required to pay appellee’s judgment if the appeal is unsuccessful and is available for that purpose regardless of the issue between appellant and his insurance carrier. Farmers answered on July 11, 1980, stating it was holding the $15,000 limit of its liability, on behalf of Bartkoski. On July 24, 1980, appellee obtained an ex parte order directing Farmers to pay the funds into court where the clerk was to deduct the court costs and remit the balance to plaintiff and her attorney. On July 29, 1980, Farmers filed a motion to alter or amend the ex parte order. It was overruled. In the meantime the appeal was docketed in the Court of Appeals making it jurisdictionally necessary to request it for a supersedeas bond. On August 21, 1980, the Court of Appeals entered its order directing the trial court to set a supersedeas bond. Farmers then filed a motion with the trial court requesting the bond be set at $15,000 plus interest and costs rather than at the entire amount of the judgment or alternatively that the proceedings be stayed under K.S.A. 60-720(b). The trial court denied the motion and offered Farmers the choice of posting a $25,000 bond, paying the garnished funds into court within one week, or being restrained from doing business in Kansas. Under threat of contempt and the restraining order, Farmers paid $15,638.00 to the court on September 17, 1980. It also filed a notice of appeal in the garnishment action and a motion to set a supersedeas bond in this second appeal. In the meantime, on September 18, 1980, the trial court ordered the Clerk of the Court to endorse Farmers draft to appellee’s counsel without recourse. On September 29, 1980, the trial court ordered Farmers to post a $25,000 supersedeas bond on the second appeal.
On September 30, 1980, Farmers filed its “Motion for stay, or, in the Alternative, to set Supersedeas Bond.” The Court of Appeals ordered counsel for appellee to retain in his possession all funds received from the garnishment until further order of the court. On November 6, 1980, the Court of Appeals ordered:
“Further proceedings in garnishment are stayed. Funds paid into court by garnishee-appellant now in the hands of counsel for plaintiff per the order of this court of September 30, 1980, are to be repaid to the clerk of the district court and to be held in an interest-bearing account pending final determination of this appeal.”
The case was transferred to this court on January 19, 1982.
Since appellant has, with some difficulty, obtained a stay of execution pending appeal, the issue is essentially moot. However, the facts illustrate a problem of sufficient magnitude to justify court clarification. We will consider the issue.
First, policy implications should be discussed. It is inequitable to require an insurance company to post a $25,000 supersedeas bond to stay a garnishment when its policy limits are only $15,000. Further, the fairness of allowing garnishment and payment to appellee of the $15,000 before the appeal is decided is questionable. On the other hand, it has now been two years since the jury awarded appellee $25,000 and she has been the victim of a procedural circus. Let us proceed to establish a procedure with safeguards for judgment creditors which also provides an equitable appellate stay procedure for judgment debtors.
Kansas statutes relevant to the issue include K.S.A. 60-262 and K.S.A. 60-2103(d). K.S.A. 60-262(d) states:
“When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subsection (a) of this section. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.”
K.S.A. 60-2103(d) provides in part:
“Whenever an appellant entitled thereto desires a stay on appeal, he or she may present to the district court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bond shall be conditioned for the satisfaction of the judgment in full together with costs, interest, and damages for delay, if for any reason the appeal is dismissed, or if the judgment is affirmed, and to satisfy in full such modification of the judgment such costs, interest, and damages as the appellate court may adjudge and award.”
These statutes point to the dilemma facing many insurance companies. The company is usually not the actual appellant, yet if it does not step in appellant’s shoes and file a supersedeas bond pursuant to K.S.A. 60-2103(d), it is subject to garnishment. The language of K.S.A. 60-2103(d) is, however, clear and unambiguous. If a supersedeas bond is filed it shall be for the amount of the judgment in full. The real question, then, is whether garnishment proceedings pending appeal are premature when an insurance company refuses to file a supersedeas bond in excess of its obligation to the insured.
One Kansas case has discussed this issue. In Lechleitner v. Cummings, 160 Kan. 453, 163 P.2d 423 (1945), plaintiff obtained a judgment for $5,629.17. The insurance company had insured defendant for up to $5,000. The trial court gave the garnishee insurance company the same choice as it did in the case at bar — file a bond for the entire judgment or pay plaintiff the $5,000. The Supreme Court, acknowledging a split of authority, held the garnishment proceedings were premature, seemingly because the judgment against defendant was not “final” and as such the insurance company did not yet owe defendant anything. 160 Kan. at 460. Thus, despite appellee’s protestations to the contrary, it appears Lechleitner could be controlling authority.
Appellee correctly notes, however, the Illinois decision relied on by the Kansas court in Lechleitner, Ancateau v. Commercial Cas. Ins. Co., 318 Ill. App. 553, 48 N.E.2d 440 (1943), has since been rejected by Illinois courts. In Cuttone v. Peters, 67 Ill. App. 2d 1, 214 N.E.2d 499 (1966), a case similar factually to the one at bar, the court stated:
“After careful consideration, we feel that in this matter the interests of a plaintiff in a speedy and sure remedy must come before the interests of the insurance company. Should the underlying judgment be set aside the insurance company surely has a right of action against a plaintiff for recovery of any money it has paid. We must conclude that the opinion in the Ancateau case, supra, [318 Ill. App. 553.] no longer represents the better law.” 67 Ill. App. 2d at 6.
Colon v. Marzec, 116 Ill. App. 2d 278, 253 N.E.2d 544 (1969), reaffirmed the rule that a plaintiff’s suit is proper even though an appeal is pending from the underlying judgment. The court commented:
“We agree that garnishee’s liability was limited and that it had no obligation to post a supersedeas bond for its insured. Indeed, any application of Illinois law that might compel garnishee to pay any money it did not owe, or to do anything it did not undertake in its contract of insurance, would raise serious constitutional questions. On the other hand, unless a supersedeas bond secured payment of the underlying judgment plaintiff could insist on its enforcement.” 116 Ill. App. 2d at 282.
See also Long v. Duggan-Karasik Constr. Co., 25 Ill. App. 3d 236, 323 N.E.2d 56 (1974).
The Kansas statutory scheme seems to support appellee’s position. A judgment is the final determination of the rights of the parties in an action. K.S.A. 60-254(a). A judgment becomes effective when it is entered pursuant to K.S.A. 60-258. Obviously, then, a judgment is “effective” before appeal. K.S.A. 60-714 states garnishment is an “aid of execution.” Definite procedures to stay the execution of a judgment are provided for. E.g., K.S.A. 60-262(d) and K.S.A. 60-2103(d). In the absence of such a stay it must be assumed appellee’s judgment will be enforced. Otherwise there would be no need for statutory procedures to stay execution; the act of appealing the judgment would be an automatic stay. We hold the garnishment was not prematurely brought.
However, appellant seeks only to stay the garnishment action against it to the extent of its liability under its policy of $15,000. It does not attempt to stay appellee’s action against the appellant Rartkoski. Thus, we hold the garnishee may stay a garnishment action against it by posting a supersedeas bond in the amount of its liability plus costs and interest.
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The opinion of the court was delivered by
Holmes, J.:
Plaintiff Thomas Halpin appeals from an order of the district court sustaining a motion for summary judgment filed by the defendant Topeka Bank & Trust, a Kansas banking corporation (the bank). The appeal involves the rights and duties existing between a guarantor and a creditor. Summary judgment was also granted to plaintiff against the other defendant Phillip Frankenberger and no appeal has been taken by Frankenberger from that ruling.
In 1975, Halpin and Frankenberger met and decided to go into the carpet business. They formed Centennial Carpet Sales, Inc., a Kansas corporation (Centennial), and each owned 500 shares of stock based upon a capital contribution of $5,000.00 each. Halpin was to be the administrative head of the venture and Frankenberger was to handle the sales end of the business. In order to operate, the corporation needed a line of credit and the two principals approached the defendant Topeka Bank & Trust to obtain it. The bank was agreeable but required security and personal guaranties from both Halpin and Frankenberger.
Halpin and his wife executed their guaranty to the bank on August 29, 1975, and a security agreement to the bank covering listed quality common stocks having a market value of nearly $200,000.00. Frankenberger and his wife executed their guaranty on September 9,1975, and a security agreement on the cash value of certain life insurance policies in an amount of approximately $7,000.00, a 1976 Ford automobile, a 1970 Volkswagen automobile, and a second mortgage on their home in an amount of $16,000.00. The mortgage was duly filed with the Shawnee County Register of Deeds office. Centennial was also required to furnish a security agreement on its accounts receivable, inventory, equipment, etc.
The guaranty executed by the Halpins was in the following form:
“CONTINUING GUARANTY AGREEMENT — INDIVIDUAL
To Topeka State Bank and Trust Company
TOPEKA, KANSAS
“For value received, and in consideration of loans and/or advancements now made, or to be made hereafter by Topeka State Bank and Trust Company, Topeka, Kansas, hereinafter referred to as Bank, to _, hereinafter referred to as Debtor, and in consideration of such additional loans and/or advances as Bank may hereafter make to Debtor, the undersigned, _, hereby agrees to pay and hereby guarantees payment to Bank of any and all obligations, including principal, interest and penalties, which Debtor now owes or may hereafter owe to Bank, including all renewals and/or extensions thereof.
“This promise to pay and guaranty is an open and continuing one, and includes all renewals and extensions of indebtedness now owed, or which may hereafter be owed by Debtor to Bank.
“Demand, protest, notice of nonpayment and notice of any extensions are hereby expressly waived, and the giving of notice of any making, renewal or extension of any note or indebtedness is also hereby expressly waived.
“This guarantee shall be binding on the undersigned and the heirs and assigns of the undersigned without resort by Bank to Debtor or to any other party prior to the payment hereof by the undersigned.
“The undersigned reserves the right to terminate this guaranty as to future loans or advances, but such termination shall be effective only by written notice served upon an officer of Bank. In the event of such termination, this guaranty shall nevertheless remain in full force and effect and shall be binding upon the undersigned for all the loans and advancements, including interest, penalties and accumulations thereon, made prior to receipt of such written notification, and shall also remain binding for all renewals or extensions of any prior loans and advancements.
“Executed on this_day of-, 19--”
The Frankenberger guaranty was in essentially the same form.
By the summer of 1977, the indebtedness of Centennial to the bank exceeded $200,000.00 and it became apparent to all concerned that the business could not survive. The corporation was insolvent and the two stockholders started liquidation of the business in July, 1977, and ceased doing business in August of the same year. On September 23,1977, Centennial owed the bank $187,000.00 plus interest and on that date $164,000.00 was paid to the bank from the sale of a portion of Halpin's securities pledged as security with the bank. Frankenberger decided to leave town and requested the bank to release the second mortgage on his home so it could be sold. On November 29,1977, the bank released the second mortgage and Frankenberger subsequently received about $29,000.00 for the equity in his home. Halpin was not advised of the request to release the mortgage and did not learn the mortgage had been released until sometime in the spring of 1978. In March, 1978, the balance of approximately $23,000.00 owed the bank was paid. Frankenberger never paid any amount to the bank or to Halpin for his share of the indebtedness.
After Halpin discovered that the bank had released the second iportgage and that Frankenberger had no intention of paying his share of the debt, Halpin filed suit against both Frankenberger and the bank. Plaintiff sought relief on three causes of action: (1) A judgment for contribution from Frankenberger for one-half of $138,169.20, the amount paid by Halpin, (2) a judgment setting over to plaintiff all of the security pledged by Frankenberger and deposited with the bank, and (3) judgment against the bank for the difference between the sales price of Frankenberger’s house and the balance due on the first mortgage, which amount was approximately $29,000.00.
Following the filing of the petition, the bank, after seeking instructions from the court, turned over to the clerk of the court the Frankenberger insurance policies and the title to the Volkswagen automobile. That was the extent of the Frankenberger security still held by the bank. After discovery, plaintiff moved for summary judgment on all three claims. Defendant bank moved for summary judgment on the third claim. In sustaining plaintiff’s motion on its first two claims, the court, in a memorandum opinion, stated:
“[I]t is the opinion of the Court that the Motion of the plaintiff for summary judgment should be sustained as to defendant Frankenberger and that plaintiff is entitled to judgment against the defendant Frankenberger in the sum of $69,084.60, together with the costs of this action.
“The judgment of the Court is that plaintiff is entitled to be equitably subrogated to all of the right, title and interest of the defendant bank and to be substituted as secured party for all securities held by the defendant bank at the time the plaintiff paid the obligations of Centennial in full.”
Those rulings were not appealed from and the question of the judgment against Frankenberger and Halpin’s right to contribution are not issues on appeal. Neither is the determination that Halpin was subrogated to all security still held by the bank.
On plaintiff’s claim for damages against the bank for releasing the Frankenberger second mortgage and thereby impairing Hal-pin’s right to subrogation, the court sustained the bank’s motion for summary judgment on the theory that while plaintiff was subrogated to the bank’s rights in the Frankenberger security, the right of subrogation did not arise until the bank had been paid in full. As there was still $23,000.00 owed the bank at the time it released the mortgage, plaintiff’s rights of subrogation had not accrued and the bank had no duty at that time to preserve the security for the benefit of plaintiff.
Halpin has appealed from the latter ruling of the court granting summary judgment to the bank. No appeal has been taken by Frankenberger on the first two claims of the plaintiff. At the outset we are faced with the argument of the bank that plaintiff has acquiesced in the judgment of the trial court and therefore this appeal is barred. After the appeal had been perfected in this case, the plaintiff filed a motion in district court seeking to have the remaining Frankenberger security set over to him. The motion was granted and apparently plaintiff received from the clerk the insurance policies and car title. Appellee contends this pre eludes plaintiff from pursuing this appeal. We disagree. In Brown v. Combined Ins. Co. of America, 226 Kan. 223, 597 P.2d 1080 (1979), we set forth the rules on acquiescence in a judgment as follows:
“The general rule, subject to certain exceptions, is that a party to litigation who has acquiesced in the judgment of the trial court either by assuming the burden of such judgment or by accepting the benefits thereof will be deemed to have acquiesced in such judgment and may not thereafter adopt an inconsistent position and appeal from such judgment.”
“Where a judgment or decree involves distinct and severable matters, demands or issues, an acceptance of the burdens or benefits of one or more parts thereof will not prevent an appeal as to the remaining contested matters, demands or issues.”
“When a party to an appeal has paid or otherwise assumed the burden of any portion of a judgment rendered against such party, including the payment of costs, such party will not be deemed to have acquiesced in the judgment so long as the issues on appeal cannot affect the payments made or burdens assumed and such payment or burden is not involved in the issues on appeal. Likewise, any party to an appeal who accepts such payment shall not be deemed to have acquiesced in the judgment so long as the issues on appeal do not affect the obligation for the payment of or the rights to receive such portion of the judgment.” 226 Kan. 223, Syl. ¶¶ 6, 7 and 8.
Here the property turned over to the plaintiff is not in dispute and has no bearing on this appeal. This appeal does not affect Hal-pin’s right to that property and his acceptance of that portion of the trial court’s judgment does not amount to acquiescence.
Appellant’s basic contention is that the bank was under a statutory and/or common law duty to preserve or retain, for the benefit of Halpin, the Frankenberger security when the bank knew Centennial was insolvent and that Halpin had paid more than one-half of the indebtedness. Thus, Halpin contends that the bank, by releasing the Frankenberger second mortgage, impaired the security being held by the bank that would otherwise be available to satisfy Halpin’s right to contribution. Initially, appellant contends that sections 84-3-606 and 84-9-207 of the Uniform Commercial Code apply.
K.S.A. 84-3-606(l)(b) provides in part:
“The holder discharges any party to the instrument to the extent that without such party’s consent the holder .... unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”
Halpin was not a party to the Frankenberger guaranty agreement and it was not an “instrument” as that term is defined in the U.C.C. K.S.A. 84-3-102(c) defines “instrument” as a “negotiable instrument” and to be a negotiable instrument, a writing must comply with K.S.A. 84-3-104. The guaranty agreement does not comply with 84-3-104 in several respects and therefore 84-3-606 does not apply. Kansas State Bank & Trust Co. v. DeLorean, 7 Kan. App. 2d 246, 640 P.2d 343 (1982), Farmers State Bank v. Cooper, 227 Kan. 547, 552, 608 P.2d 929 (1980).
Halpin also contends that K.S.A. 84-9-207 applies in this action. That section states, in part:
“(1) A secured party must use reasonable care in the custody and preservation of collateral in his possession.
“(3) A secured party is liable for any loss caused by his failure to meet any obligation imposed by the preceding subsections but does not lose his security interest.”
In Union Planters Nat. Bank of Memphis v. Markowitz, 468 F. Supp 529 (W.D. Tenn. 1979), the court found the section inapplicable to a guarantor and said:
“[W]e do not believe that subsection (3) should be construed so broadly. The entire thrust of § 47-9-207 [K.S.A. 84-9-207] is to require a creditor to preserve collateral in his possession so as not to injure the person who has given that collateral. Thus, we read the phrase “any loss” in subsection (3) to mean any loss to the one who has provided the collateral.” p. 535.
We are of the opinion that the trial court was correct in its holding that K.S.A 84-3-606 and 84-9-207 did not apply to the facts in this case.
The trial court, while holding that Halpin as a co-guarantor with Frankenberger was subrogated to the rights of the creditor bank as against the security pledged by Frankenberger, held that such a right of subrogation does not accrue until the debt has been paid in full. Halpin asserts that the bank was under a common law duty not to impair, or release, any of the Frankenberger security and to maintain it intact for the benefit of Halpin. While the right of Halpin to contribution from Frankenberger for one-half of the amount paid by Halpin is not disputed, the rights of Halpin against the bank and the bank’s responsibilities to Halpin are not so clear. In Blitz v. Metzger, 119 Kan. 760, 241 Pac. 259 (1925), the court was faced with the question of whether a surety on a note was subrogated to the rights of the holder of the note as against security pledged by the maker of the note. The court stated:
“Á suiecy, on paying the debt of the principal, is entitled to be subrogated to the rights of the creditor in all or any of the securities, means or remedies which the creditor has for enforcing payment against his principal. . . . The creditor is entitled to full payment of his debt before subrogation can be invoked.” p. 767.
While the terms “surety” and “guarantor” are not synonymous, they are often used interchangeably and the contract of a surety and that of a guarantor are similar in many respects. 38 Am. Jur. 2d, Guaranty §§ 14-16. In both situations the party sought to be charged is liable for the debt of another. In most instances a surety is liable on the original instrument along with the principal debtor, while a guarantor ordinarily enters into a separate contract with the creditor whereby he guarantees payment or performance by the debtor. The principles surrounding the right of a surety or a guarantor to be subrogated to the rights of the creditor, however, are similar.
Ordinarily the rights and obligations of a guarantor are established by the contract of guaranty. The same is true of the rights and obligations among co-guarantors. Absent agreement, it is clear that one co-guarantor has a common law right to contribution from his co-guarantors. It is also generally recognized that when a guarantor pays the principal’s debt, the guarantor becomes subrogated to the rights of the creditor in seeking total reimbursement from the principal debtor, or contribution from his co-guarantor. Subrogation, as the term is defined, contemplates one person stepping into the shoes of another. As applied to a guarantor, it implies that the guarantor takes the place of, or inures to all of the rights of the creditor.
73 Am. Jur. 2d, Subrogation § 30 states:
“The general rule is that a person is not entitled to be subrogated to the rights or securities of a creditor until the claim of the creditor against the debtor has been paid in full, although the entire debt need not necessarily be paid by the party seeking subrogation. This rule finds its principal application in the case of sureties. Formerly, the right of subrogation was limited to transactions between principals and sureties, and doubtlessly the rule grew out of the inequitable result which would otherwise necessarily follow in this class of transactions. Until the debt is paid in full, there can be no interference with the creditor’s rights or securities that might, even by a bare possibility, prejudice or in any way embarrass him in the collection of the residue of his debt. Obviously, it would be unjust to permit a surety or other person on payment of part of a debt to appropriate to himself the security the creditor holds for the satisfaction of the entire indebtedness. If a surety who has made a partial payment should be subrogated pro tanto, he would occupy a position of equality with the holder of the unpaid part of the debe, and if the property were insufficient to pay the remainder of the debt for which the surety is bound, the loss would fall proportionately on the creditor and the surety. One paying several installments due on a contract, but not all of them, is not entitled to subrogation, as where he makes part payment of a mortgage, or pays one or more of a series of notes. But the rule does not apply where the surety has paid one of a series of notes and is seeking merely to recover that payment from the principal debtor, not the apportionment or application for his benefit of securities in the hands of the creditor. Where a debtor pledges life insurance policies to secure several debts, a surety paying one of the debts is not entitled to any of the collateral securities until all the debts are discharged. When a creditor holds attachments against the debtor’s property which secure several debts, a surety on one of the debts must, in order to be subrogated to the rights of the creditor in the attachments, pay all the debts the attachments secure. The creditor has the legal and equitable right to appropriate the attached property to the satisfaction of any of the claims secured by the attachments.
“Undoubtedly, the rule that payment in full of the indebtedness must be made before the right to subrogation exists may be changed or affected by statute. However, before a court would be warranted in construing a statutory provision as providing for a right of subrogation pro tanto, which differs from the right of subrogation recognized in equity, there should be some clear evidence in the statute of a legislative intention to make such change.
“The rule that the debt must be paid in full has in apparently every instance been invoked for the protection of the creditor, and never to defeat contract obligations in the interest of the debtor alone. Consequently, if the creditor consents to pro tanto subrogation, no one else is entitled to object. And even the creditor can object only to the extent that such subrogation would impair his preferred rights. The rule against allowing subrogation on the basis of part payment does not apply where the reason for it does not exist, as where there is no possibility that the creditor could be in any way prejudiced.” pp. 617-619.
In 73 Am. Jur. 2d, Subrogation § 54, we find:
“The requirement that the entire debt be paid before a right of subrogation arises is, of course, applicable where subrogation is sought by a surety.” p. 632.
The same authority at § 62 states:
“The fact that payment by one joint debtor ordinarily discharges the debt suggests a difficulty in the way of applying the doctrine of subrogation between co-obligors. But equity implies an exception to the foregoing rule of payment by keeping alive the debt for the benefit of the co-debtor who pays it. Until the debt is paid, and while the parties remain equally bound, there can, of course, be no subrogation.” p. 637.
The guaranties executed by Halpin and Frankenberger were separate, in no way dependent upon each other insofar as the bank was concerned, continuing and open-ended so as to cover any existing indebtedness of Centennial or any future indebtedness. While it may be conceded that both guaranty and surety agreements were executed as a part of the same transaction, that is, to secure a line of credit for Centennial, there is nothing in the agreements to. indicate one is dependent upon the other. To the contrary, the guaranty agreements provide:
“This guarantee shall be binding upon the undersigned and the heirs and assigns of the undersigned without resort by Bank to Debtor or to any other party prior to the payment hereof by the undersigned.” (Emphasis added.)
In addition, the guaranty agreements waived notice of default or of any extensions and in effect provided for liability by each guarantor regardless of the status of any other guarantor. Nothing in the guaranty agreements of Halpin and Frankenberger required the bank to retain all the security furnished by each guarantor until the entire debt was paid. Such a requirement could have been made a part of the contracts between the parties. We hold that on the facts in this case, the trial court did not commit error in determining that the bank could not be held liable in damages for releasing the second mortgage executed by Frankenberger. We have considered all points and arguments raised by appellant and find no error in the judgment of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal in a negligence action by the plaintiff, Doris M. Schmeck, from summary judgment entered against her and in favor of the defendants by the Wyandotte District Court. Defendants are the City of Shawnee, Kansas; the Secretary of Transportation of the State of Kansas; Kansas City Power and Light Company; Marilyn I. Velasquez, administratrix of the estate of Linda S. Nepote, deceased; and Larry J. Doyle.
The issue presented is whether a mother has a cause of action for damages she has sustained — mental and emotional distress, physical injuries, loss of time, and economic loss — following injury to her adult daughter caused by the negligence of the defendants.
The amended petition summarizes the facts. It alleges in substance that on July 11, 1976, plaintiff’s daughter, Teresa L. Schmeck, was a passenger on a motorcycle being operated by Linda S. Nepote in an easterly direction on K-10 Highway in Shawnee, Kansas. When the motorcycle reached the intersection of K-10 Highway and Quivira Road, it collided with a vehicle being driven by defendant Larry J. Doyle as he was making a left turn from K-10 Highway preparing to go south on Quivira Road. As a result of the collision plaintiff’s daughter was hurled from the motorcycle onto the pavement surface and sustained permanent, painful and disabling injuries which have rendered her totally incapacitated.
Prior to the collision Teresa L. Schmeck was a healthy, able-bodied young woman, twenty-three years of age, in possession of all her faculties; as a result of the injuries sustained in the collision, Teresa has been rendered totally disabled.
As a consequence of the collision in which Teresa was injured, the plaintiff has sustained great emotional, psychic and physical injuries, and she has further sustained the loss of the services, companionship, advice and counsel of her daughter, Teresa.
The collision was directly and proximately caused by the negligence and carelessness of the several defendants, whose negligence joined and concurred to cause the collision.
In addition to the facts pleaded, it is agreed, at least for the purposes of this appeal, that plaintiff was not present at the scene of the collision; she was at her home, several miles away. She learned of her daughter’s injuries about an hour later, and went immediately to the hospital. Her husband, Teresa’s father, suffered a heart attack four days later and died on August 2, 1976. Plaintiff visited Teresa once or twice daily until her release from the hospital on October 29, 1976; since then, Teresa has been living with plaintiff. Teresa requires constant care. Plaintiff has had to give up her career as an organist and music teacher, and devote her waking hours to her daughter. The demands of caring for Teresa have caused plaintiff to be nervous, tired, and exhausted, and led to a case of hepatitis which required four months’ bed rest. Caring for her daughter has cost plaintiff time, travel, and out-of-pocket expense.
Teresa filed suit against these defendants, seeking damages for her injuries. She recovered a substantial verdict. That case, Schmeck v. City of Shawnee, Kansas, et al., No. 53,097, is now pending on appeal in this court.
The case we now consider is an entirely separate action commenced by Doris M. Schmeck, who contends that as a result of the damages she has sustained due to Teresa’s injuries, she (Doris) has a cause of action for negligence in her own right. The trial judge granted motions for summary judgment leveled by each of the defendants, holding as a matter of law that plaintiff has no cause of action for her claimed injuries and damages, which occurred as a result of the injuries sustained by her emancipated adult daughter. Plaintiff appeals.
Plaintiff argues that she sustained cognizable damages, enumerated above, as a result of defendants’ negligence, and that the trial court erred in misconstruing plaintiff’s claim and in considering only the issue of mental and emotional distress. Granted, the trial court did not specifically enumerate all of the items of damage claimed, but it appears to us that the trial court accepted as true, for the purpose of ruling upon the motions for summary judgment, all of plaintiff’s claims.
Damages alone, however, do not create a right or a cause of action. In Foster v. Hamburg, 180 Kan. 64, 67-68, 299 P.2d 46 (1956), we said:
“[D]amages ... do not constitute the ‘cause of action.’ The ‘cause of action’ is the wrong done, not the measure of compensation for it, or the character of relief sought. A ‘cause of action’ arises from a manifestation of a right or violation of an obligation or duty. (Friederichsen v. Renard, 247 U.S. 207, 62 L.Ed. 1075, 38 S.Ct. 450; Travelers Fire Ins. Co. v. Ranney-Davis Mercantile Co. (10th Circuit), 173 F.2d 844; Wright v. Brush, 115 F.2d 265.) Damage is not the cause of action. It is merely a part of the remedy which the law allows for the injury resulting from a breach or wrong. The ‘right of action’ is merely the right to pursue a remedy, and the ‘cause of action’ is the concurrence of the facts giving rise to an enforceable claim.”
All of the items claimed — physical injuries, mental and emotional distress, loss of time, and economic loss — may be elements of recoverable damages; but the cause of action is based not upon the existence of damages alone, but must be based upon the existence of actionable negligence, the breach by the defendants of some duty owed to the plaintiff, resulting in plaintiff’s injury.
In her reply brief, plaintiff appears to contend that her action is based upon willful and wanton conduct, and upon intentional acts or omissions, as well as negligence. Both the initial and the amended petitions, however, state only claims based upon negligence. We find no assertion of recklessness, of wanton conduct, or of willful or intentional acts by the defendants directed toward the plaintiff in any of the prior pleadings or proceedings below, and no indication of any factual basis for any such claims. We will limit our discussion, therefore, to whether or not plaintiff has a claim for negligence against the defendants.
The elements of actionable negligence are set forth in George v. Breising, 206 Kan. 221, Syl. ¶ 1, 477 P.2d 983 (1970):
“The elements necessary for actionable negligence are: (a) A duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (b) the defendant’s failure to perform that duty; and (c) an injury to plaintiff which proximately results from such failure.”
In a later discussion of actionable negligence, Justice (now Chief Justice) Schroeder, speaking for a unanimous court in Cooper v. Eberly, 211 Kan. 657, 664, 508 P.2d 943 (1973), said:
“Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance before an act is said to be negligent, there must exist a duty to the individual complaining, and the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow-man sues for a breach of duty owing to himself. The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another.”
The primary question is whether the defendants had a duty to protect the plaintiff from the injuries of which she now complains. It is clear, and we need cite no authority to support the rule, that the driver of a motor vehicle upon a public street or highway has a duty to keep his vehicle under proper control, keep a proper lookout, and drive within the range of his vision so that his vehicle may be stopped, slowed, or turned aside in order to avoid colliding with any person or other vehicle using the highway. Likewise, cities, counties, townships, and the State of Kansas have the obligation to keep the public streets and highways reasonably safe for travel and free from defects. All of these duties, however, extend from the individual operator of a motor vehicle and from the municipal corporations and the State to persons who are traveling upon or using the public thoroughfares.
The plaintiff is seeking recovery of damages which she sustained as a result of the injuries to her adult daughter; the daughter’s injuries were allegedly caused by the negligence of the defendants. Plaintiff was not at the scene of the accident; she was not using the public highways at the time of the collision; she did not view the accident scene; she was in no way injured or threatened directly by the acts or omissions of the defendants. The individual defendants, as drivers of motor vehicles upon the highway, and the governmental and corporate defendants, as proprietors or maintainers of K-10 Highway and Quivira Road, owed no duty and breached no duty to the plaintiff.
It is natural and commendable that plaintiff has taken her daughter into her home, and that she has given unstintingly of her love and care, as well as her time and her monetary resources, to her daughter. It is also natural that plaintiff has sustained measurable losses of time and income, and understandable that her physical and mental health have been impaired.
We have found no Kansas case, and no rule of law, which would impose liability upon these defendants to this plaintiff under the circumstances of this case. The many mental distress cases cited by industrious counsel are not persuasive or helpful. The plaintiff in those cases was either the target of outrageous and intentional acts or of assault, or was personally present when a loved one was assaulted or sustained physical injury as a direct result of the defendant’s acts or omissions. See Wiehe v. Kukal, 225 Kan. 478, 592 P.2d 860 (1979); Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974); Connell v. Norton Coca-Cola Bottling Co., 187 Kan. 393, 357 P.2d 804 (1960); Lonergan v. Small, 81 Kan. 48, 105 Pac. 27 (1909).
The cases from other jurisdictions relating to the negligent infliction of mental distress are also not helpful or persuasive here. The “impact rule” discussed by the trial court requires actual physical impact upon the plaintiff, which is absent here. The “zone of danger” rule allows recovery when plaintiff is present at the time of injury of another and is himself or herself then in a place of danger and is threatened with physical injury. See H. E. Butt Grocery Company v. Perez, 408 S.W.2d 576 (Tex. Civ. App. 1966), and Cosgrove v. Beymer, 244 F.Supp. 824 (D. Del. 1965). Obviously, such a test would not permit this plaintiff to recover.
Finally, the much discussed rule of Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968), is that recovery for mental distress caused by injury to another is allowed when a plaintiff is not injured or even threatened with bodily injury if plaintiff is present or near the scene of the accident, contemporaneously views the event, suffers direct emotional shock from the observance, and is closely related to the victim. Even this more liberal rule would not recognize a cause of action by plaintiff under the facts before us.
The only jurisdiction which would appear to recognize the plaintiff’s asserted cause of action is the State of Massachusetts. In Ferriter v. Daniel O’Connell’s Sons, Inc, 381 Mass. 507, 413 N.E.2d 690 (1980), the court recognized claims of the wife and children for loss of companionship, society, and consortium, and for mental anguish and impaired health sustained by them, as a result of disabling injuries negligently caused to their husband and father by the defendant. In Kansas, a wife has no separate right of action for damages for loss of consortium resulting from injury to her surviving husband caused by the negligent acts or omissions of others. See K.S.A. 23-205. Also, children have no cause of action for damages for loss of parental care and society resulting from injury caused to their father by the negligence of others. Hoffman v Dautel, 189 Kan. 165, 368 P.2d 57 (1962). The Massachusetts court recognized claims of the wife and children for their own mental anguish, though they were not present at the scene of the injury. No other jurisdiction has recognized such a cause of action, and we decline to do so.
Speaking of mental disturbances cases, Prosser, in his Handbook of The Law of Torts (4th ed. 1971), p. 334, says:
“It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as his friends.”
We agree. Despite our willingness to allow recovery in this situation, we are prevented from doing so by the same rationale followed in Hoffman v. Dautel, 189 Kan. at 168-69, where we said:
“It is common knowledge that a parent who suffers serious physical or mental injury is unable to give his minor children the parental care, training, love and companionship in the same degree as he might have but for the injury. Hence, it is difficult for the court, on the basis of natural justice, to reach the conclusion that this type of action will not lie. Human tendencies and sympathies suggest otherwise. Normal home life for a child consists of complex incidences in which the sums constitute a nurturing environment. When the vitally important parent-child relationship is impaired and the child loses the love, guidance and close companionship of a parent, the child is deprived of something that is indeed valuable and precious. No one could seriously contend otherwise.
“While courts should be ever alert to widen the circle of justice, at the same time they should proceed with caution in laying down a new rule in the light of conditions affected or to be affected by it. If this court were to conclude that a cause of action is here alleged, the far-reaching results of such a decision would be readily apparent. A new field of litigation would thus arise between minor children and third party tort-feasors who injure either parent when it is alleged that the negligent injury contributed to the impairment or destruction of the happy family unit with resulting loss and damage to the minor children. The possibility of multiplicity of actions based upon a single tort and one physical injury, when there is added the double-recovery aspect of such a situation in the absence of some statutory control, is deemed sufficient to prevent this court from answering in the affirmative that a cause of action has been alleged.”
We hold that a parent has no cause of action for his or her emotional, physical, or other injuries against one who negligently causes injury to an adult child, when the parent is not present at the scene, is not directly injured, and neither witnesses nor perceives the occurrence, causing injury to the child.
Plaintiff claims that Section 18 of the Bill of Rights of the Kansas Constitution supports the recognition of a legal remedy for her losses. The section reads:
“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
This section, however, does not create rights of action; it means only that “for such wrongs that are recognized by the law of the land,” the courts of this state shall be open and afford a remedy. See Noel v. Menninger Foundation, 175 Kan. 751, 763, 267 P.2d 934 (1954). The claim here asserted by the plaintiff is not one that is recognized by the laws of this state. The quoted section from the Bill of Rights does not create a right of action where none exists.
Other issues raised in the briefs need not be decided in view of our decision set forth above.
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The opinion of the court was delivered by
Holmes, J.:
Plaintiff, B. W. Klippel, Jr., appeals from an order of the trial court sustaining a motion by the defendants for dismissal of the action due to a lack of personal jurisdiction over the defendants and alternatively based upon the doctrine of forum non conveniens.
The lawsuit grows out of the operation of two oil and gas leases located in the East Rose Field Unit in Woodson County. In 1974, the defendants purchased a 15/16ths of a 7/8ths working interest in the Bishop North lease from Equity East Oil Trust and in 1976, purchased a similar interest in the Young A lease from Mr. Klippel. Klippel was designated the operator of both leases in written agreements executed or ratified by the defendants. Defendants are residents of the State of Illinois and Klippel is a resident of Missouri, although he maintains a home in Yates Center. The assignments of the leases and the operating agreements were executed by all the parties outside the State of Kansas.
Under the terms of the operating agreements, Klippel has the responsibility for the development and operation of the properties covered by the leases and the defendants are to pay all expenses for labor and materials incurred by Klippel. Plaintiff’s petition sets forth three causes of action: (1) a claim for unpaid operating expense incurred under the agreement on the Bishop North lease, (2) a claim for unpaid operating expense incurred under the agreement on the Young A lease, and (3) a claim for unpaid interest on the principal balance of an oil payment in favor of Klippel on the Young A lease. Defendants filed a motion to dismiss, asserting that the defendants were not doing business in the State of Kansas and were not subject to the long-arm jurisdiction of the Kansas courts. K.S.A. 60-308(b) provides in pertinent part:
“(b) Submitting to jurisdiction - process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
(1) The transaction of any business within this state.”
Service of process was effected on the defendants in Illinois as provided in the statute. Defendants contend that plaintiff’s suit is merely to recover money on a contractual obligation growing out of contracts entered into outside the State of Kansas between nonresidents of Kansas and as such they are not subject to personal jurisdiction in Kansas. The trial court found that plaintiff’s causes of action did not arise from the transaction of business within the state as contemplated by the statute. The court also found that if a third party who lived and worked in Kansas was suing for labor or materials, the defendants would be subject to the court’s jurisdiction but that the statute does not apply when an agent who is doing business in Kansas is suing his nonresident principal. We find no such distinction in the statute.
It is clear that the defendants are doing business in Kansas and in our opinion are subject to the jurisdiction of the Woodson County District Court for alleged obligations growing out of the operation of their oil and gas leases in Woodson County. The leases themselves create certain duties and obligations on the part of the defendants to be performed in Kansas as do the operating agreements. We were faced with a similar set of circumstances in Sterling v. Marathon Oil Co., 223 Kan. 686, 576 P.2d 635 (1978), where the defendant Marathon was objecting to the venue of the action filed in Rice County on the grounds the plaintiffs were residents of Barber County and that Marathon, a foreign corporation, was not doing business in Rice County. We stated:
“The first point is the contention venue did not lie in Rice County. The individual plaintiffs were residents of Barber County and owned no land in Rice County. Marathon did not maintain a registered office in Rice County and its only connection with Rice County is as owner of working interests in two oil leases operated by Phillips Petroleum Co. Marathon contends that it is not ‘doing business’ within the purview of K.S.A. 60-604(3), our statute upon which venue was based in this action. The record discloses Marathon owns a 37.5% working interest in two Rice County oil leases operated by Phillips.
“The trial court, in its memorandum of decision, found: '. . . . The defendant company makes itself amenable to the Kansas court by virtue of the interest owned and the benefits reaped in and from the oil and gas interests in Rice County, Kansas. . . .’
“The operating agreement between Marathon and Phillips gives Marathon certain rights and duties in the operation and development of the leases covered by the agreement. For example, Marathon pays its share of the costs and expenses, its consent is required under certain conditions for the drilling, reworking, plugging back or deepening of wells and its consent is required for expenditures by Phillips in excess of $10,000.00. There are others. We agree with the trial court that Marathon is doing business in Rice County, venue was properly laid in Rice County and the trial court had jurisdiction of the case. See Intercontinental Leasing, Inc. v. Anderson, 410 F.2d 303 (1969).” p. 687.
In the present case, the defendants had similar obligations under the Klippel operating agreements as existed in the operating agreement between Phillips and Marathon. K.S.A. 60-308 does not make any exception denying jurisdiction to a nonresident agent who is conducting business in Kansas for a nonresident principal. The defendants are doing business in Kansas and have subjected themselves to the jurisdiction of the Kansas courts for actions growing out of such business operations.
In the alternative, the court held that the issues in this case could be tried more conveniently in Illinois than in Kansas and the doctrine of forum non conveniens applied. We disagree. The causes of action for operating expenses on the two leases include items for labor and materials furnished in Kansas and the logical place to prove the incurring of such expenses and the reasonableness thereof must be in Kansas where the materialmen, laborers and other evidence are readily available.
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The opinion of the court was delivered by
Allegrucci, J.:
This medical malpractice action was filed by plaintiffs Kimberly R. Holt and Kenneth F. Holt, and their daughter, Kimberlyn D. Holt, by and through her parents in federal court. Defendants are Wesley Medical Center, LLC, d/b/a/Wesley Medical Center, Wichita Center for Graduate Medical Education, Inc. (WCGME), and Doctors Benjamin J. Harris, Clifford S. Depew, James E. Delmore, and Travis W. Stembridge. Upon the application of plaintiffs, Judge Julie A. Robinson of the United States District Court for the District of Kansas ordered certification of a question of law to this court under K.S.A. 60-3201 et seq. The question arises from the legislature’s retroactively including WCGME within the statutory definition of “health care provider,” thus relieving it of vicarious liability pursuant to K.S.A. 2001 Supp. 40-3403(h). See K.S.A. 2001 Supp. 40-3414(i)(l).
Amicus curiae briefs have been filed by Ashley Raney-Neises, the Kansas Trial Lawyers Association, and the Kansas Hospital Association (KHA).
CERTIFIED QUESTION:
DOES THE RETROACTIVE APPLICATION, BY K.S.A. 2001 SUPP. 40-3414(i)(l), OF L. 2001, CH. 204 (S.B. 366), AMENDING K.S.A. 40-3401(f) AND K.S.A. 40-3403(h) OF THE HEALTH CARE PROVIDER INSURANCE AVAILABILITY ACT, DEPRIVE PLAINTIFFS OF A VESTED PROPERTY RIGHT AND VIOLATE § 18 OF THE BILL OF RIGHTS OF THE KANSAS CONSTITUTION AND, IN ADDITION, VIO LATE THE EQUAL PROTECTION CLAUSE OF § 1 OF THE BILL OF RIGHTS OF THE KANSAS CONSTITUTION?
The following brief statement of facts is taken from the uncontroverted facts set forth by WCGME and plaintiffs for purposes of a summary judgment motion.
■ WCGME is comprised of the University of Kansas School of Medicine-Wichita, Wesley Medical Center (Wesley), and Via Christi Regional Medical Center. WCGME is a not-for-profit corporation that at all relevant times employed defendant Benjamin Harris as a resident physician.
WCGME does not hold a license from the Kansas Board of Healing Arts, nor is WCGME licensed as a medical care facility. It is not a hospital, it maintains no medical supplies, and it does not advertise or solicit patients on its own or for the resident physicians it employs. Although WCGME does not engage in the practice of medicine, provide patient services, or provide medical services to the public, the resident physicians WCGME employs do.
The plaintiffs’ claim is based upon the negligence of Dr. Harris as an employee and/or agent of WCGME based upon vicarious liability. Wesley contractually agreed to indemnify WCGME for the negligent acts of WCGME’s physicians practicing at its facility.
In the months of March and May 2001 in meetings involving Wesley and various legislators, the status of WCGME as a health care provider was discussed. Patricia Dengler, general counsel for WCGME, presented testimony to the Senate Financial Institutions and Insurance Committee on April 26, 2001. She testified that WCGME had been named as a defendant in three medical malpractice actions, where the Health Care Stabilization Fund (Fund) initially advised WCGME that the Fund would provide defense costs and coverage of any settlement or judgment but later advised WCGME that it was not covered by the Fund. Minutes, Senate Fin. Inst, and Ins. Comm., April 26, 2001 (S.B. 366). Dengler proposed amendments to certain sections of the Health Care Provider Insurance Availability Act (Act), K.S.A. 40-3401 etseq., that would bring WCGME within the definition of “health care provider.” See K.S.A. 2001 Supp. 40-3401(f).
According to WCGME, Kimberlyn Holt was born at Wesley in Wichita, Kansas, on July 30, 1998. Since birth, she has had profound and permanent medical problems that plaintiffs attribute to negligence on the part of resident physicians, nurses, and other health care providers who participated in the labor and delivery. According to the Holts, the care and treatment of Kimberly Holt July 29-31 and October 22, 1998, resulted in her being unable to have other children and having bladder and urinary tract difficulties. The Holts also assert that they have sustained economic and noneconomic losses due to the continuing medical problems of mother and daughter.
The Holts contend that the retroactive provision of K.S.A. 2001 Supp. 40-3414(i)(l) deprives them of a vested property right in violation of § 18 of the Bill of Rights of the Kansas Constitution. The constitutional provision provides that “[a]ll persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” Kan. Const. Bill of Rights, § 18. The statute provides:
“Subject to the provisions of paragraph (4), for the purposes of the health care provider insurance availability act, each nonprofit corporation organized to administer the graduate medical education programs of community hospitals or medical care facilities affiliated with the university of Kansas school of medicine shall be deemed to have been a health care provider as defined in K.S.A. 40-3401, and amendments thereto, from and after July 1, 1997.”
The negligence alleged by the Holts occurred in 1998, and they filed suit on July 28, 2000. The challenged legislation was enacted in 2001. L. 2001, ch. 204, secs. 1 and 3.
The Holts rely heavily on Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 892 P.2d 497 (1995), for support of their position that their tort actions for negligence constitute a vested property right. In Fleischer the question “Under Kansas law, does the holder of accrued tort actions for negligence and breach of fiduciaiy duty, which have not yet been reduced to judgment have a vested property right in those causes of action?” was one of two questions certified to this court. 257 Kan. at 361, 364-74. Based on its examination of Kansas law and the law of other jurisdictions, the Fleischer court concluded that the holder of an accrued tort action for negligence has a vested property right in that cause of action. 257 Kan. at 374.
There is no question that plaintiffs had an accrued cause of action against WCGME for derivative negligence at the time the challenged legislation was enacted. WCGME, however, argues that because Fleischer involves direct rather than derivative liability, the case does not support the Holts’ position that their derivative negligence cause of action was a vested property right. WCGME cites this court’s caution in restricting the scope of its decision in Fleischer: “The weight of authority rests with the [Resolution Trust], Its common-law causes of action for negligence and negligent breach of fiduciary duty were, under the facts of this case, Vested property rights’ under Kansas law. The answer to certified question one is yes,’ as qualified by our analysis.” (Emphasis added.) 257 Kan. at 374. As a matter of fact, the Resolution Trust’s suit against former directors of a savings and loan association involved direct rather than derivative liability. Examination of the court’s analysis in Fleischer, however, reveals no suggestion that the factual difference between direct and derivative negligence might be significant. Principles discussed in the analysis include the difference between procedural and substantive rights, only the latter being protected, and recognition of a link between the moment of accrual of a cause of action and the creation of vested rights. 257 Kan. at 366. In examining cases from other jurisdictions, the court distinguished cases relied on by the defendant directors as merely curing or clarifying defects in existing ambiguous statutes and those involving retroactive legislation aimed at urgent problems of overriding public interest. See 257 Kan. at 370-73. There is no hint that any distinction between direct and derivative liability entered into the court’s analysis.
WCGME cites KPERS v. Reimer & Koger Assocs., Inc., 261 Kan. 17, 927 P.2d 466 (1996), for this court’s rejection of Reimer & Koger’s argument that seeking indemnity was a vested right. The court concluded that a cause of action for indemnity based on tort does not accrue until the indemnitee has suffered an actual loss. 261 Kan. at 40. Hence, were Reimer & Koger found not to be liable to KPERS, there would be nothing for Reimer & Koger to recover in indemnity. WCGME would draw a parallel with the circumstances of this case, stating that if its employee, Dr. Harris, were found not to be liable to the Holts there would be nothing for the Holts to recover from WCGME. It does not follow, however, that a cause of action for vicarious negligence would accrue only if there were a judgment against Dr. Harris for negligence. The cause of action for negligence against WCGME, like the cause of action for negligence against Dr. Harris, accrued when the alleged negligence occurred in 1998.
WCGME also cites Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 (1979), which determined four separate cases involving disputes between insureds and their insurance carriers over the payment of attorney fees assessed by trial courts against the insurers after a recovery of damages was obtained by the insured from a third-party tortfeasor. The court concluded that “the insurance companies involved had no vested contractual rights prior to July 1, 1977, because in none of the cases had the insured obtained a recovery of damages from the third-party tortfeasor prior to date.” 225 Kan. at 294-95. WCGME cites Nitchals for the principle that retroactive application of a statute does not impair a vested right where the right had not arisen when the statute became effective. WCGME’s point seems to be that the Holts’ cause of action against WCGME, because it was based on vicarious liability, was comparable to the insurers’ unvested rights in Nitchals and had not arisen when K.S.A. 2001 Supp. 40-3414(i)(l) became effective. Nitchals, for several reasons, does not support WCGME’s position. In Nitchals, the challenged statute was determined not to affect the substantive rights of the parties because it was “procedural or remedial in nature” rather than substantive. 225 Kan. 285, Syl. ¶¶ 2-4. In addition, an insurer’s right of reimbursement and indemnity under the previous statute is like Reimer & Koger’s cause of action for indemnity and unlike the Holts’ cause of action against WCGME in that its accrual depended on the occurrence of conditions subsequent to or consequences spawned by the primary tort. A tort cause of action accrues when the elements of duty, breach, and resulting injury or damage are present. 1 Am. Jur. 2d, Actions § 72, p. 769.
Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991), is another case cited by WCGME for its contention that a cause of action for vicarious liability is not a vested right. WCGME would infer from the court’s upholding the statutory elimination of vicarious liability for health care providers that a cause of action for vicarious liability is not a vested property right. The inference, however, is unwarranted.
The statute challenged in Bair was K.S.A. 1990 Supp. 40-3403(h), which provided:
“ ‘(h) A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after the effective date of this act.’ ” 248 Kan. at 827.
There was no retroactive clause, and no question was raised about claims that may have accrued but not have been filed before the effective date of tire statute. The due process argument made to this court was that the statute abolished the vicarious liability remedy previously available to medical malpractice victims without providing an adequate substitute remedy or quid pro quo. A majority of the court rejected the argument, determining that the statutory requirements for minimum amounts of malpractice insurance as a condition of providing health care in this state sufficed as a quid pro quo. 248 Kan. at 844.
The defendants have offered no convincing reason or authority why accrual of a tort cause of action based on vicarious liability for an injury would not also accrue when the elements of duty, breach, and resulting injury are present. The Holts’ tort action for negligence against the defendants constituted a vested property right.
The Holts argue that the retroactive provision of K.S.A. 2001 Supp. 40-3414(i)(l) violates their due process rights under § 18 of the Bill of Bights of tire Kansas Constitution. It is settled that the constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. In determining constitutionality, it is tire court’s duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
In spite of the presumption of constitutionality, the court in Fleischer concluded that the retroactivity of the legislation being challenged “presented an insurmountable constitutional infirmity” because “[s]ubstantive laws affecting vested rights cannot be made retroactive without violating due process.” 257 Kan. at 376 (citing Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 190, 883 P.2d 1177 [1994]; Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 [1992]).
WCGME argues that the challenged legislation in this case presents an exception to the general prohibition against retroactive legislation that impairs substantive rights. It is an exception, according to WCGME, because it was enacted to clarify ambiguities in existing law. WCGME concedes in its brief that “[i]n order to be valid, curative legislation must have been within the legislature’s power to enact initially and must not impair vested rights.” (Emphasis added.) See State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, 423, 636 P.2d 760 (1981). The argument seems to be that no vested rights were impaired by K.S.A. 2001 Supp. 40-3414(i)(l) because WCGME was a health care provider all along and the statute merely clarified the status quo.
This court presumes when the legislature revises an existing law that the legislature intended to change the law. American Trust Administrators, Inc. v. Kansas Insurance Dept., 273 Kan. 694, 701, 44 P.3d 1253 (2002). This court also recognizes that
“this presumption may be weak according to the circumstances and may be wanting altogether. [Board of Sedgwick County Comm’rs v. Action Rent to Own, Inc.,] 266 Kan. [293,] at 304[, 969 P.2d 844 (1998)]. ‘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.’ Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982).” American Trust, 273 Kan. at 701.
The retroactive amendment at issue here, K.S.A. 2001 Supp. 40-3414(i)(l), was not part of a general revision or codification of the law concerning health care provider insurance. L. 2001, ch. 204. The amendment at issue instead was one of several provisions, all having to do with nonprofit corporations organized to administer graduate medical education programs, that were inserted into the already existing Act concerning health care provider insurance. The definition section, K.S.A. 40-3401, was amended to include such nonprofit corporations within the definition of health care provider. L. 2001, ch. 204, sec. 1(f). The health care stabilization fund section, K.S.A. 40-3403, was amended to make the fund liable to pay such nonprofit corporations5 attorney fees, costs, and judgments or settlements arising out of rendering or failing to render professional services. L. 2001, ch. 204, sec. 2(c)(ll) and (12). The health care stabilization fund section also was amended to establish the graduate medical education administration reserve fund, L. 2001, ch. 204, sec. 2(j)(4), and to set the election of fund coverage limits for such nonprofit corporations at the highest option, L. 2001, ch. 204, sec. 2(1). Subsection (h) of the section governing qualification of health care providers as self insurers for purposes of the Act, K.S.A. 40-3414, was amended by adding such nonprofit corporations to the list of qualifying organizations and requiring them to pay the applicable surcharge. L. 2001. ch. 204, sec. 3(h). Subsection (i) was a new subsection added to K.S.A. 40-3414. As we have seen, in (i)(l), the legislature provided that such nonprofit corporations “shall be deemed to have been a health care provider . . . from and after July 1, 1997.55 L. 2001, ch. 204, sec. 3(i)(l). In (i)(2), the legislature deemed such nonprofit corporations “to have been a self insurer within the meaning of subsection (h) . . . from and after July 1,199755; in (i)(3), the election of fund coverage limits for such nonprofit corporations “shall be deemed to have been effective at the highest option . . . from and after July 1, 199755; and in (i)(4), the legislature exempted such nonprofit coiporations from any annual premium surcharge for any period prior to the effective date of the amendments. L. 2001, ch. 204, sec. 3(i)(2), (3), and (4). The annual premium surcharge section, K.S.A. 40-3404, was amended to include such nonprofit corpora tions among those required to pay an annual premium surcharge. L. 2001, ch. 204, sec. 4(a).
The effect of the amendments was to make the existing health care provider insurance scheme applicable to an additional category of providers rather than to alter the existing scheme. Under these circumstances, the presumption that when the legislature revises an existing law it intends to change the law is fairly strong. What WCGME offers to overcome the presumption is not.
First, WCGME suggests that it may have been included in 40-3401(f) in the preamendment definition of health care provider as a nonprofit corporation “organized for the purpose of rendering professional services by persons who are health care providers.” The preamendment definition of health care provider included several organizational types used by professional groups. Among the organizational types were a professional corporation, a Kansas limited liability company, a partnership, and a Kansas not-for-profit corporation. The latter was included in the definition of health care provider in 1982, as proposed by the Kansas Insurance Department, “in response to information submitted that various professional corporations at the University of Kansas Medical Center would become nonprofit corporations effective July 1, 1982” because up to then only for-profit corporations qualified for Fund coverage. Kansas Insurance Department Bulletin 1982-12.; see L. 1982, ch. 207, sec. 1(f). WCGME, unlike the professional groups who are organized for the purpose of rendering professional services, is organized for the purpose of administering a graduate medical education program.
Second, WCGME in its brief states tihat Patricia Dengler, its general counsel, told a legislative committee that the amendments WCGME proposed were to clarify WCGME’s status as a health care provider under Kansas law. What Dengler actually said was slightly different:
“[I]n 1999, the Stabilization Fund initially informed WCGME that it would provide defense costs and coverage of any settlement or judgment. In conjunction with that information, WCGME was informed that it was a health care provider pursuant to K.S.A. 40-3401(f). The basis of this information was a compliance document that listed WCGME as being in compliance with Fund requirements. Since 1990, WCGME has paid the Fund the surcharge for the residents' excess coverage. Approximately six weeks ago, WCGME was informed that the initial information from the Fund was incorrect due to a clerical error and WCGME was not covered by the Fund.” (Emphasis added.) Minutes, Senate Fin. Inst. and Ins. Comm., April 26, 2001 (S.B. 366).
In other words, Dengler distinguished between coverage of the residents employed by WCGME and WCGME itself and testified that WCGME knew that it was not covered by the Fund. In concluding her testimony, she used the verb “clarify” but followed it with an explanatory phrase that indicated that “modify” would better have described the action she was asking the legislature to take: “WCGME submits these proposed amendments to clarify the definition of ‘health care provider’ so that WCGME, SHEF [Salina Health Edúcation Foundation] and the KMEF [Kansas Medical Education Foundation] are included in this definition and can access the protection of the Fund.” Minutes, Senate Fin. Inst. and Ins. Comm., April 26, 2001 (S.B. 366).
Amicus KHA confirmed the distinction between Fund coverage for resident physicians and Fund coverage for WCGME. On September 15, 2003, it filed a correction to the following statement in its brief: “WCGME paid the Fund for coverage under the Act for over 10 years . . . .” The correction stated that WCGME paid the Fund for coverage only for the resident physicians who participated in the residency program administered by WCGME but did not pay the Fund surcharge for itself as an entity. Amicus’ counsel wrote:
“It was KHA’s understanding when the brief was filed that this statement was true based upon the fact that the Fund initially agreed to defend WCGME and provide coverage for any liability WCGME might have in response to the present suit and another similar case. That coverage decision was later challenged which led WCGME to seek legislation to clarify its right to coverage. However, counsel for KHA has recently received information that WCGME only paid the Fund for coverage for the residents who participated in the residency program administered by WCGME, but did not pay the fund surcharge for itself as an entity. Thus, the statement that WCGME paid the Fund for coverage under the Act’ is incomplete and implies that it was paying for coverage for itself as an entity rather than only for the residents. KHA would like tire record to reflect this distinction in order to avoid the Court or any of the parties from relying upon this incorrect statement.”
This court presumes that when the legislature revises an existing law, the legislature intended to change the law, and the presumption is fairly strong where, as here, the amendments were not adopted in a general revision of the law. In this case, WCGME has not offered an effective rebuttal of the presumption.
Amicus KHA directs the court’s attention to Fleischer, where three factors were identified as important in shaping the conclusions of vested rights cases from other jurisdictions: (1) the nature of the rights at stake (e.g., procedural, substantive, remedial); (2) how the rights were affected (e.g., whether partially or completely abolished by the legislation, was any substitute remedy provided); and (3) the nature and strength of the public interest furthered by the legislation. 257 Kan. at 369. Applying these factors in the present case, KHA states that the Act is remedial in nature without contending that the right at stake is anything other than substantive. Nor does KHA deny that the right was completely abolished and that no substitute remedy was provided. On the third factor, KHA asserts that there is great public interest in health care legislation and implies that the great public interest ought to override due process concerns. KHA cites Aves v. Shah, 258 Kan. 506, 906 P.2d 642 (1995), as holding that a significant public interest in health care legislation justifies the abrogation of common-law remedies. In Aves, the court gave the following answer to a certified question: “Kansas law does not recognize a claim of bad faith against the Health Care Stabilization Fund for a judgment in excess of the Fund’s statutory limit of liability.” 258 Kan. at 527. No one quarrels that there is great public interest in health care legislation, but that is not what is under consideration here. What is at issue is the retroactivity of a narrow slice of health care legislation, which includes nonprofit corporations organized to administer graduate medical education programs as health care providers for purposes of health care provider insurance. Thus, the question is the nature and strength of the public interest furthered by the legislation’s retroactive inclusion of such nonprofit corporations as health care providers. KHA offers no reason why the public interest would be furthered by retroactivity.
In a similar vein, KHA contends that the amendments replaced a doubtful remedy with a superior one for the Holts. The quid pro quo analysis, however, has no place where the challenge is to the retroactivity of an enactment.
Thus, under the facts presented, the retroactive provision of K.S.A. 2001 Supp. 40-3414(i)(l) deprives the Holts of a vested property right and violates their due process rights under § 18 of the Bill of Rights of the Kansas Constitution.
The Holts also contend that K.S.A. 2001 Supp. 40-3414(i)(l) violates the Equal Protection Clause of § 1 of the Bill of Rights of the Kansas Constitution, which provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” They contend that 40-3414(i)(l) creates unreasonable and arbitrary classifications of medical malpractice victims, namely those whose claims arose before and after July 1, 1997. Those with claims arising before that date would have a claim for vicarious liability against WCGME, but those with claims arising after that date would not.
“This court has traditionally treated malpractice legislation as economic regulation in which the rational basis test is applied. [Citations omitted.]” Aves, 258 Kan. at 525. The Holts agree that the rational basis test is applicable here, and they give no consideration to any other level of scrutiny. Under the rational basis scrutiny, a legislative classification will be upheld if it is rationally related to a legitimate legislative purpose. Thompson v. KFB Ins. Co., 252 Kan. 1010, 1018, 850 P.2d 773 (1993).
The Holts would have the court liken the classification of claimants by whether their claims arose before or after July 1, 1997, to the classification in Thompson. The statutory classification challenged in Thompson made evidence of collateral source benefits admissible in actions in which the claimant demanded damages in excess of $150,000. According to KFB, the legislative purpose was “to compensate ‘all tort victims fully for their injuries while reducing or ehminating recoveries by personal injury plaintiffs in excess of the total damages they have suffered.’ ” 252 Kan. at 1018. The question for the court was whether “the classification of plaintiffs into those seeking $150,000 or less and those seeking more than $150,000 must bear a rational relationship to the objective of fully compensating without overcompensating injured persons.” 252 Kan. at 1019. The court was unable to ascertain any rationality in the legislature’s selecting plaintiffs seeking $150,000 or more, rather than some other group, to bear the burden of the legislation. Thus, it held that the classification unreasonably discriminated in favor of claimants demanding $150,000 or less. 252 Kan. at 1023.
The differential treatment in the present case of persons whose causes of action accrued before and after July 1,1997, differs from the distinction at issue in Thompson. The division between classifications in the present case is the effective date of the legislation. All legislation has to have an effective date. The division between classifications in Thompson, in contrast, was an arbitrary dollar figure that was neither intrinsic nor necessary to the legislation.
The legislative purpose in selecting July 1, 1997, according to WCGME, was to make it a health care provider during all times relevant to pending litigation against it. Under rational basis analysis, relevance is the only relationship required between the classification and the objective. Stephenson v. Sugar Creek Packing, 250 Kan. 768, 774, 830 P.2d 41 (1992). Having to make its enactment effective on some date, the legislature selected a date with the purpose of uniformly affecting all pending litigation against WCGME by making WCGME a health care provider as of July 1, 1997. The legislative classification is relevant to the object of the legislation, certainly as much as the effective date of any legislation would be related to its object. Without the retroactive clause in K.S.A. 2001 Supp. 40-3414(i)(l), WCGME would have been included among health care providers as of May 31, 2001, the date of publication in the Kansas Register. See L. 2001, ch. 204, sec. 6. May 31, 2001, as far as is known, is unrelated to the object of the legislation. Because legislation cannot become effective without an effective date and an effective date always will create before-and-after classifications, equal protection analysis of classifications created by an effective date is of little utility.
In conclusion, we hold that the retroactive provision of K.S.A. 2001 Supp. 40-3414(i)(l) deprives the Holts of a vested property right and violates § 18 of the Bill of Rights of the Kansas Consti tution, but it does not violate the Equal Protection Clause of § 1 of the Bill of Rights of the Kansas Constitution. | [
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The opinion was delivered by
Luckert, J.:
Larry Purdy was placed on probation after pleading guilty to possession of methamphetamine with intent to sell. After Purdy violated his probation, the district court reinstated his probation but extended it for an additional 18 months. Purdy appealed, arguing that the extension was an illegal sentence because the district court failed to set forth with particularity its reasons for extending probation as required by K.S.A. 2003 Supp. 21-4611(c)(5).
The Court of Appeals affirmed, ruling that K.S.A. 2003 Supp. 21-4611(c)(5) applies only when a district court sets the initial term of a defendant’s probation and not when the defendant’s probation is later revoked and reinstated. State v. Purdy, 31 Kan. App. 2d 1087, 1090, 77 P.3d 514 (2003). This court granted Purdy’s petition for review.
Facts
The facts of this case are undisputed and were set out by the Court of Appeals as follows:
“On April 12, 1999, the defendant entered a plea of guilty to possession of methamphetamine with intent to sell, a violation of K.S.A. 65-4161(a), a severity level 3 drug felony. The district court sentenced the defendant to a 36-month probation term, with an underlying prison term of 30 months. The term of probation was set to begin running upon the defendant’s release from prison in a separate case. As a special condition of his probation, the defendant was required to successfully complete drug and alcohol treatment while incarcerated and was to come before the court for review of his treatment upon release from prison. The defendant was released from prison on December 4, 2000. On January 18, 2001, the defendant’s probation term was reduced to 18 months, in accordance with Senate Bill 323, K.S.A. 2000 Supp. 21-4611(c)(5).
“On April 19, 2002, the State filed a motion to revoke the defendant’s probation on the grounds that the defendant had failed a drug test, admitted to drug usage, and had been arrested on new drug charges. In response, the defendant filed a motion to correct an illegal sentence, contesting the district court’s calculation of the date his probation term began. In the alternative, the defendant argued that his probation should not be revoked based in part on his good behavior and the irregular nature of his sentence.
“On July 24, 2002, a hearing was held on both motions. Following argument on the defendant’s motion to correct an illegal sentence, the State presented testimony regarding the defendant’s probation violations. Eventually, the district court reinstated the defendant’s probation, but extended it for an additional 18 months from June 4, 2002, the date that the original term of probation would have expired. The court further required the defendant to be assessed for drug treatment and to follow the assessment recommendations. The defendant timely appealed.
“Subsequent to the appeal, the State filed a motion to revoke the defendant’s probation on December 30, 2002. The defendant’s probation was ultimately revoked on April 17, 2003, due to ‘drug use and new drug charges,’ and the defendant was ordered to serve the underlying 30-month prison sentence.” Purdy, 31 Kan. App. 2d at 1087-88.
Did the Extension of Defendant’s Probation Constitute an Illegal Sentence Because the District Court Failed to set Forth with Particularity the Reasons for Extending Probation as Required by KS.A. 2003 Supp. 21-4611(c)(5)?
The issue raised on Purdy’s appeal involves the interpretation of statutes, a question of law over which this court exercises unlimited review. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
K.S.A. 2003 Supp. 21-4611(c) sets out the applicable period of probation or assignment to community corrections for felony crimes committed on or after July 1, 1993. Pursuant to subsection (c)(4), the statutorily mandated probation term for Purdy’s conviction is a maximum of 18 months.
K.S.A. 2003 Supp. 21-4611(c)(5) provides:
“If the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms provided in subsections (c)(3) and (c)(4), the court may impose a longer period of probation. Such an increase shall not be considered a departure and shall not be subject to appeal.”
The Court of Appeals determined that K.S.A. 2003 Supp. 21-4611(c)(5) applies only when the district court sets the initial term of a defendant’s probation. Thus, the court found the statute inapplicable to Purdy whose probation was revoked and reinstated. Instead, the court found that K.S.A. 2003 Supp. 22-3716(b) applies when a district court revokes and reinstates a defendant’s probation.
The Court of Appeals recognized two recent cases interpreting K.S.A. 2003 Supp. 21-4611(c)(5), State v. Jones, 30 Kan. App. 2d 210, 41 P.3d 293 (2001), and State v. McIntyre, 30 Kan. App. 2d 705, 46 P.3d 1212 (2002), but found those cases to be distinguishable.
In Jones, the defendant Jones was sentenced in 1998 to 24 months’ probation. After K.S.A. 2000 Supp. 21-4611 took effect, which would have shortened Jones’ probation to 12 months, the State filed an application to revoke his probation. The district court eventually extended Jones’ probation to December 1, 2000, the term imposed at his original sentencing. The court later revoked Jones’ probation and ordered him to serve the underlying prison sentence.
Jones argued that the district court’s extension of his probation did not meet the requirements of K.S.A. 2000 Supp. 21-4611(c)(5) because the court’s order did not set forth with particularity the reasons for extending probation. The Court of Appeals agreed, ruling that the district court’s failure to make the findings required by the statute was an abuse of discretion resulting in an illegal sentence. Thus, the case was reversed and remanded for the dis trict court to make the appropriate findings. 30 Kan. App. 2d at 214.
In McIntyre, the district court granted a downward dispositional departure and assigned the defendant to Labette Correctional Conservation Camp. One year later, the court revoked the defendant’s probation and reinstated it for a period of 24 months. Under K.S.A. 2001 Supp. 21-4611(c)(3), the maximum probation term was 12 months. 30 Kan. App. 2d at 705-06.
The McIntyre court noted that this court had determined that “the decision of the Jones panel is controlling authority upon other Court of Appeals panels.” 30 Kan. App. 2d at 709. Consequently, the court in McIntyre held that a trial court’s failure to set forth with particularity the required findings under K.S.A. 2001 Supp. 21-4611(c)(5) results in an illegal sentence subject to appellate review. 30 Kan. App. 2d at 708-09. The court then ruled that the district court’s explanation of its reasons for extending the defendant’s probation was sufficient to satisfy the particularity requirement of K.S.A. 2001 Supp. 21-4611(c)(5). 30 Kan. App. 2d at 709.
In this case, the Court of Appeals found Jones and McIntyre to be distinguishable because those cases “involve a situation in which the defendant’s probation was revoked after Senate Bill 323 [K.S.A. 2000 Supp. 21-4611] took effect. Under the newly created statute, the district court was required to state findings of particularity on the record in order to extend the term of the defendant’s probation beyond the presumptive sentence under K.S.A. 2000 Supp. 21-4611(c)(3).” Purdy, 31 Kan. App. 2d at 1089.
The Court of Appeals correctly distinguished between this case and Jones and McIntyre because, here, Purdy’s probation term had already been retroactively modified as provided for by K.S.A. 2003 Supp. 21-4611(d). In Jones and McIntyre, the district court had yet to apply the retroactive provisions of the statute shortening the defendants’ probation terms. In other words, K.S.A. 2003 Supp. 21-4611(c)(5) applies only when a district court imposes an initial term of probation or when the court complies with the retroactivity provision of K.S.A. 2003 Supp. 21-4611(d) to modify a defendant’s probation term.
The Court of Appeals found that a different statute, K.S.A. 2003 Supp. 22-3716(b), applies when a district court revokes and reinstates a defendant’s probation. Purdy, 31 Kan. App. 2d at 1089. That statutes provides that, if a probation violation is established, the district court may continue or revoke the defendant’s probation. The statute also places limitations on when a defendant whose probation has been revoked may be required to serve time in a state department of corrections facility. If a defendant has not had at least one prior assignment to a community corrections program as part of his or her original sentence, the district court cannot require that defendant to serve time in a state facility unless the court "finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by such assignment to a community correctional services program.” K.S.A. 2003 Supp. 22-37l6(b).
The Court of Appeals correctly concluded that because Purdy was not sentenced to serve time in a state facility, the district court was not required to make particularized findings in extending Purdy’s probation. Purdy, 30 Kan. App. 2d at 1089-90.
However, Purdy argues that the Court of Appeals erred in failing to consider K.S.A. 2003 Supp. 21-4611(c)(5) and (c)(8) which control extensions and modifications of probation. As Purdy notes, K.S.A. 2003 Supp. 22-3716(b) contains no provisions governing the time periods for which probation may be continued or extended. Only K.S.A. 2003 Supp. 21-4611 contains those time limits.
Specifically, K.S.A. 2003 Supp. 21-4611(c)(8) governs the length of permissible extensions of probation. That subsection provides:
“The court may modify or extend the offender’s period of supervision, pursuant to a modification hearing and judicial finding of necessity. Such extensions may be made for a maximum period of five years or the maximum period of the prison sentence that could be imposed, whichever is longer, inclusive of the original supervision term.”
This court was recently charged with interpreting K.S.A. 2003 Supp. 21-4611 in State v. Gordon, 275 Kan. 393, 66 P.3d 903 (2003). The issue in Gordon was whether a district court could extend a defendant’s probation until restitution was paid in full without holding a modification hearing or making a judicial finding of necessity. The Gordon court described the provisions of K.S.A. 2003 Supp. 21-4611 as follows:
“Reading the provisions of the statute together, we conclude that in all cases for crimes committed on or after July 1,1993, the duration of probation in felony cases is set in K.S.A. 2002 Supp. 21-4611(c)(l) through (4). However, for crimes falling within subsections (3) and (4), the court may, if it finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served, impose a longer period of probation, which according to subsection (5) shall not be considered a departure and subject to appeal. With the exception of subsections (c)(7) and (c)(8), the total period in all cases shall not exceed 60 months or the maximum period of the prison sentence that could be imposed whichever is longer. With the exception of subsection (c)(7), any extension for all cases beyond the initial maximum provided for in subsection (c)(6) must be accomplished under subsection (c)(8) pursuant to a modification hearing and a judicial finding of necessity. No limit is provided for in subsection (c)(7), and no express provision for a hearing is included.” (Emphasis added.) 275 Kan. at 405-06.
Thus, subsection (c)(8) requires only a hearing and a judicial finding of necessity before a district court may extend a defendant’s probation. It does not call for the same kind of particularized findings required by subsection (c)(5). The requirements of subsection (c)(8) were met in this case where the district court held a hearing and determined that Purdy’s probation should be extended so that he could undergo a drug evaluation and follow its recommendations.
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Tlie opinion of the court was delivered by
Allegrucci, J.:
The Shawnee County Board of Commissioners (County) enacted a charter resolution approving the subdivision plat for Hickory Creek Subdivision No. 2, which was tendered by K.W. Simon & Associates, Inc. (Simon), and directing Marilyn Nichols, the Shawnee County Register of Deeds, to record the plat. The City of Topeka (City) sued, challenging the County’s authority to approve the plat. The City sought a declaratory judgment, a writ of mandamus, and injunctive relief. On cross-motions for summary judgment, the district court ruled in favor of defendants. The City appealed. This court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The district court conducted a hearing on the parties’ cross-motions for summary judgment and ruled from the bench. The City prepared the journal entry, and it was approved by the other parties before being signed by the district court. At the hearing, the district court made no findings of fact, and none were included in the journal entry. The entire substance of the journal entry granting summary judgment in favor of the County and Simon is contained in the following paragraphs:
“1. That K.S.A. 12-741 et seq. and K.S.A. 19-2956 et seq. were enacted after Moore v. City of Lawrence, 232 Kan. 353, 654 P.2d 445 (1982), was decided. The Court stated that it is not certain that it agrees with Moore, and that even if Moore is still good law, there have been developments and enactments since that time that clearly make K.S.A. 12-741 et seq. non-uniform.
“2. That Charter Resolution No. 2002-1 passed by the County was not preempted by nor in conflict with K.S.A. 12-741 et seq.
“3. That the charter ordinance was enacted in light of K.S.A. 12-715d and was authorized by K.S.A. 19-2633. The Court stated that it did not think it was clear that K.S.A. 19-2633 had been repealed at that point in time and that K.S.A. 19-2633 still remains in effect. The Court also found that K.S.A. 12-741 et seq. does not conflict with K.S.A. 19-2633.
“4. That, although the County may have previously waived its rights to approve plats or accept the dedication of public lands for subdivisions located in the three mile area outside the city limits of the City of Topeka, the passage of Charter Resolution No. 2002-1 by the County pursuant to the home rule powers of K.S.A. 19-101b(d) rescinded any such waiver.”
On appeal, the City challenges the entry of summary judgment against it. The City argues that the district court erred in each of its conclusions stated above. We conclude the dispositive issue is whether the district court erroneously decided that Moore v. City of Lawrence, 232 Kan. 353, 64 P.2d 445 (1982), is no longer good law. Hence, our discussion centers on Moore and its effect on the facts of the present controversy.
The City and County have agreed to cooperate in planning and zoning in the Topeka-Shawnee County metropolitan area. In 1958, the City adopted subdivision regulations governing land within the city limits and within 3 miles outside the city limits. The City’s subdivision regulations are codified at Topeka City Code, Sections 134-2 to 134-175 (1995). It is undisputed that the County’s subdivision regulations fit with the City’s in providing that they govern all subdivision of land in the unincorporated area of Shawnee County, with the exception of the 3-mile jurisdictional control area of any incorporated city. In 1960, the City and County established a joint planning commission, the Topeka-Shawnee County Regional Planning Commission. It was replaced in 1963 by another regional planning commission and in 1972 by the Topeka-Shawnee County Metropolitan Planning Commission (MPC). Each was established by an agreement set forth in a joint resolution and ordinance. The ordinance that established the MPC gives full force and effect to present subdivision and zoning regulations until a comprehensive plan prepared by the MPC is adopted by the City and the County. See Topeka City Code, Sections 110-26 et seq. (1995). The MPC has prepared no joint planning legislation relating to the regulation of subdivisions. Nor have the City and County jointly enacted any subdivision regulations.
The general practice of the MPC where a proposed subdivision is located within the City or within the 3-mile zone is to evaluate the proposal using the City’s subdivision regulations and then submit the subdivision plat and any public dedications included in the plat to the Topeka City Council. If the subdivision is located in Shawnee County and more than 3 miles beyond the city limits of the City, the MPC evaluates the subdivision using the County’s subdivision regulations and then submits the subdivision plat and any public dedications to the Board of Shawnee County Commissioners.
In January 2001, a majority of the Topeka City Council disapproved a plat application filed by Simon for Hickory Creek Subdivision No. 2 located in Shawnee County, near the intersection of SW 46th Street and SW Auburn Road within 3 miles of the city limits of the City. Simon appealed the City’s decision to the district court, which held in favor of the City. Simon appealed the district court’s decision to the Court of Appeals, which affirmed in a 2-page unpublished opinion. K. W. Simon & Associates, Inc. v. City of Topeka, No. 89,123, filed May 2, 2003. The Court of Appeals stated: “Judge Franklin R. Theis wrote an exhaustive and excellent 67-page opinion explaining why he had ruled against Simon. We agree with that opinion and will not attempt to improve upon it.”
In October 2002, the County enacted Charter Resolution No. 2002-1 that approved Simon’s subdivision plat and directed the Shawnee County Register of Deeds to record it. The resolution states in part:
“1. The Board of County Commissioners of the County of Shawnee, Kansas hereby exempts itself from and malees inapplicable to it the provisions of the general planning and zoning law for the state of Kansas, K.S.A. 12-741 et seq.
“5. Unless otherwise provided by act of the Board of County Commissioners, the general zoning and planning law, K.S.A. 12-741 et seq. shall continue to apply to all other land located in the unincorporated area of Shawnee County.”
In November 2002, the City filed this action challenging the County’s authority to approve the plat.
The district court treated the cross-motions for summary judgment as if there were no dispute as to the facts and no contention that the entry of summary judgment should have been precluded by a genuine issue of any material fact. Thus, this court’s review of the district court’s conclusions of law is de novo. See Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 877, 69 P.3d 601 (2003).
The district court examined K.S.A. 12-741 et seq., which is “enabling legislation for the enactment of planning and zoning laws and regulations by cities and counties for the protection of the public health, safety and welfare,” and K.S.A. 19-2956 et seq. that authorizes planning and zoning in urban areas such as Johnson County, which is designated as an urban area by K.S.A. 19-2654. On the question whether K.S.A. 12-741 et seq. is non-uniform, the district court’s journal entry states:
“K.S.A. 12-741 et seq. and K.S.A. 19-2956 et seq. were enacted after Moore v. City of Lawrence, 232 Kan. 353, 654 P.2d 445 (1982), was decided. The Court stated that it is not certain that it agrees with Moore, and that even if Moore is still good law, there have been developments and enactments since that time that clearly make K.S.A. 12-741 et seq. non-uniform.”
The district court correctly concluded that K.S.A. 12-741 et seq. is not uniformly applicable to all counties. The procedures for adoption of subdivision regulations affecting property outside cities in K.S.A. 12-749(d) and K.S.A. 12-750 are quite different from those in K.S.A. 19-2961(b). In addition, the plat approval procedure set out in K.S.A. 12-752 differs significantly from the plat approval procedure for second- and third-class cities in K.S.A. 12-401.
The City’s position is that the elective planning and zoning procedures of K.S.A. 12-741 et seq. bind municipalities that elect to follow the procedures therein. The County used the enabling legislation for local planning and zoning and, according to the City’s argument, became bound by the enactment as a result. The City relies on Moore v. City of Lawrence, 232 Kan. 353, 356-57, 654 P.2d 445 (1982), and cases citing it, such as Bigs v. City of Wichita, 271 Kan. 455, 23 P.3d 855 (2001), and Crumbaker, 275 Kan. 872, Syl. ¶ 2. “In Moore, the court rejected the idea that an enactment’s containing an election was evidence that the legislature did not intend for it to be uniformly applicable for home rule analysis.” Bigs, 271 Kan. at 467. The Moore court held that an enactment with optional applicability is uniformly applicable to all cities that elect to follow the procedure set out in the enactment. 232 Kan. at 357. The district court expressed doubt that the Moore principle is still good law, but its application by this court in recent cases demonstrates that it remains vital.
In Moore, Bigs, and Crumbaker, this court rejected the argument that the optional applicability of an enactment made the enactment subject to home rule exemption. In Crumbaker, K.S.A. 12-741 et seq. was at issue. The City of DeSoto acted contrary to the provisions of K.S.A. 12-757, as adopted in its zoning regulations, to change land use in order to allow a quarrying operation via an annexation agreement. The court rejected the argument that because the statutory procedures were not mandatory they could be bypassed by DeSoto’s exercise of home rule powers:
“The main problem with this argument is that the City’s own regulations clearly provide that it shall regulate land use as provided by the zoning statutes, K.S.A. 12-741 et seq. Moreover, pursuant to this enabling legislation, the City has passed its own ordinances and adopted regulations which detail the procedures to be followed when regulating land use and which must be consistent with the provisions of the Act. See K.S.A. 12-741. [The quarry company] is therefore precluded from relying upon the home rule doctrine in the instant case.” 275 Kan. at 885.
In light of Moore, Bigs, and Crumbaker, nonuniformity of the planning and zoning laws for cities and counties does not decide the issue. An enactment with optional applicability is deemed uniformly applicable to the governing bodies that elect to follow the procedure prescribed by the enactment. In this case, the County elected to follow the procedure prescribed by K.S.A. 12-741 et seq.
K.S.A. 12-741 et seq. was enacted after the 1972 agreement between the City and the County. See L. 1991, ch. 56. None of the parties, however, contends that the 1972 agreement was superseded by enactment of K.S.A. 12-741 et seq. or is inconsistent with it. The subdivision regulations promulgated by the City and the County pursuant to their agreements invest only the City with authority to approve the subdivision plat. The Moore rule binds the County to the procedure it has elected and agreed to follow.
The County, citing K.S.A. 19-101b(d), contends that its passage of the charter resolution approving the plat rescinded its prior agreements and resulting regulations. K.S.A. 19-101b(d) provides: “Each charter resolution passed shall control and prevail over any prior or subsequent act of the board and may be repealed or amended only by charter resolution or by an act of the legislature uniformly applicable to all counties.” By the terms of its own charter resolution, however, the County’s approval of the subdivision plat did not remove it from the operation of the legislation that enabled the City and County to enter into an agreement for unified metropolitan planning. The charter resolution at issue here was ineffective, by its own language and under Moore, to exempt the County from the procedure it elected and agreed to follow.
Simon would remove this case from the operation of the Moore principle by arguing that since Moore was decided, the court has held that uniformity (or deemed uniformity) without a clear statement of legislative intent to preempt the field does not preclude home rule. In State ex rel. Kline v. Board of Comm’rs of Unified Gov’t of Wyandotte Co./KC, 277 Kan. 516, Syl. ¶ 4, 85 P.3d 1237 (2004), this court rejected a similar contention: “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.” That is true in county home rule cases where uniformity is required by statute rather than by the Kansas Constitution. Cf. K.S.A. 2003 Supp. 19-101a(1); Kan. Const. art. 12, § 5; see Board of Trego County Comm’rs v. Kansas Dept. of Revenue, 261 Kan. 927, 930-35, 933 P.2d 691 (1997).
Although the other issues raised by the City on appeal need not be resolved, some additional comments are called for with regard to those issues.
The County cited K.S.A. 12-715d as a source of its power to control regulation of land use within 3 miles of a city. The district court concluded that the charter ordinance was enacted in light of K.S.A. 12-715d and was authorized by K.S.A. 19-2633. K.S.A. 12-715d applies to zoning rather than subdivision regulations. The district court, in stating that the charter resolution was enacted “in light of’ 12-7l5d, recognized that it was not applicable to subdivision regulations. Nor does K.S.A. 19-2633 authorize the County’s action. In City of Salina v. Jaggers, 228 Kan. 155, Syl. ¶ 4, 612 P.2d 618 (1980), the court held that “K.S.A. 19-2633 was impliedly repealed with the passage of K.S.A. 19-2901 et seq., and in particular, K.S.A. 19-2905.” K.S.A. 19-2905, along with all but one provision of K.S.A. 19-2901 et seq., was repealed in 1992. L. 1991, ch. 56, sec. 28. K.S.A. 19-2901 et seq. governed zoning within designated townships. That enactment and other land use statutes were replaced by K.S.A. 12-741 et seq., which governs planning, zoning, and subdivision regulations in cities and counties.
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The opinion of the court was delivered by
Nuss, J.:
Noah Gleason appeals his conviction of first-degree felony murder and the resulting life sentence. Our jurisdiction is under K.S.A. 22-3601(b)(l), a maximum sentence of life imprisonment imposed.
The issues on appeal and this court’s accompanying holdings are as follows:
1. Did the district court commit error when it gave an aiding and abetting instruction to the jury? No.
2. Did the prosecutor’s purported violation of a motion in limine also violate Gleason’s right to a fair trial? No.
3. Did Gleason receive effective assistance of counsel through trial? Yes.
4. Did trial counsel have a conflict of interest which prohibited his representation of Gleason at the sentencing hearing? No.
5. Was Gleason’s sentence appropriate? Yes.
Accordingly, we affirm.
FACTS:
Clarence Rinke was found dead of a gunshot wound on the kitchen floor of his home in rural Jefferson County on October 14, 1999. Approximately 2Vz years later, on April 2, 2002, Charolette Bennett, Collin Cady, and the defendant, Noah Gleason, were arrested in connection with Rinke’s death.
Cady and Bennett agreed to testify against Gleason as part of a plea agreement. Their testimony, in which they corroborated each other, established the following.
Gleason had purchased marijuana from Rinke and had been in his house; it was Gleason’s plan to burglarize Rinke’s home to steal money and marijuana. Gleason told Cady that there would be approximately $70,000 at Rinke’s house and that he wanted Rinke present to open the safe. Gleason and Cady checked out the Rinke area about a week and a half prior to the actual burglary. Gleason purchased coveralls at Bailey’s in Lawrence. He also purchased gloves and masks to conceal their identities; tennis shoes to throw away after the crime; and tote bags to carry the marijuana, money, and their guns. They had two weapons, a .38 revolver and a shotgun, later sawn off, that Gleason purchased at Jayhawk Pawn and Jewelry in Lawrence. They had cell phones, two shotgun shells loaded with bird shot, and two walkie-talkies.
Gleason and Cady decided to have Bennett, who was sexually involved with Cady, serve as their driver and drop them off at the gate of Rinke’s house. Bennett was to then lure Rinke out of his house by pushing the button on the gate intercom and telling Rinke that her car was stuck. She was to receive $1,000 for her help.
Cady called Gleason the morning of October 14,1999, who told him to contact Bennett and meet at Johnny’s Tavern in Lawrence at 7 p.m. Bennett and Cady went to Johnny’s around 7 p.m., and Gleason arrived as Bennett and Cady were smoking marijuana in Cady’s car. The three of them entered the bar, drank a shot of alcohol, and left. They then went to Gleason’s property to put on the coveralls and get the weapons. From there they drove to Gleason’s former house on 13th Street, near Rinke’s, to show Bennett where to later park the car and wait for them. They left around 7 or 7:30 p.m., and she then drove them in Gleason’s mother’s car to Rinke’s property.
Cady, who had been cariying one of Gleason’s cell phones, and Gleason then left the car and hid in the woods next to Rinke’s driveway. Though Gleason had been recuperating from a serious accident, according to Cady he was in good physical condition at the time. Bennett was given Gleason’s other cell phone and eventually received Cady’s call telling her to hit the button on the intercom. She then told Rinke over his intercom that she met a guy at a bar who gave her directions to a house which she could not find but her car had gotten stuck. When Rinke offered to pull her out with his tractor, Bennett called Gleason and Cady on the cell phone to inform them that Rinke was on his way to help her.
Rinke came out on his four-wheeler to his bam, and from there drove his tractor to the gate to help Bennett. Before Rinke arrived, Bennett left and drove to Gleason’s former property on 13th Street where she smoked marijuana while she waited for Cady to call her to pick them up at Rinke’s.
At that point Gleason and Cady entered Rinke’s house and began looking for cash or drugs. They heard the tractor coming back, and Gleason mentioned backing out of the plan. Gleason then exited the house to watch for Rinke, and Cady remained in the mud room. Rinke saw Cady and bolted at him, so Cady “bonked” him on the head with the sawed-off shotgun. Rinke grabbed for the shotgun, and it discharged, hitting Rinke.
Cady got scared and took off mnning. After he left, Rinke, though seriously wounded, called 911.
Cady ran to a heavily wooded area, ejected the spent shell from the shotgun, loaded a live round, and continued mnning. He heard police sirens and took off his coveralls, wadding them up in the duffel bag and buiying them under some leaves and a tree. He continued mnning and then buried the shotgun in the woods. He then called Bennett on the cell phone and told her to stay put and wait for them.
Gleason arrived at their designated meeting place, Gleason’s old house on 13th Street. He told Bennett that Cady had’accidentally shot Rinke and that he and Cady had gotten separated. Cady ar rived 15 to 20 minutes later very distraught and without the coveralls, the bag, or the shotgun. Gleason yelled at him because he had left behind evidence. Gleason told Bennett if she breathed a word of anything that happened, he would personally kill her.
They stashed their shoes, Gleason’s .38 revolver, and Gleason’s coveralls on the property. Gleason then drove all of them to Johnny’s Tavern, where they stayed until closing time. The next day, they retrieved the evidence and burned it in a trash barrel. On two later occasions, Gleason dropped off Cady to look for the shotgun. Bennett and Cady considered Gleason the ringleader of the plan.
Cady’s and Bennett’s testimony was fleshed out at the trial by other witnesses and exhibits.
Law enforcement was notified of Rinke’s 911 call at 9:41 p.m. and arrived at 10:23 p.m. Based on bloodstain evidence, they determined that Rinke had suffered a blow to the head and bled profusely in the mud room before collapsing in the kitchen. They found brown jersey gloves in the mud room, approximately 75 pounds of marijuana in a freezer, and just over $570,000 in cash elsewhere in the house.
Four days later, on October 18,1999, the KBI interviewed Gleason. Gleason stated that the last time he had been to Rinke’s house was August 1998, but that they had talked on the phone on October 14, 1999, regarding a small cooler that Gleason had borrowed. Gleason claimed he was at Johnny’s Tavern from 8:30 p.m. until 12:30 or 1 a.m. the night of October 14.
On or about February 3, 2000, after a discovery by Rinke’s neighbor, law enforcement found, in the woods near Rinke’s home, coveralls that contained an expended shotgun shell and a pair of brown gloves. The coveralls were wrapped around two bags. The manufacturer of the coveralls verified that similar coveralls were sold at Bailey’s in Lawrence.
Approximately 2 years later, on April 2, 2002, the KBI again interviewed Gleason. He denied having any involvement in Rinke’s murder, but admitted that he had been to Rinke’s house. Gleason admitted buying a weapon, but claimed it had been stolen. He also admitted that he and an individual named Denny Cooper had previously discussed the possibility of robbing Rinke at his home.
The next day, April 3, based upon information from Cady, law enforcement searched a wooded area south of Rinke’s home where they located a single-shot, 12-gauge, sawed-off shotgun containing a live round. The shotgun serial number confirmed it was the one Gleason had purchased approximately 2 months before the murder. A recovered shell further demonstrated by its markings that Gleason’s shotgun was the murder weapon.
That same day, after Gleason was arrested and jailed, James Collins, Bennett’s common-law husband, received a collect call from him. Gleason asked if Bennett had said anything, and when Collins replied that she had not, Gleason said: “You just tell her to keep her fucking mouth shut.” Phone records confirmed that for the jail phone available to prisoners, one call was made to James Collins on that day.
Gleáson’s phone records confirmed that at 9:23 a.m. on the day of the murder, a phone call was made to his residence from the cell phone he had given to Cady. Phone records also revealed that at 4:47 p.m., a call was made from Gleason’s cell phone to Rinke’s residence. At 6:18 and 6:40 p.m., calls were made to Gleason’s residence from the cell phone he had given to Cady. At 8:35, 9:09, 9:14, 9:17, and 9:46 p.m., calls were made from the cell phone Gleason had given to Cady to the cell phone Gleason had given to Bennett.
There were no calls from either Rinke’s home phone or cell phone to any of Gleason’s phones on October 14. However, SheryJ, Gleason, Noah Gleason’s ex-wife, testified Rinke called her between 8 and 9 p.m. that day. Rinke told her he had received a strange call from Gleason earlier that day and that Gleason wanted to come by and return a cheap cooler that he had kept for over a year.
A witness named Denny Cooper testified he and Gleason used to work together and smoke marijuana together. Gleason called Rinke, his marijuana dealer, “the old man.” During the winter of 1997, Gleason had spoken to Cooper about tiying to rob the old man of whatever they could get out of the house. Gleason specu lated that there was a small safe in the basement containing up to 200 pounds of marijuana, as well as cash. Cooper did not take Gleason seriously.
By contrast, Gleason’s defense contended (1) he had been at Johnny’s Tavem that night and (2) he was physically unable to have participated in the events due to injuiy. However, Stephen Pearson spoke with Gleason after midnight the evening of the murder at Johnny’s and testified Gleason was walking normally.
Kevin Horch saw Gleason at Johnny’s Tavem on October 14 with a dark-haired woman, later identified as Dianne Cox, now Dianne Gleason. According to him, Gleason and the woman came in around 7:30 p.m. and were there around 2 a.m., when the bar closed. Pie also saw Cady at Johnny’s that night.
Dianne Gleason, Gleason’s current wife, testified that they saw each other on October 14 at Johnny’s around 7:30 to 8 p.m. She stayed about an hour and a half. Gleason told Dianne that a friend of his had borrowed his car. She did not see Cady or Bennett at Johnny’s.
In addition to Pearson, several witnesses testified concerning Gleason’s physical condition. His mother testified that Gleason had a serious motorcycle accident in May 1999; he was able to walk, but had a crooked gait. Stephen Munns, an orthopedic surgeon, treated Gleason for broken bones in both of his arms, a broken back, and a crushed pelvis. He last saw Gleason professionally the day before the murder. Munns found that Gleason was continuing to improve, and he anticipated releasing Gleason to return to work after Gleason’s appointment in November. An SRS worker who provided Gleason cash, medical services, and food stamps because of his injuries testified he was in pretty bad shape, but hobbled to her office in July 1999.
After the jury convicted Gleason of felony murder on August 2, 2002, his attorney, John Kurth, filed a motion for new trial and judgment of acquittal. Gleason added a pro se amendment which, among other things, alleged Kurth’s conflict of interest and his ineffective assistance of counsel based upon deficient performance. Kurth filed a response, to which Gleason filed a pro se rebuttal. Gleason also filed two pro se motions for new counsel and re quested a continuance of the September 5, 2002, sentencing hearing to allow new counsel time to prepare. He also filed a K.S.A. 60-1507 motion, again alleging ineffective assistance of counsel. On August 20, the court appointed legal counsel Micheál Ireland to represent Gleason on his pro se motions. Gleason then filed a pro se motion on September 4 for a durational departure from his sentence because of the disparity in sentences among himself, Cady, and Bennett.
All motions were considered and denied by the district court at a hearing on September 5,2002. The court then sentenced Gleason to life imprisonment, with no possibility of parole for 20 years. That same day, Kurth filed a notice of appeal to this court. On September 6, Gleason filed a pro se “Petition to reopen Investigation.” On September 12, he also filed a pro se “Petition for Direct Appeal” asking the district court to notify him when Kurth filed his notice of appeal. On September 19, the district court appointed the appellate defender s office as Gleason s appellate counsel.
ANALYSIS:
Issue 1: Did the district court commit error when it gave an aiding and abetting instruction to the jury?
Gleason raises a number of points in his brief regarding jury instructions, one of which he refined at oral arguments. His arguments can be condensed into two. First, the aiding and abetting instruction should not have been given because it allowed the jury to convict Gleason of felony murder even though he was not physically present at the scene of the crime and was not an “active participant.” This erroneously allowed him to be convicted for merely buying the shotgun and loaning his car to Cady. Second, if an aiding and abetting instruction were appropriate to submit, then PIK Crim. 3d 54.06 (which requires foreseeability of the unintended crime of murder) should have been given, and PIK Crim. 3d 54.05 (which contains no foreseeability requirement) should not.
Gleason objected to the 54.05 instruction at the instructions conference but never asked for the 54.06 instruction. Different standards of appellate review therefore apply to each. See K.S.A. 2003 Supp. 22-3414(3). We need not apply the different standards, however, because we hold the proper instruction was given. See State v. Ji, 251 Kan. 3, 24-25, 832 P.2d 1176 (1992).
As we stated in State v. Bryant, 276 Kan. 485, Syl. ¶ 4, 78 P.3d 462 (2003):
‘When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some small way erroneous.”
Instruction No. 1, restating PIK Crim. 3d 56.02 for felony murder, provided:
“The defendant is charged with the crime of murder in the first degree. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Coffin Cady killed Clarence Rinke;
“2. That such killing was done while in the commission of a burglary in which defendant was a participant; and
“3. That this act occurred on or about the 14th day of October, 1999, in Jefferson County, Kansas.
“The elements of burglary are as follows:
"1. Knowingly entering a building which is a dwelling;
“2. Doing so without authority; and
“3. Doing so with tire intent to commit theft herein.
“The elements of theft are as follows:
“1. That Clarence Rinke was the owner of the property;
“2. That the defendant intended to obtain unauthorized control over the property;
“3. That the defendant intended to deprive Clarence Rinke permanently of tire use or benefit of the property; and
“4. That the property had value.”
Instruction No. 2, which restates PIK Crim. 2d 54.05 and is based upon K.S.A. 21-3205(1), provided:
“A person who, either before or during its commission, intentionally aids another to commit a crime with the 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.”
The remaining instructions were standard PIK Crim. 3d: No. 3 was the presumption of. intent instruction (54.01); No. 4 was the burden of proof, presumption of innocence, and reasonable doubt instruction (52.02); No. 5 was the credibility of witnesses instruction (52.09); No. 6 was the accomplice testimony instruction (52.18); No. 7 was the statements and arguments of counsel instruction (51.06); No. 8 was the rulings of the court instruction (51.05); and No. 9 was the concluding instruction (68.01).
Purported requirement of physical presence and active participation
We first observe that Gleason’s arguments assume that he was not at the scene of the crime. The State’s evidence, however, primarily through the accomplice testimony of Cady and Bennett, amply demonstrated its primaiy theoiy, i.e., that Gleason was physically present and was actively participating. He knowingly entered Rinke’s house without Rinke’s permission with the intent to commit theft. Accordingly, Gleason’s purported requirement that his conviction depends upon his presence at the scene of the crime, i.e., as a principal, has been satisfied; his arguments are moot. Under the State’s facts, the jury properly convicted him of felony murder. See State v. Chism, 243 Kan. 484, 491, 759 P.2d 105 (1988) (irrelevant which appellant actually shot victim during the attempted burglary, as all participants to an underlying felony are principals to felony murder when death occurs).
Moreover, even assuming Gleason was actually at Johnny’s Tavern at the time of the murder, the evidence also amply demonstrated the prosecution’s alternate theory, i.e., that he aided and abetted the burglaiy which resulted in Rinke’s death. See K.S.A. 21-3205(1). According to accomplices Cady and Bennett, Gleason was the mastermind. He was the one who knew that Rinke, his marijuana dealer, had large amounts of drugs and money at his house. Indeed, he had previously discussed with Cooper á plan to rob Rinke somewhat similar to the one used in the instant case. Gleason furnished the car and purchased the shotgun that killed Rinke as well as the coveralls, gloves, and tote bag found near the scene. Phone records established that numerous calls were made between the cell phones belonging to Gleason on the date of the murder, particularly the evening when Rinke was actually shot. He made a phone call to Rinke late in the afternoon on the day of the murder, ostensibly to return Rinke’s cheap cooler he had been holding for over a year, but possibly to ensure that at the time of the burglary, Rinke would still be home to open his safe containing the money, marijuana, or both. He helped destroy evidence afterward, and twice threatened Rennett, first directly and later indirectly, to keep her mouth shut about the crime.
In short, there is sufficient evidence for a jury to find him guilty as either a principal or as an aider and abettor. Had the jury found that he did not physically participate in the burglary at Rinke’s house or did not intentionally aid Cady to commit the burglary, it would not have found him guilty. Under these circumstances, the giving of the aiding and abetting instruction was not error. See State v. Holt, 260 Kan. 33, 44, 917 P.2d 1332 (1996) (though defendant charged as a principal in aggravated burglary, under the facts the jury could find him guilty as an aider and abettor; giving of the aiding and abetting instruction was not error); State v. Parker, 22 Kan. App. 2d 206, 208, 913 P.2d 1236, rev. denied 260 Kan. 1000 (1996) (in conviction of aggravated robbery, sufficient evidence that defendant was a principal and sufficient evidence he aided and abetted, therefore not error to give aiding and abetting instruction).
Nevertheless, Gleason argues that if the jury believed his testimony that he (1) was not physically present and (2) had merely loaned his car to his friend Cady and that his shotgun had been used in the crime, then the jury was misled by the instructions because as a matter of law he could not be convicted of felony murder as an aider and abettor.
We have found no cases addressing Gleason’s specific argument that his absence prohibited a conviction of felony murder for aiding and abetting a crime upon which the murder charge was based. We have held in a nonfelony-murder case, however: “An aider and abettor does not have to be physically present when the crime is committed.” State v. Pratt, 255 Kan. 767, 773, 876 P.2d 1390 (1994). Cf. State v. Neil, 203 Kan. 473, 474, 454 P.2d 136 (1969) (though defendant was not inside the building being burglarized, he aided and abetted by serving as lookout and is punishable to same degree as principal).
Consistent with these cases, we observe no such “presence” requirement exists in the aiding and abetting statute. K.S.A. 21-3205, provides in relevant part:
“(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(2) A person hable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
“(3) A person hable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted of some other degree of the crime or of some other crime based on the same act.”
Likewise, no such “presence” requirement exists in our current felony-murder statute. K.S.A. 21-3401 simply defines felony murder at subsection (b) as: “[T]he killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” Burglary, the underlying crime in the instant case, is an inherently dangerous felony under K.S.A. 21-3436.
In short, there is nothing in the felony-murder statute or in the aiding and abetting statute which requires the aider and abettor of the underlying inherently dangerous felony to be physically present at the crime scene to be convicted of felony murder. See State v. Hoang, 243 Kan. 40, 45, 755 P.2d 7 (1988) (“There is nothing in our [felony-murder statute] on which to base such a distinction.”). As mentioned, our aiding and abetting case law also reveals that no physical presence is required. Given these reasons and given the purpose of the felony-murder rule — to deter those engaged in dangerous felonies from killing negligently or accidentally by making all participants to the underlying felony'principals — we reject such an argument. See State v. Sophophone, 270 Kan. 703, 706, 19 P.3d 70 (2001) (purpose is to deter those engaged in dangerous felonies from killing negligently or accidentally); State v. Chism, 243 Kan. at 491 (all participants to the underlying felony are principals to felony murder when death occurs).
Purported requirement of foreseeability of the murder
In the alternative, Gleason argues as a matter of law that Rinke’s death had to be a foreseeable result of the burglary before he could be convicted of the felony murder. Accordingly, he alleges that if an aiding and abetting instruction had to be given, then PIK Crim. 3d 54.06, and not 54.05, should have been given.
PIK Crim. 3d 54.06, which is based upon K.S.A. 21-3205(2), states: “A person who intentionally (aids)(abets)(advises)(hires) (counsels)(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.” (Emphasis added.)
We find State v. Giddings, 226 Kan. 110, 112-13, 595 P.2d 1115 (1979), on point. There, the defendant was convicted of felony murder, with robbery as the underlying felony. She was physically present during the robbery and victim’s death but claimed she was merely an innocent bystander and her boyfriend was solely responsible. As here, the trial court gave an aiding and abetting instruction based upon PIK Crim. 3d 54.05, as previously set forth in the opinion, to which she did not object. It also denied her request to add the “foreseeability” aiding and abetting instruction based upon 54.06. Giddings claimed on appeal that the failure to give such an instruction deprived her of the defense of a lack of foreseeability that the murder might result.
This court rejected her argument, with a lengthy explanation, which stated:
“While it is true that foreseeability is a requirement to the application of the felony murder rule, this requirement is satisfied once it is determined that the felony is inherently dangerous to human life. This point was covered in State v. Branch and Bussey, 223 Kan. 381, 573 P.2d 1041 (1978):
“ ‘To apply the felony murder rule, it is only necessary to establish that defendants committed a felony inherently dangerous to human life and that the killing took place during the commission of the felony. (State v. Guebara, 220 Kan. 520, 523, 553 P.2d 296; State v. Goodseal, 220 Kan. 487, 553 P.2d 279.) A requirement of the felony murder rule is the fact the participants in the felony could reasonably foresee or expect that a life might be taken in the perpetration of such felony. If applied to the facts of the present case, defendants are subject to the felony murder rule and it makes no difference that the killing was accidental.
“ ‘A felon’s attempt to commit a robbery sets in motion a chain of events which should cause him to contemplate that a death might occur. This is particularly true of a robber who carries a deadly weapon (as these robbers did) and forces his way into an occupied dwelling. The impulse for an individual to resist the sudden show of force, to defend himself or to come to the aid of a family member or loved one, is a basic human instinct. Under such circumstances every robber who expects human opposition to his quest to steal, as he must when he commits a statutory robbeiy, is a potential assassin because he knows he may be forced to use his weapon either to carry out his criminal act or to escape without being pursued and captured by his victim. In a felony inherently dangerous to life the intent to accomplish the initial felony is transformed into malice and premeditation upon the death of a human being and the felon is guilty of first degree murder. . . .
“ “We conclude that any participant in a life-endangering felony is guilty of first degree murder when a life is taken in the course of committing or attempting to commit the felony, whether the death was intentional or accidental, or whether the participant directly caused it to occur. (See State v. Bey, 217 Kan. 251, 535 P.2d 881; State v. Turner, [193 Kan. 189, 392 P.2d 863 (1964)]; State v. Bundy, 147 Kan. 4, 75 P.2d 236.)’ (pp. 382-384.)” Giddings, 226 Kan. at 112-13.
The court went on to hold that since the evidence showed the defendant was more than an innocent bystander, i.e., was a possible aider and abettor, “the court did not err in refusing to give the foreseeability instruction requested by appellant.” 226 Kan. at 113.
Similarly, our facts demonstrate that Gleason was not an innocent bystander. As a result, there was no error in giving PIK Crim. 3d 54.05 to the jury and in not giving PIK Crim. 3d 54.06.
Likewise, in State v. Chism, 243 Kan. 490-91, this court upheld the district court’s refusal of a similar instruction which expressed that one who was only an aider and abettor must have been able to reasonably foresee that a death would occur. We held that defendant Wenzel was equally responsible for co-felon Chism’s fatally shooting the victim when Wenzel intentionally aided in the commission of the attempted burglary, stating: “[A]ll participants to an underlying felony are principals to felony murder when death occurs.”
In short, Giddings and Chism are specific applications of the general rule: where the underlying felony is one inherently dangerous to human life, such as a burglary, the foreseeability requirement is established as a matter of law. See State v. Stephens, 266 Kan. 886, 893-94, 975 P.2d 801 (1999). Furthermore, since we stated in Sophophone, 270 Kan. 707, that a purpose of the felony-murder rule is to relieve the State of the burden of proving premeditation, any purported need to show the murder was also “reasonably foreseeable” is ehminated.
We acknowledge Gleason’s point at oral argument that this court, over defendant’s trial objection, actually approved the use of 54.06 in the felony-murder case of State v. Pink, 270 Kan. 728, 20 P.3d 31 (2001). See State v. Bryant, 276 Kan. at 491-95 (using 54.06 was not clearly erroneous in felony-murder case). Nevertheless, we hold that while approved, that instruction — althoúgh necessary to hold a defendant responsible for aiding and abetting other crimes that are foreseeable — is not necessary for a murder conviction based upon aiding and abetting an inherently dangerous felony under our decision today and in our prior decisions in Giddings and Chism.
We also acknowledge the existence of certain language in State v. Kaiser, 260 Kan. 235, 242, 918 P.2d 629 (1996), which could suggest that reasonable foreseeability in an aiding and abetting case is a requirement for murder based upon an inherently dangerous felony. We repudiate any language appearing in these cases and others which expresses, directly or indirectly, that a death must be foreseeable from the commission of the underlying inherently dangerous felony to support a conviction for felony murder.
Finally, Gleason cites Tison v. Arizona, 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676 (1987), and Revilla v. Gibson, 283 F.3d 1203 (10th Cir. 2002), for his contention that the Eighth Amendment prohibits a conviction of felony murder as an aider or abettor. These cases, however, only provide that the imposition of the death penalty is unconstitutional for a conviction of felony murder as an aider or abettor. Since Gleason was not sentenced to death, these cases are not applicable.
Issue 2: Did the prosecutor s purported violation of a motion in limine also violate Gleasons right to a fair trial?
Gleason next contends that after seeking permission to use evidence of a prior burglary conviction against him, and having the request denied, the prosecutor violated the court’s limine orders by deliberately injecting that same objectionable material into the trial. He argues this was calculated prosecutorial misconduct which violated his constitutional right to a fair trial and requires a reversal of his conviction and remand for new trial.
Gleason’s factual assertion is not entirely accurate. The motion in limine filed by the State sought to introduce evidence under K.S.A. 60-455 of Gleason’s prior conviction of possession of stolen property — which was, however, the product of plea negotiations after he was originally charged with burglary stemming from an incident in November 1998. After hearing oral arguments, the district court denied the State’s motion “to admit evidence of a prior crime.”
Later, at trial the following exchange occurred during the State’s direct examination of Gary Rogers:
“[MR. BRADEN]: Now, y’all, back in February ’98 through July ’98 you and Clarence, or excuse me, you and the defendant were doing some things together; correct?
“[MR ROGERS]: Yes, we were.
“[MR. BRADEN]: What was drat?
“[MR ROGERS]: We would scope out places. We’d go different places and get things, items that he, Noah felt what he needed.
“[MR. BRADEN]: So what did you do?
“[MR. ROGERS]: We broke into places and got things he needed.
“MR. BRADEN: What was the attitude of the defendant about the burglaries?
“MR. ROGERS: If you set the stage —
“MR. KURTH: Excuse me, can we approach on this one?
“MR. KURTH: Judge, I’ve let this go but I think we’re talking about prior acts of misconduct that don’t have any relevance to this case at all. It hasn’t been talked about beforehand. There was no motion filed regarding previous acts.
“THE COURT: That’s true.
“MR. KURTH: I’m objecting to it.
“THE COURT: Where we going?
“MR. BRADEN: Judge, it was basically scoping out, it goes to plan.
“THE COURT: Well, I know, but you can’t introduce that without —
“MR. BRADEN: I’m not introducing it, I’m, just the scoping out part. I
will limit, I’ll try to limit it.
“THE COURT: I don’t think you can go into prior bad acts or anything.
“MR. KURTH: Judge, I’m going to ask that it be stricken.
“MR. BRADEN: Judge, the issue was scoping out. He went a little bit beyond that.
(End of bench conference.)
“THE COURT: Back on the record. Mr. Kurth, your objection is sustained. Ladies and gentlemen of the jury, you should disregard the last two answers that the witness made regarding, I think the term was scoping out or something, if I recall.
“MR. BRADEN: Judge, I think the objection was to the burglary itself.
“THE COURT: Well, burgjory and scoping things out. That has been stricken from the record and should not be considered along with the other evidence and testimony in the case. You may proceed, counsel.
“MR. BRADEN: Gary, when these events were occurring what was the attitude of the defendant P
“MR. ROGERS: If you set the stage properly, that you had a 95 percent chance of getting away free.
“MR. KURTH: Here we’re going again, Judge. Same objection.
“THE COURT: The objection is sustained. Let’s move on, counsel.”
(Emphasis added.)
We articulated our general standard of review regarding purported violations of motions in limine in State v. Douglas, 274 Kan. 96, 109, 49 P.3d 446 (2002):
‘While it is true that an order in limine excludes evidence that, if admitted, would tend to prejudice the jury, it is not true that a violation of the order always results in prejudice that cannot be cured. We employ a two-part test to evaluate alleged violations of a motion in limine: (1) Was there a violation of the order in limine and (2) if the order in limine is violated, did the testimony substantially prejudice the defendant? The burden is on the defendant to show substantial prejudice. State v. Galloway, 268 Kan. 682, 692-93, 1 P.3d 844 (2000).”
We first ask whether there was a violation of the order in limine. The order prohibited introducing evidence of a prior crime. Although Gleason’s conviction for possession of stolen property was never mentioned, the State elicited testimony that Rogers and Gleason scoped out places, broke into them, and took items from those places. The State specifically asked about Gleason’s attitude “about the burglaries,” clearly prior criminal behavior. After the district court sustained Gleason’s initial objection, the State continued to elicit testimony that Gleason had plotted the best way to get away with stealing these items. We hold the order was violated.
We must next determine whether the testimony substantially prejudiced Gleason. When the violation of the motion is based upon a defendant’s allegation of prosecutorial misconduct, as here, (as contrasted with less culpable conduct) the analysis includes additional factors:
“In order for prosecutorial misconduct to constitute reversible error, the error must be of such magnitude as to deny a defendant his constitutional right to a fair trial. State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000). Three factors should be considered in determining whether to grant a new trial because of a prosecutor’s violation of an order in limine. First, was the prosecutor’s misconduct so gross and flagrant as to prejudice the jury against the defendant? Second, does the admission of the statement indicate ill will by the prosecutor? Third, is the evidence against the defendant so overwhelming that there was little or no likelihood the prosecutor’s violation of the order in limine changed the result of the trial? State v. Crime, 271 Kan. 87, Syl. ¶ 11, 22 P.3d 1057 (2001).” State v. Bloom, 273 Kan. 291, 301, 44 P.3d 305 (2002).
As for the first two factors, gross and flagrant misconduct and prosecutorial ill will, we again observe that though the .State’s motion in limine had been denied, the State twice attempted to introduce evidence regarding burglaries and defendant’s attitude about them. The latter effort, though weaker than the earlier, is still of concern because it occurred immediately after the court had sustained the first objection and had instructed the jury to disregard the objectionable elements of the testimony. See Douglas, 274 Kan. at 108 (noting that ill will can be found when prosecutor ignores prior, sustained objection).
As for the third factor, likelihood that the violation of the order in limine changed the result of the trial, we observe that the repeated questioning certainly could have led the jury to believe that because Gleason had participated in burglaries before, he probably participated in this burglary as well. Gleason claims that the evidence against him was weak enough that the prosecutor’s misconduct did prejudice the jury against him.
The State responds that Gleason was convicted on direct and overwhelming evidence. Based upon the facts previously set forth in the opinion, we agree with the State.
Our decision is also influenced by the fact that the objections were sustained, the jury was admonished to disregard the damaging testimony, and that Gleason did not ask for a mistrial because of the prosecutor’s conduct.
State v. Moncla, 262 Kan. 58, 69-70, 936 P.2d 727 (1997), is of guidance. While not involving violation of a motion in limine, it does involve a similar allegation. Moncla argued the State deliberately introduced inadmissible evidence, thereby depriving him of his constitutional right to a fair trial. We disagreed, stating among other things that “[w]e will not ‘find reversible error when an objection to a prosecutor’s question or statement has been sustained,’ State v. Pioletti, 246 Kan. 49, 67, 785 P.2d 963 (1990), unless the remarks were so prejudicial as to be incurable. State v. Pursley, 238 Kan. 253, 265, 710 P.2d 1231 (1985).”
Moreover, the general rule is that an admonition to the jury normally cures the prejudice from an improper admission of evidence. State v. Navarro, 272 Kan. 573, 582, 35 P.3d 802 (2001) (court admonished jury to disregard testimony elicited in violation of motion in limine). Accordingly, where the trial court sustains an objection and admonishes the jury to disregard the objectionable testimony, reversal is not required unless the remarks are so prejudicial as to be incurable. Cf. State v. Foster, 259 Kan. 198, 211, 910 P.2d 848 (1996).
In short, Gleason has not met his burden of showing the prosecutor’s error was so prejudicial as to be incurable. Specifically, the evidence of Gleason’s guilt was so overwhelming there was no likelihood the violation of the order in limine changed the trial result. Consequently, he was not denied his right to a fair trial.
Issue 3: Did Gleason receive effective assistance of counsel through trial?
Gleason raises several general claims of ineffective assistance of his trial counsel, John Kurth. First, he alleges performance errors such as failure to prepare for trial, to ask questions of witnesses at trial, to object to the introduction of threatening letters written by Gleason, to object to the State’s implication that Gleason’s alibi was manufactured at the last minute, and to object to the introduction of Gleason’s cell phone records. Second, he claims ineffective assistance based upon conflict of interest because Kurth was employed as an assistant Atchison County Attorney at the time of his appointment to represent Gleason in Jefferson County. Our standards for reviewing the two categories of claims, though somewhat alike, also contain some fundamentally different elements.
Performance
Our standard of review for Gleason’s first claim of ineffective assistance, i.e., performance errors, is well recognized:
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
This court adopted these standards in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985), stating:
“[W]e deem it appropriate to now adopt the Washington holdings as the prevailing yardstick to be used in measuring the effectiveness of counsel under the Sixth Amendment. They may be stated as:
“First: The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
“Second: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
“(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that eveiy effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.
“(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”
The defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S. at 690-91. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. Strickland, 466 U.S. at 690-91. The defendant bears the burden of demonstrating that trial counsel’s alleged deficiencies were not the result of strategy. Ferguson v. State, 276 Kan. 428, 446, 78 P.3d 40 (2003).
Once a proper determination of the issue of claimed ineffective assistance of counsel has been made by the trial court, the scope of review by the appellate court is to review de novo the trial court’s analysis of the performance and prejudice components, which are mixed questions of fact and law. Ferguson, 276 Kan. at 436 (citing State v. Rice, 261 Kan. 567, Syl. ¶ 16, 932 P.2d 981 [1997]). Accordingly, once a district court has entered findings of fact and conclusions of law on the claim, an appellate court determines “ ‘whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have substantial support in the evidence.’ ” Ferguson, 276 Kan. at 445.
The district court appointed Micheál Ireland to represent Gleason on his posttrial pro se motions, including ineffective assistance of counsel, while not releasing Kurth from Gleason’s representation. At the September 5 hearing on the motions, Gleason essentially informed the court he wanted Ireland to replace Kurth for all posttrial purposes. Ireland called Kurth to testify as his only witness, who was then cross-examined by the State. At the close of the evidence, the court denied the motions:
“Based upon the evidence and testimony the Court finds that the defense motion to set aside the trial or reverse the conviction on the basis on ineffective assistance of counsel should be and is denied. The Court finds that Mr. Kurth is a qualified member of the bar and member of the indigent defense panel. He has extensive service and experience in, representing defendants in trials of this type as well as prosecution trials of this type. I presided over the hearing, the trial, and in this Court’s view, the, defense that Mr. Kurth provided was professional, adequate, and thorough to the extent that was possible under the actual circumstances that surrounded the trial of the case. As I recall I think, Mr. Kurth even commented that he went out and, this was in one of the motion hearings, I believe, that he, went out to the scene and went through the forest and the jungles and retraced the steps and timed the time that it took to make it from one place to the other and everything. This Court indicates a thorough investigation and effort to secure all litigating or [exculpatory] evidence which might have been used to assist in the defense of the case. The, as I said the ineffective assistance of counsel argument and motion is denied.”
We now turn to evidence regarding Gleason’s specific allegations of deficient performance.
Failure to prepare for trial
Gleason contends that Kurth did not have ample time to prepare for trial, as evidenced by his failure to have vital witnesses subpoenaed in time to testify at trial. At the September 5 hearing, Kurth testified that Gleason had given him a long list of witnesses to subpoena for the preliminary hearing. He did not subpoena those witnesses because he was using the preliminary hearing only to hear the State’s evidence and tie the State’s witnesses to a certain story. For trial, Kurth did subpoena certain witnesses, but released one because of the negative tone of letters that Gleason had written to her.
Kurth subpoenaed two doctors, both of whom tried to quash the subpoenas. In the end, Dr. Munns, Gleason’s orthopedic surgeon, testified and established the foundation for admitting into evidence all of Gleason’s important medical records. Additionally, two physical therapists from Lawrence testified. Approximately 2 weeks before the trial began, Kurth filed a motion to continue because some of the doctors were unavailable. Gleason objected to the motion, so Kurth withdrew his motion.
We conclude Gleason has not met his Strickland burden of showing Kurth’s performance was deficient, i.e., that Kurth failed to prepare for trial. The evidence offered by Gleason actually supported Kurth’s claim of effectiveness. We therefore need not consider the second Strickland factor which requires Gleason to show how this allegedly deficient performance prejudiced his defense so as to deprive him of a fair trial.
Failure to ask witnesses specific questions
Gleason next contends that Kurth was ineffective for failing to ask witnesses questions that Gleason wanted asked. Kurth testified that he did ask some of the requested questions but did not ask others because he was not going to ask a question to which he did not know the answer. Once at Gleason’s prompting, Kurth asked Gleason’s daughter, Alyssa, whether she knew that her dad would not hurt her. She said that she was not sure after she received a letter from Gleason.
A letter was mailed on July 29, 2002, several days before trial started, which was addressed to “Mom and Alyssa Gleason.” It read in part:
“I will call some people who will line this shit out. Don’t malee me. I’m not playing any more games. I will do what I need to make sure Dianne is all right and gets wbat she needs. So give her the stuff, all of it you took. Don’t make the wrong choice. No games. I ain’t playin.’ You don’t want to play with my friends, if, if have to have them come and collect my things I will tell them to go — -I will tell them to through Dianne. No joke. You are not the owner of my stuff. My wife can take care of me, if you just want to malee things harder. I’d like your help. Be either with me or not but don’t mess with my wife or I will send hell down. You know I know them. Back off. Dianne Gleason, my wife, don’t forget. And I want the deed signed over to Noah and Dianne, Alyssa and Derek Gleason. You can’t do anything with the place anyway with the hens on it.”
Alyssa had taken a Honda automobile, a pickup truck, a mower, a motorcycle, and a 1959 Chevy without telling Gleason.
Again, Gleason does not meet his Strickland burden of showing that Kurth’s performance was deficient, i.e., for not asking witnesses specific questions. The examination of witnesses typically is a matter within the reasonable professional judgment of trial counsel. We therefore need not consider the second Strickland factor — how allegedly deficient performance prejudiced his defense so as to deprive him of a fair trial.
Failure to object to cell phone records, letters, and prosecutor’s alibi argument
The State introduced Gleason’s cell phone records without Kurth’s objection. This specific allegation of ineffective assistance of counsel was not preserved at the district court, either at trial or the September 5 hearing. It cannot be considered now. See Dalmasso v. Dalmasso, 269 Kan. 752, 765, 9 P.3d 551 (2000); State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986) (an allegation of ineffective assistance of counsel will not be considered for the first time on appeal where the district court has not had the opportunity to conduct the factual inquixy).
Letters were also introduced into evidence. They are not part of the record on appeal, and only portions of those letters were read into the record, two of which are quoted in this opinion. Furthermore, Gleason does not specify what elements in the letters he finds probative of Kurth’s ineffectiveness as required by Strickland, 466 U.S. at 490-91.
At the September 5 hearing, Kurth testified that he received the letters to Gleason’s daughter and mother around 10 o’clock the night before the trial started. He spoke with Gleason about the letters, telling him that they could deal with the letters during the trial because the letters were not solely aimed at threatening his mother and daughter but also encouraged them to tell the truth. Kurth and another attorney had earlier advised Gleason to not communicate with anyone and to not write letters to anyone. Gleason did not follow this advice and wrote approximately 113 pages of correspondence and notes.
One letter was quoted previously in the opinion. The other read in part:
“Also I say again in case you don’t get the note remember Collin calling in the night and waking us up and when he was yelling at Grandma’s house, also remember the money I had in cash, $10,000, and the money from the house we used to build the new one. Also Collin is a drug head and is always using me. Tell Mark [Alyssa’s boyfriend] I’ll need him to testify to all this, too, and he can have the 25 caliber gun for all his help. Just remember all the things that are important, think about all, and you don’t know anything about Clarence [Rinke] and drags if you’re asked, and that I have any involvement with them.”
Another portion of the same letter read:
“I’ll get out, there is way too much doubt. If you remember, I was in very bad shape when this happened, I was in therapy, in fact, you know that my lawyer has a bunch of proof that I was not involved with Collin being arrested and all that, Collin and Charolette’s stories don’t match, and my condition, plus I had money. Clarence was my friend. It all points to them using me. You’ll see.”
The same letter continued:
“Dianne is the girlfriend they saw me with, at Johnny’s with. I was seeing Dianne all right, she is the Dianne and she was getting a divorce so we didn’t want anyone to know, but she was with me, making it impossible for me to do what they say, what they are trying to use me for. You take care of her. She is taking care of your father. I don’t give a damn if she takes — I don’t- — even if takes— oh, if she takes the whole fing house, let her. In fact, help her. I need that girl.”
Gleason was also originally charged with criminal threat, which was dropped after the state’s case in chief. These letters, primarily the one quoted previously in the opinion, are relevant to that charge and would be admissible over Kurth’s objection even if he had made one.
Gleason also claims the State implied during its closing argument that Gleason’s alibi was manufactured at the last minute. He does not specify, however, which statements are objectionable. See Strickland, 466 U.S. at 490-91. We are unable to independently find such an implication in the State’s closing statement. Kurth testified at the September 5 hearing that a witness came forward to say that she was the girl in the reports at Johnny’s Tavern with Gleason. Kurth reviewed this with Gleason and his wife and recommended as a matter of trial strategy that they not divulge the alibi witness right away. Instead, Kurth provided the State the minimum notice under the statute regarding the alibi witness. See K.S.A. 38-1623.
Based upon the limited information Gleason provides us, we conclude he fails to show Kurth’s performance was deficient when Kurth failed to object to the letters and to the alleged statements during closing arguments. We therefore need not consider the second Strickland factor.
In summary, we review the district court’s determination of the issue of claimed ineffective assistance of counsel as a mixed question of fact and law. We agree with the court’s determination because it follows as a matter of law from the findings which have substantial support in the evidence. See Ferguson, 276 Kan. at 445.
Conflict of interest as a prosecutor
Gleason also argues ineffective assistance of counsel because Kurth was an assistant Atchison County Attorney during the first 2 months of his representation. He essentially alleges this is a conflict per se. See Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981) (where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest).
Kurth testified at the September 5 hearing that he was appointed to represent Gleason on April 3, 2002, and terminated his employment with Atchison County on June 1, 2002. Gleason’s trial began July 31, 2002. Kurth testified he believed he told Gleason that he was a prosecutor in Atchison County but acknowledged that there might have been a miscommunication between them on that issue.
Through Gleason’s pro se pleadings, the district court in the instant case was aware of the potential conflict and held a hearing on the ineffective assistance of counsel issue. Although the district court denied Gleason’s motion, it did so on the basis of attorney performance. It did not make a determination regarding any con flict of interest. Rather than remand, we have sufficient evidence before us to make the determination. See State v. Jenkins, 257 Kan. 1074, 1080, 898 P.2d 1121 (1995) (We have considered die record in this case and determine that all facts necessary for resolution of the conflict of interest issue are contained in the record. Under these circumstances, remand would serve no useful purpose.).
As mentioned, claims of ineffective assistance of counsel based upon conflict of interest are analyzed somewhat differently from those which are based upon deficient performance. See Mickens v. Taylor, 535 U.S. 162, 166, 152 L. Ed. 2d 291, 122 S. Ct. 1237 (2002). The analysis of the former generally depends upon whether defendant objected at the trial court.
The United States Supreme Court has held that where defense counsel is forced to represent codefendants over his or her timely objection, reversal is automatic (unless the trial court has determined that there is no conflict). Mickens, 535 U.S. at 167-68 (interpreting Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 [1978]).
On the other hand, in general, “absent objection, a defendant must demonstrate that a ‘conflict of interest actually affected the adequacy of his representation.’ ” Mickens, 535 U.S. at 168 (citing Cuyler v. Sullivan, 446 U.S. 335, 348-49, 64 L. Ed. 2d 333, 100 S. Ct. 1708 [1980]). However, this does not rise to the level of the Strickland test which requires “a showing of probable effect upon the outcome of the trial.” Mickens, 535 U.S. at 174; see State v. Jenkins, 257 Kan. at 1088 (defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief).
Here, Gleason’s motions essentially objected to Kurth’s representation because of, among other things, conflict of interest. “But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Jenkins, 257 Kan. at 1083 (citing Cuyler v. Sullivan, 446 U.S. at 348-50).
The case of State v. Wallace, 258 Kan. 639, 908 P.2d 1267 (1995), is of guidance. There, we held there was no conflict of interest when defense counsel served as a special prosecutor for Bourbon County while simultaneously representing Wallace in Bourbon County, i.e., “a defense attorney was acting as a temporary prosecutor in the court in which he was defending his client.” 258 Kan. at 650. Consequently, there was no violation of defendant’s constitutional right to effective assistance of counsel. The Wallace court cited State v. Rice, 227 Kan. 416, 607 P.2d 489 (1980), where we found no actual conflict of interest to preclude representation of a defendant on state criminal charges by a court-appointed attorney whose law partner served as a part-time judge of the municipal court in the same city. As we stated in Rice:
“Ordinarily, a part-time judge or prosecutor would not be precluded, on a basis of conflict of interest, from representing defendants in criminal cases in other courts. The same is true of the law partners and associates of such public servants. Obviously, none of such persons should represent a defendant in the court in which the judge or part-time city or county attorney carries out his or her duties. Nor should any such lawyer represent a defendant in an appeal from a decision of the inferior court. ... In the last analysis the decision of whether a conflict of interest is actually present ... is one to be determined by the judge and counsel on an individual basis. Lacking any such actual conflict or appearance of impropriety, we do not believe the attorney should be precluded from the representation.” 227 Kan. at 421-22.
The Wallace court also cited Widener v. State, 210 Kan. 234, 499 P.2d 1123 (1972), where a K.S.A. 60-1507 movant argued his convictions were voided by his appointed defense counsel’s conflict of interest because counsel also served as probate judge in the same county. We rejected this argument, holding: “An accused is not denied the effective assistance of counsel guaranteed by the constitution merely because the attorney appointed to represent him holds the office of probate judge of Cowley County, Kansas.” 210 Kan. at 237.
Our Court of Appeals relied upon Wallace in State v. Mitchell, 30 Kan. App. 2d 1090, 54 P.3d 969 (2002). There, defendant argued his counsel had a conflict of interest because at the time of his hearing under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), to determine whether he waived his appellate rights, counsel was the current Sherman County Attorney. The hearing was held in Sherman County, and another attorney appeared as acting county attorney. Citing Wallace, the court held: “The fact that Sel bey [defense counsel] was an assistant or the actual county attorney at the time of the Ortiz hearing does not in itself establish an ineffective assistance of counsel claim.” 30 Kan. App. 2d at 1096.
We conclude that merely because Kurth served for the first 2 months of his representation of Gleason as an assistant county attorney in Atchison, a county which adjoins Jefferson, there was no actual conflict of interest. Gleason has not met his constitutional predicate under Cuyler v. Sullivan, and therefore was not denied effective assistance of counsel. In so holding, we also note the fact that a conflict of interest under either the Code of Professional Responsibility or the Model Rules of Professional Conduct may exist is not dispositive of whether a client had ineffective assistance of counsel in a criminal proceeding. See Mickens, 535 U.S. at 176; Wallace, 258 Kan. at 646.
Issue 4: Did trial counsel have a conflict of interest which prohibited his representation of Gleason at the sentencing hearingP
After Kurth’s testimony at the September 5 hearing concerning Gleason’s posttrial motions alleging ineffective assistance of trial counsel, the presentation of Ireland (Gleason’s “pro se motions” attorney) concluded. Following the court’s finding that Kurth had done a thorough and competent job of representing Gleason and its denial of the motions, the court inquired if Gleason had any other issues that he wanted to bring to the attention of the court. Gleason essentially stated they had been covered. The following exchange then occurred:
“COURT: Okay. Well then let’s move on to the motion for duration and departure. I don’t know, is this pro se motion or is this?
“MR. KURTH: Judge, I can argue that one, because I would have done it also had I realized or thought I was going to be involved in it, Judge, but I’m, I’m certainly comfortable doing it.
“COURT: You’re lead counsel in the case, so I want you. Say, Mr. Ireland, you’re excused, thank you.”
Kurth then argued Gleason’s pro se motion for durational departure based upon the identical reasons contained in the motion, i.e., his sentence should be no greater than his accomplices’ sentences because his participation in the crime was no greater, and possibly less. The court then denied the motion and sentenced Gleason to life with parole eligibility in 20 years.
Although the district court properly denied Gleason’s motions that claimed ineffective assistance based upon deficient performance, and this court today holds Kurth had no conflict by virtue of his earlier position as assistant Atchison County Attorney, Gleason essentially argues on appeal that his act of filing the motions, and the court’s conducting a hearing on the issue at which Kurth testified, independently created another conflict of interest for Kurth. Consequently, Kurth should not have been allowed to represent Gleason at the subsequent sentencing hearing. Because of Kurth’s purported second conflict, Gleason claims entitlement to a new sentencing proceeding at which he is represented by conflict-free counsel.
Gleason did not raise this argument to the district court at any time. Neither did any of the attorneys at the district court level — the prosecutor, Ireland, or Kurth — raise the concern that such a second conflict of interest existed. Furthermore, the trial court did not independently raise the issue nor make an inquiry as to this potential claim. On appeal, Gleason not only argues that the conflict was clear, but also seems to suggest that the trial court’s mere failure to inquire into the potential conflict requires a reversal of the sentencing.
Mickens v. Taylor, 535 U.S. 162, provides guidance. There, a murder defendant was defended by appointed counsel who also was representing the victim on criminal charges at the time of the murder. The trial court conducted no inquiry on the potential conflict. Following defendant’s conviction in state court ánd the Virginia Supreme Court’s affirmation, he brought a habeas corpus petition in United States District Court alleging ineffective assistance of counsel because of counsel’s conflict of interest. The federal district court conducted an evidentiary hearing and denied the petition, which was affirmed by the Fourth Circuit Court of Appeals.
The Supreme Court noted “that the only question presented was the effect of a trial court’s failure to inquire into a potential conflict upon the [Cuyler v. Sullivan, 446 U.S. 335] rule that deficient performance of counsel must be shown.” 535 U.S. at 174. It held that under such circumstances, the Sullivan rule would apply, i.e., when the state trial court fails to inquire into a potential conflict, the defendant still must “establish that the conflict of interest adversely affected his counsel’s performance.” 535 U.S. at 174. The Court recognized that the Fourth Circuit, after reviewing the district court’s record of the evidentiary hearing, had found no such effect and affirmed the denial of the habeas relief.
In the instant case, no factual inquiry was conducted. However, as with the conflict of interest allegation in issue 3, we have sufficient record before us to make a determination and need not remand. See State v. Jenkins, 257 Kan. at 1080. Neither do we need to decide whether any degree of the purported conflict of interest is present because Gleason has not shown, and cannot show, his counsel’s performance was adversely affected. Mickens, 535 U.S. at 172 n. 5 (“An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.”). More particularly, he cannot show Kurth’s performance at sentencing was adversely affected when Kurth’s oral arguments were entirely based upon Gleason’s own motion for durational departure.
Gleason mentions in passing that Kurth was ineffective at sentencing because he failed to give the district court any authority for considering his accomplices’ sentences, or for considéring a downward departure, which he alleges the court was required to do in this case, citing State v. Bailey, 251 Kan. 527, 531, 834 P.2d 1353 (1992).
Bailey is inapposite. There, the defendants were convicted of identical counts: four counts of aggravated robbery and one count of first-degree felony murder. One defendant was sentenced to 15 years to life for two of the aggravated robberies and one term of life for first-degree felony murder. He also received two sentences of 15 years to life on the remaining two counts, but the sentences were to be served concurrently, allowing the first defendant to be eligible for parole after 30 years. The other defendant was given the identical length of sentence for each offense, but the sentences were to be served consecutively, allowing him to be eligible for parole after 45 years. This court simply stated that under such circumstances, the trial court is not bound to sentence a codefendant to an identical sentence, but erred in not considering the disparity. “The trial court . . . must consider the sentence given the codefendant and, if a longer sentence is given, the reason for doing so should be set forth on the record.” 251 Kan. at 531.
By contrast, Gleason was convicted by a jury of first-degree felony murder — an off-grid felony punishable by life in prison — while, according to the parties’ briefs, Cady pled guilty to second-degree murder and Bennett pled guilty to conspiracy to commit armed robbery, both of which are less serious and grid offenses. ■Accordingly, there is no requirement that the district court give reasons for pronouncing different sentences for different crimes. See State v. Davis, 256 Kan. 1, 34, 883 P.2d 735 (1994); State v. Castoreno, 255 Kan. 401, 413-14, 874 P.2d 1173 (1994); State v. Parker, 22 Kan. App. 2d 206, 211, 913 P.2d 1236 (1996).
We are unaware of any requirement that Kurth should have provided to . the district court the remaining information Gleason alleged, and he cites no authority. See McCain Foods USA, Inc., v. Central Processors, Inc., 275 Kan. 1, 61 P.3d 68 (2002) (Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue; where appellant fails to brief an issue, that issue is waived or abandoned.).
Though several of Gleason’s pro se motions also asked for the appointment of new counsel, on appeal he has framed his argument somewhat differently, choosing instead to concentrate on the allegation of ineffective assistance. Nevertheless, we observe that absent Kurth’s actual conflict of interest, Gleason would be required to demonstrate the district court abused its discretion in failing to appoint new counsel for his sentencing hearing. Cf. State v. Jasper, 269 Kan. 649, 8 P.3d 708 (2000) (whether the dissatisfaction of an indigent counsel with a court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide, but irreconcilable conflict may, under certain circumstances, require the appointment of substitute counsel in order to protect a defendant’s Sixth Amendment right to effective assistance of counsel). He has not done so.
Issue 5: Was Gleasons sentence appropriateP
Gleason not only argues that Kurth was ineffective at his sentencing for failing to meet the mandate of Bailey, 251 Kan. at 530-31, he also argues tire district court itself erred in not following Bailey. He claims tire court erred in not considering his sentence in light of the lesser sentences received by his accomplices, and in not stating the reasons on the record for the disparity. Because of these failures, he argues his sentence should be vacated and his case remanded for resentencing.
As with the earlier argument regarding issue 4, the problem with Gleason’s present argument is that both Bailey defendants were sentenced on identical counts. By contrast, Gleason was convicted of first-degree felony murder while Cady and Bennett pled guilty to less serious offenses. Accordingly, there is no rational basis for comparing their sentences, and therefore no requirement that the district court give reasons for pronouncing different sentences for different crimes. See Davis, 256 Kan. at 34; Castoreno, 255 Kan. at 413-14; Parker, 22 Kan. App. 2d 206, Syl-.
Moreover, in denying Gleason’s request for a downward departure, the court provided its reasons:
“The Court finds that it’s in the discretion of the State and the prosecution to offer plea negotiations to obtain operations from defendants, co-defendants, and prosecution of crimes. This is a well settled principle in area of law and it is and has been found to be appropriate when necessary to make die (inaudible) justice, and this instance, two co-defendants entered pleas, Mr. Gleason chose to go to trial. And now having, undergone that endeavor wants to now go back into a what I would consider to be a secondary effort to plea negotiations on the basis of sentencing. This I think is not appropriate. Under the facts of the case, the evidence indicated that he was the, primary person who from the testimony of the co-conspirators or co-defendants, came up with the, plan, and to, if you would, managed or directed to a great extent the acts that occurred. It was he who had the contact with the victim, it was he who was familiar with the victim’s home and I think it (inaudible) in the testimony was the fact that it was he that had knowledge that there may be, fruits there which would, result in his better (inaudible) if he was able to obtain them i.e. money and possibly drugs. For that reason the defendant’s motion for a durational departure is denied.”
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The opinion of the court was delivered by
Nuss, J.:
This case concerns sexual conduct between Charlie M. Jones, Jr., and his natural daughter and stepdaughter. A jury convicted him of one count of rape, two counts of aggravated incest, one count of aggravated indecent liberties with a child, and one count of incest. The jury then proceeded to a separate sentencing phase and rendered a unanimous verdict finding the presence of six factual allegations, three of which were later used as aggravating factors to impose an upward durational departure of 32 months on the sentence for one of the aggravated incest convictions. The district court tiren sentenced him to 840 months’ confinement. Jones now raises four issues in his direct appeal:
1. Did the district court err in admitting evidence regarding a prior conviction for indecent liberties with a child under the plan exception of K.S.A. 60-455?
2. During the time interval between State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), and the 2002 amendments to K.S.A. 21-4716, did the district court have authority to impose an upward durational departure sentence if a jury found the existence of aggravating factors?
3. If the district court was authorized to use a separate upward durational departure sentencing procedure, did such procedure violate the Sixth and Fourteenth Amendments to the United States Constitution?
4. Did the district court violate the Double Jeopardy Clause when sentencing Jones for rape based on a criminal history score of A and for aggravated incest based on the jury’s factual finding that he was a sexual predator?
Our jurisdiction is pursuant to K.S.A. 20-3018(c), transfer by our own motion. We reverse the convictions and remand for a new trial because of error on issue 1, which makes the remaining issues moot.
FACTS
Charlie M. Jones, Jr., was paroled from prison in 1990 after being convicted of indecent liberties with a child in 1988. He moved to Wichita, where he met Lorie W., the mother of M.W., one of the alleged victims in this case. In October 1993, Jones, Lorie and M.W., then 9 years old, moved in together. Jones and Lorie considered their relationship a common-law marriage.
M.W. testified that shortly after she turned 12 in August 1996, Jones began to have sexual intercourse with her. She does not recall any type of sexual contact occurring before that time. Jones continued to have sex with M.W. at least once a week until July 2001, sometimes in her bed and other times in the bedroom he shared with Lorie. M.W. testified that she and Jones also had sex in the living room of the house. Sometimes Jones requested that M.W. and Lorie have sex with him in the same room at the same time. According to M.W., Jones told her he loved and cared for her very much. She testified she still loved him very much.
At the time the alleged intercourse began between Jones and M.W., Lorie and Jones had two small children of their own and Lorie was pregnant with a third. In 1998, after approximately 2 years of sexual activities, M.W., then 14, told Lorie that Jones had been having sex with her. M.W. further testified that she heard her mother tell Jones about the conversation, but the activities continued.
In May 1999, S.J., the other alleged victim in this case, moved into the Jones household. She is Jones’ natural daughter from a previous marriage and was born in May 1983. At the time she moved in, her mother was serving a prison sentence and her living arrangement with an aunt was not working out. Jones therefore obtained custody through court proceedings, though S.J. testified they had not seen each other for at least 6 years. When S.J. moved in, she shared a bedroom with M.W., who was 15 months younger.
Two weeks after S.J. moved in, Jones allegedly engaged in a group sex act with M.W., S.J., and Lorie in the living room one evening after the three small children had been put to bed. S.J. testified that Jones had approached her about a “little cult . . . with witchery and things” that existed in the family. He told her that participation involved an initiation, an oath, and then all three women would have sex with him. On that specific occasion, he first fondled M.W. and S.J. vaginally while alone with them. According to S.J., all three women then dressed in their “colors,” i.e., different colored lingerie, and took their turn having intercourse with him seated on the couch while he digitally penetrated the others. M.W. testified that afterward, Jones told all the women that he loved them. At the time this occurred, M.W. was 14 and S.J. had just turned 16.
S.J. testified that Jones continued to have sex with her one to two times per week following this 1999 incident up until the time she moved out of the house in July 2001 after turning 18. According to S.J., she was forced to engage in sex acts in the living room, Jones’ bedroom, the bedroom she shared with M.W., the bathroom, the kitchen, the shed, and the camper. In addition to S.J.’s testimony, M.W. testified that Jones continued to have sex with her after the group sex incident and past her 16th birthday in 2001.
On July 30,2001, — the month that S J. had moved out — police responded to a domestic violence incident involving S.J. and Jones. According to S.J., she and Jones were arguing over the telephone when Jones threatened to show her “what the business end of a shotgun was for.” She testified she was irritated by the comment and sick of his threats. At the time of the conversation, S.J. was with her boyfriend’s mother, who encouraged her to file a police report about the threat. When contacted by a police officer, S.J. not only mentioned the threat but also alleged the ongoing sexual abuse by Jones. The officer told her to file a report with the Exploited and Missing Child Unit (EMCU) of the Wichita Police Department. That same day, S.J. met with a detective from EMCU and described the abuse.
Initially during the resultant investigation, M.W. denied ever having sex with Jones, but was extremely fragile and would often break down and cry. Nevertheless, following her interview on July 30, authorities took M.W. and the three younger Jones children into protective police custody. In late October, police and social services conducted another interview with M.W. The first 30 minutes went much like the July interview, but she then began to disclose the alleged sexual abuse by answering the interviewer’s question with “where hasn’t he touched me.”
During the time of the alleged abuse, M.W. had been caring for the three younger children as permitted by her home schooling schedule. She testified Jones told her if other people found out about their sexual activities that the children would be taken away, which she did not want to happen. After July 30, the authorities did not allow her to see them except every 2 months. After her police interview in late October, she was allowed to see them every other week.
On November 8,2001, an amended eight-count information was filed against Jones. Seven counts incorporated various allegations of sexual abuse committed by Jones against S.J. and M.W., which allegedly occurred at different intervals of time.
Prior to the January 2002 jury trial, the State filed a motion pursuant to K.S.A. 60-455 seeking to introduce Jones’ 1988 conviction for indecent liberties with a child to show his intent, plan, and preparation. The district court ruled the evidence was admissible for the purpose of plan only. At trial, defense counsel renewed his objection to the evidence and asked for a continuing objection. At defense counsel’s request, the district court gave a limiting instruction to the jury prior to the witness’ testimony and again before its deliberations.
The State introduced the indecent liberties evidence through the 1988 journal entry of conviction and through testimony of L.D., the victim. L.D. testified that she was bom in July 1973 and that her natural mother, Loretta, married Jones when L.D. was approximately 8-10 years old. In May 1983, when L.D. was approximately 10 years old, Loretta gave birth to Jones’ child, S.J.
L.D. testified that Jones began molesting when she was approximately 8 or 9 years old. He did so by taking off her clothes, touching her with his hands and penis, and rubbing himself on her. Jones attempted but never achieved sexual intercourse with L.D. She testified he would masturbate, fondle her vagina and breast area, and tell her that he loved her. He also wanted her to say she loved him.
According to L.D., these incidents occurred in her bedroom if no one was home, the dining room, and “just wherever” in the house. Jones would come into her room at night with her mother sleeping in the next room and would also take her from school so he could molest her. She testified that on about four occasions Jones molested her in a little bathroom stall and once in a small travel trailer where the family lived.
L.D. testified that she never told her mother about the abuse and that Jones told her to keep it a secret. She eventually reported it, and in January 1988 when L.D. was 14, Jones pled guilty to one count of indecent liberties with a child.
On cross-examination, defense counsel established that L.D.’s mother never participated in those activities and there was no talk of colors, rituals, or “family values."
Several people testified for the defense. Jones flatly denied he ever sexually abused M.W. or S.J. He also maintained that at the time of the group sex incident involving M.W., S.J., and Lorie, his back was injured. Lorie — his wife and M.W.’s mother — corroborated his denial by testifying that the allegations by M.W. and S.J. were false and that she had no knowledge of Jones’ sexually abusing them. Another witness, a neighbor and friend of M.W. and S.J. who was present almost daily in the Jones’ home for home schooling, testified that she never observed or was told anything which would have indicated Jones was sexually abusing M.W.
Additionally, M.W.’s grandmother testified that she was in the home on a weekly basis and never saw any inappropriate touching between Jones and either M.W. or S.J. She further testified that she asked M.W. several times if Jones was molesting her and M.W. said “no”. Finally, Jones’ employer testified that beginning May 7, 1999, through mid-July 1999 — when the group sex incident allegedly occurred and the abuse of S.J. began — Jones was taking leave from work for a back injury.
The juiy convicted Jones of the following charges:
For conduct involving S.J.:
Count I: Aggravated incest in violation of K.S.A. 21-3603(a)(2)(A), a severity level 5 person felony involving the victim S.J., then 16 years of age but under 18 years of age, and occurring between May 29, 1999, and May 12, 2001.
Count II: Incest in violation of K.S.A. 21-3602, a severity level 10 person felony involving the victim S.J., then 18 years of age, and occurring between May 13, 2001, and July 1, 2001.
For conduct involving M.W.:
Count IV: Rape in violation of K.S.A. 2002 Supp. 21-3502(a)(2), a severity level 1 person felony involving the victim M.W., then under 14 years of age, and occurring between August 22, 1997, and August 22, 1998.
Count V: Aggravated indecent liberties with a child, in violation of K.S.A. 21-3504(a)(l) a severity level 3 person felony involving the victim M.W., then 14 years old, and occurring between August 23, 1998, and August 22, 2000.
Count VI: Aggravated incest in violation of K.S.A. 21-3603(a)(2)(A), involving the victim M.W., then 16 years of age but less than 18 years of age, occurring between August 23, 2000, and June 1, 2001.
Jones was found not guilty of the remaining three charges: Count III, criminal threat involving S.J.; Count VII, aggravated criminal sodomy involving M.W.; and Count VIII, criminal sodomy involving M.W.
ANALYSIS
Issue: Did the district court err in admitting evidence regarding a prior conviction for indecent liberties with a child under the plan exception of KS. A. 60-455?
Few areas of our jurisprudence have been subject to more conflicting views and decisions than the application of K.S.A. 60-455. State v. Rucker, 267 Kan. 816, 824, 987 P.2d 1080 (1999). As in Rucker, “[w]e will not by this case solve any of the problems spawned by a myriad of prior cases.” 267 Kan. at 824. The statute provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis added.) K.S.A. 60-455.
According to State v. Tiffany, 267 Kan. 495, 986 P.2d 1064 (1999), our standard of review for the admission of evidence of prior sexual misconduct under K. S. A. 60-455 contains several parts. (1) The evidence must be relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) the probative value of the evidence sought to be admitted outweighs its potential prejudice. If these three requirements are met, the scope of appellate review is limited to whether the trial' court abused its discretion. 267 Kan. at 498. Discretion is abused only where no reasonable persdn would take the trial court’s view. State ex rel. Stovall v. Alivio, 275 Kan. 169, 173, 61 P.3d 687 (2003).
Jones contends the trial court erred in admitting evidence under K.S.A. 60-455 of his 1988 conviction for indecent liberties because it was not probative of any material fact and was unduly prejudicial. The State responds that the evidence was relevant to show plan under K.S.A. 60-455, that it was more probative than prejudicial, and that the prejudicial effect, if any, was tempered by the limiting instruction.
State v. Damewood, 245 Kan. 676, 681-82, 783 P.2d 1249 (1989), describes the rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455:
“Admission of evidence under 60-455 to show plan has been upheld under at least two theories. In one the evidence, though unrelated to the crimes charged, is admitted to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes.
“The rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts. [Citation omitted.]
“Another line of cases has held evidence of prior crimes or acts is admissible to show plan where there is some direct or causal connection between the prior conduct and the crimes charged.” (Emphasis added.)
Jones’ argument tests the first theory. Specifically, his claim that the prior conviction evidence was irrelevant to show plan rests on the contention that “the prior crime was not sufficiently similar to the crimes for which he was on trial.”
A number of decisions have upheld the admission of K.S.A. 60-455 evidence in sex cases where the details of the plan for the prior crime and the crime for which the defendant was on trial were “strikingly similar.” See, e.g., Rucker, 267 Kan. at 826-29; Tiffany, 267 Kan. at 497-502; Damewood, 245 Kan. at 682; State v. Aldaba, 29 Kan. App. 2d 184, 189-92, 25 P.3d 149 (2002). In State v. Tolson, 274 Kan. 558, 56 P.3d 279 (2002), the case upon which Jones principally relies, we held that Damewood contained so distinct a method of operation as to be a “signature.” 274 Kan. at 564. The State, however, points to cases such as State v. Clements, 252 Kan. 86, 90, 843 P.2d 679 (1992), where we have upheld the admission of such evidence with no requirement of “striking” .similarities but because the evidence showed that the general method used is “similar enough to show a common approach that is tantamount to a plan.”
The facts of this case fail to meet either standard of similarity. The support for this conclusion is demonstrated by comparing Jones’ prior conduct involving L.D. to the later conduct involving each of the alleged victims in this case.
Beginning with M.W., we find some similarities. Both L.D. and M.W. were stepdaughters, the sexual abuse began when they were 12 or younger, the incidents occurred in various rooms throughout the house, and Jones would tell the girls he loved them. He expressly told L.D. to keep the conduct a secret, while he implied secrecy to M.W. by saying they might lose the three younger children if the conduct was revealed, something she did not want to have happen. The differences, however, were substantial. Jones tried but never accomplished intercourse with L.D. but did so with M.W. on at least a weekly basis for several years. Additionally, his sexual encounters with M.W. began directly with intercourse, while according to L.D.’s testimony hers began and essentially ended with fondling. Moreover, Jones abused L.D. only in isolation, while there were group sex acts involving M.W., Lorie, Jones, and on one occasion, S.J.
The conduct involving S.J. measured against the conduct involving L.D. is even more dissimilar. S.J. was Jones’ biological daughter whose sexual activities began when she was 16 years old, not a stepdaughter like L.D. whose abuse began when she was 8 or 9 years old. Additionally, S.J.’s activities began with sexual intercourse in a group, not fondling in private as with L.D. Furthermore, S.J. was brought into the fold of sexual abuse already occurring in the household against M.W. under the guise there was a family “cult” involving witchery, “colors,” and rituals, while L.D. admitted nothing like this occurred with her. Finally, the conduct involving S.J. primarily consisted of sexual intercourse one to two times a week, while the conduct involving L.D., with the exception of attempts, excluded intercourse. The only similarities between the conduct involving L.D. and S.J., besides their gender, were that Jones told them both he loved them and subjected them to sexual activities in numerous locations. Indeed, several of the similarities between Jones’ conduct with L.D. on the one hand and with S.J., and M.W. on the other, e.g., one gender, and various locations, may be present in many child sexual abuse scenarios. See State v. Davidson, 31 Kan. App. 2d 372, 384, 65 P.3d 1078, rev. denied 276 Kan. 971 (2003).
Compare Rucker, 267 Kan. at 826-29 (similar abuse in that both victims 5-year-old stepchildren abused until puberty; defendant applied lubricant, rubbed their vaginal areas with his penis until ejaculation, slapped them if they protested, threatened to kill their pets); Tiffany, 267 Kan. at 497-502 (similar words used to entice victims into performing requested acts, victims about the same age, and criminal conduct performed in same manner); Damewood, 245 Kan. at 679-82 (same pattern of conduct or method of operation shown to have been followed on previous occasion, i.e., arranging time alone with young teenage boys by involving them in beekeeping activities, then sexually molesting them); Aldaba, 29 Kan. App. 2d at 189-92 (both victims were young boys when molested, in both incidents perpetrator forced his penis into child’s mouth, both incidents occurred when defendant staying overnight in same res idence with victim and each victim threatened with bodily harm if abuse was revealed.)
In short, there simply was insufficient evidence presented to show a distinct method of operation that could be considered “signature” or “strikingly similar” or even “similar enough” for K.S.A. 60-455 purposes. Consequently, the district court erred in admitting the prior conviction evidence under the plan exception contained in that statute.
Now that we have established that the evidence was not admissible to show plan, we next consider whether the error was harmless. We recently discussed the harmless error rule in State v. Henry, 273 Kan. 608, Syl. ¶ 7, 44 P.3d 466 (2002):
“Normally, the admission or exclusion of evidence is measured by the harmless error rule. In determining if the erroneous admission or exclusion of evidence is harmless, the appellate court must consider if it is inconsistent with substantial justice, i.e., affects the substantial rights of a defendant and, if not, whether this court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.”
We start by observing that the absence of physical evidence of abuse transformed this case into a credibility batde. On the one hand, Jones testified and denied the allegations. His employer corroborated that during the time S.J. claimed the group sex incident occurred and the abuse began with her, Jones was on a 2-month leave from work for a back injury. Lorie — Jones’ wife and M.W.’s mother — corroborated her husband’s denial. A girl who was friend and neighbor to M.W. and S.J. — who was present almost daily in the Jones’ home — testified that she never observed or was told anything which would have indicated Jones was sexually abusing M.W. Finally, M.W.’s grandmother testified that she was in the home on a weekly basis, never saw any inappropriate touching between Jones and either M.W. or S.J., and when she asked M.W. several times if Jones was molesting her, M.W. said, “No.”
For the State, the two victims’ testimony about the alleged abuse was corroborated only by the accounts they told other witnesses, including police investigators. Furthermore, M.W. was reticent in disclosing the alleged abuse and, as argued by defense counsel, her initial disclosures of abuse in a police interview conducted 3 months after her first interview may have been motivated by her belief the disclosures would lead to reunifying her with the small children for whom she cared deeply. Indeed, after her October disclosures, she was allowed to see the children much more often. Moreover, as Jones argues, S.J.’s accusations may have been made in anger and in retaliation against Jones’ alleged threats to show her “the business end of a shotgun.”
In light of all the testimony presented, the jury might have believed Jones’ version were it not for the admission of the 1988 prior conviction evidence. That evidence, since it failed to meet the plan exception listed in K.S.A. 60-455, may have unfairly created the inference that Jones had a disposition to commit the numerous crimes for which he had been charged. The prior conduct was the focal point in the State’s case and was mentioned at least four times in its closing argument, including in the following statement: “This defendant is not rehabilitated. He molested [L.D.], and he had sexual intercourse with [S.J.], sexual intercourse with [M.W.]. I ask that you find him guilty of each of these counts ’cause he is guilty.”
Accordingly, we conclude the evidence was unduly prejudicial, and we are unable to declare beyond a reasonable doubt that its erroneous admission had litde, if any, likelihood of having changed the result of the trial. Henry, 273 Kan. 608, Syl. ¶ 7. Indeed, evidence of a defendant’s prior sexual misconduct — particularly when, as here, both the prior conduct and the conduct for which he is presently on trial involve minors — can easily convert to evidence for propensity or other impermissible purposes. As the court stated in United States v. Peden, 961 F.2d 517, 520 (5th Cir. 1992):
“[Ajdmission of prior wrongful acts simply to show the defendant’s bad character, notwithstanding that one possessed of a bad character is more likely to commit a crime than one who is not, is likely to prejudice the jury and blind it to the real issue of whether the defendant is guilty of the crime charged. For example, the jury may feel unsure that the government has proven its case, but decide that the defendant is an evil person who belongs in prison anyway. The jury may wish to punish the defendant for the prior act, even if they are unconvinced that he committed the act charged. Moreover, the jury may be unconvinced that the defendant committed either act, but that he more than likely committed at least one of them and should be punished.”
Therefore, Jones’ case must be reversed and remanded for a new trial. All Jones’ remaining issues concern alleged sentencing errors which are moot and should not arise again in light of State v. Kessler, 276 Kan. 202, 216-17, 73 P.3d 761 (2003).
Reversed and remanded. | [
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On July 10, 1998, petitioner Salvatore A. Scimeca was indefinitely suspended from the practice of law in Kansas and ordered to pay the costs and make full restitution to complainants prior to filing a petition pursuant to Supreme Court Rule 219 (2003 Kan. Ct. R. Annot. 296). In re Scimeca, 265 Kan. 742, 962 P.2d 1080 (1998).
On December 30, 2002, Scimeca filed a petition with this court for reinstatement to the practice of law in Kansas. On Januaiy 15, 2003, the petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. On September 30, 2003, a hearing was held before a panel of the disciplinary board in Wichita, Kansas.
On February 12, 2004, the panel filed its report setting out the circumstances leading to Scimeca’s suspension, a summary of the evidence presented, and the panel’s findings and recommendations. The panel concluded that Scimeca has fully complied with the orders of the Kansas Supreme Court. The panel unanimously recommended that Scimeca’s petition for reinstatement to the practice of law in Kansas be granted. The panel further recommended that the court order Mr. Scimeca to continue to comply with the treatment directions of Dr. Wadud and that Dr. Wadud file progress reports with the Disciplinary Administrator. At the time of the disciplinary hearing, Scimeca sought treatment from Dr. Wadud for depression and anxiety, and since that time has continuously received treatment from Dr. Wadud. Dr. Wadud has indicated that Scimeca has recovered from his depression and recommends that he be reinstated to the practice of law. Scimeca has agreed to continue treatment from Dr. Wadud. We agree that Scimeca should continue his therapy with Dr. Wadud; however, we do not feel such continued therapy should be made a condition of Scimeca’s reinstatement. Since the panel report recommends reinstatement, no response is required by petitioner, and, pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by this court.
The court, after carefully considering the record, accepts the findings and recommendation of the panel that petitioner be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that Salvatore A. Scimeca be reinstated to the practice of law in the state of Kansas and the clerk is directed to enter his name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Therefore Ordered that this order shall be published in the official Kansas Reports.
Dated this 27th day of February, 2004. | [
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The opinion of the court was delivered by
Davis, J.:
This case comes before this court on grant of the defendant Jacqulyn J. Huffs petition for review from a decision of the Court of Appeals affirming her sentence. State v. Huff, 31 Kan. App. 2d 717, 71 P.3d 1185 (2003). We granted review on the sole issue of whether statutory authority exists for the imposition of consecutive jail sentences for misdemeanor offenses.
Facts
The defendant assisted her husband in committing purse snatches in several grocery stores and retail parking lots. In one instance, her husband grabbed the victim’s purse and got into a vehicle being driven by the defendant. The defendant drove off, dragging the victim who was still clinging to her purse. In another instance, her husband grabbed a victim’s purse and ran to a waiting car with the defendant inside. The defendant’s children were inside the vehicle during these incidents. The defendant subsequently assisted her husband in forging and cashing stolen checks from another purse snatch.
The State charged the defendant with attempted aggravated robbery, felony possession of marijuana following a prior conviction, misdemeanor theft, and two counts of misdemeanor child endangerment. Pursuant to a plea agreement, the State amended the attempted aggravated robbery charge to attempted robbery and recommended probation and concurrent sentences with an underlying prison term of 16 months. The defendant pled guilty to the amended charge and the remaining four charges.
The trial court’s sentence on the two felony crimes ran concurrently, resulting in a controlling prison term of 16 months. Over the defense’s objection, the trial court imposed consecutive 12-month jail sentences on each of the three misdemeanor offenses, to run consecutive to the primary offense of attempted robbery. Probation was granted on the felony convictions with a postrelease supervision period set at 36 months instead of the recommended 24 months.
The defendant appealed her sentence to the Court of Appeals, arguing that the trial court did not have authority to impose consecutive jail sentences on her misdemeanor offenses and that if authority did exist, the court abused its discretion by imposing consecutive jail sentences on the misdemeanor offenses. The defendant also argued that her increased postrelease supervision period was an unconstitutional departure sentence under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
Court of Appeals
The Court of Appeals ruled that the trial court had statutory authority to impose consecutive imprisonment sentences on the misdemeanor offenses under K.S.A. 21-4608(a), that the trial court did not abuse its discretion by imposing consecutive jail sentences, and that the increased postrelease supervision term was not a departure under Apprendi or an appealable sentence under K.S.A. 2002 Supp. 21-4611(c)(5). Huff, 31 Kan. App. 2d at 719, 721, 723-24.
The Court of Appeals discussed K.S.A. 2002 Supp. 21-4720(b) and K.S.A. 21-4608(a), two statutes which provide the trial court with the authority to impose consecutive sentences. Relying on State v. Reed, 23 Kan. App. 2d 661, 934 P.2d 157, rev. denied 262 Kan. 967 (1997), the court concluded that K.S.A. 2002 Supp. 21-4720(b), which provides that “[t]he sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases,” applies only to felony sentences under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. 31 Kan. App. 2d at 719. The defendant does not take issue with this finding on appeal, and it appears to be correct under Reed and the Kansas Sentencing Guidelines.
In Reed, the Kansas Court of Appeals found that neither the 1993 version of K.S.A. 21-4720(b)(4), which provided that the total sentence assigned for the current conviction event could not exceed twice the base sentence, nor the 1994 version of the statute, which provided that the total prison sentence imposed in cases involving multiple convictions arising from multiple counts could not exceed twice the base sentence, applied to misdemeanor convictions. 23 Kan. App. 2d at 662-63.
The Reed court reasoned that “prison” is defined in K.S.A. 21-4703(r) as a facility operated by the Kansas Department of Corrections and “[s]ince sentences for misdemeanor convictions are served in county jails, those type of sentences cannot meet the definition of prison sentences under the KSGA.” 23 Kan. App. 2d at 663. Consequently, Reed concluded that a defendant may be sentenced to consecutive misdemeanor convictions in addition to the sentence imposed under K.S.A. 21-4720(b)(4) for any multiple felony convictions. 23 Kan. App. 2d at 663.
K.S.A. 2002 Supp. 21-4720(b) governs the imposition of consecutive presumptive felony sentences. State v. Peterson, 22 Kan. App. 2d 572, 575, 920 P.2d 463, rev. denied 260 Kan. 1000 (1996). A presumptive sentence under the KSGA is the sentence provided in the grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender’s criminal histoiy. K.S.A. 21-4703(q). The sentencing guidelines grid for drug and nondrug crimes is applied in felony cases. K.S.A. 2002 Supp. 21-4704(a); K.S.A. 2002 Supp. 21-4705(a). As such, the Court of Appeals cor rectly concluded that K.S.A. 2002 Supp. 21-4720(b) does not apply to misdemeanor cases.
However, the Court of Appeals did conclude that the authority to impose consecutive misdemeanor sentences lies in K.S.A. 21-4608(a), which provides in relevant part:
“When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs.”
The Court of Appeals rejected the defendant’s argument that K.S.A. 21-4608(a) does not apply to misdemeanors because the definition of “imprisonment” under K.S.A. 21-4703(m) does not include sentences that are served in a county jail. K.S.A. 21-4703(m) is defined as “imprisonment in a facility operated by the Kansas department of corrections.” The Court of Appeals found that because K.S.A. 21-4703(m) is part of the KSGA, it only applies to KSGA sentences for felony convictions. The court concluded that K.S.A. 21-4608(a) was applicable to this case, reasoning:
“The definition statute in article 46 for sentencing does not include the term ‘imprisonment.’ See K.S.A. 2002 Supp. 21-4602. Instead, the place of imprisonment for felony and misdemeanor sentences is governed by K.S.A. 2002 Supp. 21-4603d(a)(l). The trial court may ‘[c]ommit the defendant to the custody of the secretary of corrections if the current crime of conviction is a felony ... or, if confinement is for a misdemeanor, to jail for the term provided by law.’ K.S.A. 2002 Supp. 21-4603d(a)(l). Unlike K.S.A. 21-4703(m), the term ‘imprisonment’ is not defined by where the sentence will be served.
“A review of other statutes shows the legislature applied the term ‘imprisonment’ to both misdemeanor and felony sentences. A crime is defined as ‘an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized.’ K.S.A. 2002 Supp. 21-3105. If convicted of a misdemeanor, the defendant may be fined ‘instead of the imprisonment authorized by law.’ K.S.A. 2002 Supp. 21-4503a(b). The ‘terms of confinement’ for the misdemeanor classifications are stated in K.S.A. 2002 Supp. 21-4502(1). The trial court may grant probation by releasing the defendant ‘after imposition of sentence, without imprisonment except as provided in felony cases.’ K.S.A. 2002 Supp. 21-4602(c). The trial court had statutory authority to impose consecutive ‘imprisonment’ sentences on the misdemeanor offenses under K.S.A. 21-4608(a).” Huff, 31 Kan. App. 2d at 719.
Discussion
The defendant argues that the trial court and the Court of Appeals imposed an illegal sentence because no statutory authority exists for the imposition of consecutive sentences for her multiple misdemeanor convictions.
Standard of Review
An illegal sentence subject to correction is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Cullen, 275 Kan. 56, 60, 60 P.3d 933 (2003). An illegal sentence may be corrected at any time. K.S.A. 22-3504. The determination of whether a criminal sentence is illegal is a question of law subject to unlimited review. State v. Harper, 275 Kan. 888, 889, 69 P.3d 1105 (2003).
The Defendant’s Argument
The defendant argues that resolution of this case hinges on whether incarceration in the county jail constitutes imprisonment under Kansas law, specifically under K.S.A. 21-4608(a). She contends that the Court of Appeals failed to address the distinction between the use of the terms “confinement” and “imprisonment” in the statues authorizing the punishment for misdemeanor and felony offenses.
K.S.A. 21-4608(a) provides that “[wjhen separate sentences of imprisonment for different crimes are imposed on a defendant . . . such sentences shall run concurrently or consecutively as the court directs.” (Emphasis added.) According to the defendant, the term imprisonment is reserved for felony crimes involving incarceration in a facility operated by the Kansas Department of Corrections. Misdemeanor convictions call for confinement instead of imprisonment with incarceration in a jail instead of the Kansas Department of Corrections. For support, the defendant points to the following provisions of K.S.A. 2002 Supp. 21-4603d(a)(l):
“(a) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
(1) Commit the defendant to the custody of the secretary of corrections if the current crime of conviction is a felony and the sentence presumes imprisonment, or the sentence imposed is a dispositional departure to imprisonment, or, if confinement is for a misdemeanor, to jail for the term provided by law.” (Emphasis added.)
Additionally, the defendant notes that while K.S.A. 21-4501 sets forth the terms of imprisonment for felony offenses, K.S.A. 2002 Supp. 21-4502(1) sets forth the terms of confinement for misdemeanor offenses. Consequently, the defendant argues that the reference to imprisonment in K.S.A. 21-4608(a) grants a trial court authority to impose consecutive sentences for felony convictions only.
Analysis
The terms imprisonment and confinement are used interchangeably throughout the Kansas Criminal Code (Code) and in Kansas statutes defining misdemeanor crimes outside the Code. Thus, our analysis below, coupled with the defendant’s reliance upon these statutes within the Code, completely undermines the defendant’s argument and demonstrates that the legislature intended to grant district judges authority to impose consecutive sentences for misdemeanor convictions.
The question of whether K.S.A. 21-4608(a) provides the authority for imposition of consecutive sentences in misdemeanor convictions may not be determined from a consideration of that statute alone. However, when the provisions of K.S.A. 21-4608 are considered in context of the Code, those Kansas statutes defining misdemeanor crimes outside the Code, and in the light of Kansas case law, the conclusion that K.S.A. 21-4608(a) grants.such authority becomes apparent.
The Code, K.S.A. 21-3101 et seq., is comprised of Articles 31 to 47 and is divided into three parts. The first, entitled General Provisions, is comprised of Articles 31 and 32. Within Part I, the provisions of K.S.A. 21-3102 define the scope and application of the Code. 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, and unless expressly stated otherwise, or the context other wise requires, the provisions of the Code apply to crimes created by statute other than in the Code. K.S.A. 21-3102(1) and (2).
K.S.A. 2002 Supp. 21-3105 defines a crime as
“an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized or, in the case of a traffic infraction or a cigarette or tobacco infraction, a fine is authorized. Crimes are classified as felonies, misdemeanors, traffic infractions and cigarette or tobacco infractions.
“(1) A felony is a crime punishable by death or by imprisonment in any state correctional institution or a crime which is defined as a felony by law.
“(2) A traffic infraction is a violation of any of the statutory provisions listed in subsection (c) of K.S.A. 8-2118 and amendments thereto.
“(3) A cigarette or tobacco infraction is a violation of subsection (m) or (n) of K.S.A. 79-3321 and amendments thereto.
“(4) All other crimes are misdemeanors.”
In defining crime, the legislature intended to and did include all possible crimes, including felonies and misdemeanors. The very definition of the term “crime” includes imprisonment for felonies as well as misdemeanors. This prehminary statute in the Code undermines the defendant’s contention that imprisonment is meant to apply only to felonies. In determining the type of punishment for a particular crime, the emphasis is not on the term imprisonment as the defendant would have us believe but, rather, the emphasis is upon the place of confinement, viz., “[a] felony is a crime punishable ... by imprisonment in any state correctional institution or a crime which is defined as a felony by law.” (Emphasis added.) See K.S.A. 2002 Supp. 21-3105(1). Nevertheless, the term imprisonment refers to felony as well as misdemeanor convictions.
Part II of the Code spans Articles 33 to 44 and sets forth Prohibited Conduct. These include Article 33, Anticipatory Crimes; Article 34, Crimes against Persons; Article 35, Sex Offenses; Article 36, Crimes Affecting Family Relationships and Children; Article 37, Crimes against Properly; Article 38, Crimes Affecting Governmental Functions; Article 39, Crimes Affecting Public Trusts; Article 40, Crimes Involving Violations of Personal Rights; Article 41, Crimes Against the Public Peace; Article 42, Crimes Against the Public Safety; Article 43, Crimes Against Public Morals; and Article 44, Crimes Affecting Business.
It is important to note that other than Article 40, which contains only misdemeanor offenses, both felony and misdemeanor offenses are set forth under all of the other articles contained in Part II of die Code. See K.S.A. 21-3302(c) and (e); 2002 Supp. 21-3413(b); 21-3513(b)(l), (2), and (3); 2002 Supp. 21-3612(a)(5); 2002 Supp. 21-3701(b); 21-3808(b)(l) and (2); 21-3902(c)(2); 21-4111(b)(l)(B) and (C); 2002 Supp. 21-4201(h); 21-4301(f)(l) and (2); 21-4404(c); and 21-4405. This is important because it demonstrates that in defining crimes, the Code sets forth both felonies and misdemeanors but leaves the punishment for those crimes to Article 46, Sentencing.
Part III of the Code, Classification of Crimes and Sentencing, includes Article 45, Classification of Crimes and Penalties; Article 46, Sentencing; and Article 47, Sentencing Guidelines. Under Article 45, as previously noted, K.S.A. 21-4501 sets forth the classes of felonies and the terms of imprisonment. K.S.A. 2002 Supp. 21-4502 sets forth the classification of misdemeanors and the terms of confinement for each class. K.S.A. 2002 Supp. 21-4503a(b) provides that “[a] person who has been convicted of a misdemeanor, in addition to or instead of the imprisonment authorized by law, may be sentenced to pay a fine.” (Emphasis added.) This emphasized language provides another example of how the terms imprisonment and confinement are used interchangeably in the Code.
It is within Article 46, Sentencing, that the provisions of K.S.A. 21-4608(a) come into play. Likewise, this article contains the authorized disposition for crimes committed on or after July 1,1993, which demonstrates the legislature’s use of the term imprisonment when referring to felonies and confinement in regard to misdemeanors. See K.S.A. 2002 Supp. 21-4603d(a)(l).
Article 47 sets forth the Kansas Sentencing Guidelines. From here, the defendant seeks to strengthen her argument that imprisonment only applies to felony sentences by pointing to K.S.A. 21-4703(m), which states that “ ‘imprisonment’ means imprisonment in a facility operated by the Kansas department of corrections.” However, as previously discussed, the defendant acknowledges that Article 47 deals only with felony crimes committed after July 1, 1993. Thus, the above definition lends no support to the defendant’s argument because it applies only to Kansas Sentencing Guidelines felonies.
The defendant argues that the Court of Appeals failed to address the distinction between the use of the terms confinement and imprisonment which exist in the Code in statutes authorizing the punishment for criminal offenses. She contends the inconsistency in the manner in which these terms are used creates an ambiguity that must be resolved in favor of the criminal defendant.
“When construing criminal statutes, it is well settled that such statutes must be strictly construed in favor of the accused. Any reasonable doubt about meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” State v. Pollard, 273 Kan. 706, 710-711, 44 P.3d 1261 (2002).
“The fundamental rule of statutory construction is that the intent of the legislature governs when that intent can be ascertained from the statute. In construing a criminal statute, any reasonable doubt about the meaning is decided in favor of one subjected to the statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. In construing statutes and determining legislative intent, several provisions of an act in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if possible.” In re W.H., 274 Kan. 813, Syl. ¶ 2, 57 P.3d 1 (2002).
The defendant’s argument is without merit. The very use of “for different crimes” in K.S.A. 21-4608(a) necessarily recalls the prehminary provisions the Code, which defines a crime as both a felony and a misdemeanor. See K.S.A. 2002 Supp. 21-3105. As the Code defines crimes which are both misdemeanors and felonies, the exclusion of misdemeanors under K.S.A. 21-4608 would deny the overall sense and logic of our Code. Article 47 applies only to felony sentences under the Kansas Sentencing Guidelines. Thus, it becomes clear that when viewing K.S.A. 21-4608 in the context of the Code, the sentencing provisions contained in Article 46 were meant to apply to sentencing for both misdemeanors and felonies.
This same conclusion is reached when reviewing the use of the terms imprisonment and confinement in those crimes identified and defined by statute outside of the Code. These crimes are included within the Code by reason of the following provisions in K.S.A. 21-3102(2): “Unless expressly stated otherwise, or the context otherwise requires, the provisions of this code apply to crimes created by statute other than in this code.” Thus, the sentencing provisions of Article 46 would apply to these crimes as well.
A number of such crimes provide that the sentence for a person convicted of a misdemeanor may be punished by imprisonment in the county jail. See K.S.A. l-316(f); 2-140; 2-1111; 2-1112; 2-1115; 2-2506; 2-3010; 8-119; 8-149; 8-1,117; 8-268; 8-281; 8-1599; 9-512; 9-2001; 9-2003; 9-2005; 9-2015; 9-2016; 10-117; 10-118a; 12-761(a); 12-1609; 12-1633; 16-305(a); 17-1907; 17-1908; 17-1913; 17-1920; 19-233; 19-2780; 19-2803a(a); 19-4331; 20-911; 21-1214; 21-2804; 2002 Supp. 21-3412a(b)(l) and (2); 21-3760(b); 23-116a; 24-126(a); 24-456; 24-473; 24-636; 24-815; 48-219; 55-102(a); 55-607; 55-708; 58-206; 58-1022; 60-1208(b); 65-624; 65-642; 65-905; 65-1460; 65-1909(b); 72-8314; 75-4508; 79-1408; 79-1426; 79-3228(d); 79-34,103; 79-34,122(a); 80-408; 80-409; 80-411; 82-170.
Several other statutes setting forth the punishment for misdemeanor offenses use the terms confinement and imprisonment interchangeably by stating that the defendant may be punished by fine or confinement in the county jail or by both such fine and imprisonment. See K.S.A. 3-205; 28-226; 28-318; 28-619; 28-1008; 41-2604(a); 72-8314; and 76-2029.
Black’s Law Dictionary defines confinement as the “[sjtate of being confined; shut in; imprisoned; detention in penal institution. Black’s Law Dictionary 298 (6th ed. 1990). Imprison is defined as “[t]o put in a prison; to put in a place of confinement. To confine a person or restrain his liberty, in anyway.” Black’s Law Dictionary 757 (6th ed. 1990). Imprisonment is defined in part as:
“The detention of a person contrary to his will. The act of putting or confining a person in prison. The restraint of a person’s personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion. It is not a necessaiy part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Every confinement of the person is an ‘imprisonment,’ whether it be in prison, or in a private house, or even by forcibly detaining one in the public streets.” Black’s Law Dictionary 757 (6th ed. 1990).
The above definitions provide further support that imprisonment and confinement are one and the same and may be used interchangeably. The defendant’s argument that imprisonment applies only to sentences requiring incarceration in institutions of the Department of Corrections and confinement applies only to misdemeanors fails to stand up in light of our above statutory analysis. Moreover, exactly the opposite conclusion is substantiated. The terms imprisonment and confinement, both in the Code, and for those crimes identified and defined by statute outside the Code, are used interchangeably throughout most if not all criminal statutes involving felonies as well as misdemeanor convictions. Article 46 and specifically K.S.A. 21-4608(a) authorizes the court to determine whether the sentences in felony and misdemeanor convictions are to run concurrently or consecutively.
Further support for this position can be gained from the following cases. First, in State v. Walbridge, 248 Kan. 65, 68-69, 805 P.2d 15 (1991), this court considered whether confinement in a county jail as a condition of probation was permissible under K.S.A. 21-4602(3) (Ensley 1988), which defined “probation” as a procedure under which a defendant is released without imprisonment. In concluding it was not permissible, the court reasoned that “[tjhere can be no doubt that confinement in a county jail constitutes imprisonment. Black’s Law Dictionary 757 (6th ed. 1990).” 248 Kan. at 69. K.S.A. 21-4602(3) was subsequently amended to permit the court to include confinement in a county jail as a condition of probation in felony cases. L. 1991, ch. 88, sec 1. See K.S.A. 2002 Supp. 21-4602(c).
Second, in State v. Scherzer, 254 Kan. 926, 869 P.2d 729 (1994), this court considered whether imprisonment under the vehicular battery statute could include house arrest, even though the statute did not expressly provide for such. However, the aggravated vehicular homicide statute allowed the minimum required imprisonment could be served by house arrest. Scherzer reviewed the legislative history of the vehicular battery statute, the KSGA defi nition of imprisonment, K.S.A. 8-1567’s definition of imprisonment, and several additional sentencing statutes which indicated that house arrest was a different disposition than imprisonment. The court concluded that because the legislature used different language in two comparable statutes, K.S.A. 1992 Supp. 21-3405b(b)(2) (repealed 1993) and K.S.A.21-3405a (repealed 1993), the presumption was that the legislature made a conscious choice to use different language in the two statutes and intended a different type of sentence to be imposed. 254 Kan. at 937.
Third, in State v. Petz, 27 Kan. App. 2d 805, 811-12, 7 P.3d 1277 (2000), the Court of Appeals reversed the district court’s imposition of three consecutive 30-day sentences in the county jail as a condition of his probation under K.S.A. 21-4602(c). It held that under K.S.A. 1999 Supp. 21-4603d(a), the legislature intended to limit the total time an individual may be confined in a county jail as a condition of probation to 30 days, and that in a multi-count complaint or information, a. trial court may not require that the defendant serve 30 days on each count consecutively to increase the period of confinement ordered as a result of probation.
Finally, in In re W.H., 274 Kan. 813, this court concluded that although tire KSGA and the Kansas Juvenile Justice Code (KJJC) contained similar provisions, the KJJC provided no authority for imposition of consecutive sentences. The court reasoned that “[t]he KSGA expressly empowers a district court to impose consecutive sentences in K.S.A. 21-4720(b) and K.S.A. 21-4608,” but the KJJC provides no such power and is silent on the question of consecutive sentences. The court concluded that the Kansas Legislature, by its exclusion regarding consecutive sentences, did not authorize the imposition of consecutive sentences under the KJJC. 274 Kan. at 823.
Review of these cases supports the decision of the Court of Appeals that K.S.A.2l-4608(a) empowers a district court to impose consecutive sentences in misdemeanor convictions. In Walbridge, this court viewed confinement in county jail as imprisonment. 248 Kan. at 69. In Scherzer, the definition of imprisonment under the KSGA and K.S.A. 8-1567 was not die deciding factor in determining whether imprisonment included house arrest, and the court found it necessary to compare the use of different language in comparable statutes. 254 Kan. at 937. This case is distinguishable from Petz in that the decision to impose consecutive sentences does not depend on a fixed time limit (30 or 60 days) set forth in the statute, and it is distinguishable from W.H. in that the KJJC is silent on consecutive sentences while K.S.A. 21-4608(a) provides the authority to impose consecutive sentences.
The manifest purpose of the Code and the sentencing Article 46 is to avoid inconsistencies and to allow individualized sentencing dispositions whenever practicable. Scherzer, 254 Kan. at 933. The terms confinement and imprisonment are similar in definition and used interchangeably throughout the Code and Kansas statutes defining certain misdemeanor crimes outside the code. Interpreting imprisonment under K.S.A. 21-4608(a) to apply only to felony sentences finds no support in the Code, which when studied supports the opposite conclusion. Moreover, such an interpretation would create confusion and inconsistency both in the Code and in those crimes set forth by statute outside the Code, and it would frustrate the purpose of the Code to allow district courts to craft individualized sentencing dispositions based on the circumstances surrounding each case. We conclude that the Court of Appeals was correct in its conclusion that K.S.A. 21-4608(a) authorized the district court to sentence the defendant in this case to consecutive misdemeanor sentences.
Judgment of the Court of Appeals affirming the district court is affirmed, and the judgment of the district court is affirmed.
Beier, J., not participating.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Davis, J.:
Defendant Monty D. Seems was charged with a violation of K.S.A. 8-1567(f), a nonperson felony offense for the third driving while under the influence (DUI) conviction. Upon a preliminary hearing, the State presented no evidence of the defendant’s two prior driving under the influence convictions, and the magistrate dismissed the charge against the defendant. The question is whether the State, in a felony prosecution under K.S.A. 8-1567(f), is required at a preliminary hearing to present evidence to establish the defendant’s two prior driving under the influence convictions. We answer yes to the question and affirm.
On March 16, 2002, Officer Timothy Greenwood stopped the defendant for an improper left turn. Greenwood testified that the defendant had watery eyes, slurred speech, and a strong odor of alcoholic beverages. The defendant’s performance on the field sobriety tests indicated impairment, and he refused to take the preliminary breath test.
The defendant was arrested and taken to the law enforcement center where he ultimately refused to take a breath test by failing to comply with the deprivation period by not burping, belching, or placing anything inside of his mouth. The defendant was taken to the hospital, and his blood was drawn without his consent. The laboratory results from the Kansas Bureau of Investigation showed that the defendant had a blood alcohol concentration of 0.22, well above the legal limit.
The defendant was charged in the original complaint with one count each of transportation of alcohol in an open container, no proof of liability insurance, refusal of preliminary breath test, improper turn, and driving while license is canceled, suspended, or revoked. He was charged alternatively with one count of felony DUI committed pursuant to K.S.A. 8-1567(a)(l),(a)(2), or (a)(3). The complaint listed the defendant’s prior conviction dates as October 20, 1998, and January 4, 2000. The amended complaint deleted the dates of the prior convictions from the felony DUI alternative charges under 8-1567(f):
K.S.A. 8-1567 provides in relevant part:
“(a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person’s blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in die person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under die influence of alcohol to a degree tiiat renders the person incapable of safely driving a vehicle;
“(f) On die third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,500 nor more than $2,500.”
At the preliminary hearing, the State presented evidence that the defendant was driving while under the influence, but it presented no evidence of the defendant’s two prior DUI convictions. The defendant argued that the State’s failure to present evidence of the prior convictions prevented the magistrate from finding that a felony DUI had been committed. The magistrate agreed and dismissed the case. The State appealed to the district court which affirmed the dismissal, reasoning that the State failed to establish there was probable cause to believe that a felony had been committed by the defendant. K.S.A. 2003 Supp. 22-2902(3).
The State appealed the decision of the district court to the Kansas Court of Appeals. The Court of Appeals affirmed the district court, reasoning in part;
“To establish the basis for charging and tiying a defendant for a felony, a determination of probable cause to believe that a felony has been committed must be made pursuant to K.S.A. 2002 Supp. 22-2902(3). This probable cause determination is made by a judge after a preliminary hearing. Without a showing that the necessary prior convictions have occurred, the trial court would lack the jurisdiction to tiy the defendant for a felony.
“In order to prosecute a defendant under K.S.A. 8-1567(f), a felony, there must first be a preliminary hearing finding of probable cause to believe that the necessary prior convictions have occurred.” State v. Seems, 31 Kan. App. 2d 794, 797, 74 P.3d 55 (2003).
We agree with the Court of Appeals. The defendant was properly charged with a felony offense of DUI in violation of K.S.A. 8-1567(f). The court had jurisdiction to conduct a preliminary hear ing, as K.S.A. 2003 Supp. 22-2902(1) grants the defendant charged with a felony “a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury.” K.S.A. 2003 Supp. 22-2902(3) provides that “a defendant shall be bound over if the evidence shows that a felony has been committed and there is probable cause to believe that the felony has been committed by the defendant.” State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000). Where the evidence fails to establish that a felony has been committed by the defendant, the case must be dismissed.
In this case, the State presented no evidence of the defendant’s two prior DUI convictions. Felony DUI under K.S.A. 8-1567(f) requires two prior DUI convictions. Failure to present some evidence of two prior convictions at the prehminary hearing results in the failure to establish that a felony has been committed and that there was probable cause to believe that the felony has been committed by the defendant. Under these circumstances, the magistrate “shall discharge the defendant.” K.S.A. 2003 Supp. 22-2902(3).
We conclude that the Court of Appeals properly affirmed the dismissal of the K.S.A. 8-1567(f) nonperson felony DUI charge where the State failed to establish at the preliminary hearing that a felony had been committed and that probable cause existed to believe a felony was committed by the defendant by failing to present evidence of the defendant’s two prior DUI convictions.
Affirmed.
Beier, J., not participating.
Brazil, S.J., assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator’s office against Ronald Dean Barta, of Salina, an attorney admitted to the practice of law in Kansas.
The formal complaint filed against respondent contained three counts alleging violations of KRPC 1.1 (2003 Kan. Ct. R. Annot. 324) competence; 1.3 (2003 Kan. Ct. R. Annot. 336) diligence and promptness; 1.4 (2003 Kan. Ct. R. Annot. 349) communications; and 1.5 (2003 Kan. Ct. R. Annot. 362) fees. Respondent failed to file an answer within the allotted time, which was due by March 14, 2003. The hearing panel granted several continuances and directed the respondent to forthwith file a written answer to the formal complaint. The respondent filed a written answer on August 8, 2003.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on August 27, 2003. After hearing the testimony presented and reviewing the evidence, the panel found by clear and convincing evidence:
“1. Ronald D. Barta (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 05919. His last registration address with the Clerk of the Appellate Courts of Kansas is Salma, Kansas. The Respondent was admitted to the practice of law in the state of Kansas on June 27, 1962. The Respondent’s date of birth is March 20, 1937.
“DA8110 — Complaint of Georjean Perez
“2. Geoijean Perez is a teacher for the Unified School District No. 214 in Ulysses, Kansas. Ms. Perez has held that position since prior to 1992. On March 20,1992, acting within the scope of her employment and while operating a vehicle owned by the school district, Ms. Perez was involved in an automobile accident. The vehicle Ms. Perez was driving was struck by a vehicle being driven by Eric W. Clay. The accident occurred in Saline County, Kansas.
“3. Ms. Perez suffered extensive injuries as a result of the accident. Ms. Perez has endured many surgeries. More than eleven years after the accident, Ms. Perez continues to suffer from the injuries she sustained in the accident and continues to incur medical expenses.
“4. Shortly after the accident, Ms. Perez contacted attorney Gary Hathaway for representation. Mr. Hathaway agreed to handle Ms. Perez’ workers compensation case. Mr. Hathaway told Ms. Perez that he would refer her personal injury case to Ronald Barta in Salina, Kansas.
“5. The Respondent agreed to file suit and represent Ms. Perez regarding the personal injury claims. The Respondent’s fee was contingent on the outcome of the case. However, the Respondent failed to reduce his fee agreement with Ms. Perez to writing. Thereafter, in 1994, the Respondent filed suit in behalf of Ms. Perez against Mr. Clay. Mr. Clay’s insurance policy had a limit of $25,000.00. On September 8, 1994, Ms. Perez, on the advice of the Respondent, entered into a partial settlement agreement and release. As a result, Mr. Clay’s insurance company paid $25,000.00. However, Ms. Perez’ medical expenses exceeded $25,000.00.
“6. The settlement was subject to subrogation by the workers compensation insurance carrier. Between attorney fees and the workers compensation subrogation, Ms. Perez did not receive any of the proceeds from the settlement with Mr. Clay’s insurance carrier. The Respondent and Mr. Hathaway shared one-third of the settlement proceeds. Ms. Perez was not provided with a settlement sheet indicating how the $25,000.00 was distributed.
“7. Prior to settling the suit, the Respondent did not provide Ms. Perez’ insurance company with the statutory notice required by K.S.A. 40-284(f), regarding Ms. Perez’ claim for underinsured motorist coverage. The Respondent testified that he relied on Mr. Hathaway to provide the notice. Curiously, the Respondent was not aware of the requirements of K.S.A. 40-284(f) at that time of the settlement.
“8. K.S.A. 40-284(f) provides that if a tentative agreement to settle for liability limits has been reached with an underinsured tortfeasor, written notice must be given by certified mail to the underinsured motorist coverage insurer by its insured. That statute further provides that written notice shall include written documentation of pecuniary losses incurred, including copies of all medical bills and written authorization or a court order to obtain reports from all employers and medical providers.
“9. Later, on March 20,1997, the Respondent filed suit on behalf of Ms. Perez seeking underinsured motorists coverage. On November 17,1997, the defendants filed motions for summary judgment. It was not until the motions for summary judgment were filed that the Respondent became aware of the requirements of K.S.A. 40-284(f). Because notice had not been provided as required by K.S.A. 40-284(f), the court granted the defendants’ motions for summary judgment.
“10. On December 24,1998, the Respondent wrote to Mr. Hathaway explaining that the insurance company’s motion for summary judgment had been sustained. The Respondent never informed Ms. Perez that the motion for summary judgment had been sustained. Ms. Perez learned that die personal injury case had been dismissed from Mr. Hathaway.
“11. Ms. Perez attempted on several occasions to discuss her underinsured motorist claim with the Respondent by telephone. The Respondent failed to return Ms. Perez’ telephone calls. The Respondent failed to provide Ms. Perez with sufficient information regarding her representation.
“12. The Respondent does not have professional liability insurance nor did he have professional liability insurance at the time he represented Ms. Perez.”
“DA8563 — Complaint of Raymond Topping
“13. The Respondent agreed to file suit on behalf of Raymond Topping against Park’s Construction and Remodeling, Inc., for violating the Kansas Consumer Protection Act. Mr. Topping and the Respondent entered into an oral contingency fee agreement. The fee agreement was never reduced to writing. The Respondent filed suit and obtained a judgment in Saline County, Kansas, in the amount of $7,000.00, plus interest.”
“DA 8626 — Complaint of Betty Morrow
“14. On February 23, 2000, Betty Morrow was involved in an automobile accident. As a result of the accident, Ms. Morrow was injured. In November 2002, Ms. Morrow contacted the Respondent to represent her in a suit against the driver of the other automobile. Ms. Morrow and the Respondent entered into an oral contingency fee agreement. The fee agreement was never reduced to writing.
“15. On February 12, 2002, the Respondent’s assistant took the petition and filing fee to the Court and left them with the Clerk of the District Court for filing. However, because the filing fee had increased, effective February 1, 2002, the petition was returned to the Respondent by the Clerk. The Respondent was informed that he had submitted insufficient filing fees. Nine days later, on February 21, 2002, a second check was issued in the correct amount. However, the petition and filing fee were not timely taken to the Clerk of the District Court.
“16. On March 4, 2002, seven days after the statute of limitations had run, the petition was filed and the filing fee was paid. Unfortunately, the statute of limitations expired on February 25, 2002, Thereafter on April 18,2002, the defendant filed a motion to dismiss. The court sustained the motion in July 2002, and Ms. Morrow’s case was dismissed because it was untimely.
“Fn. 2 February 23, 2002, two years from the date of the accident was a Saturday. Thus, pursuant to K.S.A. 60-206(a), the Respondent had two additional days to file the petition.
“17. The Respondent failed to return Ms. Morrow’s telephone calls. Even though the motion to dismiss was filed on April 18, 2002, the Respondent did not inform Ms. Morrow of the problem until July 2002, when the case was dismissed.”
“Disciplinary Procedure
“18. On February 19, 2003, the Deputy Disciplinary Administrator filed a Formal Complaint in the instant cases. Pursuant to Kan. Sup. Ct. R. 211(b), the Respondent’s written Answer to the Formal Complaint was to be filed by March 14, 2003. However, the Respondent failed to file a written answer by March 14, 2003.
“19. A hearing on the formal complaint was scheduled for April 8, 2003. On March 24, 2003, the Respondent filed a written motion to continue the hearing. The Deputy Disciplinary Administrator did not object to the continuance and the motion was granted.
“20. The hearing was rescheduled for June 24, 2003. On June 3, 2003, the Respondent filed a second motion to continue the hearing. The Deputy Disciplinary Administrator objected to the second continuance. In a written order, the Hearing Panel granted the continuance and directed the Respondent to immediately file a written Answer to the Formal Complaint. The Respondent failed to immediately file a written Answer to the Formal Complaint. The Hearing Panel rescheduled the hearing to August 27, 2003.
“21. On August 8, 2003, the Respondent filed a written Answer to the Formal Complaint.”
The panel made the following conclusions of law:
“CONCLUSIONS OF LAW
“1. Based upon the above findings of fact, the Hearing Panel concludes, as a matter of law, that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, and Kan. Sup. Ct. R. 211(b), as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ Id. The Respondent lacked the necessary legal knowledge when he was unaware of the requirements of K.S.A. 40-284(f). The Hearing Panel concludes, accordingly, that the Respondent’s lack of competence in this area of law amounts to a violation of KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Ms. Perez when he failed to timely provide proper notice to the underinsured motorist carrier. The Respondent failed to provide diligent representation to Ms. Morrow when he failed to timely file the petition in her behalf. Because the Respondent failed to act with reasonable diligence and promptness in representing Ms. Perez and Ms. Morrow, the Hearing Panel concludes that the Respondent violated KRPC 1.3
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ Id. The Respondent failed to keep Ms. Perez and Ms. Morrow informed regarding the status of their cases. The Respondent failed to return telephone calls placed by Ms. Perez, the Respondent failed to provide Ms. Perez with adequate information regarding the status of tire representation, and the Respondent failed to inform Ms. Morrow that there was a statute of limitations problem with her case. Accordingly, tire Plearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. According to KRPC 1.5(d), certain fee agreements must be reduced to writing.
‘A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, and the litigation and other expenses to be deducted from tire recovery.’
Id. The Respondent entered into a contingent fee agreement with Mr. Topping and Ms. Morrow. However, the Respondent did not reduce the contingent fee agreements to -writing. The Hearing Panel concludes that die Respondent violated KRPC 1.5(d).
“6. Kan. Sup. Ct. R. 211(b) [2003 Kan. Ct. R. Annot. 264] provides, in pertinent part:
The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
Id. The Respondent failed to file a written Answer within twenty days following the service of the Formal Complaint and further failed to file a written Answer when directed to do so by the Hearing Panel. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“RECOMMENDATION
“In making this recommendation for discipline the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter “Standards”). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide competent representation, diligent representation, and adequate communication.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a direct result of the Respondent’s lack of competence and diligence, Ms. Perez and Ms. Morrow lost their causes of action. Ms. Perez and Ms. Morrow suffered significant financial injury as a result of the Respondent’s misconduct.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been disciplined on six prior occasions.
“I. On July 13, 1988, a Hearing Panel conducted a hearing regarding the Respondent. The Hearing Panel directed that the Respondent be informally admonished for having misused funds. Thereafter, on October 6,1988, the Respondent was informally admonished.
“2. On September 23, 1993, the Disciplinary Administrator informally admonished the Respondent for having violated MRPC 1.15.
“3. On March 19, 1998, the Disciplinary Administrator informally admonished the Respondent for having violated MRPC 1.1, MRPC 1.3, MRPC 1.4, MRPC 1.15, MRPC 1.16, and MRPC 8.4.
“4. On July 10, 1998, the Kansas Supreme Court suspended the imposition of discipline for two years. In that case, the Court concluded the Respondent-violated MRPC 1.5 and MRPC 1.15. In re Barta, 265 Kan. 762[, 962 P.2d 532] (1998).
“5. On January 28,2000, the Kansas Supreme Court extended the Respondent’s probation for an additional year, for having violated KRPC 1.3 and KRPC 1.4. In re Barta, 268 Kan. 464[, 996 P.2d 317] (2000).
“6. On December 11, 2001, the Disciplinary Administrator informally admonished the Respondent for violating KRPC 1.3.
“Pattern of Misconduct. Included in this case are three complaints. The complaints involve similar misconduct. Additionally, the Respondent has previously been disciplined on six occasions. Some of the previous cases have included violations of the rules violated in this case. Finally, some of the misconduct committed by the Respondent in the cases now pending occurred at a time when the Respondent was on probation. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1., KRPC 1.3, KRPC 1.4, KRPC 1.5, and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses.
“Vulnerability of Victim. As a result of the automobile accident, Ms. Perez suffered serious injuries. Ms. Perez was vulnerable to the Respondent’s misconduct. Additionally, Ms. Morrow was likewise a vulnerable victim of the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1962. At the time the Respondent’s misconduct began, the Respondent had been practicing law for more than thirty years. As such, the Hearing Panel concludes that the Respondent has substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommen dation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“Personal or Emotional Problems if Such Misfortunes have Contributed to Violation of the Model Rules of Professional Conduct. At the time some of the misconduct occurred in this case, the Respondent was responsible for caring for his ailing mother. The time and attention the Respondent spent caring for his mother took his attention away from his practice, and, ultimately, contributed to the Respondent’s misconduct in this case.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.42. That standard provides, in pertinent part:
‘Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’
“The Hearing Panel unanimously recommends that Respondent be suspended from die practice of law in the state of Kansas for a period of one year. Additionally, the Hearing Panel recommends that the Respondent undergo a hearing, pursuant to Kan. Sup. Ct. R. 219, prior to being reinstated in the practice of law. At the time of the reinstatement hearing, the Hearing Panel recommends that the Respondent be required to establish that he has made a good faith effort to rectify the consequences of his misconduct.”
The respondent filed exceptions to certain findings of fact and conclusions of law in the final hearing report. In addition, he takes exception to the recommended sanction. At oral argument before this court, respondent admitted to the violations as charged and apologized to the court.
The respondent contends the recommended sanction is harsh in the circumstances. He attempts to rationalize why his actions do not warrant his suspension from the practice of law, but we are not convinced. The violations are serious and we find no merit in his contention that suspension is not a proper sanction in this case. We agree with the panel that respondent should be suspended, but conclude that such suspension should be indefinite rather than for 1 year.
We hold that the findings of fact and conclusions of law of the hearing panel are supported by clear and convincing evidence.
It Is Therefore Ordered that Ronald Dean Barta be and he is hereby indefinitely suspended from the practice of law in the State of Kansas effective the date of this opinion.
It Is Further Ordered that Ronald Dean Barta shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286), and in the event the respondent should seek reinstatement, he shall comply with Supreme Court Rule 219 (2003 Kan. Ct. R. Annot. 296).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
Nuss, J., not participating.
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The opinion was delivered by
Luckert, J.:
Shawndell Mays appeals from his convictions and sentences for two counts of first-degree murder, two counts of attempted first-degree murder, two counts of criminal possession of a firearm by a juvenile, and one count of conspiracy to commit first-degree murder. Mays was sentenced to a controlling term of two consecutive life sentences.
. On direct appeal to this court, Mays raises eight issues in his brief filed by counsel: (1) Was the juvenile court’s decision to authorize prosecution as an adult supported by substantial evidence? (2)' Did the juvenile court proceeding used to authorize prosecution as an adult violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001)? (3) Did the delay between Mays’ arrest and preliminary hearing violate his right to a speedy trial? (4) Did the more than 8-month delay between Mays’ arraignment and trial violate his right to a speedy trial? (5) Did the trial court err in failing to suppress evidence of Mays’ statement to police because Mays was incompetent to waive his Miranda rights? (6) Did the doctor’s testimony regarding the proximate cause of a victim’s death negate a necessary element of Mays’ conviction of first-degree murder? (7) Did the trial court err in instructing the juiy? and (8) Did cumulative error deny Mays a fair trial? In his supplemental brief filed pro se, Mays raises four issues: (1) Did the trial court err in denying Mays’ motion for severance? (2) Did the trial court err in denying Mays’ motion to suppress his statement to police? (3) Did the trial court err in admitting into evidence the codefendants’ redacted statements? and (4) Did the trial court err in admitting a codefendant’s statement because it was inadmissible as to Mays and violated his right to confront witnesses?
We affirm his convictions and sentences.
This case involved two separate drive-by shootings in January 2000. The first occurred on the night of January 24, 2000. According to the testimony of Marcus Quinn, he and Joseph Morton were sitting and talking in a car parked in an empty lot across the street from Quinn’s home near 20th Street and Longwood in Kansas City, Kansas. While sitting there, Quinn saw a red truck. About 30 minutes later, Quinn saw the same red truck followed by a car. This time the truck stopped and its occupants shot multiple times at the Chevrolet Caprice in which Morton and Quinn were sitting. Quinn testified that the right side of his head was grazed, but he was not seriously injured. Morton ran away from the scene, but later died at a hospital. The second shooting occurred on the afternoon of January 26, 2000. Christopher Union and Lee Brooks were driving a white pickup truck near 30th and Spring when gunshots were fired at the truck. Both Brooks and Union were injured; Union died from his injuries.
The police investigation of the two shooting incidents eventually led to the custodial interrogations of Michael White, Shawndell Mays, Keith Mays, Peter Davis, and Carvell England on January 27,2000. (Shawndell Mays will be referred to throughout this opinion as Mays; Keith Mays will be referred to by first and last name.) All of them talked to the investigators, describing the events of the two shootings to various degrees, with Mays and White admitting to firing shots during both incidents and all of them admitting to being a witness to one or both occurrences. Mays was 16 years old at the time of the shootings; he turned age 17 on January 29, 3 days after the second shooting.
In the same information, the State charged White, Mays, Davis, Keith Mays, and England with various charges relating to the shootings on January 24, January 26, or both. Three of the codefendants, including Mays, were juveniles. The court authorized the State to prosecute the three as adults pursuant to K.S.A. 38- 1636(a)(2). The five codefendants’ joint trial lasted nearly 3 weeks, during which 39 witnesses testified. The redacted statements of each of the five codefendants were played for the jury over defense counsels’ objections. Generally, all of the codefendants denied the allegations and, through cross-examination of the State’s witnesses, sought to create reasonable doubt. Each codefendant also generally relied upon a self-defense theory.
The jury convicted Mays of two counts of first-degree murder, two counts of attempted first-degree murder, two counts of criminal possession of a firearm by a juvenile, and one count of conspiracy to commit first-degree murder. The jury also convicted Davis and White of various charges but acquitted Keith Mays and England of all charges.
This court affirmed the convictions of two codefendants in State v. White, 275 Kan. 580, 67 P.3d 138 (2003), and State v. Davis, 277 Kan. 231, 83 P.3d 182 (2004).
Was the Juvenile Court’s Decision to Authorize
Prosecution as an Adult Supported by Substantial Evidence P
In stating his first issue on appeal, Mays recognizes that an appellate court reviews the district court’s decision to allow the State to prosecute a juvenile as an adult to determine if the decision is supported by substantial evidence. State v. Jones, 273 Kan. 756, Syl. ¶ 2, 47 P.3d 783, cert. denied 537 U.S. 980 (2002). As we explained in Jones:
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. It is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.” 273 Kan. 756, Syl. ¶ 2.
Our review of whether there was substantial competent evidence to support the district court’s decision must be based upon the standards and procedures delineated in K.S.A. 38-1636 which, in turn, governed the district court’s consideration of the State’s motion to prosecute Mays as an adult. A court considering or reviewing such a motion must determine which statutory presumption created by K.S.A. 38-1636(a) applies. K.S.A. 38-1636(a)(l) pro vides that the “respondent shall be presumed to be a juvenile unless good cause is shown to prosecute the respondent as an adult.” However, if the exceptions specified in K.S.A. 38-1636(a)(2) apply, the “respondent shall be presumed to be an adult.” In this case, the district court correctly found that both exceptions applied to the prosecution of Mays. First, because Mays was “14, 15, 16 or 17 years of age at the time of the offense or offenses alleged in the complaint” and the charged offenses were crimes which, “if committed by an adult, would constitute” offgrid or person felonies, the exception stated in K.S.A. 38-1636(a)(2)(A)(i) applied. Second, because Mays was “14, 15, 16 or 17 years of age at the time of the offense or offenses alleged in the complaint” and the crime was “committed while in possession of a firearm,” the exception stated in K.S.A. 38-1636(a)(2)(A)(ii) applied.
Because there was a presumption that Mays was an adult, the burden of proof was upon Mays to rebut the presumption. K.S.A. 38-1636(a)(2).
Even where the presumption is that the accused is an adult, the factors listed in K.S.A. 38-1636(e) must be considered. State v. Medrano, 271 Kan. 504, 507, 23 P.3d 836 (2001). Those factors are:
“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution.” K.S.A. 38-1636(e).
At the hearing, after the judge announced that the burden was on Mays and the two other juveniles to show why they should not be prosecuted as adults, Mays and the other juveniles presented evidence. Mays’ mother testified that he had experienced difficulty in coping with the shooting death of a 10-year-old cousin which he had witnessed. She indicated his family was unable to obtain counseling or other assistance for Mays other than what those programs provided at a neighborhood center. Jean Bridgewater, the center’s minister and director, testified that Mays was a “fairly decent kid” and a follower, and “we could have an effect on him and work with him.” Additionally, evidence was presented regarding the programs and facilities in the juvenile justice system. Testimony established that Mays had never been adjudicated as a juvenile offender or had access to any of the programs available in the juvenile justice system; that, if Mays were sentenced as a juvenile offender rather than an adult, he would likely remain in custody until he was 22 and Vz years old; and that his mother and others thought he would benefit from the programs available in the juvenile justice system.
At the conclusion of the evidence presented by the three juveniles, the prosecutor moved for a directed verdict arguing that the juveniles had failed to rebut the presumption that they should be tried as adults. After hearing arguments but no additional evidence, the district court found that all three juveniles had failed to rebut the presumption that they should be prosecuted as adults. The judge made the following findings with regard to the factors listed in K.S.A. 38-1636:
“[T]he first three are matters that are . . . clearly in this case, in terms of the seriousness of the offense, whether or not violence was used, and whether it was a person offense . . . those are clearly factors which, from what’s before me, are in concert with the presumption that exists. Let me address, for a moment, the issues of factors four and five regarding previous offenses and unadjudicatedpending offenses. I find that, with regard to Shawndell Mays, that there are none. . . . With regard to the issue of sophistication, as I have read the cases that have addressed that particular factor, they have to do with whether or not the individual is less or more sophisticated than a person his age. And . . . I’m not convinced that any of them are, in level of sophistication, different from people who are generally of their . . . respective ages. With regard to issue number seven, I suppose that’s what I’ve heard most of the evidence about; and I’ve heard lots of evidence about what’s available, and what has been done, and what hasn’t been done. But the factor, as set forth in the statute, that I’m to consider is whether there are facilities or programs available to tire court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and I have absolutely no evidence, a dearth of evidence on that issue as to tire likelihood of rehabilitation. There ... is no evidence. I’m not suggesting that there . . . could have been. ... I don’t know that there is any evidence . . . of likely rehabilitation, but that’s the language of the standard. And finally, the issue of . . . whether . . . the respondent or the community would be better served by a criminal justice prosecution .... I have no difficulty in finding, from what I’ve heard today, that there is not evidence which rebuts the presumption established by the Legislature that [the juveniles] — in the cases that are before me today — should, in fact, be determined to be adults for the purpose of prosecution in those cases; and die Court so finds.”
In his brief, Mays argues that the district court’s decision to authorize his prosecution as an adult was not supported by substantial evidence because the State presented no evidence and relied solely on the complaint. In support of this argument, Mays cites State v. Stephens, 266 Kan. 886, 975 P.2d 801 (1999). In Stephens, this court reviewed a district court’s decision to authorize prosecution of a 17-year-old as an adult. The version of K.S.A. 38-1636 in effect at the time of Stephens’ hearing required the State to present substantial evidence supporting his prosecution as an adult. See K.S.A. 38-1636 (Furse 1993). Mays was authorized for prosecution as an adult pursuant to K.S.A. 38-1636(a)(2), which places the burden on the respondent to rebut the presumption that he is an adult. Thus, the analysis in Stephens is not applicable.
Furthermore, the holding in Stephens does not support Mays’ argument. In Stephens, the district court reviewed each of the eight factors set out at K.S.A. 38-1636(e). As to factor (8), which requires the court to consider whether the interests of the respondent or of the community would be better served by criminal prosecution, the district judge made the following conclusory finding:
“ ‘There’s a strong interest in this community to be able to feel safe and if nowhere else certainly in your own home. There’s a strong interest in this community that juveniles should be held accountable for their actions, and when juveniles who have the necessary intellect make adult decisions they should receive adult consequences. I see both of the Respondents in this matter had a choice back in November as to what it is they wanted to do.’ ” Stephens, 266 Kan. at 891.
Noting that the district court had failed to discuss whether the respondents’ interests would be served by criminal prosecution, although reference was made to the community, this court found there was not substantial evidence in favor of adult prosecution as to factor (8). 266 Kan. at 892. It is upon this conclusion which Mays relies.
However, the Stephens court held that, despite the lack of substantial competent evidence as to factor (8), the record as a whole reflected substantial evidence to show that Stephens was properly prosecuted as an adult. 266 Kan. at 892. This holding follows from K.S.A. 38-1636(e), which provides: “The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection, in and of itself, shall not be determinative of the issue.”
Similarly, in this case, insufficiency of evidence as to one or more factors does not, of itself, defeat the district court’s conclusion that Mays failed to rebut the presumption that he should be tried as an adult. Clearly, the district court weighed each factor of K.S.A. 38-1636(e). We conclude that the court’s decision to try Mays as an adult was supported by substantial evidence.
Did the Juvenile Court Proceeding Used to Authorize Prosecution as an Adult Violate Apprendi and Gould?
Next, Mays argues that the juvenile court proceeding used to authorize his prosecution as an adult violated the principles set out in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), because it resulted in an increased sentence based upon facts not submitted to a jury or proved beyond a reasonable doubt. Mays acknowledges that his argument was rejected by this court in Jones, 273 Kan. at 777-78, but raises the issue to preserve it for future review in the federal courts.
The Jones court held that “the Kansas procedure for authorizing adult prosecution under K.S.A. 38-1636 does not violate the Sixth and Fourteenth Amendments to the United States Constitution.” 273 Kan. at 778. The court explained that while Apprendi involved a trial court making a factual finding to support sentencing a defendant beyond the statutoiy maximum, K.S.A. 38-1636 does not involve guilt or innocence but only the determination of which system is appropriate for a juvenile offender. 273 Kan. at 778. The juvenile who is tried as an adult will be subject to the statutory maximum sentence only after a jury determines guilt beyond a reasonable doubt. Further, the procedural safeguards of the juvenile justice system are sufficient to support a determination that certification proceedings under K.S.A. 38-1636 fall outside the dictates of Apprendi. Jones, 273 Kan. 756, Syl. ¶¶ 5 and 6. Our application of Apprendi in Gould does not require a different result.
Mays’ argument is without merit.
Did the Delay Between Mays’ Arrest and Preliminary Hearing Violate His Right to a Speedy Trial?
Mays was arrested on January 27,2000. The hearing to authorize his prosecution as an adult was held on March 9, 2000. The preliminary hearing at which Mays was bound over for trial began on April 10, 2000. Mays argues that the delay between his arrest and preliminary hearing violated his right to a speedy trial, as provided in K.S.A. 2003 Supp. 22-2902.
K.S.A. 2003 Supp. 22-2902 provides in relevant part:
“(1) Every person arrested on a warrant charging a felony or served with a summons charging a felony shall have a right to a prehminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury.
“(2) The preliminary examination shall be held before a magistrate of a county in which venue for the prosecution lies within 10 days after the arrest or personal appearance of the defendant. Continuances may be granted only for good cause shown.”
The State accurately points out that this court has interpreted the 10-day time limitation of K.S.A. 2003 Supp. 22-2902(2) to be directory rather than mandatory:
“Unlike K.S.A. 22-3402, which requires the discharge of a person not promptly brought to trial, K.S.A. -22-2902(2) does not require the dismissal of the charge and the discharge of the defendant if a preliminary hearing is not provided within 10 days. State v. Fink, 217 Kan. 671, Syl. ¶ 3, 538 P.2d 1390 (1975). This time limitation is directory. Inconsequential delay beyond the 10 days will not require dismissal of the charges.” State v. McClain, 258 Kan. 176, 185, 899 P.2d 993 (1995).
The McClain court further held that the timeliness of a preliminary hearing may be challenged only by a motion to dismiss filed pursuant to K.S.A. 22-3208 and no later than 20 days after arraignment. The failure to challenge the timeliness of the preliminary hearing by such a motion “constitutes a waiver and precludes review on appeal.” 258 Kan. at 185. Because McClain failed to file a motion to dismiss, he waived the issue.
Similarly, in this case the record does not reflect that Mays ever filed a motion to dismiss pursuant to K.S.A. 22-3208; therefore, under the holding of McClain, Mays has waived the issue of the timeliness of the preliminary hearing.
Did the More than 8-Month Delay Between Mays’
Arraignment and Trial Violate His Bight to a Speedy Trial? '
Mays was arraigned on April 12,2000, and a jury trial was scheduled for July 10, 2000. On June 13, 2000, the State filed a motion for continuance, which was granted. The trial was rescheduled for October 3, 2000. On October 6, 2000, during voir dire, the trial court declared a mistrial because of the unavailability of jurors and rescheduled the trial for January 2, 2001.
Mays argues that the more than 8-month delay between his arraignment and trial violated his speedy trial rights. First, Mays complains that the trial court erred in granting the State’s motion for a continuance because the State needed additional time to have its ballistics evidence evaluated. Mays argues the State should have been required to put on some evidence to prove that it had made reasonable efforts to obtain that evidence.
K.S.A. 22-3402(1) provides that a person charged with a crime and held in jail solely because of that crime must be brought to trial within 90 days of arraignment unless the delay is the result of the application or fault of the defendant or the trial court orders a continuance under subsection (3). K.S.A. 22-3402(3)(c) provides that the time for trial may be extended under the following circumstances: “There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days.”
The State accurately points out that Mays’ codefendant White made the same argument in his direct appeal. This court quoted the trial court’s finding that material evidence was unavailable and that the State acted in good faith:
“ ‘If there’s over a hundred pieces of ballistics evidence that needs to be examined, that’s all very meticulous work, it’s very time consuming. Unfortunately, the people that can do that are very few and far between, and it appears to me that there has not been any sort of delay that’s caused simply for the purpose of delay, that [the State’s] request is based upon a good faith basis.’ ” White, 275 Kan. at 600.
This court rejected White’s argument, finding that the trial court did not abuse its discretion in granting the continuance. 275 Kan. at 600. Mays offers no reason why this court should change its previous ruling.
Next, Mays argues that the trial court erred in declaring a mistrial after the State would not agree to proceed to trial with only 10 jurors. Mays argues that because the jury had not been sworn, there could be no mistrial and the court should have discharged the jury panel and called a new one within speedy trial limits.
The trial court declared a mistrial on October 6, 2000, because of the unavailability of jurors. After 12 jurors were impaneled and 2 alternates selected, 4 jurors were dismissed after they indicated they could not be impartial. The jury had not yet been sworn. While the defendants agreed to proceed with fewer than 12 jurors, the State did not consent. The district court declared a mistrial.
In White, this court ruled that the trial court did not abuse its discretion in granting the mistrial. 275 Kan. at 602. However, the court was not faced with the argument Mays malees here, that a mistrial cannot be granted before a jury is sworn.
In support, Mays cites cases from other jurisdictions which hold that trial does not begin and jeopardy does not attach until a jury is sworn, thus no mistrial can be declared. See Pollard v. State, 175 Ga. App. 269, 270, 333 S.E.2d 152 (1985) (for purposes of determining whether defendant has been absent from trial and has therefore waived his right of confrontation, trial begins when jeop ardy attaches; jeopardy had not attached where jury had not been sworn); Brown v. Commonwealth, 28 Va. App. 315, 326, 504 S.E.2d 399 (1998) (mistrial could not be declared based upon juror misconduct where jury had not been sworn, trial had not commenced, and jeopardy had not attached). These cases have no precedential value and involved different issues than the one presented here.
K.S.A. 22-3423(l)(a) permits a trial court to terminate a trial and order a mistrial at any time termination is necessary because it is physically impossible to proceed with the trial in conformity with the law. The statute does not define “trial” or state that a trial begins only when the jury has been sworn and, therefore, that jeopardy has attached pursuant to K.S.A. 21-3108(l)(c). However, other statutes include jury selection within references to trial. For example, K.S.A. 2003 Supp. 22-3405 requires the defendant’s presence “at every stage of the trial including the impaneling of the jury.”
Furthermore, in State v. Bierman, 248 Kan. 80, 88-89, 805 P.2d 25 (1991), this court held that “brought to trial” for purposes of computing a speedy trial deadline under K.S.A. 22-3402(1) does not mean when a defendant is placed in jeopardy. The issue in Bierman was whether Bierman’s right to a speedy trial was violated when voir dire commenced on the 90th day following arraignment but jeopardy under K.S.A. 21-3108(l)(c) did not clearly attach until the 91st day, when the jury was sworn. This court held the speedy trial obligation under K.S.A. 22-3402(1) was not violated. 248 Kan. at 89. The trial court’s determination that a mistrial could be granted is consistent with Bierman.
We hold that, under K.S.A. 22-3423(1)(a), a trial court may declare a mistrial during voir dire even before the jury is sworn and jeopardy has attached. Thus, the trial court correctly invoked the provisions of K.S.A. 22-3402(4), which state that “[i]n the event a mistrial is declared . . . the time limitations provided for herein shall commence to run from the date the mistrial is declared . . . .”
Mays’ speedy trial rights were not violated.
Did the Trial Court Err in Failing to Suppress Evidence of Mays’ Statement to Police Because Mays Was Incompetent to Waive His Miranda Rights?
Mays filed a pretrial motion to suppress his statement to police, arguing that he lacked the capacity to waive his Miranda rights. Mays requested and the trial court appointed a psychiatrist, Dr. William Logan, to evaluate Mays’ mental capacity and conduct an intelligence quotient (IQ) test. In the brief filed by appellate counsel, Mays primarily relies upon Dr. Logan’s evaluation and argues that his borderline intellectual functioning, his diagnosis of post-traumatic stress disorder (PTSD), and his intoxication on phencyclidine (PCP) rendered him incompetent to waive his Miranda rights and his statement to police should therefore have been suppressed.
In his pro se brief, Mays makes a similar argument but focuses upon his allegations that the police interrogated him for several hours without giving him a bathroom break or allowing him to eat, smoke a cigarette, or talk to his mother. He also alleges that the police threatened to kill him if he did not tell them what they wanted to hear. Finally, Mays alleges that he was under the influence of PCP (i.e., “wet”) and thus was very susceptible to coercion.
The State counters by arguing there was substantial competent evidence to support the trial court’s determination that the waiver of Miranda rights was freely, voluntarily, and intelligently made. The State argues that resolution of the issue is dependent upon the credibility of the witnesses, a determination to be made by the trial court.
In reviewing a trial court’s decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. State v. Sanders, 272 Kan. 445, 452, 33 P.3d 596 (2001), cert. denied 536 U.S. 963 (2002). This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Washington, 275 Kan. 644, 669, 68 P.3d 134 (2003).
A defendant’s waiver of his or her Miranda rights must be knowing, voluntary, and intelligent under the totality of the circum stances. State v. Makthepharak, 276 Kan. 563, 567, 78 P.3d 412 (2003). In determining whether a defendant’s confession is voluntary, a court looks at the totality of the circumstances. The State bears the burden of proving that a defendant’s confession is voluntary and therefore admissible by a preponderance of the evidence. “The essential inquiry is whether the statement was the product of the free and independent will of the accused. [Citation omitted.]” State v. Groschang, 272 Kan. 652, 662, 36 P.3d 231 (2001).
Where, as here, the accused is a juvenile, this court exercises “the greatest care in assessing the validity of the juvenile’s confession.” State v. Bell, 276 Kan. 785, Syl. ¶ 7, 80 P.3d 367 (2003). In determining whether a juvenile’s confession is voluntary, the district court should consider the following factors on the record: “(1) the age of the minor, (2) the length of the questioning, (3) the minor’s education, (4) the minor’s prior experience with the police, and (5) the minor’s mental state.” 276 Kan. 785, Syl. ¶ 7.
The evidence regarding the first four factors was undisputed. Mays was 16 years of age at the time he was questioned, although he turned age 17 a few days later. As to the length of questioning, Detective Howard first made contact with Mays at 2:30 p.m. At 3 p.m., Mays agreed to give a statement. After an interview lasting an hour and a half, detectives recorded Mays’ formal statement. The questioning was not prolonged, and Mays does not argue that the length of questioning impacted the voluntariness of his statement. As to the third factor, Mays had a 10th grade education. Regarding the fourth factor, there was no evidence that Mays had any prior experience with police, and Mays testified that he had never seen an Advice of Rights form before.
Mays’ evidence at the hearing on the motion to suppress and his arguments on appeal focus on the final factor, mental state. Mays testified that he was under the influence of PCP and marijuana during his interview with police. He also testified that he did not read the Advice of Rights form and did not understand its implications.
Dr. Logan testified that he met with Mays to evaluate his mental state at the time of the shootings as well as his capacity to waive his Miranda rights. As to Mays’ mental state, Dr. Logan testified that the traumatic death of Mays’ 10-year-old cousin when Mays was 15 years old had a profound effect on Mays. Mays had recurring nightmares and believed he could sometimes see or hear'his cousin’s spirit. He became socially withdrawn, stopped associating with friends, stopped playing basketball, and had difficulty sleeping and concentrating. According to Dr. Logan, Mays suffered additional stress from being called as a witness in the murder trial and had experienced some harassment and threats. Mays’ school work deteriorated, and he eventually dropped out of school. Also, after his cousin’s death, Mays’ use of alcohol, marijuana, and PCP increased dramatically. Dr. Logan characterized Mays as showing evidence of PTSD, although he questioned the relevance of that diagnosis as to Mays’ comprehension ability.
Dr. Logan also evaluated Mays’ IQ. He determined that Mays had an overall IQ of 80; however, his verbal IQ, which relates to his understanding of written and verbal material, was only 77, a score which falls in the borderline intellectual functioning range (formerly referred to as borderline retarded). Dr. Logan also determined that Mays reads at an early second grade level and has a “very limited ability to read.” Dr. Logan testified, “Certainly our testing indicated that he probably wouldn’t be diagnoseable [sic] mentally retarded. But in terms of intellectual skills that were needed to understand Miranda rights and utilize that information to make a decision, [Mays] would function in the retarded range . . . .”
Regarding Mays’ interview with police, Dr. Logan testified Mays told him he was under the influence of PCP which made him drowsy and made him want to tell the police whatever they wanted so they would leave him alone. Mays also told him that the police threatened him with the death penally. Mays also said he did not understand his Miranda rights when he was interviewed by detectives, although by the time of the hearing, after 9 months of a jailhouse education, Dr. Logan believed Mays had a good layman’s understanding of those rights.
When asked on cross-examination whether Mays would have been able to understand and knowingly waive his Miranda rights, Dr. Logan responded:
“Based on his overall reading level, I think he would have had difficulty comprehending the information he was presented. If he is accurate in the fact that he recently ingested PCP, and I can’t tell whether that’s true or not . . . and that he was intimidated and scared and didn’t really tend [sic] to the rights presented to him and didn’t really understand very much about what was presented to him, if all that is accurate as he presents, then I would say probably he did not understand his Miranda rights.”
Mays’ arguments are based upon this opinion. However, the State notes that Dr. Logan’s opinion was based upon the assumption that Mays was under the influence of PCP, was coerced, and did not have his Miranda rights fully explained. As the State points out, when these assumptions are changed, Dr. Logan’s opinion supports a finding that Mays was capable of understanding his rights. When asked about the importance of these assumptions to his opinion, Dr. Logan testified:
“I still think he would have had difficulty understanding certain words such as waiving rights, being coerced, and he may — he still would have had a hard time weighing what he did know about deciding on the advisability of talking to police detectives. But in terms of his understanding, yes, he could have potentially if some of the things he told me were not accurate, if he wasn’t that scared, if he wasn’t threatened, if he hadn’t taken PCP and if the officers had taken some time to explain those rights to him, he may have understood.”
The State argues that conflicting evidence was presented regarding whether Mays had taken PCP, had been threatened, and had his rights explained. The State points to the testimony of Detective Howard, who interviewed Mays at the detective bureau shortly after Mays’ arrest on Januaxy 27, 2000. Howard presented Mays with an Advice of Rights form, and they went over it together. Howard asked Mays to read the first line out loud, but Mays wanted to read the rest of the form to himself.
Howard asked Mays if he understood what he had read, and Mays indicated he did. When Howard told Mays he would have to sign the form if he wanted to waive his rights and talk to police, Mays said he wanted to think about it. At that point, Howard left the room for half an hour to eat lunch. He offered food to Mays who declined. After lunch, Howard asked Mays if he had decided whether he wanted to give a statement, and Mays signed the waiver form in front of Howard and another detective. The detectives then interviewed Mays for about an hour and a half before taking a formal, taped statement.
At the beginning of the recorded portion of the interview, Howard went over the Advice of Rights form with Mays a second time, reading his Miranda rights aloud and confirming that Mays understood those rights and agreed to waive them. Mays then gave a recorded statement. Detectives Howard and Lawson conducted the first half of the formal interview, and Detectives Zeigler and Golubski conducted the second half. The first pair of detectives were investigating the January 26 shooting, while the second pair were investigating the January 24 shooting.
Howard testified that law enforcement officers made no promises or threats to Mays and that no physical contact took place. Howard observed that Mays was alert but “seemed a little drowsy,” so he asked if Mays had used any drugs. Mays indicated he had smoked some marijuana earlier in the day but said nothing about PCP. Mays showed no sign of the effects of PCP. Howard knew Mays was 16 years old and had a 10th grade education. Howard listened as Mays read the first line of the Advice of Rights form and noticed no difficulty.
Thus, the evidence relevant to many of Mays’ arguments and Dr. Logan’s opinion was conflicting. Application of many of the Bell,factors and the overall determination of the totality of the circumstances came down to an issue of credibility which is left to the trial court to determine. See Bell, 276 Kan. 785, Syl. ¶¶ 6, 7, and 8.
Moreover, while a defendant’s low intellect and mental condition are factors to be considered in determining the voluntariness of a statement, “a defendant’s mental condition, by itself and apart from its relation to official coercion, should never dispose of the inquiry into constitutional voluntariness.” State v. Lane, 262 Kan. 373, 386, 940 P.2d 422 (1997) (citing Colorado v. Connelly, 479 U.S. 157, 164-65, 93 L. Ed. 2d 473, 107 S. Ct. 515 [1986]). Mental state is only one consideration when assessing the totality of the circumstances surrounding the waiver of Miranda rights. Further, “there must be a link between coercive activity of the State and the confession. [Citation omitted.]” Lane, 262 Kan. at 386.
Mays does not allege that the police took advantage of his low intellect or poor reading ability to coerce a confession. To the contrary, detectives went over his Miranda rights a second time before taking a recorded statement, and Mays indicated he understood and wished to waive those rights.
Thus, there was substantial competent evidence to support the district court’s decision to deny Mays’ motion to suppress his statement to police. Under the totality of the circumstances it was not error to determine that May’s waiver of his Miranda rights was knowing, voluntary, and intelligent.
Did the Doctors Testimony Regarding the Proximate Cause of a Victim’s Death Negate a Necessary Element of Mays’ Conviction of First-Degree Murder?
Mays’ next argument is that the coroner’s testimony regarding the negligent treatment received by one of the shooting victims at the emergency room negated proximate cause. In essence, his argument is that there was insufficient evidence to convict him of the first-degree murder of Joseph Morton because the gunshot wounds were not the proximate cause of Morton’s death.
When a defendant challenges the sufficiency of evidence, this court’s standard of review is whether, after review of all of the evidence, viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
Dr. Erik Mitchell performed the autopsy on victim Morton and testified that Morton died of gunshot injuries. However, Dr. Mitchell also testified that while Morton was being treated in the emergency room, a chest tube was inserted incorrectly into Morton’s abdominal cavity and an endotracheal tube was inserted incorrectly into Morton’s esophagus. Instead of allowing Morton to breathe, the endotracheal tube actually cut off Morton’s breathing. Had the intubation been performed correctly, Dr. Mitchell believed Morton might have lived. However, without any medical treatment, Morton would have bled to death. Dr. Mitchell stated, “His only chance at survival [was] control of the airway and then control of the bleeding. If his airway had been controlled, they would have had a chance to address the bleeding and I think he would have had a good chance at survival.”
As this court stated in State v. Rueckert, 221 Kan. 727, 737, 561 P.2d 850 (1977):
“Where a person inflicts upon another a wound which is calculated to endanger or to destroy life, it is not a defense to a charge of homicide that the alleged victim’s death was contributed to or caused by the negligence of the attending physicians or surgeons. The concept of intervening cause in both tort and criminal law is predicated upon foreseeability. Since human beings are not infallible, some degree of a doctor’s negligence is foreseeable and cannot be used by a defendant to exonerate himself. Neither can a defendant use as a defense die possibility that different or more skillful treatment might have saved the life of the deceased, and thereby avoid the consequences of his attack. Defendant must show diat erroneous or unskilled medical care became die efficient intervening cause of death and superseded the effect of the wounds inflicted by defendant so as to become the proximate cause of death. These are all juiy questions. [Citations omitted.]”
In this case, there was a sufficient basis for a rational jury to determine that, even if the treatment Morton received at the emergency room contributed to his death, the treatment was not an intervening cause of death and did not supersede the effect of the gunshot wounds. Dr. Mitchell testified that Morton died as a result of gunshot wounds. Also, Dr. Mitchell testified that without medical treatment, Morton would have bled to death from his wounds. Mays’ argument on this point fails.
Did the Trial Court Err in Instructing the Jury Regarding Proximate Cause Defense?
Furthermore, the jury was instructed on Mays’ theory of defense that the physicians’ negligent treatment of Morton was the sole proximate cause of his death. However, Mays complains that the trial court erred in giving Instruction No. 16 which related to Mays’ defense that the physicians’ negligence was the sole cause of Morton’s death. He contends the instruction was internally inconsistent, could have misled the jury, and deprived him of a meaningful instruction on his theory of defense.
When reviewing challenges to jury instructions, this court must consider the instructions as a whole and not isolate any one instruc tion. “ ‘If the instructions properly and fairly state the law as applied to the facts of the case, and a juiy could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citations omitted.]’ ” State v. Peterson, 273 Kan. 217, 221, 42 P.3d 137 (2002).
Instruction No. 16 read as follows:
“One of the theories of the defense is that negligent treatment by physicians at the Bethany Medical Center was the sole proximate cause of death of Joseph Morton and not the gunshot wound he sustained. You are instructed that if you find defendants did cause the injuries inflicted on the person of Joseph Morton, then you must determine whether the acts of the defendants contributed to the death of Joseph Morton. If you find defendant’s [sic] acts contributed to the death of Joseph Morton, then responsibility cannot be avoided by the fact that independent causes such as negligence of others also contributed to the death. However, if you find the proximate cause of death resulted solely from erroneous treatment of the physicians, you must acquit the defendants of the offense charged of any unlawful homicide charge . . . .”
Instruction No. 16 must be read in context. The trial court gave the jury three other instructions also dealing with proximate cause.
Instruction No. 13 read:
“To constitute an unlawful homicide . . . there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death.
“The proximate cause of a death is a cause which, in natural and continuous sequence, produces the death and without which the death would not have occurred.
“There may be more than one proximate cause of death. When the conduct of two or more persons contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of death regardless of the extent to which each contributes to the death. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death.”
Instruction No. 14 read:
“Where the original injury is a proximate cause of the death, the fact that the immediate cause of death was the medical or surgical treatment administered or that such treatment was a factor contributing to the cause of death will not reheve the person who inflicted the original injury from responsibility.”
Instruction No. 15 read:
“The fact, if it be a fact, that some other person was guilty of negligence which was a contributory cause of tire death involved in the case, is no defense to a criminal charge.”
The trial court took tírese three other instructions directly from Rueckert. Instruction No. 16 was patterned after a similar instruction given in State v. Shaffer, 223 Kan. 244, 249-250, 574 P.2d 205 (1977).
During the instruction conference, Mays objected to the giving of the proximate cause instructions because he contended they shifted the burden to him to prove that the physicians’ negligence was the proximate cause of Morton’s death. Mays believed Shaffer and Rueckert were distinguishable on their facts.
In Shaffer, the victim was shot in the head and suffered irretrievable brain damage. His family allowed his kidneys to be transplanted, the respirator was then shut off, and the victim’s bodily functions ceased. The defendant argued to the jury that the victim’s death was caused by the transplant operation. The jury was instructed on the defense theory as follows:
“ With regard to Count I of the information, one of the theories of the defense herein is that the kidney transplant was the cause of the death of Donald W. Becker and not the gun shot [sic] wounds to the head. You are instructed in this regard that if you find defendant did cause the wounds to be inflicted on the person of Donald W. Becker then you must determine whether the act of defendant contributed to the death of Donald W. Becker. If you find defendant’s acts contributed to the death of Donald W. Becker then responsibility cannot be avoided by the fact that independent causes such as the negligence of others also contributed to the death. However, if you find the cause of death resulted solely from erroneous treatment by the physicians you must acquit defendant of the offense charged in Count I.’ ” 223 Kan. at 249-50.
This court found the instruction was a proper statement of the applicable law. 223 Kan. at 250.
In Rueckert, which is more fully discussed in reference to the previous issue regarding Dr. Logan’s testimony, the defendant made similar arguments about the medical treatment received by the victim and the cause of death. This court found no error in instructions identical to Instructions No. 13, 14, and 15 given in this case, noting the instructions were “a correct reflection of the law.” 221 Kan. at 737.
Instruction No. 16 and the instructions accompanying it accurately stated the law as reflected by Rueckert and Shaffer, which we find controlling. See also State v. Gholston, 272 Kan. 601, 605-09, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002) (no medical evidence required to establish cause of death where victim suffered gunshot wound to head and life support was withdrawn; defendant presented no evidence of superseding cause of death).
Did the Trial Court Err in Denying Mays’
Motion for SeveranceP
In his pro se brief, Mays argues the trial court erred in denying his motion to sever his trial from that of his codefendants. Mays argues he and his codefendants had antagonistic defenses and that if their trials had been severed Mays could have called the other defendants as witnesses.
Mays did not file a written motion to sever, as did his other codefendants. However, during voir dire at the first trial setting in October 2000, Mays’ counsel orally joined in the codefendants’ motion to sever based upon Mays’ defense of PTSD. The trial court stated it would hear that matter later. As discussed above, the court eventually declared a mistrial because of lack of jurors and rescheduled the trial for January 2001. Before that trial began, Mays’ counsel asked the court to clarify whether she would be able to present Dr. Logan’s testimony about Mays’ diagnosis of PTSD and whether she could refer to that evidence in her opening statement. When other counsel expressed concern that Mays’ defense might be antagonistic to theirs, Mays’ counsel stated, “So, Judge, I also remembered that when we were in here in October I did ask the Court to sever the trial and I asked for severance on Shawndell and I don’t believe the Court ever ruled on that.” The codefendants also renewed their motions for severance.
The trial court denied the codefendants’ motion to sever, ruling that their defenses were not antagonistic.
This court considered and rejected codefendant White’s argument that his trial should have been severed based on antagonistic defenses in State v. White, 275 Kan. 580, 590-91, 67 P.3d 138 (2003):
“Shawndell Mays did not point the finger at White. Further, neither Dr. Logan’s testimony nor Shawndell Mays’ defense were irreconcilable with White’s assertion that he acted in self-defense and was objectively justified in doing so. White’s statement was that he fired four or five shots after he was shot at or observed a known aggressor reaching for a gun. Dr. Logan’s testimony did not negate such classic self-defense situations and implicitly strengthened White’s contention that the tension between the two factions was intense. While there may have been some inconsistency in the evidence, there was not a dichotomy in the defenses. As presented, the defenses were not mutually exclusive. [Citation omitted.] Nor has there been any showing of actual prejudice.”
Mays’ argument that the codefendants had antagonistic defenses is the same argument made by White and is similarly rejected.
Mays also contends that, had his case been severed, he would have been able to offer “all of the evidence in support of his defense instead of merely relying on the testimony of Dr. Logan.” He argues his codefendants would have testified that Mays was under the influence of PCP (“wet”) during the shootings and that there was no agreement to commit the murders. There is no indication in the record that Mays raised this argument before the trial court; rather, he relied solely upon the argument that his defense of PTSD was different from his codefendants’ defenses. Under these circumstances, it cannot be said that the trial court’s denial of his motion to sever was an abuse of discretion. See White, 275 Kan. at 589-91.
Did the Trial Court Err in Admitting into Evidence the Codefendants’ Redacted Statements?
Next, Mays, in his pro se brief, argues that the trial court erred by allowing the codefendants’ redacted statements to be admitted into evidence at trial. However, none of the codefendants’ statements are included in the record on appeal, making it impossible for this court to review Mays’ claim of error. Furthermore, the same argument was considered on its merits and rejected in White, 275 Kan. at 591-95.
The White court first discussed the holding of Bruton v. United States, 391 U.S. 123, 126, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), that a defendant is deprived of his right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. 275 Kan. at 591. However, use of such a confession was upheld where it was redacted to remove all references to a codefendant in Richardson v. Marsh, 481 U.S. 200, 211, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987). 275 Kan. at 592. Accordingly, this court noted its own previous holding that “ ‘redaction of a confession is proper if any suggestion of a codefendant’s involvement in the crime charged can be eliminated from the statement, but generally an edited statement should not be admitted if it explicitly suggests the participation of the complaining defendant.’ ” 275 Kan. at 593 (quoting State v. Swafford, 257 Kan. 1099, 1102, 913 P.2d 196 [1996]).
The White court then discussed proper and improper methods of redaction and noted that the digital editing process used in the case obviated many of the problems caused by other less sophisticated redaction methods. 275 Kan. at 593-95. The court concluded: “The redacted statements ehminate all references to White’s existence, do not direct the jury’s attention to White, do not facially incriminate White, and do not violate the holding in Bruton. The district court did not err in admitting the redacted statements of White’s codefendants.” 275 Kan. at 595.
Mays’ argument that the trial court erred in admitting the redacted statements of his codefendants is similarly rejected.
Did the Trial Court Err in Admitting a Codefendanfs Statement Because It Was Inadmissible as to Mays and Violated his Right to Confront WitnessesP
Mays’ final pro se argument encompasses several issues. First, Mays argues the trial court erred in admitting certain hearsay testimony regarding the codefendants’ conspiracy. Alberta Bailey, a former roommate of Michael White’s, testified that White told Bailey and her fiance to watch the news “because we smoked that nigger Antwan.” No contemporaneous objection was made. White’s counsel then sought to cross-examine Bailey about the statement because there was no victim named Antwan involved in the case. When White’s counsel asked Bailey to repeat White’s statement, Mays’ counsel objected on the grounds of prejudice to Mays and asked that the witness be instructed to use the pronoun “I” rather than “we” in order to cure the Bruton problem. The trial court overruled Mays’ objection, finding there was no confrontation problem. The witness then repeated White’s statement.
Mays also argues there was insufficient evidence to support his conviction of conspiracy to commit first-degree murder. The evidence regarding the conspiracy count consisted of the testimony of Bailey described above, as well as the testimony of two other people who lived in the same crack house as Bailey. Anthony Dantzler testified that White and several other young men, including Mays, came in and out of the house with guns in their hands near the end of January 2000. Dantzler testified that at one point when the young men came back to the house they were happy and jumping around. Dantzler heard something mentioned about a white truck. Union and Brooks were driving a white truck when they were shot.
Another housemate, Gary Hahn, also testified observing White and his “buddies” with guns at the house around the time of the shootings. Hahn heard the group talk about going to do a hit before they left the house. When they returned, they were jumping up and down and laughing.
Mays contends that all of the evidence mentioned above was hearsay and it was inadmissible under the coconspirator exception to the hearsay rule. See K.S.A. 2003 Supp. 60-460(i)(2). In fact, only those portions of the testimony where the witnesses described the young men’s statements or conversations were hearsay. The rest of the testimony involved the witnesses’ visual observations of the young men and was not hearsay. In any event, Mays did not object to any of the evidence on hearsay grounds.
A defendant’s failure to timely object at trial to alleged hearsay statements precludes the defendant from raising the issue on appeal. State v. Carr, 265 Kan. 608, 620, 963 P.2d 421 (1998). This is true even where the defendant alleges a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. State v. Bryant, 272 Kan. 1204, 1207-08, 38 P.3d 661 (2002).
Finally, as part of this argument, Mays asserts there was insufficient evidence of a conspiracy. As to the sufficiency of the evidence, this court must review all of the evidence, viewed in the light most favorable to the prosecution, to determine whether 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). Based upon the evidence, a rational jury could have found that Mays agreed with the other codefendants to kill members of the Quinn family and their associates and that he committed the overt acts of obtaining a weapon and driving around looking for victims. See State v. Davis, 277 Kan. 231, 243, 83 P.3d 182, 190 (2004).
Did Cumulative Error Deny Mays a Fair Trial?
Mays also contends that the combination of errors in his case denied him a fair trial. None of the issues above reveals any trial error; therefore, Mays’ cumulative error argument is rejected.
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The opinion of the court was delivered by
Davis, J.:
Gordon R. Martis, Jr., appeals his convictions and sentences for one count each of premeditated first-degree murder, second-degree murder, attempted first-degree murder, and attempted second-degree murder. He alleges seven errors, each of which would require reversal of his convictions. Among the seven, one presents itself as a question of first impression in Kansas. The defendant alleges that two of his convictions grew out of one count, which is prohibited by law. The six other allegations of error involve the defendant’s right of cross-examination, exclusion of defense evidence, improper testimony from a State’s witness, automatic exclusion of potential jurors, the constitutionality of both the hard 40 sentence and the first-degree murder statute, and jury instructions. We conclude that no reversible error occurred and affirm.
During the early evening hours of May 18,1999, four of the five occupants of a vehicle located in a parking lot across the street from Mr. B’s nightclub in Wyandotte County were shot while sitting in a vehicle. Andrea Williams was shot in her right leg, hip, buttock, and vagina but recovered. Stacey Wilson was shot in the back but also recovered. Alfonzo Moore was shot in the heart and died from his wound. Jerry Seals was shot multiple times (nine gunshot wounds) and died as a result of his wounds. In the original information, Martis was charged with first-degree premeditated murder of both Moore and Seals. By amended information, the defendant was charged with one count of capital murder under the provisions of K.S.A. 21-3439(a)(6). However, upon trial the defendant was convicted based upon the lesser included offense instructions he requested of first-degree premeditated murder (Moore) and second-degree intentional murder (Seals).
Martis was also charged with attempted murder of Williams and Wilson. He was convicted of attempted first-degree premeditated murder of Wilson and attempted second-degree intentional murder of Williams. He received a hard 40 sentence on the premeditated murder conviction. The remaining sentences, life imprisonment without the possibility of parole for 10 years on the second-degree murder, 268 months’ imprisonment for attempted first-degree murder, and 194 months’ imprisonment for attempted second-degree murder, were run concurrent with the hard 40 sentence.
The rationale of the jury findings of guilt echos the evidence at trial indicating that Martis, consistent with his threat 3 days before the shooting, intended to kill both Moore and Wilson, thus estabHshing the convictions of first-degree premeditated murder of Moore and attempted first-degree premeditated murder of Wilson. However, the jury concluded that he intended to kill the other occupants but had not premeditated their killing. Thus, he was convicted of second-degree intentional murder of Seals and attempted second-degree intentional murder of Williams.
Andrea Williams, Loya Qur-an Fuel, Mercedes Sappington, and Darwin Bagley all identified the defendant at trial as the shooter. Williams testified that on the evening of May 18, 1999, she met Wilson and Moore, who were dating, and Seals, whom she was dating, around 8 or 9 p.m. Williams, Moore, and Wilson smoked marijuana while they drove to see a movie. After the movie, they purchased alcohol and drank it on the way to Mr. B’s nightclub. Wilson was driving Moore’s car, while Moore was in the front passenger seat and Seals and Williams were in the back seat.
Wilson drove down a side street to see who was standing in front of the club, and Williams saw the defendant and Rashida Johnson, the defendant’s girlfriend and mother of his children, among several others standing outside of the club. (The defendant and Johnson were subsequently married.) Williams knew the defendant because he had dated Wilson. While Wilson circled a parking lot across the street from the club, Fuel, the mother of Moore’s children, walked across the street and looked into the car. Wilson stepped on the gas to scare Fuel and then drove away to pick up Wilson’s cousin, Fredrick Howard, at his residence.
Moore got into the back passenger seat to allow Howard to sit in the front passenger seat. Williams moved into the middle of the back seat and Seals was sitting in the driver’s side back seat. Wilson drove back to the club and pulled into the lot across the strept. Fuel walked across the street, snatched open the driver’s side door, called Wilson a bitch, and tried to get at her. Wilson backed the car up in response, and Fuel continued to try to get in the door until the shooting started.
Williams testified that the defendant shot Wilson first and then shot more than 10 times into the back seat. She could see the defendant and the barrel of the gun through the driver’s side back window, and he was close enough that she would have been able to touch the gun. She did not recall a pause in the shooting.
After the shooting stopped, Wilson tried to drive away but she passed out. Howard, who was the only person not shot, got into the driver’s seat and drove most of the way to the hospital. Williams called on her cellular phone and told her sister that the defendant had shot her. Howard got out of the car 2 blocks from the hospital because he was concerned about his outstanding warrants. Wilson drove the remainder of the way to the hospital where she and Williams were treated for gunshot wounds.
In his cross-examination of Williams, defense counsel pointed out that Williams was on probation at the time of the shooting for theft and a warrant was issued for her arrest in Wyandotte County for worthless checks a few months before trial.
Howard testified that when they drove up to the nightclub, a girl ran up to the car and hit the windshield. Wilson started backing into a parking lot, and someone started shooting on the driver s side of the car. Howard got down on the floorboard of the passenger side and did not see the shooter. He estimated 12 to 13 shots were fired.
Fuel testified that she went to a barbecue at the defendant and Johnson’s home earlier that day. Fuel did not consume any alcohol, but she observed the defendant drink beer. The barbecue lasted about 4 or 5 hours before people started leaving to go to Mr. B’s. Fuel went to the club with Johnson, Johnson’s sister M’Sherie Johnson, and Jamie Gaskin. They hung out in front of the club for about a half hour before she saw Wilson and Moore drive by in Moore’s car. Wilson turned around and drove past again and was gone for about 10 minutes. Fuel testified that Moore’s car returned and parked near the club for about 15-20 minutes, but no one got out of the car. Wilson pulled up on the side of the building veiy slowly, and Fuel ran to the car and tried to open the passenger door, but it was locked. She denied hitting the windshield.
Fuel followed the car across the street and snatched open the driver’s side door. Wilson put the car in reverse, and the door swung shut. Fuel recognized the defendant’s voice say, “[B]itch, what I tell you, what I tell you.” She did not see the defendant, but she had no doubt in her mind that it was him. She saw the gun and ran away to the sound of multiple gunshots. The defendant subsequently ran past her while she was running up a hill. Fuel called Moore’s mother on a cellular phone and told her that she was trying to fight Wilson and the defendant had run up to the car and started shooting.
Mercedes Sappington testified that she stopped by the barbecue with her friends Shatia Brown, Kimberly Norman, and Latoya Davis. She testified that she drank alcohol and smoked “wet” (marijuana cigarettes dipped in PCP), and she observed the defendant do the same. She went to Mr. B’s with her friends around 11 p.m., and they stood outside for about a half hour smoking marijuana. They got back into their car; then Johnson and her sister, Gaskin, and Fuel walked to their car and started talking to them. Sapping-ton testified that Wilson and Moore drove by and swerved their car and that Fuel started chasing them after they passed. Wilson drove by again, almost hitting Fuel, and then drove away for nearly 10 minutes.
Sappington further testified that when Wilson returned, Fuel ran across the street, banged on the car, and tried to get Wilson to get out of the car. Sappington was standing with Darwin Bagley and watched the defendant walk up to the driver’s side of the car. Fuel looked at the defendant and then ran off screaming. The defendant said something to Wilson before shooting three times through the front window at her. He then shot more than six times at the back seat before running away.
Bagley, Moore’s nephew, testified that he went to Mr. B’s that evening and arrived when Wilson was driving the car up 22nd Street. Bagley followed after Fuel on foot and tried to get her to stop yelling at Wilson. He watched Fuel bang on Moore’s car and saw the defendant flick her out of the way, and then she ran. Bagley testified that the defendant fired two shots, his gun jammed, and then it went off one more time. The defendant started to leave, then looked into the back window and fired the remainder of the bullets before running away. Bagley hit the hood of the car, and told Wilson to leave.
Sappington identified the defendant’s weapon as a .40 caliber gun, and Bagley described it as either a 9 mm. or a .40 caliber automatic handgun. Michael W. Ennis, a firearm and toolmark examiner with the FBI, identified all of the bullets found in the vehicle and in the bodies of victims as being .40 caliber bullets.
The defense thoroughly cross-examined Sappington and Bagley about inconsistencies between their trial testimony and the statements they had made to the police shortly after the incident. The defense elicited testimony that Sappington had convictions for theft and felony obstruction of a law enforcement officer and Bagley had a juvenile conviction for robbery.
Lieutenant Terrence Hall and Detective Roger Golubsld responded to the hospital shortly after midnight. Lieutenant Hall spoke with Williams and Bagley, who both identified the defendant as the shooter.
Stacey Wilson s mother, Joyce Wilson, told the officers that on May 16,1999, the defendant came to her house and threatened to kill Moore and Stacey Wilson. Shardale Roark told the detective that she was present when the defendant made this threat. Later that day, Detective Golubski interviewed Fuel and Sappington, who both identified the defendant as the shooter.
A warrant was issued for the defendant’s arrest, and he turned himself in on May 25, 1999. In September and October 1999, the detective obtained four letters written to Wilson by the defendant while he was in jail, and they were read to the jury at trial.
Prior to trial, the defense sought to prevent the State from introducing evidence surrounding the unsolved homicide of Stacey Wilson, which occurred in September 1999, as the jury might infer that the defendant had played a role in her death. The circumstances surrounding her death were not discussed at trial, and the jury was simply instructed that Stacey Wilson died in September 1999 from injuries unrelated to those she had received in the shooting.
Joyce Wilson testified at trial that her daughter dated the defendant for a year but started seeing Moore a week before the shooting. On Sunday, May 16, 1999, Joyce Wilson took part in a conversation with the defendant and Stacey Wilson at Roark’s residence. The defendant talked about Stacey Wilson seeing Moore, and she told the defendant that he had to make a choice between her and Johnson. The defendant replied that he was going to “kill them niggers” and if Stacey was in the car, “I’m going to get you, too.” Stacey Wilson’s 12-year-old daughter testified at trial that she witnessed her mother talking to the defendant about Moore, and he said, “[B]itch, if I see you with him I’m going to kill you and him.”
Florice Easterwood testified for the defense that the shooter was a short, dark-skinned African-American male and the defendant’s skin color did not match the person she observed during the incident. Michael Banks, Rashida Johnson’s uncle, testified that the defendant was standing with Johnson in front of Mr. B’s when the gunshots were fired. Johnson’s sister, M’Sherie Johnson, corroborated this testimony. Tenisha Higginbotham, the defendant’s cousin, testified that she was talking to tire defendant when the “situation kicked off.”
1. Was it error for the defendant to be convicted and sentenced for two separate crimes under one count of capital murder?
While the defendant argues that the trial court erred in denying his motion to arrest judgment, his real concern is that he was convicted of two counts of murder when he was only charged with one count of capital murder. In rejecting the defendant’s posttrial motion on this issue, the trial court indicated that his arguments on his motion to arrest judgment had already been dealt with extensively on the record. The issue raised by the defendant is ripe for resolution and constitutes a question of first impression in this state.
The amended information charged the defendant in Count I with capital murder, alleging that the defendant
“did unlawfully, feloniously, intentionally and with premeditation, kill more than one person, to-wit: Alfonzo Moore and Jerry Seals, as part of the same act or transaction or in two or more acts or transactions connected together or constituting part of a common scheme or course of conduct, in violation of K.S.A. 21-3439.”
Under Count I, the jury was instructed that to establish the crime of capital murder, it must be proven:
“1. That the defendant intentionally killed more than one person, to-wit: Alfonzo Moore and Jerry Seals;
“2. That such killings were done with premeditation;
“3. That the premeditated and intentional ldlling of Alfonzo Moore and Jerry Seals was a part of the same act or transaction or constituted parts of a common scheme or course of conduct; [and]
“4. That this act occurred on or about the 19th day of May, 1999, in Wyandotte County, Kansas.”
At the defendant’s request, the jury was instructed that under Count I, it could consider the lesser included offenses of first-degree and second-degree murder of Moore, and the lesser included offenses of first-degree and second-degree murder of Seals. Instruction 12 provided;
“If you do not agree that the defendant is guilty of Capital Murder in Count I, you should then consider the lesser included offense of Murder in the First Degree.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally lolled Alfonzo Moore;
“2. That such killing was done with premeditation; and
“3. That this act occurred on or about the 19th day of May, 1999, in Wyandotte County, Kansas.”
Instruction 13 was a second-degree intentional murder instruction regarding victim Moore. Instructions 14 and 15 were identical to Instructions 12 and 13 except that the named victim was Seals.
On May 10, 2001, the juxy found the defendant guilty of the premeditated murder of Moore and the second-degree intentional murder of Seals.
The first question to be addressed is whether the amended information prejudiced the defendant so as tó infringe upon his right to a fair trial. The standard of review in this case is the post-Hall standard. See State v. Hall, 246 Kan. 728, Syl. ¶¶ 12 and 13, 793 P.2d 737 (1990). The post-Hall standard applies a common-sense interpretation of complaints and informations and requires this court to look at whether the claimed defect in the information has prejudiced the defendant in the preparation of his or her defense, impaired the defendant’s ability to plead the conviction in any subsequent prosecution, or limited the defendant’s substantial rights to a fair trial. 246 Kan. at 764-65.
The defendant’s ability to prepare a defense was not prejudiced because the amended information charged him with the premed itated murder of both Moore and Seals. The defendant does not claim that his ability to plead the conviction in a subsequent prosecution was impaired. The defendant does argue that his substantial rights were prejudiced because he was convicted of an additional uncharged crime.
In support of his argument, the defendant cites the following two statutes. First, K.S.A. 2002 Supp. 22-3201(e) provides that “[t]he court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” The defendant emphasizes the language “if no additional or different crime is charged,” concluding that this statute contemplates one crime per count. The amended information in this case charged one count of capital murder by the premeditated murders of Moore and Seals. See K.S.A. 21-3439(a)(6).
One crime, capital murder, was charged in one count containing two counts of first-degree premeditated murder as lesser included offenses. Thus, based upon the evidence at trial and the defendant’s request for lesser included offense instructions, the trial court was required to instruct the jury on the lesser included offenses for both the murder of Moore and Seals. No additional or different crime was charged. The amended information and the lesser included offenses arising out of the amended information satisfied the provisions of K.S.A. 2002 Supp. 22-3201(e) under the unique provisions of K.S.A. 21-3439(a)(6).
Second, K.S.A. 2002 Supp. 21-3107(1) provides that “[w]hen the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.” Subsection (2) provides that “[u]pon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is: ... (b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” K.S.A. 2002 Supp. 21-3107(2)(b).
The defendant argues that a reasonable construction of 21-3107 is that a defendant may only be convicted of the crime charged or one lesser degree of that crime. He argues that the jury instructions were broader than the charges contained in the amended information and that the prosecution should have charged two alternative counts of premeditated murder in order to obtain convictions of more than one crime.
The State argues that the defendant in this case was implicitly charged with committing two separate premeditated intentional killings by virtue of K.S.A. 21-3429(a)(6), that appellate courts no longer impose an affirmative duty on trial courts to give lesser included instructions, and that lesser included instructions under 21-3429(a)(6) will naturally be different as it is the only method of capital murder which requires the State to prove two distinct premeditated killings.
We agree with the State. K.S.A. 21-3439(a)(6) defines capital murder as the “intentional and premeditated killing of more than one person as part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct.” We also partially agree with the defendant that the prosecutor in this case could have charged two alternative lesser included counts of premeditated murder. We do not agree that by filing only the capital-murder charge the prosecutor violated the provisions of K.S.A. 2002 Supp. 21-3107.
The first-degree premeditated murders alleged in the amended information charging capital murder under K.S.A. 21-3439(a)(6) are lesser included offenses of capital murder. In State v. Bradford, 272 Kan. 523, 34 P.3d 434 (2001), Bradford was convicted of capital murder for the intentional and premeditated killings of two women under K.S.A. 21-3439(a)(6). While addressing the requirement that Bradford receive a voluntary intoxication instruction on his specific intent crimes, we noted that such an instruction was given for “capital murder, lesser included offenses of first-degree murder or felony murder, and aggravated burglary.” 272 Kan. at 535. The PIK Committee correctly identifies murder .in the first degree as a lesser included offense of capital murder. See PIK Crim. 3d 56.01.
Under the provisions of K.S.A. 2002 Supp. 21-3107, the defendant was charged with one crime, capital murder. More than one crime was not charged. However, the amended information charging capital murder alleged the premeditated murders of Moore and Seals. The provisions of 21-3107 provide that a defendant may be convicted of either the crime charged or a lesser included crime, but not both. Here, the defendant was convicted of the lesser included offenses of first-degree murder of Moore and second-degree murder of Seals. He was not convicted of both the crime charged and lesser included crimes. The defendant’s argument that the jury instructions were broader than the charges contained in the information is correct, but there was no violation of K.S.A. 2002 Supp. 21-3107 and the unique provisions of K.S.A. 21-3439(a)(6) required such instructions.
The amended information in this case advised that the defendant was facing only one capital murder charge, but he was convicted and sentenced for two separate lesser included crimes under that count. However, the lesser included offenses of a capital murder charge under K.S.A. 21-3439(a)(6) include two first-degree premeditated murders in addition to other lesser offenses of first-degree murder. If we adopt the argument of the defendant, the trial court had two options: First, to instruct the jury on a lesser included instruction for only one of the murder charges or second, to give no lesser included offense instructions under K.S.A. 21-3439(a)(6). Both options would have prejudiced the defendant and denied him a fair trial. These options would lead to illogical results because a defendant who was charged with two counts of premeditated first-degree murder would be entitled to lesser included offenses, but a defendant charged with capital murder and facing the death penalty for committing two premeditated murders would be entitled to no lesser included offense instructions or would only be entitled to one lesser included offense instruction under K.S.A. 21-3439(a)(6).
The result of jury deliberations in this case with lesser included offense instructions for the murders of both Moore and Seals under the provisions of K.S.A. 21-3439(a)(6) demonstrates the fairness to the defendant. In a case such as this where the defendant requests lesser included instructions and the evidence supports the giving of such instructions for both victims, K.S.A. 21-3439(a)(6) requires the trial court to instruct on each lesser included offenses for each victim. After considering PIK Crim. 3d 56.01, Bradford, and the consequences of the parties’ arguments, we conclude that the trial court’s decision to instruct on lesser included offenses for each victim was correct. The amended information in this case put the defendant on notice that he was alleged to have killed two people with premeditation and the penalty could be as severe as death. Neither K.S.A. 2002 Supp. 22-3201(e) nor K.S.A. 2002 Supp. 21-3107 limit lesser included offenses to consisting of only one count. Under this particular subsection of the capital-murder statute, the lesser included offenses necessarily include two or more separate counts of first-degree murder.
2. Limitation of Cross-Examination
Mercedes Sappington
Mercedes Sappington was called as an eyewitness to attest to the fact that the defendant was the shooter during the incident. She had given her statement to the police at the time the homicides were committed. At that time, no charges were pending in Wyandotte County against her. Approximately 2 years later, just prior to the defendant’s trial, Sappington was charged by the Wyandotte County’s prosecutor’s office with felony criminal damage to property, a crime not involving dishonesty. Prior to her testimony, the defendant sought permission to cross-examine Sappington on the pending charge, advancing the following rationale:
“Judge, the basic premise here is that I think the jury should have the opportunity to determine whether the fact that Ms. Lidtke’s [Prosecutor] office is prosecuting her for a felony — should the jury be able to consider that in terms of maybe that would influence her testimony, not there is a deal. I stipulate there is not a deal. But this witness doesn’t know she can’t get the deal.
“[T]he crux of our position is the fact that the DA’s office for whom she is the very witness is the one that really controls her destiny and she might think that’s important. . . .
“I think I should be able to ask her isn’t she currently being prosecuted by the Wyandotte County district attorney’s office for — I don’t know what felony it is. I think it’s criminal damage. Maybe it’s a misdemeanor. . . . But she is being prosecuted. I think whether it’s a felony or misdemeanor makes little difference. She is being prosecuted by the district attorney’s office. I think that’s the question.”
The court denied this motion. After Sappington testified on direct, the court stuck to its initial ruling and refused to allow the defendant to cross-examine her about the pending Wyandotte County case against her. The court reasoned that it would leave an unfair impression with the jury that she was testifying falsely because she had made a deal with the State, with no evidence to support such an inference, and with the stipulation of the defendant that no deal had even been discussed with the witness.
The defendant advances the same arguments 'before this court, claiming that the defense was prevented from pointing out that Sappington had a motive to lie for the prosecution, which requires reversal of his convictions.
The admission of evidence lies within the sound discretion of the trial court. Our standard of review regarding a trial court’s ruling on evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State. v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002).
The defendant couches his argument in a constitutional context, arguing that the court’s limitation of his right to cross-examine Sappington on her pending charge denied him due process rights under the federal and state Constitutions to present a defense and his right to effective cross-examination. See Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973); Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974). Acknowledging that the trial court’s ruling is subject to a harmless error analysis, the defendant claims that the limitation was not harmless, thereby entitling him to a new trial. See Pennsylvania v. Ritchie, 480 U.S. 39, 53-58, 94 L. Ed. 2d 40, 107 S. Ct. 989 (1987).
Before examining the defendant’s authority, we note that the defendant’s cross-examination was thorough and limited only with respect to Sappington’s pending charge. The defendant was allowed to exploit all inconsistencies in her original statement compared to her trial testimony and was allowed to ask about several convictions she had for crimes of dishonesty. Although the defendant was denied cross-examination on the pending charge, Sappington appeared on the stand in an orange jump suit, which is traditional prison garb. Also before addressing the defendant’s constitutional concerns, the State’s rules of evidence must be examined concerning the admissibility of the witness’ pending charge.
The defendant sought to introduce evidence of a pending crime which did not involve dishonesty or false statement. K.S.A. 60-420 provides in this regard:
“Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the. party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
K.S.A. 60-421 provides in pertinent part: “Evidence of the conviction of á witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility.”
Finally, K.S.A. 60-422 provides:
“As affecting the credibility of a witness (a) in examining the witness as to a statement made by him or her in writing inconsistent with any part of his or her testimony it shall not be necessary to show or read to the witness any part of the writing provided that if the judge deems it feasible the time and place of the writing and the name of the person addressed, if any, shall be indicated to the witness; (b) extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness, may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him or her an opportunity to identify, explain or deny the statement; (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
This court has applied K.S.A. 60-421 to prevent defense counsel from cross-examining a State’s witness concerning a charge of first-degree murder then pending against him in Wyandotte County. Even though the witness had agreed to enter a plea as the result of plea negotiations on the charge, we held that evidence of the pending charge was inadmissible to impeach the witness’ credibility because the plea had not been accepted and there was not a conviction as required by K.S.A. 60-421. State v. Lomax, 227 Kan. 651, 655, 608 P. 2d 959 (1980). A similar result was reached in State v. Handley, 234 Kan. 454, 673 P.2d 1155 (1983), wherein tire State informed the defense that the complaining witness had no criminal history but did have charges pending against him for misdemeanor theft. The day after the defendant was convicted, the witness pled guilty to the charge in municipal court. The defendant argued on appeal that he was entitled to a new trial because the prosecution withheld information regarding the complaining witness’ criminal history. We rejected this argument, reasoning that “[ejvidence of a pending charge against a witness, which has not resulted in a conviction, is inadmissible to impeach the witness’ credibility. K.S.A. 60-421 specifically requires a conviction before evidence of a crime is admissible for that purpose.” 234 Kan. 454, Syl. ¶ 9.
However, in State v. Wesson, 247 Kan. 639, 802 P.2d 574 (1990), cert. denied 501 U.S. 1236 (1991), the State attempted to admit evidence that a defense witness had been in the same jail cell as the defendant to show that based upon a relationship established while sharing a cell with tire defendant, the witness was biased. The defendant argued that the State was attacking the witness’ credibility on the basis of a crime charged without conviction. The trial court permitted the State to ask if the witness had been in jail with the defendant, provided that only the least severe crime was referenced.
On appeal, this court upheld its interpretation of K.S.A. 60-421 in Handley but concluded that the defendant’s application of Handley to his case was not correct. The Wesson court cited K.S.A. 60-420 and reasoned that the State was trying to show bias on the witness’ behalf, that it was not the crime tire State was concerned with but the fact that the witness shared a jail cell with the de fendant, and that the trial court had allowed the State to inquire about the charge in order to minimize any unwarranted conclusions on the part of the jury. The court concluded that the evidence was not prohibited by K.S.A. 60-421. 247 Kan. at 651-52.
The defendant’s argument seems to gain support from Wesson because in both cases the charged crime becomes incidental to the relationship between the witness and another person, which relationship the defendant argues impeaches the credibility of the witness. However, there is a marked difference between Wesson and the case we now consider. The relationship in Wesson became probative on the issue of credibility for it is more than likely that the friendship between the witness and the defendant might have affected the witness’ testimony. However, in this case, the filing of a felony charge not involving truth or veracity by the prosecutor against a witness who was testifying on the prosecutor’s behalf, without any other evidence, lacks probity in establishing that the witness would testify falsely because of the pending charge. This is especially true in this case where the charge comes almost 2 years after the witness had given her statement to the police and where there is no evidence the charge was discussed with the witness in preparing her for trial. Moreover, the admission of such evidence is directly contrary to K.S.A. 60-421; evidence of a pending charge against a witness which has not resulted in a conviction is inadmissible to impeach the witness’ credibility. See Handley, 234 Kan. 454 Syl. ¶ 9; Lomax, 227 Kan. at 655.
The question of admissibility lies within the sound discretion of the trial court. In light of the above law and the facts, we conclude that the trial court did not abuse its discretion in precluding cross-examination on Sappington’s pending charge of felony damage to property.
The cases relied upon by the defendant do not involve pending charges. Chambers, 410 U.S. 284, establishes a defendant’s constitutional right to present a defense. The ruling of the trial court in this case did not affect the defendant’s due process right to present a defense. Davis, 415 U.S. 308, affirms the defendant’s right to expose a witness’ motivation in testifying through cross-examination. However, in Davis, the witness was on probation at the time he testified and also was a suspect in the crime being prosecuted. It was within this context that the Court declared: “The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony.” 415 U.S. at 316. The claim of bias the defense sought to develop was admissible to show the witness’ vulnerable status as a probationer as well as the witness’ possible concern that he might be a suspect in the investigation. 415 U.S. at 317-18. Such facts do not exist in this case, as the defendant offers only the pending charge brought some 2 years after the witness gave her statement to the police as the basis for admissibility.
Darwin Bagley
Subsequent to Bagley’s testimony, the defense advised the court that it had learned that Bagley was arrested immediately after testifying. Defense counsel explained: “That would lead us to ask if he was aware he had pending charges and he knew about them. We are back into the Sappington issue, i.e., should we have been able to cross-examine him on current charges whether he’s currying favor with the prosecution, the governmental entity.” The defense asked for copies of any reports in connection with the investigation to determine whether Bagley believed he could make a deal with the prosecution.
The prosecutor responded that similar to the Sappington issue, Bagley’s pending charges were irrelevant because his testimony was entirely consistent with the statement he gave on the day of incident. The prosecutor acknowledged that the defendant had been arrested on drug charges in Wyandotte County, but she denied knowledge that a warrant had been filed until after Bagley was arrested.
The trial court subsequently informed the defense that Bagley had been arrested on April 19, 2000, held in custody for 20 hours, and then released pending charges. Charges were filed on April 27, 2000, alleging he sold cocaine and was in the possession of cocaine with the intent to sell, and a warrant was issued the same day. Bagley was arrested on May 1, 2000, immediately after testifying on behalf of the State. The trial court permitted defense counsel to further inquire about any communications between the prosecutor s office and the defendant regarding his testimony in this case.
Ultimately, the trial judge concluded:
“I don’t know how I could have provided anything more to the defense on what apparently seemed to be a long shot, I guess, would be understatement. But I think a review of the police reports by the defense as well as a review of the video of the statements that he made at the time that he was arrested that were shown to the defense on Friday, I guess I believe that those things satisfy what the defense was requesting as to Mr. Bagley and I’m not going to allow any more.”
The State argues that the trial court never limited the cross-examination of Bagley because the defendant merely sought discovery on this issue and never specifically sought to recall Bagley as his own witness on this issue. However, it is clear from the record that the defendant was seeking to raise the Sappington argument regarding Bagley s pending charges. Prior to the trial court’s final ruling, the defense renewed its request to be able to cross-examine Bagley about the existing warrant, contending it was a violation of the defendant’s constitutional rights to due process and cross-examination of witnesses. The trial court ultimately concluded that there was not “any basis to bring Mr. Bagley in for examination.”
The issue raised by the defendant, while not clearly articulated, is that he should have been able to recall Bagley and expose the pending charges against him for impeachment purposes. As with Sappington, the charges were filed long after he gave his initial statement to the police. The defendant was afforded complete discovery concerning the pending charges, and it was revealed that the prosecutor had not discussed these charges with Bagley in preparation for trial. Thus, as with Sappington, the only basis for impeachment was the mere existence of the pending charges. We have addressed this contention and need not further discuss the defendant’s allegation except to refer to our disposition in regard to the Sappington claim above.
3. Exclusion of Evidence
Prior to the shooting, the defendant had a romantic relationship with Stacey Wilson, one of the shooting victims. When Wilson be gan dating Moore, the defendant threatened to kill her and Moore. Wilson died prior to trial as a result of an unsolved homicide in September 1999. Prior to her death but after the shooting, Wilson wrote two letters to the defendant while he was in jail. In these letters, Wilson professed her love for the defendant. The defendant tried to introduce both letters during the trial as evidence that the victim would not have professed her love for him if he had attempted to kill her on the night of the incident.
The defendant successfully entered the second letter into evidence, but the first letter dated May 30,1999, was excluded by the trial court. Prior to trial, the defense sought to prevent the State from introducing evidence surrounding the death of Wilson in September 1999 out of fear that the jury might infer that tire defendant had played a role in her death. Thus, tire court excluded any circumstances surrounding her death and simply instructed the jury that Wilson died in September 1999 from injuries unrelated to those she had received in the shooting.
After hearing arguments of counsel, the trial judge denied admission of the first communication, stating:
“And the reason is because we’ve gone to great pains to not tell the jury anything about Stacey Wilson’s death and there are statements in there that could be construed by the jury leading them to believe that possibly somebody else had something to do with the death or she was having problems with people. And I think that possible prejudice outweighs anything that is gained from that card, and therefore I’m not going to allow it in.”
The first letter was dated and served the defendant’s purpose of showing the jury that the communication was written by the victim after the shooting. The second letter which was admitted was undated. While there was an envelope with the second communication clearly establishing that it also was written after the date of the shooting, the defendant was unable to establish a proper foundation for its admission.
The defendant argues that the letter written by Wilson to the defendant dated May 30,1999, should have been admitted at trial. While he attempts to make this exclusion a constitutional issue regarding his right to present a defense, claiming he was denied due process, not all of the defendant’s evidence in this case was excluded. The right to present a defense is not without limits, including statutory rules and case law interpretation of rules of evidence and procedure. State v. Alexander, 268 Kan. 610, 616, 1 P.3d 875 (2002) (refusal to admit photographs).
The question presented here is the exclusion of evidence by the trial court. The appropriate standard to be applied is abuse of discretion. The admission of evidence lies within the sound discretion of the trial court. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. Jenkins, 272 Kan. at 1378.
The first communication sent by Wilson to the defendant, dated May 30, 1999, provided:
“Hello? ‘G’ baby whatz upper. I seen this card and just had to get this because it is so true amoung us. Well I hope you be able to come home. I miss your sexy ass. Your smile, and your evil looks. I hope your keeping your head up. do not look back on the bad look foiward for the best. And also remeber my love for you is real strong in many ways. ‘G’ I’m so used in at least seeing you before I go to bed now I have to look at our picture. But ‘G’ guess what, today I leaves out of mamas house. This bitch name Michelle someone kind to Fonzo tried to rush me. dude I had to push the fat bitch in the car and Dude was with her kept holding her shirt. But Girly wasn’t really trying to do some getting down. Because if she wanted to she could of. hit me or whatever. My piece maker I don’t have any more. But I’m trying to find one. now. because with this piece lead still in my back next to my liver. I’m not in no place to really be fighting. I go have surgery in like two weeks. But ‘G’ these bitches got me fucked up. I know I better get out of town before I catch a case. For real! ‘G’ I hope your staying strong. I know you be sad but it will take a little time. But always remeber. That I love you as if nothing bad had never occur, and this is love no one can take from u and I. and this is true love. Strong love. One bond that we have strive for. it may seem funny or unusual but it’s 100% real. Certified as I say. But I keeps it real. ‘G’ I love you, I can’t tell your ass enough, if you can read and tell. I hope I see you soon and very Soon. I love you ‘G’.”
The second, undated letter was admitted at trial. It provided:
“What’z upper ‘G’! How is my love doing. I know you’ve been wondering what’s been going on with me. Why. come I’ve not wrote you. But boo I still Love you. I’m always going to Love you, be here for you. I Love You Still. ‘G’ I’ve been stressed, I’ve never been so harassed by people like this in my whole life. But these muthafuckas got me fucked up four real. But ‘G’ I’m soriy the kids didn’t make it to Lil ‘G’ birthday party. But KiKi & Whitney was out of town. And Bianca was with B.B. some where. Gordon wish would hurry and make it through things. Because I miss you. Miss you so much I sometimes be thinking I’m going to see you rolling down 18th or Parallel. But hopefully these days will soon be back. ‘G’ I wish I could of seen you at court. I wish and really wish you and I can see each other. I just remember seeing you at the house. ‘G’ will you please keep your head up. and please write me back if you need some money. Please Let me know. I’m start paying off my old bill. So I can get my phone back on. Because I would love here from you. I’ve got on cell phone. # is 908-4613. 913 is the area code. ’G’ how in the hell you going to write me and say I mess with REN. Well your wrong. I’m to myself it’s been people trying to get at me. But I’m not really trying to be with nobody like that. Tiying to get my money back right. I got the 2 door chevy back out Dawynes old Chevy. I paid 2500.00 for it. ’G’ will you please remember this I have much love for you. And I really want you home. I’ve would not of never thought I miss you. But it many of nights I cry. Just because I’m so use of you being here. But I know I’ve been neglecting you. I’m really sorry. Gordon no one can take your place. So remember this. I Love You. W/ much heart and soul. I love you Boo! But L.L. Joe and Boogie and the rest got me, a bitch like me fucked up 4 real! Write me soon. Just pray for me please. I love you dude. A kiss to you smooches. I just can’t tell you enough I still love me some ‘G’. Love always, S. Wilson.”
We note that the two letters are very similar. The admitted letter clearly demonstrated the nature of Wilson’s relationship and affectionate feelings toward the defendant, and the information in the May 30 card would have been cumulative. The defendant’s real problem was that he wanted the jury to know that the admitted letter was written after the shooting. The defense, however, failed in its opportunity to lay a proper foundation for the admission of the postmarked envelope.
However, the context of the undated letter suggests that it was written after the shooting as Wilson talks about how much she misses the defendant and how she wishes she could have seen him in court. Moreover, when the undated letter is read in conjunction with the letters written by the defendant to Wilson and admitted into evidence, it becomes clear that the undated letter was being written in response to the defendant’s letters.
For example, the defendant’s letters dated July 22, 1999, and August 12, 1999, complained that she had not responded to his letters, that she missed him in court, that he heard she was messing around with “Little Ren,” and that he hoped she had fun at “Baby G’s” birthday party. The undated letter apologizes for not writing sooner, seeing him in court, or attending “Lil G’s” birthday party, and she assured him that she was not messing around with Ren. From this evidence, the jury could have drawn the inference that the undated letter was sent after the shooting.
For these reasons and the reasons advanced by the trial court for exclusion of the dated letter, we conclude that the defendant has failed to establish an abuse of discretion. However, even if we were to conclude that the exclusion was erroneous, we would conclude that no real possibility existed that the jury would have reached a different conclusion in light of the overwhelming evidence of the defendant’s guilt at trial. See Evans, 275 Kan. at 102.
4. Admission of Testimony Bearing on Credibility of State’s Eyewitnesses
The standard of review for a trial court’s ruling regarding the admission of evidence, subject to exclusionaiy rules, is whether the trial court abused its discretion. Wendt v. University of Kansas Med. Center, 274 Kan. 966, 59 P.3d 325 (2002). Questions which compel a defendant or witness to comment on the credibility of another witness are improper. It is the province of the jury to weigh the credibility of the witnesses. State v. Dean, 272 Kan. 429, Syl. ¶ 4, 33 P.3d 225 (2001).
The following exchange took place between defense counsel and Detective Golubsld on cross-examination:
“Q. [by defense counsel, Mr. Bath] Okay. Are there any special concerns when you have — like in this situation you have groups of witnesses who know each other and may have had a chance to talk to one another or have contact before you talk to them. Is there any special concerns that you will malee before interviewing them?
“A. You definitely want to separate all of them when you did it and — (pause). You would want to malee sure that the story hadn’t been fabricated or concocted.
“Q. How could you do that?
“A. If each statement or interview parroted each other or mirrored each other, then it’s a safe assumption that they have already talked to each other. Because no two people see the same thing the same. So if someone is telling me the exact same tiling, then I’m going to assume that this has been prearranged.”
On redirect by the prosecutor, the following relevant exchange took place:
“Q. Detective GolubsM, Mr. Bath asked you about taking statements from witnesses and trying to determine whether they had concocted stories and how you do that. And you said that you have had occasion when that has happened. I’m just wondering what sort of characteristics do you look for when somebody is concocting a story and witnesses are colluding together and getting the same story together.
“A. I think it’s what I alluded to before. If a story parrots or mirrors each other exactly to the tee, I’m going to say that the story is concocted.
“Q. The fact that everybody happened to see Gordon Martis do the shooting, does that in itself tell you that this is a concocted story?
“A. Not at all.
“Q. Did you see — other than the fact that everybody named him as the shooter, did you see other characteristics within the context of each of those statements that would lead you to believe that these stories were concocted?
“MR. BATH: Objection, invades die province of the jury.
“THE COURT: Overruled.
“A. I’m sorry could you ask it again?
“Q. (By Ms. Lidtlce) Other than the fact that they all said Gordon Martis did it, were there other characteristics within the context of each one of these statements that would lead you to believe that they had all gotten together and concocted these stories.
“A. No.
“Q. What was it about each statement that lead you to believe that?
“MR. BATH: Objection, your Honor. May we approach?
“THE COURT: Yes. (The following proceedings were . . . out of the hearing of the jury.)
“MR. BATH: Judge, I believe it’s improper to ask him to sort of comment essentially on the truthfulness of each of the individual persons here and their statements. I think the court gave the prosecution wide latitude, but I think that invades the province of the jury to determine if they concocted it or not.
“MS. LIDTKE: I’m not asking for him to comment on the truthfulness of the statements. I’m asking him to describe what parts of these statements were basically inconsistent with an assertion that they were concocted. In other words, what about these statements lead you to believe that they were not colluding.
“THE COURT: Basically you are just asking him set out what variations there are between the statements, which he’s already done, I think. Is that what you are saying?
“MS. LIDTKE: No. ActuaUywhatlam wanting him to say is there were variations between the statements.
“THE COURT: Okay.
“MR. BATH: Judge, I think we are going to get down this road in reverse. Well, if he malees these statements, then the reverse is true; then they must be truthful statements. I didn’t ask if something was concocted or not concocted. I asked if he took precautions. What she is doing with the last question and this one is asking him to be an expert, which he has no foundation for to determine whether a story has been concocted or not. That’s the jury’s province.
“THE COURT: Well, I think he can — if what she’s after — if all she is trying do is say were there differences in these statements, if that’s what he’s going to say, I think he can answer that.”
The prosecutor then asked if there were differences between the statements and the detective replied, “Yes, ma’am.” The detective clarified that Fuel had never indicated that she had gotten together with any of the other eyewitnesses prior to making her statement.
The defendant argues the trial court erred in allowing Detective Golubski to vouch for the credibility of the eyewitnesses. Specifically, he objected to the detective’s opinion testimony that the eyewitnesses’ statements were not concocted. The defendant cites three cases in support of his argument.
First, in State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986), this court held that it was reversible error for the trial court to permit expert witnesses to testify that in their opinion the child was telling the truth and that the defendant committed the acts of molestation with which he was charged. The court reasoned that the witnesses attempted to serve as “human lie detectors” for the child and it was the function of the jury to hear the testimony of the witnesses as to what the child said and then to make a determination of the reliability of the child’s statements.
Second, in State v. Plaskett, 271 Kan. 995, 1007-09, 1031, 27 P.3d 890 (2001), this court found that the trial court contributed to the cumulative errors by permitting a police detective to testify that he believed the child victim was telling the truth.
Finally, and most analogous to this case, in Mullins, 267 Kan. 84, the prosecutor asked a sexual abuse expert whether she thought the child had been coached:
“Q. [Mr. Cahill] Okay. Was there anything about that evaluation that caused you to be concerned that there might be coaching or that Brian in some way would be making this up? Anything inconsistent in his statements regarding that?
“MR. REARDON: Your Honor, could we approach?
“MR. REARDON: I object to this on the basis she can’t be a human lie detector as to whether or not the child was telling the truth.
“MR. CAHILL: That’s not what I am asking. Asking if anything led her to be concerned about the statements in that area that were inconsistent.
“THE COURT: I will allow it. Go ahead.
“Q. [Mr. Cahill] Go ahead and answer it.
“A. [Phillips] I thought he had been coached?
“Q. [Mr. Cahill] Right. Any indication of that land of behavior?
“A. [Phillips] No.” 267 Kan. at 93.
Based on this exchange, the Mullins court recognized:
“There are subtle and not so subtle distinctions in the manner in which the questions leading to a suggestion of truthfulness of the victim are asked. When the trial court overruled defense counsel’s objection, Phillips rephrased the question, T thought he had been coached?’ and answered, ‘no.’ Technically, as prohibited by Lash, [237 Kan. 384 (1985)] and Jackson, [239 Kan. 463 (1986),] the question asked of Phillips does not allow the giving of an opinion that B.M. had been sexually assaulted by Mullins or render an opinion that he was telling the truth. This does not, however, mean the question was proper, as it implies truthfulness.” 267 Kan. at 96.
The Mullins court noted that the theory of the defense was that the child had been induced to bring the subject up and coached in his testimony and the question could have been interpreted by the jury to relate .to the activity of the mother which would not have been improper. However, because the question was directed to whether the child was coached, which is another way of asking if he was telling the truth, the court concluded that the line of inquiry was improper but harmless error. 267 Kan. at 96-97.
Although the detective in this case was not providing expert testimony, these cases still provide some guidance in resolving this issue. See Plaskett, 271 Kan. at 1007-09. The line of inquiry in this case was similar to that in Mullins and was likewise improper. Although defense counsel asked the detective about what precautions had been taken, he did not ask if the eyewitnesses’ statements had been concocted; the prosecutor’s line of inquiry — whether the detective saw anything specifically in the eyewitnesses’ statements that would make him think their statements were concocted — went beyond general precautions and questioned the specifics of the eyewitnesses’ statements. Although the prosecutor did not directly inquire into whether the detective believed the eyewitnesses were telling the truth, these questions, as in Mullins, were designed to imply truthfulness by means of demonstrating that the detective believed the eyewitnesses’ statements showed no signs of being concocted or fabricated.
Although the questioning was improper, the detective did not expressly testify that the eyewitnesses were telling the truth as in Jackson and Plaskett. Moreover, this case did not hinge on the credibility of one witness, and it is unlikely that the jury would have given much credit to the detective’s opinion when it had the opportunity to listen to the witnesses testify themselves. The detective gave very brief answers to the prosecutor’s questions and did not go into specific details regarding the eyewitnesses’ versions of events. We conclude that this brief exchange in the middle of extensive trial testimony had litde, if any, likelihood of changing the outcome of this case. Thus, the improper questioning amounted to harmless error.
5. Exclusion of Potential furors
“The public policy of this state is declared to be that jury service is the solemn obligation of all qualified citizens, and that excuses from the discharge of this responsibility should be granted by the judges of the courts of this state only for reasons of compelling personal hardship or because requiring service would be contrary to the public welfare, health or safety; that all litigants entitled to trial by jury shall have the right to juries selected at random from a fair cross section of the community in the district wherein the court convenes; and that all citizens shall have the opportunity to be considered for service on juries in the district courts of Kansas.” K.S.A. 43-155.
Persons for whom jury service would cause “extraordinary or compelling personal hardship” may be excused from jury service by the court. K.S.A, 43-159(c). Standard 6(b) of the Standards Relating to Juiy Use and Management provides in relevant part: “Eligible persons who are summoned may be excused from jury service by a judge or duly authorized court official only if . . . (ii) their service would be an extraordinary or compelling personal hardship to them or to members of the public.” (2003 Kan. Ct. R. Annot. 93.)
“Whether a person is qualified or competent to sit as a juror is a question for determination by the district court. The district court’s ruling will not be disturbed unless it is clearly erroneous or there has been an abuse of discretion.’’State v. Hayes, 270 Kan. 535, 537, 17 P.3d 317 (2001).
Prior to this trial, approximately 1200 potential jurors were summoned. The trial court excused 15 people based on financial hardship/employment requests without requiring them to come to court. The trial judge explained:
“For the record, I excused just about all of those people and I held up a little bit on the employment related excuses or reasons of that nature. And counsel both came in and took a look at what I had. As I counted them later on, I think there were about 30 that were requesting to be excused because of employment reasons. And most of those had a letter from their employer. And counsel indicated I think that you’d just assume they come in. And as I went through them later on, there were a number of those that I excused. Some of them were self-employed people who were on second glance I was convinced would create a hardship. Some of them were people who were not paid during the time they were on juiy duty and indicated that it would be a real financial hardship. Some of them owned a one-person business such as a day care or obviously their contention was they simply could not maintain their business if they came in and served on jury duty.
“I was generally taking the approach that most of these folks would be here just for two days, one day to fill out the jury questionnaire and another day to be here all day long for voir dire. It occurred to me that that — that certainly I couldn’t make any guarantees about that, and if I’m having them on the — come in and fill out the questionnaire and they’re involved in voir dire, then certainly there’s a possibility that we’re gonna tie ’em up for two or two and a-half-weeks and some of them seemed to have legitimate hardships. So what I’m getting to with all of this is I did release some of the individuals that when counsel was here I was— counsel were here, I was inclined to require to come on in.”
Defense counsel objected to the trial court’s excusal of the potential jurors solely for economic reasons without requiring them to appear in court for questioning about the veracity of their claims. Counsel argued that the defendant was entitled to a fair cross section of the community which would include people who would encounter financial difficulty while serving on the juiy and that the court’s summary excusal of these potential jurors was a violation of his Sixth and Fourteenth Amendment constitutional rights guaranteed in the Unites States Constitution.
On appeal, the defendant argues that K.S.A. 43-159(c) does not state when or how excusáis for personal hardship are to be made. Standard 6(d) of the Standards Relating to Small Jury Use and Management provides that the guidelines for determining requests for excusal and deferral should be adopted by the judges of each judicial district. (2003 Kan. Ct. R. Annot. 93.) The defendant relies on State v. Edwards, 252 Kan. 860, 852 P.2d 98 (1993), in arguing that the defendant had a Sixth Amendment right to be present and make inquiry of the jurors who were excused. The defendant does not brief the issue of whether the defendant was denied his right to have people with financial difficulties in the jury. As such, the issue is deemed abandoned. See State v. Hunt, 275 Kan. 811, 821, 69 P.3d 571 (2003).
In Edwards, the defendant argued that his statutory and constitutional rights to be present at all stages of the trial was violated when the trial judge had a private conversation with a prospective juror who had been seated in the jury box and sworn. After this conversation, the judge announced that he was going to excuse the juror because the juror was a doctor who needed to get back to his patients. Defense counsel objected to the excusal on racial grounds but did not object to the fact that neither he nor his counsel was present during the conversation, did not argue that any constitutional rights were violated, and did not request the opportunity to question the doctor before he was excused.
On appeal, this court cited what is now K.S.A. 2002 Supp. 22-3405(1): “The defendant in a felony case shall be present at the arraignment, at every state of the trial including the impaneling of the juiy and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” The court also noted that the Sixth Amendment to the United States Constitution guarantees a defendant the right to be present at eveiy stage of trial. However, this court concluded that any alleged error was harmless, reasoning:
“Ex parte communications between a juror and the trial judge are improper. See State v. Bowser, 252 Kan. 582, Syl. ¶ 1, 847 P.2d 1231 (1993). Enormous bodies of case law have been developed on a defendant’s right to be present at all stages of the proceedings, exceptions thereto, and various types of ex parte communications and the legal effects thereof. The facts herein do not warrant an extensive discussion as any error existing herein is so minimal. The communication was not between the judge and an impaneled juror, only a venireman. The discussion had nothing to do with the trial. Had the matter come up before trial, in an ex parte communication, or in voir dire of Dr. Brown, tire trial court, in exercising its discretion, could have excused Dr. Brown from service under.K.S.A. 43-159(c) as a person whose presence elsewhere is required for public welfare, health, or safety. The judge advised counsel of the conversation before taking any final action and afforded counsel full opportunity to be heard and to object. Defense counsel did not request the opportunity to inquire of Dr. Brown or raise statutory or constitutional objections in regard to the matter.” 252 Kan. at 864.
Edwards is distinguishable from this case in that the central question in Edwards was whether the ex parte communication between the trial judge and the prospective juror constituted reversible error. Although the court noted that defense counsel did not request the opportunity to question the doctor, as the. defense did in this case, the court acknowledged that the judge had the authority under K.S.A. 43-159(c) to excuse the defendant. 252 Kan. at 864. As such, Edwards does not decisively resolve this issue.
Although not cited by either party, the question in this case was addressed and resolved in favor of the' State in State v. Baker, 249 Kan. 431, 819 P.2d 1173 (1991). In Baker, the defendant argued for the first time on appeal that he had a constitutional right to be present in person and by counsel when excusáis and deferrals from jury service were determined. Baker rejected this argument, reasoning:
“The concept that a defendant and his counsel must be present when persons receiving summonses for juiy duty are requesting to be excused, but prior to when the trial has commenced, is not even feasible. More often than not, one panel serves many cases in different divisions. Often it is uncertain at this stage which cases will actually be tried during their service. Many courts have primary cases set with various back-up cases listed. It would be impossible to bring all defendants and their counsel together to be present when the decision is to be made on a panel member’s request to be excused from jury service. Also, such requests are not determined in a group, but on an individual basis. Such request will probably be in the form of a telephone call or note. No authority has been cited for the proposition that this is a stage of the proceeding requiring defendant’s attendance in person and by counsel.
“We note also that K.S.A. 22-3405(1) provides: ‘The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury . . . .’ Assembling the jury panel is not the ‘impaneling of the jury.’ As used in this statute, ‘impaneling of the jury’ means jury selection. A criminal defendant’s statutory and constitutional rights to be present in person and'by counsel at trial do not extend to the determination of excuses from jury service sought by individuals who have received summons for jury duty but have not reported for service on a particular case.” 249 Kan. at 442.
Baker controls: The defendant did not have a Sixth Amendment right to be present in person and by counsel when the trial court excused the 15 prospective jurors based on financial/employment hardship.
6. Constitutionality of the Hard 40 Sentence
The defendant contends that the hard 40 sentence for his premeditated first-degree murder conviction must be reversed. See K.S.A. 2002 Supp. 21-4638. He argues that State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), was incorrectly decided and asks this court to overrule it and declare the hard 40 sentencing scheme unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The defendant contends the Conley court’s reliance on McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986), was misplaced.
This court has repeatedly upheld Conley. See State v. Boldridge, 274 Kan. 795, 812, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003); State v. Papen, 274 Kan. 149, 165, 50 P.3d 37, cert. denied 537 U.S. 1058 (2002); State v. Albright, 273 Kan. 811, 826, 46 P.3d 1167, cert. denied 537 U.S. 962 (2002); State v. Boorigie, 273 Kan. 18, 41-42, 41 P.3d 764 (2002); State v. Roberson, 272 Kan. 1143, 1156, 38 P.3d 715, cert. denied 537 U.S. 829 (2002); State v. Verge, 212 Kan. 501, 518, 34 P.3d 449 (2001); State v. Sanders, 212 Kan. 445, 461, 33 P.3d 596 (2001), cert. denied 536 U.S. 963 (2002); State v. Lessley, 271 Kan. 780, 795, 26 P.3d 620 (2001); State v. Coleman, 271 Kan. 733, 741, 26 P.3d 613 (2001); State v. Lopez, 271 Kan. 119, 142, 22 P.3d 1040 (2001); State v. Donesay, 270 Kan. 720, 726-27, 19 P.3d 779 (2001).
Most recently in State v. Washington, 275 Kan. 644, 680, 68 P.3d 134 (2003), this court rejected the defendant’s argument that Conley should be overruled because the defendant failed to cite any authority postdating Conley, Apprendi, or McMillan that would convince the court to change its course. The same is true in this case. Conley controls.
7. Constitutionality of Statute and fury Instructions Regarding First-Degree Premeditated Murder
The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. A challenge to the constitutionality of a statute is a question of law and this court has unlimited review. In re Tax Application of Lietz Constr. Co., 273 Kan. 890, 906-07, 47 P.3d 1275 (2002).
“Constitutional attacks based upon vagueness require additional considerations. ... ‘A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.’ Kansas has long held, however, that a statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law. [Citation omitted.]” City of Wichita v. Hackett, 275 Kan. 848, 853-54, 69 P.3d 621 (2003) (quoting State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 [1983]).
The defendant argues the statute and jury instructions on first-degree premeditated murder are void for vagueness and violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution because intentional second-degree murder cannot be distinguished from first-degree premeditated murder.
Relevant to this case, murder in the first degree is the killing of a human being committed intentionally and with premeditation. K.S.A. 21-3401(a). In order to establish this charge, the juiy was instructed that it must find: “1. That the defendant intentionally killed Alfonzo Moore [or Jerry Seals]; 2. That such killing was done with premeditation; and 3. That this act occurred on the 19th day of May, 1999, in Wyandotte County, Kansas.” See PIK Crim. 3d 56.01.
Second-degree murder is the killing of a human being committed intentionally. K.S.A. 2002 Supp. 21-3402(a). In order to establish this charge, the jury was instructed that it must find: “1. That the defendant intentionally killed Alfonzo Moore [or Jerry Seals]; and 2. That this act occurred on or about the 19th day of May, 1999, in Wyandotte County, Kansas.” See PIK Crim. 3d 56.03.
In this case, the defense asked the court to instruct the jury that “[pjremeditation means to have thought over the matter beforehand. Premeditation means that there was a design or intent before the act; that is, that the accused planned, contrived and schemed beforehand to kill the victim.” The jury was instructed that “[pjremeditation means to have thought over the matter beforehand for any length of time sufficient to form an intent to act” and “intentionally means conduct that is purposeful and willful and not accidental. Intentional includes the terms ‘knowing/ ‘willful/ ‘purposeful/ and ‘on purpose/ ”
In State v. Saleem, 267 Kan. 100, 104-05, 977 P.2d 921 (1999), this court found that the definition of premeditation requested by the defendant (“that there was design or intent before the act; that is, that the accused planned, contrived, and schemed”) came from State v. McGaffin, 36 Kan. 315, 319, 13 Pac. 560 (1887), and was only of historical interest. This court found that PIK Crim. 3d 56.04(b) (1994 Supp.) correctly states that “premeditation means to have thought over the matter beforehand.” 267 Kan. at 105.
Justice Allegrucci concurred with the majority opinion but opined:
“Murder in the first degree is the killing of a human being committed intentionally and with premeditation. K.S.A. 21-3401. Second-degree murder is the killing of a human being committed intentionally. K.S.A. 1998 Supp. 21-3402(a). By defining premeditated’ as simply meaning ‘to have thought over the matter beforehand,’ the majority has effectively converted second-degree murder to first-degree murder. ‘Intentionally’ is defined as meaning ‘conduct that is purposeful and willful and not accidental. Intentional includes the terms “knowing,” “willful,” “purposeful,” and “on purpose.” PIK Crim. 3d 56.04(d). How does one intentionally kill another human being without thinking about it beforehand? The jury is also instructed that if it does not find the defendant guilty of first-degree murder, then it should consider the lesser offense of second-degree murder. It is difficult to comprehend how a jury so instructed would ever consider the lesser included offense of second-degree murder.
“As noted in the majority opinion, this court has used words such as ‘plan,’ ‘contrive,’ and ‘schemed beforehand’ to define premeditation. This court has required that a defendant not only think it over beforehand, but also to come to the conclusion that he or she would kill the victim and then do so. The majority, by approving PIK Crim. 3d 56.04(b), has, in my opinion, essentially repealed 21-3402(a).” 267 Kan. at 115. (Allegrucci, J., concurring).
This concurrence has been cited in subsequent cases considering whether the premeditated murder statute and corresponding jury instructions were unconstitutional. The defendant acknowledges that this court has recently considered this issue in State v. Groschang, 272 Kan. 652, 36 P.3d 231 (2001), but he contends this case is factually distinguishable because the evidence supported a second-degree murder instruction.
In Groschang, the defendant was convicted of premeditated murder based on the following facts: He told his accomplice that it was necessary to kill the victim, he left the house armed with a weapon intending to kill the victim, he drove 45 minutes to the victim’s location, he climbed over a fence, he opened a car door, and he fired five shots into the head of the sleeping victim. On appeal, the defendant argued that K.S.A. 21-3401(a), premeditated murder, in conjunction with the instruction that “[pjremeditation means to have thought over the matter beforehand for any length of time sufficient to form an intent to act” effectively “blurred die distinction between first-degree premeditated murder and second-degree intentional murder, making the statute constitutionally vague.” 272 Kan. at 668.
As in this case, the defendant relied on Justice Allegrucci’s concurrence in Saleem in arguing that based on such an instruction there could never be an intentional killing that would not be a premeditated killing. The Groschang court concluded that the premeditated murder statute was not constitutionally vague under the facts of the case because no evidence was presented of second-degree intentional murder and the only evidence was that the defendant committed premeditated murder. 272 Kan. at 670.
In State v. Jamison, 269 Kan. 564, 7 P.3d 1204 (2000), the defendant challenged the premeditated murder instruction given in accordance with PIK Crim. 3d 56.04(b) by citing the Saleem concurrence regarding the distinction between premeditated, intentional first-degree murder, and intentional second-degree murder. This court responded:
“Consistent with our past decisions, we conclude that the definition of ‘premeditation’ in PIK Crim. 3d 56.04(b) adequately conveys the concept that ‘premeditation’ means something more than the instantaneous, intentional act of taking another’s life. To have thought the matter over beforehand means to form a design or intent to kill before the act. [Citation omitted.]” Jamison, 269 Kan. at 573.
In State v. Hebert, 277 Kan. 61 (2004), the defendant appealed the denial of his request to add the following sentence to the jury instruction on premeditation: “A defendant premeditates a crime when he forms a design or intent before the act; that is, when the defendant contrived, planned or schemed beforehand to murder the victim.” The trial court instructed the jury in accord with PIK Crim. 3d 56.04(b) (1994 Supp.) stating: “Premeditation means to have thought the matter over beforehand.”
On appeal, this court noted its previous decisions in McGaffin, Saleem, and Jamison approving the 1994 PIK definition; however, it also recognized that the 2001 Supplement of PIK Crim. 3d 56.04(b) included the McGaffin language in its revised definition of premeditation, stating:
“Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life. PIK Crim. 3d 56.04(b) (2001 Supp.).” Hebert, 277 Kan. at 88.
The Hebert court concluded:
“This court has approved PIK Crim. 3d 56.04(b) (1994 Supp.) multiple times, most recently in Jamison, [269 Kan. 564 (2000),] Pabst II, [273 Kan. 658 (2002),] and Wimbley[, 271 Kan. 843 (2001)]. While we approve of the changes in the definition of premeditation by the PIK Committee and urge trial courts to use the new PIK instruction on premeditation, we do not depart from our most recent decision approving the PIK Crim. 3d 56.04(b) (1994 Supp.) definition of premeditation. Thus, we conclude that the trial court in this case did not err in rejecting the defendant’s proposed additional instruction.” 277 Kan. at 89.
Jamison directly addresses the defendant’s argument in this case. The definition of premeditation in Jamison, as well as in this case, adequately conveys the concept of premeditation: “To have thought the matter over beforehand means to form a design or intent to kill before the act.” 269 Kan. at 573 (citing McGaffin, 36 Kan. at 319). This distinguishes the crime of premeditated first-degree murder from second-degree intentional murder. As the crimes were distinguishable, it reasonably follows that it would not matter if evidence of second-degree murder was presented at trial.
As in Groschang, clear evidence of premeditation was presented in this case: The defendant had previously threatened to kill Wilson and Moore; he had a loaded gun; he watched Wilson and Moore drive past several times; he walked across the street to the victim’s car; and he told Wilson, “Bitch, what’d I tell you?” before opening fire on her and the other occupants. According to some of the witnesses, the defendant’s gun jammed or he paused, he started to leave, then he looked into the back seat and fired several more shots.
Moreover, it is unlikely that the jury was confused by the difference between premeditated first-degree murder and second-degree intentional murder in this case. The jury distinguished between first-and second-degree murder by convicting the defendant of one count of premeditated murder for Moore (whom he had previously threatened to ldll) and one count of second-degree intentional murder of Seals (whom he had no known motive to Mil).
For all of the above reasons, we conclude that the first-degree premeditated murder statute and corresponding jury instructions given in this case were not void for vagueness and did not violate the Due Process Clause of the Fourteenth Amendment.
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On October 19,2001, this court suspended the respondent, Fred W. Rausch, Jr., for a period of 2 years. See In re Rausch, 272 Kan. 308, 32 P.3d 1181 (2001). Before reinstatement, the respondent was required to pay the costs of the disciplinary action and to comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286).
The respondent has filed an affidavit verifying that he has fully complied with the conditions imposed upon him by this court. The Disciplinary Administrator has verified the statements contained in the respondent’s affidavit.
This court, having reviewed the files and recommendations of the office of the Disciplinaiy Administrator, finds that the respondent Fred W. Rausch, Jr., should be reinstated to the practice of law in the State of Kansas.
It Is Therefore Ordered that the respondent be and he is hereby reinstated to the practice of law in the State of Kansas as of the date of this order.
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
Dated this 11th day of May, 2004. | [
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Opinion by
Green, C.:
William Stow, one of the plaintiffs in error, brought an action in replevin in the district court of Elk county to recover the possession of a mule, which he alleged was worth $70; he gave an undertaking, as required by the statute, obtained an order of delivery and through it secure.d the possession of the mule, and then dismissed his action without prejudice. The defendant in error commenced this action in the district court of Elk county upon the replevin bond, alleging the institution of the replevin action, the giving of the bond, the obtaining possession of the mule, and the dismissal of the action; that the mule was worth $75; that the value of the mule as a work animal was 50 cents a day; that Stow, one of the defendants, had had the use of the mule for 408 days, and asked damages on the bond in the sum of $279, and for attorney’s fees. The plaintiff did not allege that he was the owner of the mule. William Stow, one of the defendants, answered that he was the owner of the property replevied, under and by virtue of a chattel mortgage, and was entitled to the possession of the same; and further alleged, that the plaintiff was not the owner of the property in controversy. A jury was waived, and the court found that the value of the property replevied was $40, and gave judgment for that amount against the defendants upon the bond.
It is urged by the plaintiffs in error, that because the plaintiff below did not allege in his petition that he was the owner of the mule the evidence offered as to the value of the mule was irrelevant and immaterial, and that he could not, under the averments of his petition, recover the value of the animal. The sufficiency of the petition was not challenged; the parties went to trial and introduced evidence as to the title and value of the mule, without objection. The pleadings were treated as if the issues had been properly made, and we do not think the plaintiffs in error can now object to the petition. It is true that the defendant in the original replevin suit had a right to have his title to the property tried, notwithstanding the dismissal by the plaintiff. (McVey v. Burns, 14 Kas. 291.) But if he does not exercise such right, he is not precluded from his remedy on the bond.
“One of the conditions of the bond is that the plaintiff shall duly prosecute his action. That is a separate and independent condition. Upon breach of that condition the defendant is entitled to recover all damages he has sustained thereby. The fact that he had not pursued one remedy given by the statute does not deprive him of the general remedy upon the bond; and as the bond was conditioned that the plaintiff should prosecute the action, and as by the dismissal thereof plaintiff has so failed to prosecute, and as by means of the bond the plaintiff has obtained possession of the property apparently belonging to the defendant, the defendant is, prima facie at least, entitled to recovery of the sureties, the value of the property thus taken from him.” (Manning v. Manning, 26 Kas. 101.)
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of McPherson county, by Josie Nichols against the city of McPherson, to recover for the use of her house for 26 days, during the months of February and March, 1888, and for her services during that period of time, and also for bed clothing and furniture used during that period and afterward taken and appropriated by the city. The case was tried before the court and a jury, and the plaintiff recovered, for her services, $78; for the articles taken, $163.75; total, $241.75, and nothing for the use of her house, as for some reason the court took that item away from the jury; and the defendant, as plaintiff in error, brings the case to this court for review.
It appears that in the month of February, 1888, a smallpox epidemic occurred in the city of McPherson. At the same time the plaintiff, Josie Nichols, owned and kept a hotel known as the “Tremont House.” On February 19, the city authorities took the possession and charge of this hotel, and converted it substantially into a pest-house; and it remained in the charge of the city authorities for about 26 days, during which time the plaintiff, at the request, as she claims, of the city’s authorized agents, devoted her services largely to taking care of persons afflicted with the small-pox; and at the expiration of such period the city authorities took the possession of much of the infected bed clothing and other articles and took them to the county poor-house, agreeing, as the plaintiff claims, that the city would pay her for the same. The city claims, however, that whatever it or its officers or agents did, they did merely as overseers of the poor, and as agents of the county.
Many of the questions discussed by counsel for the plaintiff in error in their brief, and also in their oral argument, cannot be considered by this court, as it clearly appears from the record that we do not have all the evidence before us which was introduced on the trial of the case. It is true that the record states, at the close of the evidence brought to this court, as follows: “This was all the evidence given in the case;” but we know from other portions of the record that this is not true. It is claimed by the defendant in error, plaintiff below, that certain city ordinances were introduced in evidence, and the record shows this to be the case, and the court below charged the jury upon the theory that such was true, and counsel for the plaintiff in error, defendant below, admit in their brief that such ordinances were introduced in evidence; and yet no such ordinances, nor any ordinances, are found in the record. This discredits the statement above quoted, that “this was all the evidence given in the case.” How much more of the evidence has been omitted from the record we cannot tell. Probably, however, we have all the oral testimony taken by the stenographer, and probably the foregoing statement, that “this was all the evidence given in the case,” was intended to mean that it was simply all the oral testimony given in the case. Now, as these ordinances are not in the record, it is impossible for us to know just what they contained. We cannot take judicial notice of them. (12 Am. & Eng. Encyc. of Law, 168; City of Austin v. Walton [Texas, June 17, 1887], 5 S. W. Rep. 70; Garland v. City of Denver [Col., Oct. 16, 1888], 19 Pac. Rep. 460; W. & A. Rld. Co. v. Young [Ga., Nov. 9, 1888], 7 S. E. Rep. 912; Savings Bank v. Mayor, etc. [Md., June 19, 1890], 20 Atl. Rep. 283.) In no case brought originally in any court except a city court can the court take judicial notice of city ordinances, but they must be proved as facts by competent evidence.
The first ground upon which error is predicated is the ruling of the court below holding that the defendant, the city of McPherson, might be liable under the facts of this case for the plaintiff’s services, and for the aforesaid articles of bed clothing, etc. The city of McPherson is a city of the second class, and it is claimed that, under the statutes of Kansas, no such city can be made liable in any case like the present; and it is also claimed that, if a city can be made liable in any case, that no city could be made liable under the facts of this case. The statutes referred to are §§ 21 and 31 of the second-class-city act, (Gen. Stat. of 1889, ¶¶777, 787,) and §§ 1 and 2 of the act for the relief of the poor. (Gen. Stat. of 1889, ¶¶ 4027, 4028.) We think that § 31, above referred to, gives ample power in such cases. It reads as follows:
“Sec. 31. The mayor and council of each city governed by this act, shall have the care, management and control of the city, and its finances, and shall have power to enact, ordain, alter, modify or repeal any and all ordinances not repugnant to the constitution and laws of this state, and such as it shall deem expedient for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect.” •
See also ¶¶ 817 and 818 of the General Statutes of 1889, as giving further authority to cities of the second class with respect to health, disease, hospitals, contagions, quarantine regulations, etc. Now, as the record shows that ordinances were introduced in evidence, and as such ordinances have not been brought to this court, we must assume, in order to sustain the judgment of the court below, that they gave to the mayor and the other officers of the city and to others acting under them all the power that such persons attempted to exercise, and, as the city authorities really had charge of the plaintiff’s house for the aforesaid 26 days, and through their agents employed her to perform all the services which she did in fact perform, and afterward took the bed clothing, etc., and, according to her evidence, agreed that the city should pay her for the same, we must hold that the city is liable therefor.
No material error having been shown, the judgment of the court below will be affirmed.
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Opinion by
Green, C.:
This was an action to foreclose a material-man’s lien, commenced in the district court of Neosho county. It was alleged in the petition that S. A. Brown and Owen McNulty, a firm doing business under the name of S. A. Brown & Co., furnished the lumber and building material, for which a lieu was claimed, to John S. Huntley, who had the contract for the erection of the school-house for the defendant iu error; that subsequent to the furnishing of the lumber and material, and prior to filing the statement for a lien, S. A. Brown retired from the firm and was succeeded by E. C. Robinson, but that the firm-name was not changed; that E. C. Robinson and Owen McNulty, doing business under the firm-name of S. A. Brown & Co., purchased the account of the old firm of S. A. Brown & Co. against the contractor, and were the successors in business of such firm. The statement for a lien was verified by Thomas McNulty, who had been the agent of the old firm and was also the agent of the new copartnership, claiming the lien and all rights under the assignment. The school district demurred to the petition, upon the ground that the claim of the old firm was not assignable to the new copartnership so as to authorize the assignees to claim the benefit of the lien law. The demurrer was sustained by the court, and the plaintiffs elected to stand upon the petition; and bring the case here, and now ask for a reversal of the judgment of the district court in sustaining such demurrer. The pleadings fairly raise the question of the right of the plaintiffs to a material-man’s lien, as the successors of the firm furnishing the lumber and material. The lien was filed before the passage of the law of 1889, ¶4736, General Statutes of 1889, which expressly authorizes an assignment of all claims for liens.
As stated by the plaintiffs in error, the question is whether anyone except the material man or the laborer can enforce the rights which vest in one who performs labor or furnishes material under the conditions and terms stated in the mechanics’ lien law of this state. Three different rules have been established in the several states upon this question. First, that the right to a lien is personal, and cannot be assigned. Second, the action to enforce a lien must be in the name of the assignor, but, subject to this restriction, the lien is assignable. Third, that the right to a lien is assignable as any other security, such as a mortgage, and upon the assignment of the debt the shadow follows the substance, and an action may be brought in the name of the real party in interest., (Phil., Mech. Liens, § 54.)
This case, in our judgment, stands more upon the right of succession than of assignment. There was not a complete change in the personnel of the firm; one member remained, and the law gave to the new copartnership the same rights as material men as the old firm possessed. Had one of the partners died, or had there been a sale of the interest of one to the other, we do not think the right to a lien would have been thereby lost. It was said in the case of Busfield v. Wheeler, 14 Mass. 139:
“A lien which has accrued to a partnership, for work done, and money expended upon machinery, is not lpst by the dissolution of the firm and the assignment by one partner of his interest therein to the other; but in such case the partner to whom the claim and lien have been assigned may enforce the same in the name of the firm.”
It has been held by this court that, when a mechanic’s lien is created for material furnished, the right to a lien becomes a vested right at the time the material is so furnished which the legislature cannot take away. (Weaver v. Sells, 10 Kas. 609.) If it be a vested right, we do not see why the new firm did not obtain it by succession of interest. We think, however, the greater weight of authorities, as well as the logic of the rule, supports the proposition that a mechanic’s lien is assignable, and that an assignee may maintain an action to enforce the same in his own name. The true rule for the guidance of courts has been stated in 1 Blackstone’s Commentaries, 87:
“There are three points to be considered in the construction of remedial statutes: the old law, the mischief, and the remedy; that is, how the common law stood at the making of the act, what the mischief was for which the common law provided, and what the remedy the parliament hath provided to cure this mischief. And it is the business of judges to so construe the act to suppress the mischief and advance the remedy.”
The right to a lien upon real estate for improvements by labor or material did not exist at common law. The right as it now exists in our American system of jurisprudence is statutory. It will readily be discerned that the object of such a law is to give security to the laborers and the material men who have contributed to the erection of buildings or other improvements, and the courts have said that the law should receive such a construction as will give force and effect to its provisions. Laborers, contractors and material men may be compelled, by force of circumstances, to assign their claims for labor and material furnished, it may be by the failure of the owner to meet his obligations for improvements. Why should not the party entitled to a lien have the same right to assign, his right to the money due him for labor or material, and with it the security which the law gives him, the same as a party who holds a mortgage or other security? Upon this question the supreme court of Virginia has stated the rule, in a case involving the assignability of a mechanic’s lien:
“'It is said and authorities have been cited to show that such a statute is to be construed strictly, and it is contended that it is intended exclusively for the benefit of the builder and material man. No case has been cited affirming that a contract under such a statute cannot be assigned. There is nothing in public policy or in the language or the policy of our act to forbid it; and if the statute be exclusively for the benefit of the builder and material man, it would certainly impair the. value of his lien to declare it non-assignable. It might prejudice him by depriving him of credit which he might otherwise obtain to prosecute his undertaking, and thus also operate a disadvantage to the owner, whilst the latter can in no respect be injured by the assignment, because the assignee takes the obligation subject to the same equity to which it was subject in the hands of the obligee, and must allow all just discounts not only against himself but against the assignor before notice of assignment.” (Iaege v. Bossieux, 15 Gratt. 83.)
The following authorities also fully sustain the doctrine of the assignability of a mechanic’s lien: Rogers v. Hotel Co., 4 Neb. 54; Tuttle v. Howe, 14 Minn. 145; Jones v. Hurst, 67 Mo. 568; Goff v. Papin, 34 id. 177; Skyrme v. Mining Co., 8 Nev. 219; Mason v. Germaine, 1 Mont. 263; Kerr v. Moore, 54 Miss. 286; A. & N. W. Rly. Co. v. Daniels, 62 Tex. 70; Railroad Co. v. McCaughey, 62 id. 271; Davis v. Bilsland, 18 Wall. 659; Midland Rly. Co. v. Wilcox (Ind.), 23 N. E. Eep. 508; Brown v. Harper, 4 Ore. 89; German Bank v. Schloth, 59 Iowa, 316; 15 Am. & Eng. Encyc. of Law, 102.
It is recommended that the judgment of the district court be reversed, and that the case be remanded with instructions to the court to overrule the demurrer to the plaintiff’s petition.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This is an original action in mandamus, brought by the Columbus Water-Works Company against the city of Columbus, its officers, and others, to compel the levy of a tax upon all of the taxable property in the •city, to pay the hydrant rental upon fifty hydrants for the year 1892, and for an order directing the city clerk to certify the same to the county clerk, for the county clerk to place such tax upon the tax-rolls of the county, and for the county treasurer to collect such tax and pay it over to the city treasurer for the use of the plaintiff. The same parties were before this court to have the hydrant rental levied for the year 1891. The agreed statement of facts and the proceedings in that case are made a part of the plaintiff’s petition in this case. The facts being substantially the same as in that case, reference is made to that case for a full statement of all the facts. (See Water-Works Co. v. City of Columbus, 46 Kas. 666.) Since the decision in that case, the city of Columbus has notified the water-works company that it would not receive and pay for water upon the terms heretofore charged, after the 15th day of August, 1891, and gave notice to its fire department to no longer use water from the public hydrants of the company after said date. The water company notified the city that it would continue to furnish water in accordance with the ordinance passed on the 23d day of March, 1887. The -city refused to make any provision for the future payment of hydrant rentals. To the petition of the water company the city has interposed a general demurrer.
To reach a decision in this case, the defendant has waived the question as to whether the action of mandamus is the proper remedy or not. The defendant now insists that a city of the second class cannot create a continuing liability, covering, as in this case, a period of 21 years, under an exclusive franchise for 99 years. The authority of a city of the second class to make provision to furnish water to its inhabitants, and for fire protection, has been settled in this state; and a city has the authority to grant a franchise to a person or corporation to establish water-works, and is empowered to rent hydrants from such person or corporation. (Gen. Stat. 1889, ¶¶ 787, 817, 1401, 1402, 7185-7190; Wood v. Water Co., 33 Kas. 590; Water Works Co. v. City of Burlington, 43 id. 725; Water Co. v. City of Columbus, 46 id. 666; Manley v. Emlen, 46 id. 656; Dill., Mun. Corp., 4th ed., §§ 146, 443, and note to § 568; 15 Am. & Eng. Encyc. of Law, 1115, 1118, and cases there cited.)
But it is urged that a contract extending over a period of 21 years cannot be enforced, because the officers of the municipality had no authority to bind their successors for such a length of time; that §2 of the bill of rights, which provides “that no special privileges or immunities shall ever be granted by the legislature which may not be altered, revoked or repealed by the same body,” is an inhibition against any such power. The leading cases upon this question are in conflict as to whether such a contract as the plaintiff sets out in its petition creates a monopoly or not. The question has frequently arisen between rival light and water companies; sometimes by corporations against cities, for the hydrant rentals, when the latter continued to use the water for fire purposes. In this case the city has attempted to cease using the water for any public purpose, and thus relieve itself from all liability on the contract previously entered into to pay a rental of $3,000 a year for the use of 50 hydrants. The question before us has received the attention of the courts of last resort, both federal and state, of late years, and it is somewhat difficult to reconcile the different decisions. The supreme court of the United States has held —
“That a gas company, incorporated in 1835, with the exclusive privilege of making and selling gas in New Orleans, its faubourgs, and Lafayette, up to April 1,1875, could, under an act of the legislature, consolidate with another company; and that a legislative grant of an exclusive right to supply gas to a municipality and its inhabitants through pipes and mains laid in the public streets, and upon condition of the performance of the service of the grantee, is a grant of a franchise vested in the state, in consideration of the performance of a public service, and, after performance by the grantee, is a contract protected by the constitution of the United States against state legislation to impair it.”
In granting the exclusive franchise to a municipality, a state does not part with the police power and duty of protecting the public health, the public morals, and public safety, as one or the other may be affected by the exercise of that franchise by the grantee.
The prohibition in the constitution of the United States against the passage of laws impairing the obligation of contracts applies to the constitution as well as the laws of each state. (Gas Co. v. Light Co., 115 U. S. 650; Water Co. v. Rivers, 115 id. 674; Gas Co. v. Gas Co., 115 id. 683; Water-Works v. Water-Works, 120 id. 64.)
In Street Rly. Co. v. Street Rly. Co., 73 Iowa, 513, the city of Des Moines had had the authority to grant or prohibit the laying down of street-car tracks within its limits. The court held that, although there was no grant of power in express terms authorizing the council to confer an exclusive privilege in the use of streets, under the circumstances of the case and to procure a better public service, the council could grant a valid exclusive right for the limited period of 25 years, such contract being necessary to secure the service which it might not otherwise be able to obtain. The court also decided that the constitutional restriction, which declared that no exclusive privileges should be granted except as provided for in the constitution, did not apply to the grant by a city to a person or company of the exclusive right to build and operate street railways.
In the case of City of Newport v. Light Co., 8 Ky. Law Rep. 22, it was held that when a municipal corporation has the power, express or implied, to contract with others to furnish its inhabitants with the means of obtaining gas at their own expense, it has the power to make a contract granting to a corporation the exclusive right to the use of its streets for that purpose for a term of years. The charter of the city did not, in express terms, give the power to the city to grant an exclusive privilege. The court rested its opinion upon the following grounds: First, that the power given the municipality to provide for lighting the city included the power to grant the exclusive right to the use of the streets for that purpose; and, secondly, that the Newport light company was invested, in express terms, by a provision contained in the charter, with the right to furnish any city, town, district or corporation or locality, or any public institution, etc., on such terms as may be agreed, upon. The same court has held, in a more recent case, that where a party contracts with a city for the exclusive right to remove the carcasses of dead animals therefrom, and to use its public streets' for this purpose, the law will protect him in his monopoly, and the work cannot be engaged in by others as a general business enterprise. (City of Louisville v. Wible, 84 Ky. 290.)
In New Jersey, a contract was entered into by Atlantic City with the Atlantic City Water-Works Company for a supply of water, calling for a certain annual payment, without any limit as to time, except that the city might take the waterworks at a valuation; and it was held that such a contract was legal and binding on the city. (Water - Works Co. v. Atlantic City, 48 N. J. Law, 378.) Subsequently it was held by the court of chancery of New Jersey, that, by an amendment made to the constitution in 1875, which declared that “the legislature shall not pass private, local or special laws granting to any corporation, association or individual any exclusive privileges, immunity, or franchise whatever,” the exclusive right could not be granted to a water company'to use the streets of a city. ( Water - Works Co. v. Water Co., 44 N. J. Eq. 427.)
In Tennessee, it has been held that the granting of the privilege by a municipal corporation, by legislative enactment, to a private corporation, for its exclusive use for a term of years, is not unconstitutional; and, having been granted, is, during the term of a contract, beyond the reach of subsequent legislative interference. It was decided that, notwithstanding the constitution forbids perpetuities and monopolies, an exclusive privilege to a city to erect water-works was not a monopoly, and that granting an exclusive privilege for a term of years to a private corporation did not render it a monopoly. (City of Memphis v. Water Co., 5 Heisk. 495.)
The supreme court of Wisconsin has decided that the legislature could confer upon a private corporation the exclusive right to manufacture and sell gas, and to erect works and lay pipes therefor within the limits of the corporation. (The State v. Gaslight Co., 29 Wis. 454.) There seemed to be no constitutional limitation when this case was decided, and the court expressly held that the legislature might create a monopoly.
The supreme court of Connecticut, in the case of Water Co. v. Hydraulic Co., 55 Conn., 1, where the city councilof Bridgeport had accepted a proposition from a party to supply the city with water, and granted him, with the power of assignment, the exclusive right to lay pipes in the streets so long as a full supply of pure water should be furnished, and the Bridgport Hydraulic Company acquired such right by assignment, and expended large sums of money in establishing water-works, held that, so long as this company supplied the city with an abundance of water, the legislature had no power to give another corporation the right to lay pipes in the streets of the city for the purpose of supplying the city with water. The court said —
“That it was the duty of the court to preserve contracts inviolate, rather than to destroy monopolies. The legislature, having in effect authorized the city to make a contract which
it desired to make, will not — cannot — now relieve it. Although the state is no party to, and has no interest whatever in, the subject-matter of a contract, if it volunteers to invest a creature of its own, otherwise powerless, with power to make it, the legislature is thereafter concluded in reference to it. It is a lawful contract between two natural persons of full legal capacity, sacred from any interference other than judicial construction.” "*
The court of appeals of New York has decided squarely against this doctrine. Under a law passed in 1865, Middle-town was authorized to contract with a gas company for street lighting, but was given no specific power to make a continuing contract. The town made a contract for five years. In 1866 the law of 1865 was unconditionally repealed. The gas company brought an action to recover for gas furnished in 1870, under a contract made with the board of town auditors in 1865. The court said:
“Prior to the passage of the act of 1865, the town had no power to cause any of its streets to be lighted with gas or in any other way. By that act such power was conferred upon the defendant. For what time? The learned counsel for the appellant insists, for the term of five years at least, for which the contract was entered into by the plaintiff with the town auditors to furnish gas, and that during that time the legislature had no power to relieve the town or any part of it from the expense of lighting all the streets embraced in the contract, whatever the necessity for such relief might be. If the board of town auditors could deprive the legislature of this power for five years, by entering into a contract with the plaintiff for that time, it might for 100 years by contracting for that period. I think it clear that no such power was conferred by the act upon the town auditors.” (Gas Co. v. Middletown, 59 N. Y. 228.)
In City of Chicago v. Rumpff, 45 Ill. 90, it was held that municipal corporations were created solely for the public good, and to that end the corporate authorities were held to a strict exercise of the franchises conferred; that a right to do all slaughtering of animals within the city of Chicago for a specified period was void, because creating a monopoly.
In Gale v. Kalamazoo, 23 Mich. 344, where a party had been given the right by contract with the municipality to build and control a market-house for the period of 10 years, the contract was held void because it created a monopoly. Judge Cooley said in this case:
“It is impossible to predicate reasonableness of any contract by which the governing authority abdicates any of its legislative*powers, and precludes itself from meeting in the proper way the emergencies that may arise. Those powers are conferred in order to be exercised again and again, as may be found needful or politic; and those who hold them in trust to-day are vested with no discretion to circumscribe their limits or dimish their efficiency, but must transmit them unimpaired to their successors. This is one of the fundamental maxims of government, and it is impossible that free government, with restrictions for the protection of individual or municipal rights, could long exist without its recognition.”
The same question was considered in the case of The State v. Gaslight Co., 18 Ohio St. 262, where the charter of the city conferred on the gas company power “ to manufacture and sell gas, to lay pipes, etc., provided the consent of the city council be obtained for that purpose.” Undér the power given to the city council of Cincinnati, “to cause said city or any part thereof to be lighted with oil or gas, and to levy a tax for that purpose,” it contracted to invest the defendant with full power and exclusive privilege of using the streets, etc., for the purpose of lighting the city for the period of 25 years, and thereafter until the city should purchase the gas-works. It was held that, while there was no doubt about the city’s authority to make the contract for gaslight, there was no necessity for making such right exclusive.
In Logan v. Pyne, 43 Iowa, 524, the city of Dubuque had granted to the plaintiffs the exclusive privilege and franchise of running omnibuses to carry passengers upon the streets of the city from the 4th day of January, 1872, to the 1st day of January, 1877. The plaintiffs alleged that they had complied with the ordinance granting them such right, and charged the defendant with violating their right by running omnibuses upon the streets of the city, and that he had received large sums of money which the plaintiffs were entitled to under the ordinance granting them such right. The court held:
“ The powers of municipal corporations are limited to the express terms of the grant, and will not be extended by inference. A municipal corporation can confer exclusive privileges for the prosecution of business only under an express grant of power from the legislature. Monopolies being prejudicial to the public welfare, the courts will not infer grants thereof, refusing to presume the existence of legislative intention in conflict with public policy.’’
In the case of City of Brenham v. Water - Works Co. (Tex.), 4 S. W. Rep. 143, a city ordinance granted to the water company the right and privilege, for the term of 25 years from the adoption of the ordinance, of supplying the city of Brenham and its inhabitants with water for domestic and other purposes, and for the extinguishment of fires. By the ordinance the city agreed to pay to the water company $3,000 per annum, during the term of 25 years, as hydrant rental. The charter gave the city power to provide the city with water for the convenience of the inhabitants and the extinguishment of fires. A general law authorized any city in which a water company was organized to contract with it' for supplying the city with water. It was held that, while the several laws, taken together, undoubtedly authorized the city to make some contract for supplying itself with water, yet they did not confer on the city express power to make a contract granting the water company the exclusive right to supply the city and inhabitants with water for 25 years at a fixed rate per annum; and as no such power was necessary to the proper exercise of the power expressly granted, it could not be implied, and that such a contract was unauthorized and invalid. In this case the court said:
“ We do not wish to be understood to hold that a municipal corporation has no power, in any event, to contract for such things as are consumed in their daily use for a period longer than the official term of the officers who make the contract; but we do intend to be understood to hold that such corporations have no power to make contracts continuous in character, in reference to such things or any others, by which they will be, in effect, precluded from exercising from time to time any power, legislative in character, conferred upon them by law.”'
In Davenport v. Kleinschmidt, 6 Mont. 502 (same case, 13 Pac. Kep. 249), it was held that the grant by a city council of the exclusive right of selling to the city of Helena all the water required by it for sewerage and fire purposes for the period of 25 years, at a minimum rate fixed in the contract, was a monopoly; and this, though the grant does not prevent other people from selling water to private citizens; that a city council has no authority to grant to any person a monopoly, even, where no express prohibition is found in the charter or other acts of the legislature. In delivering the opiuion in this case, among other things, Mr. Justice McLeary said:
/Then, the power to provide the city with water, by making a proper contract with some person to erect water-works and sell water to the city, being conceded, the next question that presents itself is as to the power of the city to make this particular contract. Is the present such a contract as to be beyond the power of the city council to enter into, so as to-bind the municipal corporation? Does this contract create a monopoly? For, .if it does, it goes beyond the power of a city council. Monopolies may be created; but they must be called into being -by the sovereign power alone. A city council has no authority to grant to any person a monopoly, even where no express prohibition is found in the charter or other acts of the legislature. Monopolies are contrary to the genius of a free government, and ought not to be encouraged by the people or countenanced by the courts, except when expressly authorized by positive law. In many of the state constitutions, an announcement of this principle is already explicitly declared. A monopoly is defined by the best and oldest law writers to be ‘an institution or allowance by a grant from the sovereign power of a state, by commission, letters patent, or otherwise, to any person or corporation, by which the exclusive right of buying, selling, making, working or using anything is given/ (2 Bouv. Law Die. 194; 5 Bac. Abr. ‘S/; 3 Co. Inst. 181.) It has also been well defined in a late work as follows: ‘The popular meaning of “monopoly ” at the present day seems to be the sole power (or a power largely in excess of that possessed by others) of dealing in some particular com modity, or at some particular place or market, or carrying on some particular business.’” (2 Rap. & L. Diet. 834, 835.)
In Minturn v. Larue, 23 How. 435, it was held that a charter authorizing the city of Oakland to establish and regulate ferries, or to authorize the construction of the same, gave no power to the city to grant an exclusive privilege. In delivering the opinion of the court, Mr. Justice Nelson said:
“It is a well-settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising ■out of the terms used by the legislature must be resolved in favor of the public.”
In the case of Jackson Co. Horse Rly. Co. v. Rapid Transit Co., 24 Fed. Rep. 306, Judge Brewer, now of the supreme bench, held that, in the absence of express authority in its charter, the City of Kansas had no power to grant to a street railway company the sole right, for the space of 21 years, to construct, maintain and operate a railway over and along the streets of such city. In deciding that case, the judge observed “That he had been charged with the duty of preparing the cpinion of this court in the case of Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kas. 660, where the right of a street railway to occupy the streets of the city was challenged; that the opinion there formed by him had not been changed by the able and exhaustive argument of the learned counsel for the complainant. There, as here, the city was given by its charter general supervision and control of the streets of the city, but was not given, in express terms, power to authorize street railroads. In other words, the power vested in the city and the extent to which that power had been exercised by the city are alike. The court did not decide the precise question here presented, but expressly declined to give any opinion thereon, holding that, under the grant of general supervision and control of the streets, the city had power to permit the occupation of its streets by a street railroad. But obviously there was opened for inquiry the broad question of the power of a city under such a general grant, and that question was made the subject of full and careful investigation.”
In Gaslight Co. v. City of Saginaw, 28 Fed. Rep. 529, it was held that authority given “to cause the streets of a city to be lighted, and to make reasonable regulations” with reference thereto, did not empower the city government to grant to one company the exclusive right to furnish gas for 30 years; that the exclusive right to light a city with gas for 30 years was not legally “impaired” by a subsequent contract, with another company to light the streets of the city with electricity. This case was decided by Judge Brown, now of the supreme court of the United States, and the authorities were fully reviewed, and the principles involved were elaborately discussed.
In the case of Horse Rly. Co. v. Cable Tramway Co., 30 Fed. Rep. 328, Judge Brewer said:
“This rule of construction, against the grantee, which applies in all legislative grants, obtains with the greater force in a case like the one at bar, where the grant claimed is not merely the right to do something, but of a right to exclude all of the rest of the public from doing that thing. He who. says that the state has given him a franchise, a right to do that which without that franchise he could not do, will be compelled to show that the franchise, the right claimed, is within the terms of his grant. Much more strenuous must be the demand upon him for clear and explicit language in his grant when he claims that a .part of it is not merely the franchise, the right to do, but also the right to exclude all others of the public from exercising the same right, and the state, as the representative of the public, from according the same right to another.”
See, also, Proprietors, etc., v. Wheeley, 2 Barn. & Adol. 793; Charles River Bridge v. Warren Bridge, 11 Pet. 422; Perrine v. Canal Co., 9 How. 172; Grand Rapids E. L. & P. Co. v. Grand Rapids E. E. L. & F. Co., 33 Fed. Rep. 659.
. The supreme court of Pennsylvania has stated the rule with reference to the grant of franchise in Railroad Co. v. Canal Comm’rs, 21 Pa. St. 22:
“ When a state means to clothe a corporate body with a por tion of her own sovereignty, and to disarm herself to that extent of the power that belongs to her, it is so easy to say so,, that we will never believe it to be meant when it is not said. In the construction of a charter, to be in doubt is to be resolved;, and every resolution which springs from doubt is against the corporation.”
Judge Drummond said, in the case of Garrison v. City of Chicago, 7 Biss. 488:
“The officers of the city — the members of the council — are-trustees of the public. They are clothed with authority to-legislate upon public' interests. There can be no doubt that the right to regulate the lighting of the streets, and to furnish means for the same by taxation, is in its nature legislative-power. It concerns the whole public of the city. The effect of the contract in question by the city authorities in October, 1869, if valid, was to bind their successors for 10 years as to-those matters of legislation. If it be conceded that the power existed as claimed, then it practically follows -that at the end of the term, in 1879, a contract may be made by their successors without limit, and which may bind the public indefinitely. I am unwilling to sanction a principle which, in a case like this, would lead to such results. The safer rule is to hold the officers of a municipality to a rigid accountability in the discharge of their trust. In all cases of contracts to run for years, the authority to make them should be clear; because they involve pecuniary liability, and it is a tax upon future property-owners of the city. To sustain the contract between the city and gas company in this case would encourage the making of such contracts in the future. It would place it in the power-of companies whose interests were to be affected by them to multiply them, and to continue them when the public interest demanded they should cease. To condemn it is to prevent, so-far as it may tend to produce that result, the use of influences-which look to private rather than to public profit. It is better that all parties should understand there is a limit to the power of municipal bodies in such cases.”
The supreme court of Illinois passed upon a question similar to the one now under consideration in the case of City of East St. Louis v. Coke Co., 98 Ill. 415, where it was held that—
“It does not appear in the case, nor is it claimed, that the city has exercised its powers by ordinance or otherwise, or- manifested a wish to provide differently than as by the contract. So far as the contract has been executed, it has been one for the furnishing of the light during the pleasure of the city. Courts should not destroy the contract made by parties further than some good reason requires. Such an objection is made to this contract. That it interferes with the exercise of the legislative or governmental power of the city over the subject, does not require that the contract should be held void, but only voidable so far as it is executory.”
To the same effect are Gaslight Co. v. City of Decatur, 24 Ill. App. 544, and Water-Power Co. v. City of Carlyle, 31 id. 325; Bradley v. Ballard, 55 Ill. 413.
It will be seen by this extended review of the authorities, both state and federal, that there are three classes of decisions upon this important question. The supreme court of the United States holds that where there has been an express legislative grant, upon a condition of performance, in consideration of such performance and public service, after performance by the grantee it becomes a contract which is protected by the constitution of the United States. A number of states, notably Tennessee and Wisconsin, have said that such a grant is not a monopoly, and is fully protected and held as inviolable as a contract between private parties or private corporations; while other states and some federal courts have held that a municipal corporation cannot make contracts beyond the legislative life of its mayor and governing body. Wfe are not ready to indorse the latter class of decisions, or to go to the full extent of the former. We are not inclined to the opinion that the question that the city has attempted to grant an exclusive franchise is necessarily material in this case, under its present status. It is not a question between contending water companies as to which shall have certain privileges. No company is offering to furnish a better supply of water upon more reasonable, terms; hence we do not think the franchise should now be held void by reason of its exclusiveness. That question should not be decided until it is before us in a case in which it would be proper for us to pass upon it. Again, if we are to follow former precedents, much of the argument of counsel for the city is lost, wherein he contends that the franchise claimed is in. direct conflict with § 2 of the bill of rights. This court has said, speaking through Mr. Justice Brewer, that the words, “no special privileges or immunities,” refer to privileges or immunities of a political nature. (Street Rly. Co. v. Mo. Pac. Rly. Co., supra.)
It is conceded that the plaintiff has only been furnishing water to the city of Columbus for a period of a little more than four years, the works having been tested and accepted on the 28th day of December, 1887. So far as the plaintiff can make it, the contract is an executed one; and during the period of its existence while the city used the hydrants and paid the rental it became an executed contract, so far as the city was concerned. Now, the city having, by its contract and permission, invited the expenditure of a large sum of money by the plaintiff in erecting its works, in order to give the city such fire protection as it had agreed to pay for in the manner indicated in the ordinance, should not the water company be given a reasonable time in which it might have the benefits of a contract which had been agreed to and recognized ? Or, shall we say that, because there was no express authority to make the contract for the period of 21 years, it is therefore void? To hold to the latter proposition, when the parties cannot be placed in the same condition they were in before the contract was executed, would be a violation of the plainest rules of good faith. The plaintiff alleges that in pursuance of the contract it has expended large sums of money in constructing its water plant; that bonds to the amount of $60,000 have been issued, which are secured by a mortgage upon said plant; that the rentals from private consumers of water, and other resources, are not sufficient to pay the interest on the bonds as the coupons mature, and it has no means of paying the interest except from the rentals which the city had contracted to pay; that the city has no other supply for water, and no other franchise has been granted; and that the city and its inhabitants are without protection from fire except as provided by the plaintiff; that the city is practically the same size it was in 1887, and the taxable property is substantially the same now as then. As the case stands here upon demurrer, of course we assume these facts to be true.
In Hitchcock v. Galveston, 96 U. S. 341, the city council had contracted with the plaintiffs to build certain sidewalks, to be paid for by the city in bonds. The work was partly performed, but the city council stopped the work and prevented its completion. An action was brought for a breach of the contract. It was urged that the city had no power to make such a contract, and it had no authority to issue the bonds of the city. The court said:
“It is enough for the plaintiffs that the city council have the power to enter into a contract for the improvement of the sidewalks; that such contract was made with them; that under it they have proceeded to furnish material and do work, as well as to assume liabilities; that the city has received and now enjoys the benefit of what they have furnished; that for these things the city promised to pay; and, after receiving the benefit of the contract, broke it. It matters not that the promise was to pay in a manner not authorized by law. If payment cannot be made in bonds, because their issue is ultra vires, it would sanction rank injustice to hold that payment need not be made at all. Such is not the law. The contract between the parties is in force so far as it is lawful.”
The court cites in support of the decision the case of State Board of Agriculture v. Street Rly. Co., 47 Ind. 407, where the court held that—
“Although there may be a defect of power in a corporation to make a contract, yet if a contract made by it is not in violation of its charter, or of any statute prohibiting it, and the corporation has by its promises induced a party, relying on the promises and in execution of the contract, to expend money and perform his part of the contract, the corporation is liable on the contract.”
We do not wish to be understood as upholding the contract upon which the plaintiff relies for any particular, period of time, but we are not prepared to say that it is void; neither would we apply the rule with the same strictness to municipal corporations that should govern private corporations organized for gain. Courts should be governed by the conditions and circumstances surrounding municipalities, and regard them as branches of the sovereign government. When improved methods are offered which will give to the city better facilities in the way of water, lights, and travel, or in any other manner give to its inhabitants increased safety and protection, the governing power of the city should be free to act; but until such time comes, courts should not set aside contracts which have been in part, at least, executed, unless-for some good cause. The circumstances surrounding each particular case will have to largely govern, and no fixed and determinate rule can be established. The facts as presented* by the pleadings are not sufficient, in our opinion, to authorize us to say that the contract entered into between the city and the water-works company is ultra vires, and should not, therefore, be enforced.
To show the limit to which the supreme court of the United States has gone in upholding franchises of a similar nature as the one under consideration, we quote the language of Mr. Justice Davis in The Binghampton Bridge, 3 Wall. 51:
“The purposes to be attained are generally beyond the-ability of individual enterprise, and can only be accomplished through the aid of associated wealth. This will not be risked unless privileges are given and securities furnished in an act of incorporation. The wants of the public are often so imperative that a duty is imposed on the government to provide-for them; and, as experience has proved that a state should not directly attempt to do this, it is necessary to confer on* others the faculty of doing what the sovereign power is unwilling to undertake. The legislature therefore says to public-spirited citizens: ‘ If you will embark with your time, money and skill in an enterprise which will accommodate the public necessities, we will grant you, for a limited period, or in perpetuity, privileges that will justify the expenditure of your money and the employment of your time and skill.’ Such a grant is a contract, with mutual considerations, and justice and good policy alike require that the protection of the law should be assured to it.”
Mr. Justice Valentine, in the case of Brown v. City of Atchison, 39 Kas. 54, speaking for this court, after a review of the authorities upon the question of corporate power, educed the following principles:
“Where a contract is entered into in good faith between a corporation, public or private, and an individual person, and the contract is void, in whole or in part, because of a want of power on the part of the corporation to make it or to enter into it, but the contract is not immoral, inequitable, or unjust, and the contract is performed in whole or in part by and on the part of one of the parties, and the other party receives benefits by reason of such performance over and above any equivalent rendered in return, and these benefits are such as one party may lawfully render and the other party lawfully receive, the party receiving such benefits will be required to do equity towards the other party, by either rescinding the contract and placing the other party in statu quo, or by accounting to the other party for all benefits received for which no equivalent has been rendered in return; and all this should be done as nearly in accordance with the terms of the contract as the law and equity will permit.”
1- tractivity •water com®|nyiron As this court has already decided, the city of Columbus had the authority to make a contract for the supply of water for protection against fire; and as such contract has been entered into and carried out in part, we are not prepared to say that it is void because the authorities of the city did not possess the power to make a contract _ _ . _ . A f0r the period of 21 years. If the contract had only been executory and no rights had accrued, we might hold otherwise. As to the ratification of irregular •contracts, see authorities cited in Water - Works Co. v. City of Columbus, 46 Kas. 677.
2. Tax umitatl0n It is forcefully urged by counsel for the city that, under ¶ 796 of the General Statutes of 1889, the contract with the water company is void; that a city of the second class cannot create a valid liability which requires a tax to be levied in excess of 4 per cent. The paragraph reads: “At no time shall the levy of all the city taxes of the current year for general purposes exclusive of school taxes exceed 4 per •cent, of the taxable property of the city, as shown by the assessment books of the preceding year.” It appears from the pleadings in the former case that the city tax for the year 1890 was 27f mills. This does not include the state and county tax, and we think the limitation only applies as stated to the city taxes of the current year for general purposes. Adopting this construction of the law, the position of counsel is not tenable.
It is recommended that the demurrer to the petition be overruled.
By the Court: It is so ordered.
Valentine, and Johnston, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
On the first consideration of this case; it was decided that the poles and wires attached to an electric light plant and premises were appurtenances of the same, within the meaning of the mechanics’ lien statute, and that persons who furnished labor or material for such appurtenances were entitled to a lien on the whole. Our attention is now called to another question, which was not.considered, but which is fairly in the record, viz.: Is the property of an •electric light company, having a franchise from the city to occupy its streets in the transmission of light to the inhabitants of a city, subject to a mechanic’s lien?
It is contended that this corporation, like a railroad company, is an instrumentality of the public, authorized and established for the convenience and benefit of the public, and that, on the. grounds of public policy and necessity, its operation should not be disturbed or its property subjected to a lien at the instance of a laborer or material-man who has contributed to the building of its plant. If it were conceded that the railroad company and the electric light company are to be placed in the same class of corporations, we would still think that there was no public policy nor necessity which required an exemption of their property from liability to the ordinary process of law or to a mechanic’s lien.
The general rule is, that the public property of a municipal corporation is not subject to seizure and sale; and it is generally held that a mechanic’s lien cannot be enforced against property which is not subject'to sale on execution. The reason for this exemption is, that such corporations are instrumentalities of the government itself, and the seizure and sale of the public property would interrupt and suspend the functions of government, and also that other provisions have been made by law for the collection and payment of public obligations. Corporations, however, such as the one claiming exemption here, although they serve the public convenience to some extent, are not organized merely for public advantage, but are operated largely for the private benefit of the incorporators. In this state such corporations may mortgage or sell their property; and the general rule is, that property of a corporation which may be sold under a mortgage or specific lien given by the owner may be subjected to a mechanic’s lien. If a corporation may, by its voluntary act in creating a specific lien, subject its property to seizure and sale, it is difficult to find any substantial objection to allowing and enforcing the claim of a laborer or material man against the same property under the mechanics’ lien law.
In some of the states, notably Pennsylvania, (Foster v.
Fowler, 60 Pa. St. 27; Guest v. Water Co., 21 Atl. Rep. 1001; see, also, Graham v. Coal Road Co., 14 Bush, 425,) it has been held, under their statutes, that a mechanic’s lien will not attach to the property of gwasi-public corporations. But oür statute does not in terms or by implication warrant any such exemption. The language of the statute is broad and comprehensive, and contains no suggestion of any exemption such as is claimed here. Under the terms of this statute, it has been held that a lien may be secured on a public school-house erected by a school district. (Wilson v. School District, 17 Kas. 104; School District v. Conrad, 17 id. 522.) Although some of the authorities hold in favor of the exemption, because a judicial sale or the enforcement of a mechanic’s lien would impair the usefulness of such corporations, and occasion public inconvenience, yet it has been well said that “the evil of withdrawing avast and constantly increasing amount of the wealth of the country from the reach of creditors has been regarded as so real and serious that the courts have not given it their countenance or support; and at the present day the property of corporations other than municipal, though essential to the enjoyment of the corporate franchises, is most universally treated as subject to execution.” (1 Freem., Ex., § 126. See, also, Hill v. Railroad Co., 11 Wis. 214; Railroad Co. v. Gilmore, 37 N. H. 410; Platt v. Railroad Co., 26 Conn. 544; Coe v. Peacock, 14 Ohio St. 187; Lathrop v. Middleton, 23 Cal. 257; The State v. Rives, 5 Ired. 307; Board of Education v. Greenebaum, 39 Ill. 609; Arthur v. Bank, 17 Miss. 394; Storage Co. v. Southwark, 125 Pa. St. 248; Phil., Mech. Liens, §182.)
The rehearing will be denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding brought to review a ruling of the district court of Clark county refusing to vacate a judgment which had been rendered in an action brought upon an arbitration bond. It appears that certain matters which were in controversy between Burchett & Fraley and John M. Anderson were submitted to the decision of a board of arbitrators, mutually chosen by the respective parties, each of whom gave an undertaking binding the obligors to pay any award that might be made. The result of the arbitration was an award of $700.45 in favor of Burchett & Fraley, upon which judgment was entered in the district court. That award and judgment has heretofore received the consideration of this court, and its legality has been determined. [Ante, p. 153; 29 Pac. Rep. 315.) The award and judgment were not paid or satisfied, and hence an action was brought by Burchett & Fraley upon the arbitration bond, which had been executed by Anderson with Theis as surety. Personal service was made on Theis, and a summons was sent to Lyon county, where Anderson had resided, and placed in the hands of the under-sheriff of that county, who returned that he had served the same “ by leaving a copy thereof with the indorsements thereon at the usual place of residence of the within-named John M. Anderson.” No answer was filed by either of the defendants, and judgment was rendered in favor of Burchett & Fraley for $500, the amount specified in the arbitration bond. Within a few days Anderson appeared and filed his affidavit, and one made by another, to the effect that he did not reside in Lyon county when service of summons upon him was attempted, but that for several months before that time, and ever since, he had been a bona fide resident of Colorado. He contended that the judgment had been rendered without service or jurisdiction, and moved to,have it set aside. Although no counter-affidavits or other testimony were offered by Burchett & Fraley, the court refused to vacate the judgment. If Anderson had removed to Colorado, and was a bona fide resident of that state at the time the service was attempted in Kansas, and if no appearance was made in his behalf, the judgment rendered against him is absolutely void and should have been vacated; but whatever the fact may be as to his place of residence, it cannot be said that the judgment was rendered without jurisdiction. Prior to the judgment an attorney appeared in behalf of Anderson, and asked leave to make a showing for right to answer out of time, which was granted. Afterward, the attorney filed his own affidavit, stating that he was the attorney for Anderson, with full authority to appear for him in this cause, and giving several reasons why an answer had not been previously filed. The court held the reasons to be insufficient, and hence no answer was filed. This constituted a general appearance, which waived any defects in the steps taken to obtain jurisdiction, and is equivalent to personal service. Anderson does not deny the right of the attorney to make the motion and showing for time to plead, and, although it was unsuccessful, it undoubtedly gave the court jurisdiction over the person of the defendant.
Another point in the case is, that the allegations of the petition were insufficient to warrant the judgment that was given. One of the provisions in the arbitration bond was that the result of the arbitration should be made a rule of court, and the petition fails to affirmatively allege it had been made a rule of court prior to the commencement of the action. There is nothing substantial in this point. It will be remembered that the judgment was rendered upon default, and although it is not positively stated in the petition that the award had been made a rule of court, it is stated by the attorney in his affidavit for leave to plead that it was made a rule of the district court of Clark county and judgment entered thereon at a preceding term. This statement was placed in the record by plaintiff in error, and, being one of the conceded facts, its omission from the petition affords no ground for reversal.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This action was brought by Morrison Bros, to recover the sum of $200, alleged to have been subscribed by the defendant, Emma C. Wells, for the benefit of the plaintiffs, together with other subscriptions of other persons, amounting in all to $4,000, as inducement to the erection by the plaintiffs of a hotel in the city of Great Bend, Kas. The action was begun before a magistrate, who gave the plaintiffs a judgment. Defendant appealed to the district court, where the case was tried by the court without a jury, resulting in a judgment for the defendant. The plaintiffs bring the case to this court. The defendant challenges the case-made, and says that it does not show that the motion for a new trial was filed within the time allowed by law, and that the case cannot for that reason be considered by this'court. The record shows that the case came on for trial on the 23d of February, 1889, and the journal entry shows that the judgment was rendered on the same day, though the motion for new trial recites that the judgment was rendered on the 26th of February. The record does not state when the motion for new trial was filed, but the following statement is incorporated in the record, immediately following the journal entry: “ Whereupon the plaintiffs duly filed their motion to set aside the judgment in said cause and for a new trial, which said motion was in words and figures following.” Then follows the motion.
Is this case properly in this court? We think it is. This court held, in Hill v. Wand, 47 Kas. 340, (27 Pac. Rep. 988,) that the sentence, “thereupon the defendants filed, in writing, their motion for a new trial,” immediately following the verdict in the record, must be construed to mean that the motion for a new trial was filed immediately after the return of the verdict. That case is decisive of this. But in this case the recital in the record is in one respect somewhat more complete than in the case cited. In this record the recital is, “Whereupon the plaintiffs duly filed their motion.” The word “duly” means properly, regularly, and in this connection indicates that the motion was regularly and properly filed.
The contract sued on in this case contains conditions precedent to be performed by the plaintiffs before the liability of the defendant attaches. It is conceded that these conditions were not performed within the time designated in the contract for their performance. If, therefore, time is of the essence of the contract, the defendant was not liable, unless she may be said to have waived the conditions. The contract reads as follows:
“We, the undersigned, owners of real estate adjacent to lots 13, 14,15, and 16, in block 77, city of Great Bend, Kas., in consideration of the erection by Morrison Bros, upon said lots, a modern, three-story stone with galvanized-iron trimmings and brick hotel, containing not less than 50 sleeping rooms, agree to pay to said Morrison Bros, the sum of $4,000, each paying the sum set opposite his or her name when said building is under roof and plastered, provided the same is plastered on or before the 1st day of December, 1887. This subscription to be null and void if the said Morrison Bros, do n’t begin work on or before the 1st day of April, 1887, and continue till completed. Said hotel to be between 80 and 90 feet wide and between 85 and 100 feet long, and to cost about $25,000 when finished, and to be completed January 1, 1888. Morrison Bros.”
The first condition precedent may be found in the first part of the contract, and, stripped of immaterial words, reads as follows: “We agree to pay to said Morrison Bros, the sum of $4,000, when said building is under roof and plastered, provided the same is plastered on or before the 1st day of December, 1887.” The condition upon which the money is to be paid is, that the building shall be plastered on or before the 1st day of December, 1887. There is nothing in the subject-matter of the contract that tends to make time of the essence thereof. Outside of the express terms of the contract, it would not seem to make any serious difference to the defendant whether the building was plastered on or before the 1st day of December, or a few days later. So far as we can gather from the record, the defendant would not suffer any by the delay. But have not the parties to the contract, by fixing a time within which the building should be plastered, and making the payment of the subscription conditioned thereon, made time an essential element of the contract? The parties subscribing had a right to make the payment of their subscriptions dependent upon any conditions they might require to be inserted in the contract. They said, “We will pay our subscriptions provided the hotel is plastered by December 1, 1887.” Does not this proviso create a condition precedent that must be performed before any liability to pay their subscriptions could attach to the subscribers? And must not the condition be performed according to the stipulation of the contract, as to time, as well as to all other particulars? We think so.
In Warren v. Bean, 6 Wis. 120, the court says: “Where a party contracts to perform certain work or labor in a specified manner, and by a specified time, the time is as much the essence of the contract as the manner in which the work or labor is to be performed.” This was an action on a contract, under which the plaintiff agreed to do certain work on a lumber slide on the Wisconsin river during the winter months of 1851. He failed to show on the trial that he completed the job during the winter months of 1851, but recovered a judgment, which was reversed, the court saying: “On an examination of this agreement, we have no kind of doubt but the plaintiff’s right to recover depended upon his performing the contract on his part according to its terms, or his showing some good excuse for not doing so.”
In Allen v. Inhabitants of Cooper, 22 Me. 135, the court declares, that “if there was an agreement in the first instance, as to the time within which the contract was to be performed, and there has been no waiver of it, time is of the essence of the contract. The contract in this case was for laying out and building a public road, and the work was to be done within that and the next year. On the trial below the court was asked to instruct the jury that time was of the essence of the contract, but the court refused to give such instruction. A judgment was had for the plaintiff, and reversed, because it did not appear that the plaintiff had performed in time, though the road was used by the public.
The case of Jones v. United States, 96 U. S. 24, was upon a contract for the supply of cloth. By the terms of the contract, the cloth was to be delivered in installments of a certain number of yards per month. Several installments of the cloth were delivered on time and paid for. The mill then burned down. Jones got other parties to make the cloth for him, but his delivery was delayed beyond the time specified in the contract. In the meantime cloth of like kind and quality had declined in price, and the quartermaster refused to accept and pay for the balance of the cloth, and the court held that time was of the essence of the contract, and the quartermaster was not bound to accept and pay for the cloth, because not delivered according to the- stipulations in the contract.
Bishop on Contracts, § 1344, says: “And, in general, in a court of law, the time within which a contract is to be performed is as much the essence of it as any other part.” In Cromwell v. Wilkinson, 18 Ind. 365, the court says: “At law, time is of the essence of the contract, and strict performance is generally required.” In that case there was an ordinary written contract, by the terms of which Wilkinson was to sell and deliver to Cromwell a certain number of hogs of a certain weight, between the 1st and 10th of December. Cromwell advanced $400. The hogs were not delivered according to contract. Cromwell sued to recover back his advancement. Judgment went against him for costs, and was reversed, because there was no showing on the trial that Wilkinson tendered the hogs in time under the conditions of the contract.
In Potter v. Tuttle, 22 Conn. 512, the court says that a court of equity will hold parties to the time fixed in their contract, unless there is a mistake or other excuse falling within the legitimate province of such court. It says:
“When parties have deliberately, by their agreements or covenants, fixed the time for the performance of an act, a court of equity will be very cautious how it interferes in disregard of it, and will not do this, unless by reason of mistake, or for other. cause falling within the legitimate province of such court, it shall see that essential justice demands the exercise of its jurisdiction.”
It thus seems that under the law time should be considered essential in the condition precedent in this case. We do not think there was any waiver in this case. Nothing was done on said building on the strength of any statement of the defendant, outside of her contract, acknowledging liability. The conditions had all been performed before any verbal promise to pay was made by defendant. And besides, she supposed, at the time of her several verbal statements, that the building was completed according to contract, and was so informed by the plaintiffs.
There is another feature in this case that we think would require this court to affirm it, even if we should hold that time was not essential to the condition precedent of the contract. If the contention of the plaintiffs that time is not of the essence of condition precedent is true, and they were entitled tó recover if they performed within a reasonable time, yet what was a reasonable time was a fact to be found by the court; and as the court made a general finding against the plaintiffs they are concluded by it, unless this court can say the evidence does not support the finding. Some of the evidence shows the plastering was not even substantially completed until about the last of December, and not absolutely completed until some time after. The evidence shows also that the hotel was substantially completed by the first of February, a month after it should have been under the strict letter of the contract, and that it was not absolutely completed until some time later. This matter of a reasonable time having been submitted to the court and found against the plaintiffs, this court cannot, under the facts as disclosed, say that the plastering was done within a reasonable time, nor that the building was completed within a reasonable time under the contract, and therefore for this reason the case must be affirmed.
It is so recommended.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Beadle commenced this action against the railroad company on the 27th day of March, 1888. His petition contained 613 causes of action. He claims as assignee of the firm of Beadle & Henning. The first cause of action as originally filed, (and it differs from the others only in date, amount, and locality,) reads as follows:
“On or about the 14th day of July, 1885, at Cherokee, in the county of Crawford, Kansas, the said firm of Beadle & Henning did deliver to the defendant 33,400 pounds of coal, all loaded on one car and consigned to J. S. Watson, at Emporia, in the state of Kansas, to be by the defendant transported to the station of Girard, on its line of road. The defendant did receive and transport said coal to said station, but charged and collected of the said firm, through its consignee, as a condition precedent to said service and the delivery of said coal, a charge of $8.25, when at the same time the rate charged by the defendant for similar .service to the Keith & Perry Coal Company and others was only $5.01, which last sum was a maximum reasonable rate, thereby overcharging the said firm, unlawfully and unjustly, the sum of $3.24. The said defendant has not repaid said overcharge or any part thereof, although due demand therefor has been made. Wherefore, plaintiff asks judgment for three times said sum, to wit, $9.72, as provided by law, with interest thereon at 7 per cent, per annum from said last-mentioned date.”
A demurrer was interposed to all the causes of action set up in this petition, and it was sustained. The petition was then amended, by striking out the demand for triple damages, and asking only for actual damages alleged to have been sustained.. The first count of the amended petition reads as follows:
“On or about the 14th day of July, 1885, at Cherokee, in the county of Crawford, Kansas, the said firm of Beadle &. Henning did deliver to the defendant 33,400 pounds of coal, all loaded on one car and consigned to J. S. Watson, at Emporia, in the state of Kansas, to be by the defendant transported to the station of Girard, on its line of road. The defendant did receive and transport said coal to said station, but charged and collected of the said firm, through its consignee, as a condition precedent to said service and the delivery of said coal, a charge of $8.25, when at the same time the rate charged by the defendant to the Keith & Perry Coal Company and others was only $5.01, which last sum was a maximum reasonable rate, thereby overcharging the said firm, unlawfully and unjustly, the sum of $3.24. The said defendant has not repaid said overcharge or any part thereof, although due demand has been made. Wherefore, plaintiff asks, judgment for said sum, with interest thereon at 7 per cent, per annum from said last-mentioned date.”
To this amended petition a demurrer was filed and sustained, and the case brought here to review the ruling of the trial-court on the demurrer to the amended petition. The law under which relief is sought is found in ¶¶ 1333 and 1342, General Statutes of 1889. They read as follows:
“(1333) No railroad company shall charge, demand or receive from any person, company or corporation, for the transportation of any property or for any other service, a greater sum than it shall at the same time charge, demand or receive from any other person, company or corporation, for a like service from the same place, or upon like condition and under similar circumstances; and all concessions of rates, drawbacks, and contracts for 'special rates shall be open to and allowed all persons, companies and corporations alike; nor shall it -charge more for transporting freight from any point on its line than a fair and just proportion of the price it charges for ■the same kind of freight transported from any other point.”
“(1342) Any railroad company which shall violate any of the provisions of this act shall forfeit for every such offense, to the person, company or corporation aggrieved thereby, three times the actual damages sustained by the said party aggrieved, together with the costs of suit, and a reasonable attorney’s fee, to be fixed by the court; and if an appeal be taken from the judgment, or any part thereof, it shall be the duty ■of the appellate court to include in the judgment an additional reasonable attorney’s fee for services in appellate court or •courts.”
It is contended that the statutes of the state have, by their •express terms, abrogated the common law in cases of discrimination and unreasonable charges, and that the amended petition makes a case under the statute, no matter what may have been the intention of the pleader, and if it is a statutory action each and every cause of action set forth in the petition ■shows on the face thereof that it is barred by the statute of limitations. An action to recover damages under ¶ 1333, 'General Statutes of 1889, is one upon a statute for a penalty, and is barred within one year, under subdivision 4 of § 18 •of the code. The court below, construing the petition to have been drafted under the statute and setting up statutory •causes of action, sustained the demurrer, on the theory that the petition showed on its face that the causes of action were barred by the statute of limitations, and held in effect that no ■such action could be brought at common law, the statutory remedies being exclusive. ■ While we have to sustain the ruling of the court on the demurrer, on the theory that, “when the language is of doubtful import, and the pleading is challenged before trial, then the rule is to construe the pleading ■against the pleader, and this upon the ground that, as he himself selects the language, he should make his meaning ■clear,” (Draper v. Cowles, 27 Kas. 484, and authorities cited,) we do not want to be understood as assenting to the doctrine 'that the common-law remedy against common carriers for charges in excess of reasonable rates has been abrogated by the statute, or that all remedies for injuries of this character are now exclusively statutory. We do hold with the trial court that this petition is based upon the statute and states statutory causes of action, but that is the extent to which we go.
We recommend an affirmance of the jugment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court- was delivered by
Johnston, J.:
This proceeding is brought to review an order of the judge of the district court of Clark county, vacating and setting aside an order of attachment. Updyke & Stone were dealers in hardware, farm machinery, and implements, at Ashland, and carried a stock of goods ranging in value from $6,000 to $9,000. They became embarrassed in 1888, and the Champion Machine Company, one of their creditors, procured the issuance of an attachment and caused it to be levied upon their stock of goods. The amount claimed by the plaintiff was only $154.44, and the grounds of attachment were that the defendants were about to dispose of their property, and had disposed of their property, with the intent to defraud, hinder and delay their creditors, and also that they had fraudulently contracted the debt for which action was brought. The defendants filed an affidavit denying the grounds alleged for attachment, and moved the court to discharge the same. On January 24, 1889, a hearing was had upon the oral and written testimony before the judge at chambers, and, finding that the grounds for the attachment were untrue, the judge vacated and discharged the attachment. The plaintiff complains of this order.
It is contended that the order of attachment was properly dissolved, upon the evidence, and also because it was illegally issued. The ground of illegality is, that the petition shows that the debt of defendants to plaintiff was not due when the action was begun, and that no order of attachment was granted by the court or judge, as is required to be done where the debt is not due. The allegations and actions of the plaintiff are inconsistent and faulty in this respect. No application for an order of attachment was made to the court or judge, and none such was granted. It is stated in the petition that on September 6,1887, the defendants executed and delivered to plaintiff several promissory notes, aggregating $1,042.44, which matured at different times, running from January 1, 1889, up to January 1, 1890. The notes are copied at length in the pe tition, and the plaintiff states the time when each will mature, and the amount which will then be due on each. This action was begun on December 7, 1888, 24 days before any of the notes became due, and nearly 13 months before the last one became due. The petition, after alleging the amount due upon each note, states that all of the claims thereon are just, true, and remain wholly unpaid, and that “plaintiff is the lawful and present holder of each and every of the said notes; that the said notes were made, executed and delivered by the said defendants to the said plaintiff for certain goods, wares and merchandise sold and delivered by said plaintiff to said defendants on or about April; 1887; that the said goods, wares and merchandise were so sold by said plaintiff to said defendants upon representations made by said defendants at said time as to their financial standing and responsibility, all of which representations were untrue and false in fact, and the said defendants knew at the time that the same were false and untrue; that upon learning that the representations so made by defendants were untrue and false, the plaintiff immediately offered to and did disaffirm and rescind said contract of sale, and offered and now offers to the said defendants the said notes; that the defendants were indebted to the said plaintiff in the sum of $1,042.44, for goods, wares and merchandise sold and delivered to them by said plaintiff as aforesaid; that there is now due to the said plaintiff from the said defendants therefor a balance of $154.44,” for which latter sum judgment is asked, with interest from December 5, 1888.
It will be seen that plaintiff still claims to be the holder of the notes; that the defendants are still indebted upon the notes; that they are just, true and correct claims; and that they remain wholly unpaid. If they were then existing claims against defendants, the plaintiff’s debt was not due, and the attachment was illegally issued. There are other averments, however, indicating'to some extent that plaintiff" is not claiming upon the notes, but has disaffirmed the notes and the contract of sale in pursuance of which the notes were given; but the petition does not state whether payments were made or property returned and credited upon the original debt represented by the notes; neither does it show how the debt was reduced to $154.44. That is the only sum, however, for which judgment was claimed, and it is alleged to be past due. The petition is very ambiguous and indefinite as to how the alleged rescission was effected, and as to how. the debt alleged in one part of the petition to be extant was diminished to the small amount for which judgment was asked. Looking into the testimony, we see that the question of alleged rescission is still a controverted one, but the petition itself affords but little light on the subject. It is stated that the defendants misrepresented their financial condition when the goods were purchased, and upon this ground the right to disaffirm is claimed. It appears that these representations, whether true or false, were made nearly two years prior to the alleged disaffirmance, and that during this period other business transactions were had between the parties. Although the petition is indefinite, no motion was made against it for that reason; and although the affidavit for attachment may not fully state the nature of the plaintiff’s claim, that was not made a specific ground for the discharge of the attachment. In view of the way these defects are raised, it cannot be said that the order of attachment was illegally issued. It is evident that the trial judge did not rest his judgment on these defects, as a hearing was had on the merits of the motions, and manifestly he found the grounds alleged for attachment to be unsustained.
The evidence in the case, although not satisfactory in some respects, is of such a character that'-the finding of the judge cannot be disturbed. The testimony in the record is partly oral and partly written, and much of that which was taken in the form of affidavits and depositions was incompetent. It was also conflicting as to the grounds laid for attachment; and as the judge was the trier of the facts, a finding made by him upon a conflict of testimony is bind-upon us. Hegwer. v. Kiff, 31 Kas. 440, is cited as an authority that this court is not bound by the find ing of the district court, and that we may weigh the testimony and determine its sufficiency. In that case, however, the testimony was all contained in affidavits; and where that is true, this court is as competent as the district judge to determine what facts are established by the testimony; but where the testimony is partly oral and partly in writing, and there is testimony tending to sustain the finding and order of the district judge, his finding thereon is as binding upon the court as if it had been made by a jury. (Urquhart v. Smith, 5 Kas. 447; Doggett v. Bell, 32 id. 298; Curtis v. Davis, 44 id. 144.)
The testimony is not clear or satisfactory as to the original contract between the parties; as to the authenticity of the reports made to commercial agencies on the financial standing of defendants; as to what was shown by their book accounts that were used on the hearing; as to the consideration for some of the conveyances made by defendants during the time they were in business; nor as to the transfers and assignment made about the time this action was begun. The principal contention is that the debt was fraudulently contracted, through the misrepresentations of the defendants. The original contract upon which the indebtedness arose was made in December, 1886, almost two years before the commencement of the attachment proceedings. A written statement, admitted to have been made by Updyke at that time, as to the financial condition of the firm, appears to have been substantially correct. The same may be said of the other reports as to the condition of the firm that are admitted by defendants to have been made. Of course, they are not chargeable with representations made by others, and of which they had no knowledge. The agent of the plaintiff says that oral statements were made on December 20, 1886, when the original contract was made, with reference to the financial ability of the members of the firm, which, if made, were untrue; but Updyke denies that such statements were made, and the fact that they were not included in the written one tends to sustain his denial. He also denies that he made other exaggerated statements of their condition that were attributed to him.
It is difficult to reconcile the contradictory statements found in the testimony; but the district judge had a better opportunity for determining the real facts in the case than we have, and there is testimony to sustain the claim of the defendants that the contract was fairly made, and'that they had not transferred, and were not about to transfer; their property, with the intention to hinder, delay and defraud their creditors. The dealings between the parties were considerable, and the debt which at one time was quite large has been reduced to the sum of $154.44. Then there is the testimony of Updyke, that he offered to turn over to plaintiff all of the mowing machines on hand, at the cost price in Ashland, which, if accepted, would have about discharged the entire indebtedness. It is true that conveyances were made to several parties to whom the defendants were indebted, and an assignment for the benefit of all the creditors appears to have been made. The testimony tends to show that the debts secured or paid by transfers made prior to or about the time of their business failure were bona fide, and their right, to honestly prefer creditors cannot be denied. Some of the conveyances made were not promptly recorded, and perhaps the most serious objection that is made to the action of the defendants is the transfer by Updyke of some individual property in Michigan and Kansas, about a year prior to the failure; It is contended that the transfer was made without any consideration. There is no testimony whatever as to the consideration for the transfer of the Michigan property; and although Updyke was the witness of the plaintiff, and in answer to questions propounded by plaintiff stated that the conveyance was made to his wife, they did not inquire of him respecting the consideration, and did not show by any testimony that it was without consideration. The mere fact that the transfer was made to thé wife does not show dishonesty; and the defendants having denied the grounds for attachment, the burden rested upon the plaintiff to sustain the allegations which it had made, and to show that the conveyance was without -consideration. (McPike v. Atwell, 34 Kas. 142; Becker v. Langford, 39 id. 35; Grocery Co. v. Records, 40 id. 119.) In an abstract found in the record, the stated consideration for the sale of Updyke’s Kansas land is $1; but it also shows that the land was conveyed subject to a large incumbrance. What the real consideration was is not shown. Updyke was called as a witness by the plaintiff, and was interrogated as to this property, but it stopped short of inquiry concerning the conditions of this sale, and did not ask him anything about the consideration. It devolved upon the plaintiff to establish a want of consideration, and, as fraud is not presumed, it devolved on it to prove the charges of fraud which had been made. We have read the large volume of testimony la^en the case, competent and incompetent; aa(J wUíle some of the matters are not satisfactory, we cannot say that the finding and order of the judge are clearly erroneous. The finding being in favor of the defendants, their testimony, although contradicted, is to be taken as true, and all reasonable inferences are to be drawn in support of that finding. In this view, we feel compelled to say that the finding is not without support, and hence the order of the district judge will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It appears from the record that the trial court found as a conclusion of law that “S. W. Jameson was not, at the time of his death, suspended from the order of the Modern Woodmen of America, as no notice of suspension was mailed to him as required by the by-laws.” In the opinion handed down by Strang, C., this conclusion of law is held erroneous, upon the ground that actual notice of suspension was given by delivering the notice in person to S. W. Jameson, instead of depositing it in the post office properly stamped and addressed. This statement or conclusion in the opinion grows out of a misapprehension of the record, and the result thereof seriously affects the decision rendered upon the opinion. The local clerk of Fidelity camp handed personally to S. W. Jameson, on August 7, 1888, a written notice of an assessment of f 1.05 made by the head camp for August, 1888, and payable on or before September, 1, 1888. The by-laws provide, among other things, that the head clerk “shall, as soon as he has knowledge that any neighbor is suspended, from any cause, mail to said neighbor a notice, post-paid, to his last known address, stating that he stands suspended upon the books of the head camp, and also informing him what it is necessary for him to do to become reinstated.” This is the notice of suspension referred to in the seventh finding of the trial court, and also in the conclusion of law. The head clerk never mailed or personally delivered to S. W. Jameson the notice prescribed in the section quoted. As in all other cases, forfeiture of the insurance provided by mutual benefit associations is not favored by the courts. They, in construing the conditions of membership when a forfeiture is claimed, will preserve, if possible, the equitable rights of the holder of the certificate of membership. (Miner v. Michigan Mut. &c. Ass’n, 63 Mich. 338; Gunther v. New Orleans &c. Ass’n, 40 La. An. 777; 8 Am. St. Rep. 554.)
Jameson had paid all his dues to December 31, 1888, and after he had made default upon the assessment of August 7, 1888, the head camp assessed him for September $1.05, which was due October 1, 1888. A member of Fidelity camp, after Jameson was dead, but when his wife and such member supposed him to be in a swoon only, paid the August and September assessments. These assessments were received by the local clerk on September 20, 1888. All of these parties acted in good faith, and the money so paid has never been returned, or offered to be returned, either to Mrs. Mary J. Jameson, the beneficiary, or to the member of the camp who paid the same. If payment had been tendered the day before the death of the insured, such payment would have been accepted. The forfeiture, if any, arose upon the non-payment of the August assessment on September 1, 1888, but it is clear that the association did not consider the benefit certificate forfeited, or Jameson suspended, on account of the non-payment of the August assessment, from the fact that the head camp made another assessment upon Jameson in September, 1888, which was due the 1st of October, 1888. The association had the right to waive the forfeiture and continue the benefit certificate in force. The by-laws of the association also provided that—
“If all arrearages of every kind are paid up within three months, and the clerk is satisfied that his health is not impaired, a neighbor shall thereby be restored, and his benefit certificate made binding as soon as said payment is received and recorded by the clerk. If the clerk has reason to believe that the health of the neighbor is impaired, he shall submit the matter to the camp, who shall decide the matter by a two-thirds vote. Should any clerk receive payment of arrearages and reinstate any neighbor whose health at the time is impaired, or who has been known to use intoxicants or opiates to such an extent as to become frequently intoxicated, or under the influence of the same, or' who has made false representations in his application to become a member, unless said clerk shall have first submitted the matter to his camp, and been authorized by a two-thirds vote of the members present so to do, he shall, upon conviction thereof, after an investigation by his camp, be expelled.”
Under these provisions, the local clerk had the power to reinstate Jameson after a forfeiture, whether his health was impaired or not. He might subject himself to the penalty of expulsion by so doing, but he could effectually do the act. In view of the failure of the head clerk to give or mail the notice of suspension, as prescribed by the by-laws, the assessment made on Jameson in September, after the assessment of August, 1888, was past due, the acceptance and retention of the moneys for the August and September assessments and the reinstatement made by the local clerk in good faith, we must hold that the association waived the forfeiture of the benefit certificate, and therefore the judgment of the trial court must be affirmed. (The State v. Natl. Ass’n, etc., 35 Kas. 51; Protective Union v. Whitt, 36 id. 760; Am. Mut. Aid Soc. v. Helburn, 85 Ky. 1; Dennis v. M. B. Ass’n, 120 N. Y. 496; 17 Am. St. Rep. 600; Howell v. K. L. Ins. Co., 44 N. Y. 276; M. M. B. Ass’n v. Beck, 77 Ind. 203; 40 Am. Rep. 295, and cases cited; B. & M. M. B. Ass’n v. Stapp, 77 Texas, 517; 19 Am. St. Rep. 772; McDonald v. Supreme Council, etc., 78 Cal. 49; Millard v. Supreme Council, etc., 81 id. 340; Stylow v. Wise, Odd Fellows, etc., 69 Wis. 224; 2 Am. St. Rep. 738.)
The judgment of this court, heretofore entered upon the opinion of the commission, will be set aside, and further proceedings had in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
J. W. Hooper brought an action against A. F. Groves and M. H. Carr, copartners under the name of ■ Groves & Carr, for labor and material performed and furnished in plastering five houses and building chimneys thereon, and in constructing five cisterns, in pursuance of a verbal contract, at stipulated prices, on the east 137-|- feet of a lot in the city of Atchison. He alleged that the contract was made in July, 1887, that the work under the contract was completed about December 9,1887, and that the material and work furnished under the terms of the contract were of the value of $734, on which there had been paid $307.10, leaving due and unpaid $426.90. He further alleged that on about the 5th of January, 1888, he made out and filed in the office of the clerk of the district court a sworn statement containing a list of the items of material and labor, and claimed a lien on the real estate on which the improvements were made. Several other parties, who claimed an interest in the real estate, were made defendants, and they filed answers setting up the nature and extent of their interests. M. H. Carr filed a separate answer, which was first a general denial; and he further answered that he had fully paid all of the demands of the plaintiff against him individually, as well as against A. F. Groves; and, as another defense, he alleged that he had been garnished in various actions by the creditors of Hooper in. the sum of $100, for the payment of which he will become liable when judgment shall have been entered against the plaintiff. And, finally, he alleged that by reason of the defective and unworkmanlike manner in which the cisterns were built by the plaintiff, he was damaged in the sum of $100. A trial was had before the court and a jury, and a verdict was rendered in favor of Hooper, awarding him $251.79. The mechanic’s lien was foreclosed, and the priorities of the various liens found to exist were determined. M. H. Carr alone complains of the rulings of the court, and he brings this proceeding, asking a reversal of the judgment and decree of the court upon several grounds.
It is contended that the court erred in permitting the plaintiff to prove the execution of the mechanic’s lien after the verdict of the jury had been returned. This objection is not tenable. The nature of the transaction between the owner and the contractor, and the indebtedness existing under the contract made between them, was submitted to and determined by the jury; but the question of the existence of the lien, and the determination of ( ' the priorities among the lien-holders, was for the court and not for the jury. The admission of testimony^ therefore, to establish liens or to enable the court to settle the priorities was admissible after the discharge of the jury.
Error is assigned on the exclusion of some testimony-concerning the manner in which the cisterns were constructed, and the amount of damage suffered by reason of the defective character of the work done by the contractor. Some of the cisterns constructed by the plaintiff below were not walled up with brick or stone, but were merely cemented upon the earth, and the cement and lime cracked and fell off, so that the cisterns would not hold water. Others of the cisterns constructed were walled with brick, and cemented over the brick. Some questions were asked by the plaintiff in error as to what was the difference in value between a cistern constructed without a brick wall and one constructed with a brick wall, to which objections were sustained. The rejection of this testimony was not error. According to the testimony, the agreement between the parties under which the cisterns were constructed was, that they should be constructed without brick walls, and in the manner in which they were built. The court permitted a full investigation of whether the work had been done in the manner contracted for, and also instructed the jury that the plaintiff could not recover unless he showed by a preponderance of the evidence “ that he performed the labor in a workmanlike manner, and furnished the material, as by his verbal agreement he was bound to do.” There was ample proof' to sustain the contract claimed by Hooper, and the jury have found that such a contract was made. An examination of the record, too, shows that the court allowed full inquiry as to the nature of the contract, the character of the materials furnished, and the work performed by Hooper under that contract; and hence no substantial objection can be made to the rulings upon the testimony.
The plaintiff in error contends that the affidavit attached to the statement or claim of lien is fatally defective because it was made by the attorney of Hooper. It appears that the oath was administered by C. D. Walker, a notary public, who had been consulted by Hooper several times prior to the verification of the lien as to the matters in controversy between Carr and himself. There was no action or proceeding pending between them at that time. The lien was subsequently perfected, and this action was begun by Hooper, through his attorney, Walker, to foreclose the mechanic’s lien. The lien is required to be verified by affidavit, and an affidavit may be made before any person authorized to take depositions. Among other officers, a notary public is authorized to take depositions, but it is provided by statute that the officer before whom depositions are taken must not be an “attorney of either party, or otherwise interested in the event of the action or proceeding.” (Civil Code, §350.) The taking of a deposition, therefore, or the making of an affidavit, by or before an officer who is an attorney of record of a party to an action or proceed ing, and to be used in that proceeding, is unauthorized. (Foreman v. Carter, 9 Kas. 681; Warner v. Warner, 11 id. 121; Tootle v. Smith, 34 id. 27; Swearingen v. Howser, 37 id. 126; Schoen v. Sunderland, 39 id. 758.) It will be observed that the prohibition of the code is directed against one who is an attorney of a party to an action or proceeding, and the code contemplates that the affidavit or deposition so wrongfully taken or made is for use in a pending action or proceeding. A notary public who is an attorney of either party to an action, or who is interested in the event of the action, is not a proper person before whom to take depositions or verify pleadings or affidavits to be filed in that action. In the present case, however, the affidavit was made before Walker when no action had been begun, and it does not appear that he was then an attorney of record of Hooper in any pending case, or ever had been. He counseled Hooper with reference to the differences between the parties and with reference to the filing of the lien, but it was not then certain that there would be a necessity to foreclose the lien or that any action would ever be commenced by Hooper against Carr. As a notary public, he possessed the general power to take depositions and affidavits, without exception or limitation. None of the statutory disqualifications attached to him at that time, and the mere fact that he was an attorney at law, or that the affiant . . i-i^n had consulted him with reference to the differences existing between the parties, is not sufficient to defeat the validity of the lien verified before him.
3. Property hens. 4, Evidence-findings— verdict. The labor and material were furnished by Hooper upon an entire contract, and upon five buildings and five cisterns, all situated upon a single lot owned by the plaintiff in error. In such case the lien attaches upon the whole estate for the value of the labor and material furnished. (Worthley v. Emerson, 11 Mass. 374; Lax v. Peterson, 44 N. W. Rep. 3; 15 Am. & Eng. Encyc. of Law, 73.) The entirety of the contract is conceded by the plaintiff in error; but it appears that Hooper released the west 55 feet of the lot, on which two of the houses were erected, from any claim for labor and material used in their construction. This was done by a receipt signed by him on November 22, 1887, prior to the filing of the lien. The receipt was given upon the application of Carr, who stated that he desired to obtain a loan on that portion of the property, and could not do so as long as any claim for material and labor existed against it, and that if the receipt was signed he would procure the loan and pay Hooper the amount of his claim from the money so obtained. The receipt was given,, the loan was made, but no payment was made to Hooper. It is now contended that the contract being entire, a release of a part of the property from the lien discharged the whole of it, and that Hooper cannot claim a lien on any part of the-property. Carr cannot avail himself of the release or obtain any advantage under it. As between him and Hooper, there was no consideration for the same, and the failure of Carr to-carry out the proposition of paying Hooper from the money obtained on the loan operated as a fraud on Hooper, and Carrean claim no advantage thereby. A party may waive his lien on a portion of the property against which it exists without affecting the validity of the whole;. but of course the mortgage given upon that portion of the lot released from the lien had priority over the claim of the plaintiff. We think the testimony was sufficient A . . to sustain the findings or the jury, and that no-substantial error was committed by the court.
Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The First National Bank of Stafford is organized and doing a general banking business in the city of Stafford under the laws of the United States. On the 1st of March, 1890, the stockholders of that bank were assessed in accordance with the provisions of ¶ 6868, General Statutes of 1889. Subsequently, the taxes against each of the stockholders of the bank were extended upon the tax-rolls of Stafford county. This action was commenced in the court below against the bank to recover $890.87, being the taxes of 1890 assessed against the stockholders of the bank, and also for the sum of $44.58, the penalties for the non-payment of the taxes. A general demurrer was filed to the petition, which was sustained by the court below. This ruling is complained of by the board of county commissioners.
A tax is not a debt in the ordinary acceptation of that term, and consequently a civil action will not lie for its recovery, except in those cases where the statute expressly confers the right to bring such an action, or where it impliedly confers such a right by omitting all mention of any method for the collection of the tax. There are decisions to the contrary, but the great weight of authority supports the rule that an action at law cannot be maintained to recover a tax for the collection of which adequate provisions are prescribed by statute. Mr. Cooley says:
“It sometimes becomes a question whether a tax can be regarded as a debt in the ordinary sense of that term, so that the ordinary remedies for the collection of debts can be applied to it. In general, it will be found that statutes imposing taxes make special provision for their collection, and do not apparently contemplate that any others will be necessary; but these may, nevertheless, fail; and the question then arises, whether the tax must fail also, or whether resort may be had by the state to such remedies as would be available to individuals to enforce demands owing to themselves. But instances have occurred of tax laws which provided for laying the tax, but made no provision whatever for collection. In' such a case it may well be held that the legislature contemplated the enforcement of the tax by the ordinary remedies; and therefore, if the tax was assessed against an individual, that assumpsit would lie for its recovery. . . . But in general the conclusion has been reached, that when the statute undertakes to provide remedies, and those given do not embrace an action at law, a common-law action for the recovery of the tax as a debt will not lie.” (Cooley, Taxation, 15. See also Black, Tax Titles, §45; Blackwell, Tax Titles, §335.)
Most of the decisions upon this question are collated in these text-books and reference is made to them under the sections referred to. It was decided in Lane Co. v. Oregon, 74 U. S. 71, that “the clauses in the several acts of congress, of 1862 and 1863, making United States notes a legal tender for debts, have no reference to taxes imposed by state authority.” In the opinion delivered in that case by Chief Justice Chase it was said:
“We are the more ready to adopt this view, because the greatest of English elementary writers upon law, when treating of debts in their various descriptions, gives no hint that taxes come within either; while American state courts, of the highest authority, have refused to treat liabilities for taxes as debts, in the ordinary sense of that word, for which actions of debt may be maintained.”
In this state the statute providing for assessing and levying taxes makes special provisions for their collection. Where taxes on personal property remain due and unpaid on the 1st day of January or the 1st day of July, the county treasurer is required, between the 10th and 15th days of January and July, respectively, to issue a warrant directed to the sheriff of his county, commanding him to levy the amount of the unpaid taxes and penalty thereon, together with his fees for collecting the same, of the goods and chattels of the party in default, and from the proceeds thereof to pay the same to the county treasurer. (Gen. Stat. of 1889, ¶ 6941.) If the taxes cannot be collected from personal property upon a tax warrant, the sheriff must so return, and if the delinquent tax-payer has removed or resides in another county, this must also be noted in the return on the tax warrant. (Gen. Stat. of 1889, ¶ 6943.) Paragraph 6944 is as follows:
“ It shall be the duty of the several county treasurers in the state, immediately after their receiving said warrants, returned as provided in the preceding section, to issue an ‘alias’ tax warrant, directed to the sheriff of any county in this state into which any such tax-payer may have removed, or may reside, or in which his personal property may be found, who shall proceed to collect said taxes the same as upon execution, together with his costs upon the same, and after collecting the said taxes, to forward the same to the treasurer of the county who issued said warrant, together with the warrant, and his return indorsed thereon.” (Gen. Stat. of 1889.)
Paragraph 6945 reads:
“ On the return of any unsatisfied tax warrant by the sheriff to the county treasurer of any county, it shall be the duty of said county treasurer, if he believe such delinquent tax-payer has property which cannot be reached by said tax warrant, to file with the clerk of the district court of his county an abstract of the amount of taxes, penalty, and costs, accompanied by the last tax warrant, and said clerk shall enter the amount on his judgment docket, which said unpaid tax shall become a lien on real estate, in the same manner as a judgment, and a tax warrant may thereupon be issued by said clerk, which shall have the same force as an execution, and such real estate shall be sold without appraisement.” (Gen. Stat. of 1889.)
All real estate on which the taxes are not paid on or before the 20th day of June in each year is subject to sale by the treasurers ,of the respective counties. (Gen. Stat. of 1889, ¶¶ 6954-6977.) In line with the great weight of authority, this court said, speaking through Mr. Justice Brewer, in Corbin v. Young, 24 Kas. 199:
“It is undoubtedly true that, by statute, taxes are made a lien, and that equity, when it takes jurisdiction, enforces a lien by foreclosure and sale. But has equity any jurisdiction in this case? Can the holder of a tax lien foreclose it as he would a mortgage lien? We think not. The statute has prescribed the proceedings in references to taxes, tax sales, redemptions, and also to secure the rights of tax purchasers, and whenever these proceedings apply a party may not in voke the general jurisdiction and proceedings of the courts. Counsel contends that there is no adequate remedy at law, and therefore he has a right to go into equity. We think the statute furnishes him several remedies.”
If the bank is liable for the taxes, as alleged, an ordinary civil action is unnecessary. It is not as prompt a method for the collection of defaulted taxes as the means expressly provided for by the statute.
We conclude that the ruling of the district court must be sustained, and therefore the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was a proceeding to enforce the individual liability of the several stockholders of the Kansas Har vester Company, a corporation organized under the laws of Kansas. On October 12, 1888, the Bank of Enterprise recovered a judgment against the Kansas Harvester Company for $1,339.06, and execution was at once issued upon the judgment, and the return of the same, made October 23,1888, disclosed the fact that the company had no property whereon to levy, and was in fact insolvent. Steps were then taken to obtain an execution against the property of Preston B. Plumb and other stockholders of the Kansas Harvester Company, and upon a hearing had on July 2, 1889, it was found that at the time of the rendition of the judgment against the corporation Preston B. Plumb held stock of the corporation in the sum of $1,350, which was fully paid up, and that he was liable to the bank upon the stock for the full sum of $1,350, and execution was accordingly authorized to be issued against the property of Plumb. Exceptions were taken to the findings and order of the court, and P. B. Plumb having departed this life since proceedings in error were begun, upon the consent of parties an order of revivor has been made, by which Carrie S. Plumb, executrix, and Amos H. Plumb, executor, of the estate of P. B. Plumb, deceased, have become plaintiffs in error.
The questions presented for review are few and easily solved. It is conceded that P. B. Plumb purchased- the stock of the corporation, as claimed, and his individual liability to the extent of the stock held by him is not denied, providing he did not divest himself of liability by a transfer of the stock before the judgment was obtained. It was shown upon the hearing that certificates in the corporation were issued to P. B. Plumb, which he held until April or May, 1888, when he assigned and delivered the certificates of stock to Richard A. Elmer, of New York, who was then solvent and abundantly able to meet any liability that could arise against him as a stockholder in the Kansas Harvester Company. No transfer of the shares of stock was made upon the books of the company, nor does it appear that any effort was made to secure a transfer. Hoes the mere assignment of stock certificates transfer the stock and divest the assignor of individual liability thereon to creditors? The statute respecting the transfer of corporate stock is as follows:
“The stock of any corporation created under this act shall be deemed personal estate, and shall be transferred only on the books of the corporation, in such manner as the by-laws may prescribe; and no person shall, at any election, be entitled to vote on any stock, unless the same shall have been standing in the name of the person so claiming to vote, upon the books of the corporation, at least 30 days prior to such election; but no shares shall be transferred until all previous assessments thereon shall be fully paid.” (Gen. Stat. of 1889, ¶ 1184.)
Under this provision, the mere assignment and delivery of the certificates of stock is ineffectual to a valid transfer of the same. (Manufacturing Co. v. Hale, 39 Kas. 23.) It may be sufficient as between the transferer and the transferee, and also as against the corporation itself, if it had notice of such assignment and delivery; but such irregular transfer does not divest the transferer of his individual liability as a stockholder to creditors. The registration of stock required by statute is in part for the benefit of the public, and to provide creditors with a record of those who are individually liable in case the corporation becomes unable to meet its obligations. Under our constitution and statutes, the individual liability stands as a sort of surety for the corporate liability, and creditors of the corporation are supposed to contract with reference to the individual responsibility of tbe stockholders. The general rule is, that the books of the corporation furnish evidence as to what persons are entitled to the rights and privileges of stockholders, and as to whom creditors may look for payment in the event of the insolvency of the corporation. Creditors of a corporation are presumed to have relied upon the books; and, where a stockholder sells his stock but permits his name to stand upon the books of the corporation as one of its stockholders, he is in no condition to claim exemption from individual liability. If he has attempted in good faith to have the transfer recorded, and, having done all in his power to that end, fails, other conditions would arise; but where he negligently permits the stock to stand upon the books in his own name, and fails to do that which is necessary to transfer the legal title of the stock in accordance with the statute, he is not released from individual liability by the mere assignment and delivery of the certificates. (Manufacturing Co. v. Hale, supra; Richmond v. Irons, 121 U. S. 27, 58; Hawkins v. Glenn, 131 id. 319, 335; Thomp. Liab. Stockh., § 217, and cases cited; Cook, Stocks, §§ 258, 261, and cases cited; Lowell, Transf. Stocks, §§189, 192; Mor. Priv. Corp., §§ 170, 172, 856, and cases cited.)
Exemption from individual liability is claimed on the ground that no provision was made by the corporation for the transfer of stock. The company had no by-laws regulating the transfer of stock, and no book especially provided for the transfer of stock. The only registry kept by the company was the book of stock certificates, and the record was kept upon the stubs of the certificates issued. This record showed the date of issue, the number of the certificate, the number of shares included, and the name of the person to whom issued. The practice in case of a sale of stock was to note the transfer upon the stub of the old certificate; then take up the old and issue a new certificate to the transferee. The number of the new certificate was specifically referred to on the stub of the old one; and by turning to the stub of the new certificate any one could ascertain to whom the stock had been transferred, the time of the transfer, and the form of the issue, and that the new had been issued in lieu of the old certificate. This we think was a sufficient record of the transfer within the meaning of the statute. (Fisher v. Jones, 82 Ala. 117.) The statute does not provide the nature of the book to be kept, nor the manner in which stock shall be transferred, but provides that it shall be done in such manner as the by-laws may prescribe. The method pursued by the Kansas Harvester Company is the common mode of keeping a register of stockholders in a corporation, and a stockholder who 'knew, or must be held to have known, of this mode, is not in a position to complain of the want of facilities to register the transfer, or that no by-law had been enacted prescribing the manner of transfer. As to a stockholder, the common usage of the corporation supplies the place of such a by-law, and a member of a corporation can hardly claim exemption from liability on account of its neglect to enact one.
These are the only material matters presented for our consideration, and, finding no error in the record, 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.:
It appears that on June 18, 1888, the Capitol Insurance Company issued a fire insurance policy to W. E. Wallace, insuring his building, occupied by him as a place of business, and also insuring his stock of furniture and his tools, implements, etc., therein contained, in the amount in the aggregate of $1,000. On November 2, 1888, a fire occurred without the slightest possible fault on his part which destroyed all the insured property and very much more. "Wallace then gave notice to the agent of the insurance company, and substantially complied with all the terms and conditions of the policy, and demanded payment; but the insurance company refused, and Wallace, on February 19, 1889, commenced this action in the district court of Linn county against the insurance company to recover $1,000 with interest, which the company had agreed in the policy to pay in case of loss by fire. The ease was tried before the court and a jury, and the jury found generally in favor of the plaintiff and against the defendant, and assessed the damages at $1,025.28, principal and interest, and for this amount the court below rendered judgment; and the defendant, as plaintiff in error, has brought the case to this court for review. Some of the questions involved in this case are also presented in the cases of Capitol Insurance Co. v. Bank of Pleasanton and Capitol Insurance Co. v. Bank of Blue Mound, which ques tions will be discussed and commented on only in the other two cases, which cases will be decided at the same time that this case is decided. Nothing will be said in this case concerning the questions which are common to both this case and either of the other two cases, but only such questions will be considered in this ease as are not involved in either of the other two cases.
The first question which we shall consider arises upon a stipulation in the policy which reads as follows:
“In case differences shall arise as to the amount of any loss or damage, whether before or after proof thereof has been received in regular form, and prior to a tender by this company to the assured of the amounts as set forth in said proof of loss, or after the property has been replaced or repaired, the matter shall, at the written reguest of either party, be submitted to two impartial appraisers, one to be selected by each party, and the two so chosen shall first select an umpire to act with them in case of their disagreement; and if said appraisers fail to agree, they shall refer the difference to such umpire, and the awards of any two, in writing, shall be binding on the parties as to the amount of any such loss or damage, and the acceptance of the property replaced or repaired, but shall not decide the liability of this company under this policy.”
This provision really has no application to this case, for the following reasons: It does not appear that any differences of opinion ever arose with regard to the amount of the loss or damage. The property was totally destroyed, and it was worth very much more than the amount of the insurance. Besides, no “written request of either party,” nor any request, asking or suggesting that “appraisers” or arbitrators or referees should be selected or appointed, was ever presented by either party to the other; and hence it was not necessary, under the facts of this case and under that clause of the policy, that there should be any appraisement or arbitration or reference before the commencement of an action by the assured against the insurance company to recover for his loss under the policy. (Insurance Co. v. Wilson, 45 Kas. 250; Nurney v. Insurance Co., 63 Mich. 633; same case, 30 N. W. Rep. 350.)
It is next claimed that the assured did not give notice within sufficient time concerning his loss. There is a provision in the insurance policy which reads as follows:
“Persons sustaining loss or damage by fire shall forthwith give notice in writing of said loss to this company, accompanied with a copy of the written portion of all the policies thereon.”
It will be seen from this provision that the notice should be given “forthwith,” and it is claimed that the notice was not given until 12 days had elapsed after the fire occurred. The notice, however, was given “forthwith” to the local agent of the insurance company, who procured the insurance, but was probably not given formally and to any general agent of the insurance company until about 12 days had elapsed after the fire occurred. The fire occurred on November 2, 1888; the notice was dated November 13, 1888, and was probably not received by the company until November 14, 1888; but taking this last-mentioned notice as the only proper or formal notice that was given, still we think the assured did not forfeit his rights under the policy because of the delay in giving the notice. No harm was done; and, besides, it is pretty clear that the insurance company did not at any time intend to pay the insurance money if it could possibly avoid it.
It is further claimed that the assured forfeited his right to the insurance money because he did not after the fire occurred fully comply with all the terms and conditions of the insurance policy with regard to proofs of loss, etc. We think, however, he did substantially comply with all such terms and conditions. He attempted to do so at least, and attempted to do so in good faith. The proofs of loss were made out before the insurance company’s local agent, who was also a notary public, on November 29, 1888, and the insurance company in all probability received them on November 30, 1888. Then followed some correspondence between the assured and the insurance company, the company requiring that further and additional things should be done, and the assured attempted in good faith to comply with its demands, and he did, in fact, substantially comply. The last communication from the assured to the insurance company, in his attempt to comply with all that the company required, was by a letter dated December 19, 1888, and received by the company probably not later than December 20,1888, yet the company never answered this lefter, nor made any objections thereto, nor any objection whatever after that time, until February 6, 1889, when, after the assured had again written to the company, (the letter being dated February 1, 1889,) demanding payment of the insurance money, the company answered, (its letter being dated February 6, 1889,) substantially denying all liability, and for reasons never before urged. By the delay in making objections to the proofs of loss, etc., we think the company waived all possible objections thereto. It has been decided in New York that a retention by an insurer of proofs of loss for 38 days without objection would warrant a finding that all objections had been waived. (Keeney v. Insurance Co., 71 N. Y. 396; same case, 27 Am. Rep. 60.) We think this is good law, and that it applies to the present case. In the present case, however, the insurance company waited 48 days after receiving the proofs of loss, etc., before making any objection.
There is really no substantial reason why the insurance company should not pay the amount of the policy in the present case, and we think no substantial error was committed by the court below, and therefore its j udgment will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
The plaintiff below began an action in the district court of Coffey county to recover the amount of an insurance policy issued by the said insurance company, whereby it agreed to indemnify the said plaintiff against loss or damage by fire on two frame buildings in the city of Burlington, Coffey county, Kansas, to the amount of $700. The jury trying the case returned a verdict against the company in the sum of $650, and also returned answers to certain special questions submitted to them, as follows:
“Ques. 1. What was the date of the fire which burned the building insured in’the insurance policy in this case? Ans. November 23, 1887.
“Q,. 2. At what time did the plaintiff furnish to the defendant the proof of loss as required by the conditions of said policy? A. December 5, 1887.
“Q,. 3. What was the date of the summons that was served upon said defendant in this case? A. August 2, 1888.
“Q,. 4. Was anything said, done, or written by the defendant to plaintiff or to Casper Stoffels, waiving the conditions of said insurance policy as to the proof of loss? A. Yes.
“Q. 4J. If you answer ‘yes/ state fully what it was so said, done, or written. A. The statement written by Mr. Black, an agent for said insurance company, and signed by Casper Stoffels, as agent for plaintiff, which was a complete statement of the condition of affairs, and accepted by Mr. Black, and no demand for further proof, we hold was a waiver of any further proof of loss on part of plaintiff.
“ Q. 5. What was the actual value at the time of said fire of the one-story frame building with 1 ¿-story addition in the rear thereof, situated on the east side of the east half of lot 10, block 40, city of Burlington, and insured in said policy ? A. Five hundred and fifty dollars ($550).
“Q,. 6. What was the actual value at the time of said fire of the one-story addition on the west side of said building, referred to in last interrogatory above. A. Two hundred and fifty dollars ($250).
“Q,. 7. How much of said last-described building was situated on the west half of said lot 10, in block 40, in said city of Burlington, Kas.? A. Two feet and five inches.
“Q. 8. What was the value at the time of said fire of the part of said omnibus buildings situated on the west half of lot 10, block 40, in said city of Burlington, Kas. ? A. Fifteen dollars ($15).
“Q,. 9. Did Black, the agent of said defendant, on the 5th day of December, 1887, at Burlington, Kas., say to Casper Stoffels, as the agent of the plaintiff, that he would not admit or deny the liability of the company, but that the company would require the assured to comply with all the terms and conditions of said insurance policy, or words to that effect ?' A. No.
“Q. 10. What (if anything) was said or done by said defendant, or its agent, after the 5th day of December, 1887, in reference to said insurance, before the commencement of this-suit? A. Nothing.”
A motion for a new trial was overruled, and judgment entered on said verdict for the amount thereof. The company brings the case to this court1, and alleges:
“1. That the action was not commenced in time, under the limitation clause in the petition; and
“2. That no proof of loss was made within the period required by the policy.”
There are also some other questions raised in the case. Was the action begun in time? The policy sued on in this case contains the following provision:
“That no suit or action against the company for the recov ery of any claim, under or by virtue of this policy, shall be sustained in any court of law or equity, unless commenced within the term of six months next after the fire shall have occurred; and in case such suit or action shall be commenced against the company after the end of six months next after the fire or damage shall have occurred, the lapse of time shall be taken and admitted as conclusive evidence against the validity of the claim attempted to be enforced, any statute of limitation to the contrary notwithstanding.”
The property insured in the policy sued on was destroyed November 23,1887. The summons in the case was issued on the 2d day of August, 1888, and served on the 3d, more than eight months after the fire. If the limitation in ‘the policy is to be made effective from the date of the fire, the action is too late, unless saved by the commencement of a prior action. The language of the limitation clause is not ambiguous, but is so definite and distinct as to admit of no construction save a literal one. It says no action shall be sustained unless commenced within the term of six months next after the fire shall have occurred. It is admitted in this case that the limitation in the policy is binding on the parties, and that it eliminates all statutes of limitation. This language of the policy sued on differs from the language of those policies in which the limitation takes effect from the time when the “action accrues” or the “loss accrues,” or which use some other more general and less definite language, which must be construed by the courts. The language in this policy needs no construction, and in fact admits of none. But this very question has just been decided by this court in the case of McElroy v. Insurance Co., ante, p. 200; same case, 29 Pac. Rep. 478. In that case the court holds that, under a policy containing a clause like the one in the policy sued on, except as to the period of limitation, the suit must be brought within the stipulated period of limitation, or it will be too late. The period of limitation was “12 months next ensuing after the fire,” and the court said it took effect from the date of the fire, and not from the date of the expiration of the period the company had in which to pay the loss. Mr. Commissioner Simpson, who prepared the opinion of the court in that case, cited authorities sustaining the opinion of the court upon that ques tion. In addition to the authorities there cited, the following cases are here presented as sustaining that view: Meesman v. Insurance Co., Supreme Court of Washington, 27 Pac. Rep. 77; Insurance Co. v. Barr; 94 Pa. St. 345; Insurance Co. v. Weiss, 106 id. 20; Fullam v Insurance Co., 66 Am. Dec. 462; same case, 7 Gray, 61.
It is claimed in this case that the action was begun in time, under any construction of the limitation clause in the policy, because the record shows an action was commenced on the policy sued on herein on the 7th of May after the fire, which was within time. The record shows the filing of a petition, the issuance and service of a summons on the 7th of May, 1888, between the same parties; but it also shows that, on motion of the defendant company, the summons and the service thereof were set aside by the court, and, so far as this court knows, without any objection or exception on the part of the plaintiff below. There having been no objection to the action of the court below in setting aside said summons and service, and no exception thereto, and no appeal having been taken from the order of the court therein, the judgment of the court thus expressed settled the law of that case, and the plaintiff in error cannot now question it. After the summons and service thereof were set aside by the court below, there was nothing left in that court except the petition and prcecipe; and the case stood then as though there never had been anything done therein except to file a petition and prcecipe; and it will not be pretended that the mere filing of a petition and prcecipe constitutes the commencement of an action. As bearing'upon this proposition, we cite McElroy v. Insurance Co., supra, and cases there cited, upon the question of the commencement of a new or second action, and also the following: O’Laughlin v. Insurance Co., 3 McCrary’s Rep. 545. The case, not having been commenced in time, under our view of the law, cannot be maintained. It is therefore unnecessary to examine the question relating to proof of loss, or the other questions relating to the admission of testimony.
It is recommended that the judgment of the district court be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The plaintiff in error complained in his amended petition that one F. H. Ellis, being a broker in the grain market, in the city of Memphis, in the state of Tennessee, was authorized by the defendant in error to sell in that market on account of the defendant in error 15 cars of mixed corn, at a price not less than 40 cents per bushel, to be delivered to the purchaser on board the cars at the town of Altamont, Labette county; that afterward Ellis, representing that he was authorized by the defendant in error so to do, sold to the plaintiff in error 15 car-loads of mixed corn, subject to inspection, and to be grade No. 2. A memorandum of said sale was made in writing, as follows:
“E. H. Ennis, Provision, Grain and Flour Broker,
No. 7. Madison St.
Memphis, Tenn., May 8, 1885.
“Sold to T. M. Galbreath 15 cars mixed corn, to grade No. 2, for account of C. M. Condon,' Oswego, Kas., at 40 cents per bushel — track—Altamont.
[Signed] F. H. Ellis, Broker.”
Of this sale by Ellis to plaintiff in error the defendant in error was duly advised; that the corn was paid for by sight drafts as fast as loaded on the cars;, that it was of uniform quality. Then follow in the petition the usual allegations of fraud and misrepresentation on the part of the broker, with the knowledge of Condon, and the reliance and payment of the plaintiff in error in consequence of the same. The plaintiff in error then alleges in his petition that, soon after the first five cars of corn arrived at Memphis, he ascertained the kind and quality by the report of the grain inspector, and immediately notified Condon in writing that he would not accept and receive said corn upon the purchase, but would care for it for the defendant in error. Whereupon Condon agreed in writing with the plaintiff in error that, if after all the corn had been received, in justice a rebate ought to be made, it would be done. The writing referred to is as follows:
“Oswego, Kas., June 8, 1885.
“T. M. Galbreath, Memphis, Tenn.:
“Dear Sir — On my return home I find your two favors of the 2d inst. If good mixed corn is exactly the same as No. 2, would it not be a good plan to abolish the grade known as No. 2? I do not know why you should draw on me for margins, hence I return the draft. If, after all the corn has been received, justice demands that I allow you a rebate, I shall do so cheerfully, and send you a draft for the amount agreed upon. I cannot now tell whether you are entitled to any rebate. What is the address of the inspector?
Yours truly, C. M. Condon.”
The plaintiff in error attaches an account to his petition showing the details of the transaction, and asks judgment for $1,045.77. The defendant below answered as follows:
“Said defendant, for his answer to plaintiff’s amended petition,. denies each and every allegation therein contained, except such as are herein expressly admitted. Defendant admits that he authorized F. H. Ellis to sell for him 15 cars of good mixed corn at not less than 40 cents per bushel, to be delivered on railroad track at- Altamont, Kas., and alleges that, with full knowlege of said Ellis’s authority and instructions by him received from defendant, said plaintiff purchased said amount and kind of corn from defendant, through said Ellis, for which he agreed to pay defendant the sum of 40 cents per bushel, delivered as aforesaid. Defendant alleges that he delivered to said plaintiff 15 cars of good mixed corn on the track at Altamont, Kas., in compliance with his agreement as aforesaid, in the month of May, 1885, for which said plaintiff paid him the contract price, and no more. Wherefore, defendant prays that he may recover his costs herein.”
To this answer a general denial was filed as a reply. At the May term, 1889, the cause came on for trial, and the only evidence introduced by the plaintiff in error, to maintain the issues on his part, was his own deposition and that of Ellis, and then put Condon and his attorney, Case, upon the stand to inquire about some letters and telegrams, and rested. The defendant in error then filed a demurrer to the evidence of the plaintiff in error, which was sustained.
It seems from the deposition of Galbreath that, at the time of this transaction, he and one Hooper Harris were equal partners in the grain trade at Memphis, and that Harris was the active partner in the purchase of this grain from the broker. The deposition shows that the partnership was dissolved before this action was brought, and, in the language of the witness, “that this contract was turned over to him.” This is sufficient, it seems to us, to enable Galbreath to maintain an action in his own name, as the contract was in his individual name.
All the material facts of the contract sued upon are in writing. It consists of Condon’s letter of May 6, offering to sell “15 cars good mixed corn, 40 cents — track—Altamont. Weather wet and will not guarantee grade.” On the 8th of May Ellis telegraphed Condon as follows: “Sold 15 cars good mixed corn — 40—track—Altamont, brokerage included.” The letter of Condon of May 6 was shown by Ellis to Harris, and was also seen by Galbreath at the time the corn was sold by the broker. It will be seen that in the memorandum of sale exhibited in the petition that grade No. 2 was provided for, but as the letter of Condon was shown to both Harris and Galbreath, they put their own construction upon it. In the telegram of Ellis to Condon, stating the sale to Galbreath, no mention is made of No. 2 grade. Galbreath states in his deposition that this memorandum of sale was made several days after he had purchased the corn, and when pressed to fix the exact time he- could not be definite. So it seems that under no fair consideration of the terms of the contract can it be said that Condon intended to sell, or that Galbreath intended to buy, corn that would grade No. 2, because in this connection it must be recollected that the corn was to be delivered on the track at Altamont, Labette county, and not at Memphis, Tenn. The contract did not, in terms or by fair implication, provide for an inspection, either at Altamont or in Memphis, and what might be good mixed corn at Altamont would not be No. 2 grade at Memphis. Condon complied with the letter of his contract, as well as the spirit, when he delivered on the track at Altamont good mixed corn. This is all he agreed to do, and, further than this, he said that on account of the wet weather he would not guarantee grade.
Again, the plaintiff in error did not introduce a particle of evidence tending to show the condition of the corn at the place of delivery in Kansas. There is some evidence that it was damp and wet when received at Memphis, but this may have been produced by the very conditions that prompted Condon to refuse to guarantee grade. He wrote in his letter of May 6 that the weather was wet, and as this was the only reason given by him for his refusal to guarantee grade, and no other reason being shown by the plaintiff in error, it is fair to conclude that the corn became damp and wet in transit.
. We think the court below did not commit error in sustaining the demurrer to the evidence of the plaintiff in error, and are strongly impressed with the belief that the result is abstractly right. We recommend an affirmance.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Shawnee county on March 13, 1888, by Robert C. Hawley against the Kansas & Texas Coal Company and the Rogers Coal Company, in which action the plaintiff set forth two causes of action, or two supposed causes of action. The case-was tried before the court and a jury, and at the close of the evidence on the part of the plaintiff the defendants demurred thereto upon the ground that it did not prove any cause of action, and the court sustained the demurrer, and rendered judgment in favor of the defendants and against the plaintiff for costs; and the plaintiff, as plaintiff in error, brings the case to this court for review.
The plaintiff’s evidence was principally his own testimony, and, as to the first cause of action, it tended to prove as follows: About February, 1885, the plaintiff resided in Springfield, Mo. The Rogers Coal Company, through its president, B. F. Hobart, who resided at the same place, by a parol agreement employed the plaintiff to organize and conduct a branch of its business in the city of Topeka, Kas.,. and agreed to pay him for his services $125 per month and one-third of the net profits of its business at that place. Soon afterward the business was started in Topeka, and it was conducted by the plaintiff for the company and its successor, the Kansas & Texas Coal Company, up to May 1, 1887, when the plaintiff quit doing business for the company. He was paid regularly $125 per month during all the time that he was in the company’s service, the aggregate amount paid him being $3,375; but there were no profits in the business to be divided, but, on the contrary, there was a loss amounting in the aggregate to $8,447.62. The company at the beginning purchased real estate for a coal yard, which real estate was afterward and in the fall of 1886 taken from the company by a railroad company, upon which real estate the coal company realized a profit of about $5,750. Immediately afterward the coal company purchased other real estate for a coal yard, the title to which was taken in the name of E. B. Loveland, its vice-president, which real estate the company, or its vice-president, still owns so far as is shown. But such real estate has so advanced in value that, taking all the profits of the company upon its transactions in real estate, they more than cover all the losses which the company sustained in carrying on its coal business; and if the business for which the plaintiff was employed included the company’s transactions in real estate, and if the plaintiff is entitled to one-third of the net profits of all the company’s transactions in real estate as well as in its coal business, then the plaintiff will be entitled to recover something on his first alleged cause of action; but if the company’s transactions in real estate are not to be considered as a part of its business for the carrying on of which the plaintiff was employed, then he is not entitled to recover anything on his first alleged cause of action.
i. coai comtSict with.11' struea. ’ It was the opinion of the court below upon the evidence, and it is the opinion of this court, that the company’s transactions in real estate have nothing to do with its employment of the plaintiff; and for the following reasons: The contract of employment was wholly in parol. The employment was not for any definite period of time, nor for any considerable time. Nothing was said in the contract concerning real estate. It was not known at the time whether the land upon which the company’s coal yard would afterward be located would be leased or purchased, nor whether it would be wanted for any considerable length of time. In estimating profits and losses, interest at the rate of 10 per cent, per annum was to be considered for all money invested in the coal business, but no provision was made for allowing interest upon any money invested in real ■estate. The plaintiff was to be paid monthly, and the relations which were to exist between the plaintiff and the coal company could be terminated at any time by either party. No provision was made in the contract for estimating or determining what the profits might be upon any real estate which might be purchased or owned by the coal company; and when the company realized the profits of $5,750 upon the real estate which it first purchased, and which was afterward taken by the railroad company, and which profits it realized in cash several months before the plaintiff quit the company’s employment, no suggestion was made by either party for a division of the profits. Besides, the plaintiff kept the books of the company at Topeka, and kept the accounts relating to the real estate and the improvements thereon separately from the accounts relating to the coal business. It seems that the claim for a division of the profits upon real estate was an afterthought, and that it did not occur to the plaintiff to claim any such profits until some time after he quit the employment of the coal company.
It is further claimed that the court below erred in sustaining the defendant’s demurrer to the plaintiff’s evidence introduced in support of his second alleged cause of action. This decision of the court below we think was correct, and probably for more than one reason; but as the plaintiff seems to suppose that the court below sustained the demurrer upon the one ground only, that the contract between the plaintiff and Hobart to procure the transportation of the plaintiff’s railroad piles by a railroad company for a less amount than the railroad company charged others for like transportation was in violation of law and contrary to public policy, we shall decide this question upon the same ground. The transportation of these piles had nothing to do with the coal business. It would seem, from the testimony, that the railroad company had a regular rate or price for the transportation of piles, but that as to certain of its customers it would, in effect, transport them at a lower rate, and that this would be accomplished in the following manner: The full price would first be charged, and afterward a rebate would be allowed and paid back to its favored customer. The evidence would seem to show that the coal company was one of the railroad company’s favored customers, and that the plaintiff entered into a contract with Hobart, in pursuance of which Hobart was to have the piles transported in the coal company’s name, with the understanding and agreement that the railroad company should, after the payment of the full price for the transportation, and after the transportation had been completed, pay back to its favored customer, the coal company, the amount of the rebate, which amount Hobart, as its president, should afterward pay to the plaintiff. The plaintiff claims that, in pursuance of such a contract, transportation, and payment of rebate, the coal company actually received the amount of'$414.19 as rebate, which it now refuses to pay to him. Now this whole transaction, taking the plaintiff’s evidence as true, is, we think, in violation of law and of public policy. It is in violation of §§10 and 11 of chapter 124 of the Laws of 1883 (Gen. Stat. of 1889, ¶¶ 1333, 1334), which read as follows:
“Sec. 10. No railroad company shall charge, demand or receive from any person, company or corporation, for the transportation ,of any property or for any other service, a greater sum than it shall at the same time charge, demand or receive from any other person, company or corporation, for a like service from the same place, or upon like condition and under similar circumstances; and all concessions of rates, drawbacks, and contracts for special rates shall be open to and allowed all persons, companies and corporations alike; nor shall it charge more for transporting freight from any point on its line than a fair and just proportion of the price it charges for the same kind of freight transported from any other point.
“Sec. 11. No railroad company shall charge', demand or receive from any person, company or corporation, an unreasonable price for the transportation of persons or property, or for the hauling or storing of freight, or for the use of its ears, or for any privilege or service afforded by it in the transaction of its business as a railroad compauy. And upon complaint in writing, made to the board of railroad commissioners, that an unreasonable price has been charged, such board shall investigate said complaint, and if sustained shall make a certificate under their seal, setting forth what is a reasonable charge for the service rendered, which shall be prima facie evidence of the matters therein stated.”
If, however, any of this transportation was to be and was from one state into another, then the transportation was also in violation of the provisions of the interstate commerce act, which also provides that any such special rate or rebate is an unjust discrimination and unlawful, and shall be prohibted. (24 U. S. Stat. at Large, ch. 104, §§ 1, 2, 3.) It has been the uniform rule of this court, and indeed in all courts, to hold that contracts tainted with illegality are absolutely void; and certainly no person can be permitted to go into a court of justice with a demand founded only upon an illegal transaction in which he has been an active participant. Among the decisions of this court, see Hinnen v. Newman, 35 Kas. 709.
We think the decision of the court below upon the demurrer to the evidence is correct, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was a proceeding by injunction to restrain the collection of a sidewalk tax, or assessment, against lot 12, in block 129, Winfield, Cowley county, Kansas. A restraining order was first allowed by the probate judge. Afterward in the district court a temporary injunction was allowed. An answer was then filed, and the case went to final trial, resulting in a judgment of the court perpetuating the injunction. The judgment of the court perpetuating the injunction was based solely upon the fact, a3 found by the court, that no legal petition for repairing, widening and reconstructing the sidewalk in question was ever presented to the council requesting such improvement. Upon all the other questions the court found in favor of the defendants below, except upon the question-of the necessity of the- improvement, and upon that question the court refused to pass. But, as plaintiffs below are not here complaining of such refusal, no question is raised thereon. The first question raised by the assignment of errors js, did the court err in holding that the presentation of a petition requesting the improvement was necessary, to give the council jurisdiction over the sidewalk, so as to enable it to repair, widen or reconstruct the same?
The statute, the last clause of ¶ 832, General Statutes of 1889, which was in force when the proceedings to improve said sidewalk were instituted by the council of said city,-provides that “no formality whatever shall be required to authorize the repairing of sidewalks, or the reconstruction of such sidewalks as are, in the judgment of the council, worn out and unfit for repair, and making assessments therefor.” Under this provision, no petition was necessary to give the council jurisdiction over said sidewalk for the purpose of repairing the same, nor for the purpose of reconstructing it, when, in the judgment of the council, it became worn out and unfit for repair. It follows, then, that whether the improvement of said sidewalk is treated as a repairing of an old walk, or the reconstruction of one so worn out as to be unfit for repair, no petition was necessary to give the council jurisdiction to make the improvement. No petition is necessary in any event to give the council jurisdiction over sidewalks in cities of the second class, the class to which Winfield belongs, except in the construction of sidewalks.
The provision which requires a petition to give the council jurisdiction over the construction of sidewalks, construed in connection with the provision quoted, which follows it in the same section, must be held to mean that a petition is only necessary to give the council jurisdiction over a sidewalk in a city of the second class in case of an original building of a sidewalk — that is, the building of a sidewalk where none has before existed. Of course, if no petition was necessary to give the council jurisdiction to repair or reconstruct the sidewalk in question, then the fact that a petition was presented that was not a lawful petition would afford no ground upon which to maintain the injunction.
The want of a lawful petition being the ground upon which the district court perpetuated the injunction, our view of the matter renders it unnecessary for us to look into any of the other errors assigned, as the case must be reversed upon that ground. We recommend that the judgment of the district court be reversed, and remanded for further proceedings.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the court below by the Great Bend Gas & Fuel Company against A. Y. McCormick, to recover $240, a balance for an alleged subscription for stock. The action was commenced before a justice of the peace. At the trial, judgment was rendered against McCormick. He appealed to the district court. Judgment was there rendered against him for $240, with interest, aggregating $248.40, and costs. He excepted, and brings the case here.
It appears from the record that prior to the incorporation of the Great Bend Gas & Fuel Company, the charter of which company was filed in 1887, McCormick, with some 50 others, signed the following written agreement or subscription:
“We do hereby agree to subscribe the amounts set opposite our names to the capital stock of the Great Bend Natural Gas & Fuel Company, organized for the purpose of prospecting for natural gas, coal, oil, and all valuable minerals, binding ourselves to pay the full amount subscribed in such installments as may be necessary to prosecute work indicated, by assessments made upon our stock by the directors of said company.”
The amount subscribed by McCormick was $300. In pursuance of the written agreement or subscription, a charter was prepared, but by a mistake in preparing it the corporation was designated “ the Great Bend Gas & Fuel Company ” instead of “the Great Bend Natural Gas & Fuel Company.” The original agreement or subscription contained the word “natural.” When the corporation was organized this word was omitted. Therefore, at the time the parties subscribed and acknowledged the charter, the corporation took on a name slightly different from the one first agreed upon. McCormick was present and participated in the several meetings of the subscribers preliminary to the organization of the Great Bend Gas & Fuel Company, signed the charter, was elected and served as a director for more than a year. No corporation existed or was organized as the Great Bend Natural Gas & Fuel Company. The purpose for which the company or corporation was formed was “ to bore for natural gas, coal, and artesian water, and to mine and sell natural gas, coal, or to make such disposition of the results of the boring for natural gas, coal and artesian water as might be deemed best by the company.” The written agreement or subscription signed by the parties before the organization of the Great Bend Gas & Fuel Company, after that company was organized, seems by general consent of the officers of the company, as well as the parties who had signed the original agreement or subscription, to have been accepted and acted on as the subscription paper or subscription book to the capital stock of the Great Bend Gas & Fuel Company. Several assessments on the capital stock of the Great Bend Gas & Fuel Company were made and the original writing or subscription list was used therefor. McCormick voted for the first, second and last assessments on the stock. Most of the parties upon the original agreement or subscription list paid their assessments upon demand. McCormick, in common with the other subscribers upon the list, was assessed 100 per cent, of his subscription, viz., in the sum of $300. Such subscription was treated by him and the company as a subscription for stock in the Great Bend Gas & Fuel Company. In response to demands made upon him, McCormick paid $60 of the $300, but afterward refused to pay any more.
We think the original bill of particulars stated facts sufficient to constitute a cause of action, and that the demurrer was properly overruled. We also think that the judgment is fully sustained by the evidence. It is true that the subscription list set out in the bill of particulars and before referred to was not in fact a subscription to the capital stock of any corporation then existing. Although the word “organized” was used in the subscription, in the light of the surrounding circumstances connected with the signing of such subscription, this word meant “to be organized.” It is also true that the subscription list was never in a formal manner presented to the board of directors of the Great Bend Gas & Fuel Company and accepted by any regular vote or order. Although this subscription list was originally voluntary, or a mere open proposition, yet having been accepted and acted upon by the parties to the subscription and the directors and officers of the Great Bend Gas & Fuel Company, the company was bound thereby. Clearly McCormick, having signed and acknowledged the charter of the company, having acted as a director of the company, and having, with other directors, levied assessments upon the persons who signed the original subscription list, and paid several of these assessments, is now estopped from saying that the written promise or subscription list has not become a contract with the company. Every person whose name is upon the original subscription list, and who was assessed by the company as a stockholder and paid the assessments or a part thereof, must be considered a stockholder. It is well settled that a subscription for shares in a corporation thereafter to be formed under a general law may be accepted by the board of directors of the company after organization. (1 Morawe., Corp., §48.)
The proceedings of the officers and the company and the acts of McCormick show the original subscription list was treated as if actually accepted, and calls made thereon as if the subscribers had taken stock in the company; and McCormick paid several calls as a stockholder. It is too late now for him to complain. He cannot do so.
As the record comes here, we do not think the court below erred in overruling the motion for a continuance, especially in view of the facts disclosed upon the trial. At least, there was no prejudice to McCormick in the ruling sufficient to demand a new trial.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The material facts in this case can be found stated in the opinion of Mr. Justice Valentine, in 39 Kas. 347, delivered when the case was first brought to this court. When the case went back to the district court of Brown county it was tried by a jury, and a general verdict for the defendants in error was returned for $634.52. The jury also returned the following answers to special questions of fact submitted to them:
“1. Did the defendant school district, or any of its officers, enter into a contract for the erection of a school-house on the land described in the petition with Hiram Eley? Ans. Yes.
“2. Was that contract expressed or implied? A. Implied.
“3. What was Hiram Eley to receive for the building of that school-house, furnishing all the material? A. $838.
“4. Was the fact known to each member of the board that the defendant Hiram Eley was constructing this schoolhouse? A. Yes.”
“6. Was the fact that Hiram Eley was building a schoolhouse for the defendant school district, under a contract and agreement with C. A. Sawyer, treasurer of the defendant school district, generally known in that school district? A. Yes.
“7. When did he commence the work of erecting the school-house? A. On or about November 1, 1883.
“ 8. When did he cease work, and did he abscond ? A. He ceased work November 22,1883; absconded between 22d and 24th of November, 1883.
“ 9. How far was the school-house completed when he absconded? A. It was ready for plastering.
“ 10. At the time of the arrangement between Eley and any member of the school board, did the board act in concert? A. No.
“11. If Eley absconded, how long did the school-house remain unoccupied and unfurnished? A. Finished January 10, 1884; occupied June 24, 1884.
“12. When did the defendant school district complete and finish the school-house? A. January, 1884.
“13. What other contract was made with defendant Eley for the erecting of the school-house than the arrangement and contract made between him and C. A. Sawyer, treasurer of the defendant school district? A. No other.
“14. What did the defendant school district expend, and what did they do to the completing of the school-house? A. Expended $600; plastered and completed the house.
“15. What knowledge had they, if any, that the defendant Hiram Eley contracted for the building the school-house, and that he had done so under a contract of agreement with O. A. Sawyer, treasurer of the defendant school district? A. General knowledge, and by erection of building.
“ 16. What action did defendant school district take in the meeting of school district to accept this school-house which the defendant Eley had partially constructed ? A. By completing arrangements to pay indebtedness accrued by reason of finishing said house.
- “17. What use did the defendant school district make of it since? A. Used it for school purposes.
“18. What other school-house had the defendant school district at the time of accepting the school-house commenced by defendant Eley? A. The old school building.
“19. What did the defendant school district do in the way of finishing the school-house commenced by the defendant Eley? A. Plastered it and hung doors.
“20. What did defendant school district do in insuring the school-house erected for the defendant school district? A. Insured it in the Burlington company.
“21. What moneys of the defendant school district, with its consent, were paid to the defendant Eley as part payment to build the school-house? A. None by consent of the district.
“ 22. Did defendant school district, at the time of its acceptance of house, have a full knowledge of all the facts in regard to the arrangements between Eley and its treasurer, C. A. Sawyer, and abandonment of the contract by the defendant Eley, and that the school-house had only been partially completed? A. Yes.”
“25. Did the board of the defendant school district have full knowledge of the contract and arrangements between Eley and Sawyer to build said school-house? A. No.
“26. If ihe board did not have full knowledge, could it have ascertained it by exercising reasonable diligence? A. Yes.
“27. Did the majority of the board have full knowledge of the fact? A. Yes.
“28. Did Hiram Eley contract with the plaintiff for thep plaintiff to furnish the lumber and lime to be used in the construction of the school-house? A. Yes. .
“29. If so, what amount did the plaintiff furnish defendant Eley to be used in the construction of this school-house? A. $469.35.
“30. Was this lumber and building material actually used in the construction of this school-house; if not, how much was used? A. It was.
“31. What was it reasonably worth, the amount that was used? A. $469.35.
“32. From what time have you allowed interest thereon? A. From November 12, 1883, to November 23, 1888.
“33. What amount is due plaintiff from the said Eley for the said material so used? A. $634.52.
“34. Did plaintiff file a mechanic’s lien for the material so furnished the said Eley, in the construction of said schoolhouse, with said district clerk of Brown county, Kansas, and if so, when? A. He did, on the 14th day of January, 1884.
“ 35. Did plaintiff serve a copy of said lien on the defendant school district, or its officers, and if so, when and on whom? A. He did, on or about January 15, 1884, on each member of the board.”
Questions and answers of fact submitted by defendant:
“1. At the meeting of June 24,1884, was there any statement made about the alleged contract between Sawyer and Eley, that Eley should build the school-house? Ans. There was not.
“ 2. At said meeting, was the ratification of any contract betweeh said Sawyer and said Eley discussed or voted upon? A. There was not.
“ 3. Was there any contract entered into between said Eley and Sawyer that was ever submitted to the district board or the district? A. There was not.
“4. If any contract was entered into between said Eley and said Sawyer, what were its terms? A. Implied contract, requiring the payment of $838.
“5. Was there any contract entered into between the board and said Eley? A. No.
“ 6. If question No, 5 is answered in the affirmative, what was it, and when, and who of said board was present? A.
“7. Did said Sawyer pay said Eley out of the money in his hands belonging to said school district for what he did and furnished in and about said building — said schoolhouse? A. He paid him $600.
“ 8. What was the amount said Sawyer paid to said Eley out of the funds of the district for what he did and furnished in and about the building of said school-house? A. $600.
“9. Was it the intention of said district to ratify any contract between said Eley and said Sawyer at said meeting of June 24, 1884? A. It was not their intention.
“10. At the meeting of June 24, 1884, was it generally believed between the voters there present that Eley had been paid for what he had done in and about the building of said ■school-house? A. It was generally believed.”
In the former opinion in this case, it was held that if the contract for the construction of the school-house was void for the reason that it was not made by the entire school board, but only a portion thereof, yet it could be ratified and made binding by the full school board, or by the school district. At the new trial in the district court, the record of which we are now considering, the main issue was whether the action of the school board, in completing the building that had been left'in an unfinished state by an absconding contractor, and the action of the school district in furnishing the school-house with seats, charts, etc., and in using the house for a schoolhouse, was a ratification of the building contract. The evidence was somewhat conflicting, but the jury seem to have considered the various acts enumerated in their special findings to be a ratification, and their general verdict for the lumber man expressed their determination. The trial court approved the general verdict. The plaintiff in error raised numerous questions about transactions that occurred prior to the meeting on the 24th day of June, which we deem entirely immaterial.
It makes no difference now how bitterly a portion of the residents of the school district opposed the building of the school-house, or how much they dissented from the manner of letting the contract, or who was the lowest bidder, the sole question being, did the school district, by the enumerated acts, ratify the contract? As a matter of law, we think enough lias been shown by the special findings to authorize both the jury and trial court to say there was a ratification. This accords with the general equities of the case, as the school district has the benefit of the lumber furnished by the defendant in error, as it is shown that it was all used in the construction of the school-house.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
These actions were brought against the board of county commissioners of Johnson county, S. R. Rogers, and S. R. Rogers as county treasurer, to refund certain taxes which it was claimed by the railroad companies were excessive and illegal, and had been demanded by the treasurer and paid under protest by the companies. The railroad companies owned and operated certain lines of railroad in Johnson county in 1883. Among the taxes levied for that year, there were included two items designated as “the railroad commissioners’ tax” and “the poor-fund tax,” which the companies claimed were unauthorized and illegal. They were desirous of testing the validity of these two items of taxes, and, in order to do so, tendered, prior to the 20th day of December, 1883, all of the other taxes then due, less the rebate, which sums the county treasurer refused to accept. A suit was commenced to determine the validity of these two items. It was finally decided by this court that “the railroad commissioners’ tax” was illegal. The poor-fund tax was- sustained. Upon the termination of that litigation, the county treasurer charged the railroad companies a penalty of 5 per cent, upon the amount of the taxes, less the amount of the road tax, which had been paid, and the railroad commissioners’ tax, which had been decided to be illegal; and the treasurer also charged 50 per cent, interest upon the full amount of the taxes, including the amount previously tendered. The treasurer issued his warrants to the sheriff of the county. The railroad companies paid the taxes, interest and penalties charged, under protest, and commenced these actions to recover the difference between the taxes admitted to be due and the amount charged against them. The district court sustained demurrers to the petitions as against S. R. Rogers individually, to which the railroad companies excepted; and overruled the demurrers as to each of the other defendants in the court below. The railroad companies complain of the ruling of the district court in sustaining the demurrer to S. R. Rogers personally, while the board of county commissioners and the treasurer assign as error the overruling of the demurrer as to them.
It is contended by counsel for .the treasurer and the board of county commissioners that the tax law in relation to the 50 per cent, penalty attaches such penalty not only to the taxes in dispute, but also to the original taxes tendered, when it is finally determined that the amount so tendered is less than the sums found to be legally due; that the penalty operates on the whole of the taxes, where you tender less than the sum finally found to be due. It is urged that the petitions showed that the sums sued for were penalties for not tendering the full amount due, which the law legally imposed upon the railroad companies to pay. Paragraph 6975, General Statutes of 1889, provides that—
“ In cases where the county treasurer or sheriff shall, by injunction, be restrained from the collection of taxes due upon personal property, and the injunction be dissolved, the county treasurer or sheriff shall collect the original taxes and penalties, with interest from the date of the injunction at the rate of 50 per cent, per annum.”
It is argued by counsel fof the railroad companies that this statute does not refer to unpaid or defaulted taxes, but only to those which the officer is restrained from collecting; that the penalty only attaches to the taxes enjoined. The rule is well settled in this state, that where an injunction has been applied for to restrain the collection of a tax partly legal and partly illegal, the court has made the payment or tender of the legal taxes a condition precedent to the granting of the injunction. This was doubtless done in the original suits, in which the taxes enjoined were in part sustained. This court has said, too, that where an assessment is excessive, an injunction will not be granted until the amount of taxes upon a reasonable and fair valuation of the property is first paid or tendered. (Wilson v. Longendyke, 32 Kas. 267.)
We think it safe to say that from these well-settled rules, requiring a payment or tender of the legal taxes due before an injunction will be granted, we should deduce the further rule that the different items going to make up the aggregate amount of the taxes are divisible, as well as the whole amount charged upon the tax-rolls. If the rule of divisibility be the correct one, and we think it is, the treasurer might have received the amounts tendered by the railroad companies. If he had accepted the same, it could hardly be claimed that the penalties would attach to the amounts so tendered. The rule that penalties are not to be extended by implication and are not to be exacted unless expressly imposed by statute, is quite well established. (Elliott v. Railroad Co., 99 U. S. 573; People v. Peacook, 98 Ill. 172; Cooley, Tax. 459.) There was no question raised which challenged the validity of the taxes covered by the tender. We think the law affixing the penalties only applies to the taxes in dispute. We recommend an affirmance of the judgments in No. 6126, S. R. Rogers et al. v. The Kansas City, Topeka & Western Railroad Co., and No. 6127, S. R. Rogers et al. v. The Pleasant Hill & De Soto Railroad Co.; and a reversal in No. 6220, The Kansas City, Topeka & Western Railroad Co. v. S. R. Rogers, and No. 6221, The Pleasant Hill & De Soto Railroad Co. v. S. R. Rogers.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Deere, Mansur & Co. commenced this action in replevin to recover the possession of certain personal property which was held by J. L. Smith, sheriff of Reno county, under certain orders of attachment sued out by the creditors of Ballinger Bros., dealers in farm implements, wagons, buggies, etc. The case was tried by a j*ury. No special findings were made, but a general verdict returned in favor of Deere, Mansur & Co. Motion for a new trial was made and overruled, and the sheriff brings the case here for review.
The controlling question is, whether certain written con tracts about buggies, wagons, plows and other agricultural implements were contracts of absolute sale, or of sales on commission. Ballinger Bros, were local traders in such implements. Deere, Mansur & Co. were manufacturers or wholesale dealers from whom Ballinger Bros, purchased'or had for sale on commission such wagons, buggies, plows, and other implements. As to two of these written contracts, the parties were allowed to offer proof of their understanding of their terms, and of their custom and actions in regard to them as contracts for the sale of the articles specified in them as commission sales, and about these two there is but little contention. The fight clusters about the contract for plows principally, dated November 1, 1886. This contract was made by Ballinger Bros, with Anderson, a traveling agent of Deere, Mansur & Co., but was subject to the approval of Deere, Mansur & Co. They refused to approve it, but in subsequent conversations with Ballinger at Kansas City, by the general manager, Fuller, and at Hutchinson, by Anderson, the contract was amended or added to, by providing that farmers’ notes should be turned over by Ballinger Bros, as collateral security for all goods covered by the contract as they are sold. This contract, when thus amended, was approved by Deere, Mansur & Co., but on the trial they were permitted to prove, over the objections of the plaintiff in error, that there was a contemporaneous verbal contract that all goods were to be sold on commission by Ballinger Bros., and that title to the goods was to remain in Deere, Mansur & Co. until they were paid for.
We think that the admission of such parol evidence, tending as it does to alter and vary the terms of the written contract, was prejudicial error. It is true that there is some evidence tending to show that in the June following there was a settlement between Deere, Mansur & Co. and Ballinger Bros., in which Ballinger Bros, were credited with the goods on hand at the time of the settlement, and that thereafter they were held subject to their order, but we cannot say that this controlled the jury, in view of the admission of the parol evidence complained of. It seems that this violation of a well-settled rule of evidence, “that what was said before and at the time of making a written contract are not admissible,” requires a reversal of this judgment, no matter how liberal this and other courts of final resort may be in their views regarding the setting aside of written contracts by subsequent parol agreements.
We recommend that the judgment be reversed, and a new trial granted. '
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It was charged in the petition that the road-bed, embankment and track of the railroad at Bandall station, where Wm. D. Clark, the brakeman, was injured, were at the time dangerous and unsafe for coupling or uncoupling cars. It was also charged that, by reason of the road-bed, embankment and track being defective and out of repair at the place of the injury, while Clark was in the act of uncoupling a car from the train, he slipped and fell between and under the cars; that the train was then in motion, and had been immediately before set in motion by the employés of the railroad company controlling the same. The evidence shows that Clark had been running over the branch line continuously from April, 1884, until the time of the accident — about 20 months. He lived at Jamestown. He made two round trips each day, being a brakeman all the time. On one round trip it was called a passenger train, and the other a mixed train. Part of the time he acted as baggageman on the passenger train, but he helped to do the switching all the time. He was over this track many times, and helped to do the train work in coupling and uncoupling cars at Bandall. The road was built in 1879. The evidence shows that the road was ballasted with dirt in the usual manner of such ballast, namely, a ridge of dirt in the middle of the track as high as the top of the ties, and descending each way to the bottom, of the ties at the ends, making a descent of six inches in the four feet from the middle of the track to the end of the ties; and this was the condition of the road throughout, except at the terminal stations of Jamestown and Burr Oak, where the filling extended to the end of the ties level with the top.
W. W. Pinkerton, the conductor, and Wm. Tangman, the engineer, were the only railroad men who testified on the trial. Neither was in the service of the company at that time; both were friends of the plaintiff, all living in the same town. They testified that this road was constructed like western roads generally are. Mr. Pinkerton said the dirt was raised in the center and sloped downward toward the ends of the ties for the purpose of drainage, and to let the water out from under the ends of the ties. Mr. Tangman testified that it was customary on the Central Branch, and on western roads generally, to fill in the center of the track and slope outward except at terminal stations, but that on eastern roads they usually grade them up quite a distance from the switch targets. The first witness was J. N. Rogers. The accident occurred on Saturday night, and he was over the track Sunday forenoon. He testified that at the time of the accident the ground was covered by snow which had fallen after some sleet. Two other witnesses testified that there was snow on the ground, and one of them said there might have been sleet also. The movements of the train at the time of the accident were under the direct control of Mr. Clark. He was the head brakeman. Owens was the rear brakeman. Mr. Clark was ahead giving signals to the engineer to direct the movement of these cars. Four or five were attached to the engine and had been drawn out upon the main track east of the switch target. It was desired to throw two or three of these back upon the side track. Mr. Clark turned the switch so that the cars would go back upon it. Vm. Tangman, the engineer, referring to Mr. Clark, said: “He gave the signal to back up.” The engineer obeyed the signal and backed up slowly. As the cars were moving backward, Mr. Clark stepped in to draw the pin to uncouple the cars that were to be left on the side-track from the others. He succeeded in drawing the pin, and then “slipped and fell” with his knee across the rail, and one truck of the car from which he had cut the others off, ran over and crushed his knee. The accident occurred between five and six o’clock in the evening. The employés of the train had their lanterns lit before they reached Randall. The leg of Mr. Clark which was injured was amputated the next morning, but he died the day after.
The evidence showing that dirt ballast was used between the tracks, that the dirt or filling did not extend to the end of the ties, and that the road-bed was raised at the center, but sloped downwards toward the end of the ties,-leaving no dirt under the ends, did not establish that the road was improperly-constructed, or out of repair. Indeed, the evidence is to the effect that the road or branch was constructed like similar roads or branches are generally constructed in Kansas. But if the road was negligently constructed or kept in repair, the deceased had notice of it.
In Rush v. Railway Co., 36 Kas. 129, Mr. Justice Valentine, speaking for the court, said:
“All that can be required of the employer is, that he shall see that the employé is informed with respect to all the dangers and hazards incident to the work; and when this is done, the employé will assume all the risks an(j liazards of his employment. The employer must always act in good faith toward his employé, and see as far as he reasonably can that the employé does not take any unknown risks or hazards; but where the employer and the employé are equally competent to judge of the risks and hazards, and both have equal knowledge of the surroundings, the employer cannot be culpably negligent as toward the employé, although the work may be dangerous or hazardous, and although it might be made safer by the employer if he should choose to do so.”
See, also, Williams v. Railroad Co., 22 Kas. 117; Railroad Co. v. Plunkett, 25 id. 188; Railroad Co. v. Wagner, 33 id. 660; Railway Co. v. Weaver, 35 id. 412.
In the recent case of Railroad Co. v. Liehe (Sup. Ct. of Col.), 29 Pac. Rep. 175, it was said:
“The rule is, that when a person engages in the service of another he undertakes, as between himself and his employer, to assume all the ordinary danger and liability of the business upon which he is about to enter, and no more, and if, without fault on his part, he is injured as the result of the negligence of the master, the latter must answer in damages. There are some exceptions to the rule stated, as, for instance, where the servant has equal knowledge with the master of the defects existing in the machinery, the servant will be deemed to have waived his right of action for damages arising from injuries resulting from such defects.”
It is not claimed in this case that the railroad company agreed with the deceased to change or add additional ballast to the road-bed, or that it induced him to remain by any promise to reconstruct or repair the road-bed, embankment or track. The movement of the train was under the control of the deceased, and by his signal the engineer of the train backed it up slowly; therefore, it cannot be said, when he slipped and fell, he was compelled by his superiors to go into 313 unsafe and dangerous place to perform work. The accident was a most unfortunate one, but the proof in the case did not fix any liability upon the railroad company. There was evidence offered tending to show that one end of a rail of the road was slivered up and that some one when crossing over it had caught his pants and fell down. Other witnesses, however, for the plaintiff made an examination and did not notice or find this defect; but if the defect existed, as described, it was some 10 feet from where the deceased slipped and fell, and does not seem to have been in any way the cause of the accident. The same may be said concerning a broken tie which was found a little east of where Mr. Clark lay, which was broken in the middle, but spikes held the rails to it at each end. (Railroad Co. v. Wagner, supra; Railroad Co. v. Estes, 37 Kas. 715.)
It is next claimed that the railroad company is liable upon the ground that after the accident the physicians or surgeons of the company were negligent in treating Mr. Clark and in amputating his leg. Dr. Friday, a regular practicing physician at Randall, was called immediately after the accident. Mr. Clark was taken to his home in Jamestown, and Dr. Friday did everything possible for his relief until he reached that town. Dr. Hartwell, the local surgeon of the railroad company, then attended, and reported the accident by telegraph to Dr. Holland, the assistant general surgeon, at Atchison —170 miles away. Dr. Holland tried to furnish assistance from Clyde, and Jewell City, but failed. Then he wired Dr. Hart-well to call in any physician he chose in Jamestown. There is evidence tending to show that the amputation might have been made at 10 or 11 o’clock on the night of the accident; it was not made until about 6 o’clock the next morning — 12 or 13 hours after the accident. Four expert physicians and surgeons were then present and assisted in the operation* They were Drs. Friday, Hartwell, Moore and Pigman. The only possible complaint concerning the amputation that can be made is, that it might have been performed six or seven hours before it was. Dr. Moore attended Mr. Clark at the instance of the family, and no objection was made by Dr. Hart-well to the calling of any other physician and surgeon. It does not appear that the railroad company was under any legal obligation to provide medical or surgical care. (Railway Co. v. Beatty, 35 Kas. 265.) Upon the facts disclosed, there is no evidence showing or tending to show that the railroad company can be held liable for any results of the medical or surgical treatment of Mr. Clark after the accident, which, with the exception of the delay in making the amputation, according to all the testimony, was proper and skillful.
Complaint is further made that the trial court committed error in refusing to permit plaintiff to show that one of the two cars between which the deceased was injured was taken from another road, and differed from those in general use on the defendant’s road, in that it had no hand-holds or guards to hold or support a person in coupling or uncoupling cars. It is also claimed that the court committed error in excluding the evidence offered tending to show that Mr. Clark, in his lifetime, paid to the railroad a certain portion of his salary, in consideration of which the company was to give him medical treatment in case of injury. The evidence rejected was not offered to support any allegation of the petition. If the matters attempted to be established by the rejected evidence were material, they ought to have been alleged in the petition. No issue was tendered by the pleadings thereon. The railroad company had a right to assume that it would not be called upon to meet any negligence or other material matter not pleaded. (Railroad Co. v. Irwin, 35 Kas. 286; Railway Co. v. Fudge, 39 id. 543.)
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
Beier, J.,
Leslie Walker was convicted of first-degree murder, aggravated kidnapping, aggravated robbery, and conspiracy in 1985. See State v. Walker, 239 Kan. 635, 722 P.2d 556 (1986). This appeal arises from denial of his 2002 pro se motion to correct an illegal sentence.
Walker’s convictions arose out of the 1984 slaying of Eugene Branton, Jr. At Walker’s sentencing hearing, the State moved to invoke the Habitual Criminal Act, K.S.A. 1984 Supp. 21-4504, be cause Walker had two prior felony convictions: a burglary conviction in 1973 and a felon in possession of a firearm conviction in 1974. The district court acknowledged that there were two journal entries for these convictions and found the Habitual Criminal Act applicable.
Walker was sentenced to serve consecutively: (1) a life sentence for first-degree murder, as defined by K.S.A. 21-3401 (Ensley 1981); (2) a life sentence for aggravated kidnapping, as defined by K.S.A. 21-3421 (Ensley 1981); (3) 45 years to life for aggravated robbery, as defined in K.S.A. 21-3427 (Ensley 1981); and (4) a term of not less than 15 years nor more than 60 years for conspiracy, as defined by K.S.A. 21-3302 (Ensley 1981). The sentences for the aggravated robbery and conspiracy convictions were tripled pursuant to the Habitual Criminal Act. See K.S.A. 1984 Supp. 21-4501(b), (c) and K.S.A. 1984 Supp. 21-4504(b).
The jury instructions at Walker s trial stated: “The defendant is charged with the crime of conspiracy to commit the crime of first-degree murder, aggravated kidnapping or aggravated robbery." The jury found Walker guilty of conspiracy, but its verdict form did not specify the crime he had conspired to commit.
Walker now makes two complaints about his sentences. First, he asserts that the Habitual Criminal Act was incorrectly applied to his sentences for aggravated robbery and conspiracy. Second, he argues that his conviction for conspiracy was incorrectly categorized as a class C felony.
This court has jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504(1). Whether a criminal sentence is illegal is a question of law, and this court has unlimited review of questions of law. State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001). “An ‘illegal sentence’is . . . a sentence which does not conform to the statutory provisions, either in the character or the term of the punishment authorized.....” 272 Kan. 674, Syl. ¶ 1. “It is a fundamental rule that a person convicted of a crime is given the sentence in effect when the crime was committed. [Citation omitted.] The controlling Habitual Criminal Act penalties are those which were in effect at the time the offense was committed. [Citation omitted.]” 272 Kan. at 677.
Regarding Walker s first sentencing challenge, at the time of Walker s crimes, the Habitual Criminal Act provided:
“(a) If a defendant is convicted of a felony a second time, tire punishment for which is confinement . . . the trial judge may sentence the defendant as follows . . . :
(1) The court may fix a minimum sentence of not less than the least nor more than twice the greatest minimum sentence authorized by K.S.A. 21-4501 . . .; and
(2) the court may fix a maximum sentence of not less than the least nor more than twice the greatest maximum sentence ... for tire crime.
“(b) If a defendant is convicted of a felony a third or subsequent time, the trial judge shall sentence the defendant as follows . . .:
(1) The court shall fix a minimum sentence of not less than the greatest nor more than three times the greatest minimum sentence authorized . . .; and
(2) the court may fix a maximum sentence of not less than die least nor more than three times the greatest maximum sentence ... for the crime.
“(d) The provisions of [the act] shall not be applicable to:
(1) Any person convicted of a felony of which a prior conviction of a felony is a necessary element.” K.S.A. 1984 Supp. 21-4504.
Walker’s aggravated robbery sentence was imposed pursuant to K.S.A. 1984 Supp. 21-4501(b), which stated: For class B felonies, “the sentence . . . shall be an indeterminate term of imprisonment, the minimum of which shall be fixed by the court at not less than five years nor more than 15 years and the maximum of which shall be fixed by the court at not less than 20 years nor more than life.” The Habitual Criminal Act was used to triple Walker’s sentence for this crime because Walker had two previous convictions, the 1973 burglary and the 1974 firearm possession.
Walker’s sentence for conspiracy was imposed pursuant to K.S.A. 1984 Supp. 21-4501(c), which stated: For class C felonies, “the sentence . . . shall be an indeterminate term of imprisonment, the minimum of which shall be fixed by the court at not less than three years nor more than five years and the maximum of which shall be fixed by the court at not less than 10 years nor more tihan 20 years.” This sentence also was tripled under the Habitual Criminal Act because Walker’s two prior convictions were counted individually.
The problem with these applications of. the Habitual Criminal Act was that Walker s 1973 burglaiy conviction was a necessaiy element of his 1974 firearm possession conviction. See State v. Loudermilk, 221 Kan. 157, 159, 557 P.2d 1229 (1976) (“Crimes in which the prior conviction of felony is a necessary element include . . . possession of a firearm . .'. .”). Thus the two convictions should have been counted together rather than individually, making Walker eligible only for the doubling rather than the tripling of his 1985 sentences for aggravated robbery and conspiracy. K.S.A. 1984 Supp. 21-4504(d). See also State v. Ware, 201 Kan. 563, 564-65, 442 P.2d 9 (1968) (defendant’s enhanced sentence vacated because prior conviction for felonious assault necessaiy element of possession of firearm); State v. Murray, 200 Kan. 526, 530-31, 437 P.2d 816 (1968) (“Because two offenses grow out of a single act the actor has not become an habitual offender”); State v. Dodd, 11 Kan. App. 2d 513, Syl. ¶ 1, 728 P.2d 402 (1986) (defendant’s enhanced sentence for possession of firearm vacated because conviction dependent on prior felony; 21-4504(d) applied).
Walker should have been sentenced as a second-time offender rather than a third-time offender. See Murray, 200 Kan. at 531 (“[A] convict must be subject to sentence for a second felony conviction before he can be sentenced for a third felony conviction.”).
The State concedes that Walker’s sentences for the aggravated robbeiy and conspiracy charges were illegal but argues that modification will have little effect because his two controlling life sentences will not be reduced. The State also argues that the doctrine of laches should be applied to bar resentencing. Acknowledging that it must show prejudice to support laches, see Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 7, 823 P.2d 782 (1991), the State points to the likelihood that resentencing would cause trauma to the victim’s family.
Neither of these arguments is persuasive. The absence of any effect on Walker’s controlling sentences is of no moment. He is correct that his two other sentences are illegal and in need of correction. Further, any trauma that may be suffered by the victim’s family is not legal prejudice. Without such prejudice, “[t]he mere passage of time ... is not enough to invoke the doctrine [of laches].” 250 Kan. 123, Syl. ¶ 7; see also Jones, 272 Kan. at 675 (motion to correct sentence addressed despite passage of 17 years since conviction).
Walker’s tripled sentences for aggravated robbery and conspiracy were illegal and must be vacated. This case must be remanded for resentencing in accordance with K.S.A. 1984 Supp. 21-4504(a)(1) and (2).
Walker’s second argument — that his conspiracy conviction was incorrectly categorized as a class C felony — rests on the district court’s disjunctive jury instruction on conspiracy and the jury’s general verdict. He argues that the alternative wording of the conspiracy jury instruction left it unclear whether the jury relied on the murder, aggravated kidnapping, or aggravated robbeiy charge as the object of the conspiracy.
The conspiracy statute in effect at the time of Walker’s crimes stated: “Conspiracy to commit a class A felony is a class C felony. Conspiracy to commit a felony other than a class A felony is a class E felony.” K.S.A. 21-3302(3) (Ensley 1981). At that time, first-degree murder and aggravated kidnapping were class A felonies, but aggravated robbeiy was a class B felony. K.S.A. 21-3401 (Ensley 1981), K.S.A. 21-3421 (Ensley 1981), and K.S.A. 21-3427 (Ensley 1981). In this case, if the aggravated robbeiy served as the object of the conspiracy, then the conspiracy should have been categorized as a class E felony rather than a class C felony.
The defendant relies on the logic of State v. Vontress, 266 Kan. 248, 264, 970 P.2d 42 (1998). In Vontress, we examined a guilty verdict on a first-degree murder charge, where the juiy’s underlying theoiy could have been premeditated or felony murder or some combination of the two. We held that in such ambiguous circumstances the district court did not have the authority to sentence the defendant to the more serious penalty attached to a premeditated first-degree murder conviction. 266 Kan. at 264.
Walker’s logic is sound. As with alternative theories for first-degree murder, the governing conspiracy statute designated more severe penalties for various ways of committing the crime, depending on the supporting theoiy. In addition, the same constitutional provision at the heart of our Vontress holding supports a similar result here. When the district court is able to determine that the jury found the defendant guilty, but unable to discern from the verdict whether the jury believed the defendant’s guilt was based on a theory of the crime that demands a more severe punishment, due process requires that the defendant not be subject to the harsher penalty. See Vontress, 266 Kan. at 261-64.
The defendant also directs our attention to State v. Mullins, 267 Kan. 84, 977 P.2d 931 (1999). In that case, this court stated: “[W]here a jury verdict is nonspecific and uncertain as to whether an act was committed before or after the effective date of an amended statute, the defendant may be sentenced only [on] the lesser offense or [to the lesser] sentence.” 267 Kan. at 99. Mullins’ unclear verdict meant he could not be subject to the more severe penalty. 267 Kan. at 99.
The State argues that common sense requires us to hold that the jury’s finding of guilt on Walker’s conspiracy charge related to the murder and aggravated kidnapping. However, we are required by the rule of lenity to give the benefit of the doubt to Walker rather than the State. Mullins, 267 Kan. at 99. There is no indication on the record which crime prompted the jury’s verdict of guilt on the conspiracy. "Common sense” does not make the ambiguous verdict clear. See Mullins, 267 Kan. at 99.
Walker’s sentence for conspiracy should have been categorized as a class E felony rather than a class C felony and must be vacated. This case is remanded for resentencing in accordance with K.S.A. 21-3302(3) (Ensley 1981).
Sentences on aggravated robbery and conspiracy vacated; case remanded for resentencing on those two convictions. | [
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Per Curiam:
This case cannot be considered, for the reason that nothing has been brought here but the original bill of exceptions, and it has no attestation of the clerk. Upon the authority of The State v. Hastie, 44 Kas. 427, and the cases there cited, the appeal is dismissed. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of mandamus brought originally in this court by the Interstate National Bank of Kansas City, Kas., against J. W. Ferguson, the treasurer of such city, to compel him to deposit with the plaintiff all public moneys coming into his hands as city treasurer, including all moneys received by him under the provisions of § 189 of the first-class-city act. Sections 87 and 189 of the first-class-city act read as follows:
“Sec. 87. The city treasurer shall give such bond to the city as may be required by the mayor and council, said bond to be approved by the mayor and filed with the city clerk. It shall be the duty of the city treasurer, if so required by ordi nance, to deposit daily all public money in some responsible bank, to be designated by the mayor and council, in the name of such such treasurer, as such officer, which bank shall pay interest on monthly average balances as may be agreed upon by such bank and the mayor and council. And before making such deposits, the said council shall take from such bank a good and sufficient bond, in a sum to be designated by- the council, conditioned that such deposit shall be promptly paid on the check or draft of said treasurer; and in the monthly report- of said treasurer, he shall state the amount deposited and drawn out of such bank during the previous month; and no funds shall be paid by said treasurer, except by check or draft on such bank; and all checks and drafts drawn by said treasurer on said bank shall be countersigned by the city clerk, who shall keep an accurate record of each check or draft so countersigned by him.' And it shall further be the duty of the city treasurer, in his monthly report to the council, to make an itemized statement of the various sums received and paid out by him during the preceding month, from whom received and on what account; and said treasurer shall keep a separate account of each fund received by him, and shall credit each account with the funds received therefor, and charge each account with the amounts legally drawn thereon or paid out therefrom; and no money shall be paid out of one fund which belongs to another. All money paid to the city for licenses, taxes, or for any other purpose whatever, shall be paid to the city treasurer, who shall issue duplicate receipts therefor. One of said receipts shall be filed with the city clerk, who shall enter and charge to the treasurer the same in a book kept for this purpose; and the city clerk shall not issue any license until there is first filed with him a receipt of the city treasurer, showing the full amount of said license has been paid.”
“Sec. 189. All fines or forfeitures collected by the police judge upon charges for the violation of the laws of the state shall be by him paid into the county treasury of the county in which said city is located, for the use of the common school fund of such county. All fines and forfeitures collected upon charges for a violation of city ordinances, and all fees of officers collected by the police judge under any act of the legislature or city ordinance for services, shall be paid to the city treasurer, to be held by him subject to the order of the board of police commissioners for the payment of the salaries of all officers under this law, and the expenses of the police department. And the mayor and council are required to set apart and pay monthly out of the general fund of the city such sum as may be necessary to pay the balance due for such salaries and expenses, after deducting the amount of such fines so paid to said treasurer. After the payment of the salaries of all officers under this law, and expenses of the police department, if there should be a surplus in the hands of the city treasurer, derived from fines and forfeitures collected by the police judge for a violation of city ordinances, such surplus shall be paid over to the general revenue fund of said city.”
On December 26, 1891, a city ordinance of the mayor and council of said city took effect, sections 1 and 2 of which read as follows:
“Section 1. That the Interstate National Bank, of the city of Kansas City, be and the same is hereby designated as city depository for all funds of the city.
“ Sec. 2. That the city treasurer is hereby directed to keep on deposit all of the city’s funds in the bank designated in section 1 of this ordinance until otherwise ordered.”
It is alleged by the plaintiff, among other things, as follows :
“That on December 9, 1891, the council of said city took from said Interstate National Bank a good and sufficient bond in the sum of $200,000, which sum was designated by said council, conditioned as provided by said section 641 of said statutes (said section 87); and it was agreed by and between the said bank and the mayor and council of said city that the said bank should pay interest on monthly average balances of such deposits at the rate of 2 per cent, per annum.”
The plaintiff has complied with all the terms and conditions required of it under the statutes and the city ordinances and its contract with the city, to authorize it to receive the aforesaid moneys, provided a national bank may ever, under any circumstances, receive such moneys; but the defendant, as city treasurer, refuses to deposit with the plaintiff any such moneys; and the plaintiff, for the purpose of compelling the defendant to make such deposits, has brought this present action in this court. The defendant has demurred to the plaintiff’s petition and alternative writ upon various grounds, some of which are wholly untenable and require no comment; but others demand our careful consideration. Among the points made by the defendant are the following: (1) It is claimed by the defendant that the aforesaid ordinance provides for depositing only the “funds of the city” or the “city’s funds” with the plaintiff, which funds, it is claimed, do not include any of the funds mentioned in § 189 of the first-class-city act. (2) It is also claimed by the defendant that the mayor and council have no control, under §§ 87 and 189 of the first-class-city act, or under any other statute or statutes, over any funds paid to the city treasurer under the provisions of said § 189, for the purpose of placing them in a bank or for any other purpose, for the following reasons: First, they are not city funds; second, they are “to be held by” the city treasurer and not by a bank; and, third, they are “subject to the order of the board of police commissioners,” and not to the order of the mayor and council. (3) It is also claimed by the defendant that § 87 of the first-class-city act, so far as it provides for the depositing of any of the public money in any bank, is unconstitutional and void, being in contravention of §4, article 11, of the state constitution; and also in contravention of the general spirit and essence of such constitution. (4) It is further claimed by the defendant that the plaintiff, which is a national bank, has no power to receive any public moneys belonging to a city or to any other public organization under any such terms or conditions as are, in the present case, imposed upon the bank by the statutes of Kansas, the city ordinances, and the contract between the bank and the city, for the reason that such a thing would be in contravention of the purposes for which national banks were created, and ultra vires.
We must decide all these points against the defendant and in favor of the plaintiff. The first and second may be considered together. The funds mentioned in § 189 of the first-class_city a(4) and payable to the city treasurer, are> as -\ye think, “city funds,” and that for the purpose of creating a depository for them the mayor and council have absolute authority over them. But it is said that, when they are paid to the city treasurer, they are “ to be held by him subject to the order of the board of police commissioners for the payment of the, salaries of all officers under this law and the expenses of the police department.” Of course these funds are to be held by the city treasurer subject to the order of the board of police commissioners for a particular purpose, but they are to be held by the city treasurer and subject to the order of the police commissioners only in the manner as may be provided by said § 189 and the other statutes of the state. This section of the statute must be construed in connection with all the other statutes of the state which may be in pari materia, and especially in connection with said § 87 of the first-class-city act. The statutes might direct that the city treasurer should place the funds in a certain vault under his control, and if he should so place them, they would undoubtedly “be held by him.” And we would also think that when he deposits them in a bank to be drawn out on his own checks or drafts whenever he may choose, and only on his checks or drafts, the funds are still, in contemplation of the statutes, “held by him,” although they may also be held by a bank.
Money deposited in a bank is usually considered as money belonging to the depositor, and under the revenue laws of this state it is taxed as money. And' this interpretation of said § 189 does not deprive the board of police commissioners from having all the control over the funds which the statutes give them. They can have just as much control over the funds after they are deposited in the bank as while they are “held” by the city treasurer. For instance, if it should become necessary at any time for the board to use any of these funds for the purpose of paying the salaries of officers or the expenses of the police department, the board might draw its order upon the city treasurer for the amount, and when such order should be presented to the city treasurer, he would draw his check or draft on the bank designated by the mayor and council for the amount and in favor of the person designated by the board of police commissioners, which check or draft when presented to the bank would be promptly-paid. These funds mentioned in said § 189, which may be deposited in a bank under said § 87, are “all fines and forfeitures collected upon charges for a violation of city ordinances, and all fees of officers collected by the police judge under any act of the legislature or city ordinance for services; ” and under the statutes these funds are all to be “paid to the city treasurer,” Avhich clearly indicates that they all must be city funds. Some of these funds do not arise at all from the management of the police department, and all are placed within the custody of the city treasurer as city treasurer.
The city treasurer, as all know, acts in a dual capacity: (1) As the city treasurer proper; and (2) as ex officio treasurer of the board of education; and he receives public funds separately in each of these capacities. He also gives two bonds, and only two bonds, one as the city treasurer, under § 87 of the act relating to cities of the first class, as required by the mayor and council and approved by the mayor and filed with the city clerk; and the other under chapter 178 of the Laws of 1885, which relates to schools, (Gen. Stat. of 1889, ¶5693,) and this bond he gives as the treasurer of the board of education, as required and approved by such board, and filed with the clerk of the board of education. The first of these two bonds is to secure the safety of all the city funds which might come into his hands as city treasurer; and the other is to secure the safety of all the school funds which might come into his hands as treasurer of the school board; and no bond is given by him in any other capacity or to secure the safety of any other fund. Under said § 87 of the first-class-city act, the mayor and council designate the depository for the city funds, while under said chapter 178 of the Laws of 1885 the board of education designates the bank which shall be the depository for the funds belonging to the board of education; and the power of the board of education in the one case is almost exactly similar to the power of the mayor and council in the other. Now, the funds mentioned in § 189 of the first-class-city act, those which the plaintiff desires to have deposited in its bank, are not school funds belonging to the board of education, and they did not come into the defendant’s hands as treasurer of the board of education, but they came into his hands only as the city treasurer; hence, they, are not covered by the bond given by him as treasurer of the board of education; and if they are not “ city funds,” then they are not covered by any bond, and no bond has been given for their security or safety. Such a state of things should not be held to exist. On the contrary, we think it should be held that these funds are city funds belonging to the city and covered by the bond given by the city treasurer under § 87 of the first-class-city act. In our opinion, all the funds mentioned in § 189 of the first-class-city act and paid to the city treasurer are city funds, and are “public money,” within the meaning of § 87 of the first-class-city act, and are under the control of the mayor and council at least so far as the designation of some bank as a depository for them is concerned.
It is further claimed that said § 87, so far as it authorizes the mayor and council to designate a bank as a depository for the city funds is concerned, is unconstitutional and void. Now the city treasurer is not a constitutional officer. The constitution does not mention any such officer, nor state where or with whom city funds shall be kept; hence it would seem that the legislature would have full and ample authority with respect to this subject. Neither are the funds which are required to be paid to the city treasurer under § 189 of the first-class-city act taxes within the provisions of §’4, article 11, of the constitution, as the defendant’s counsel seem to urge. They are not taxes at all, and we cannot say that , . , ,. n ... the statute is in contravention of any spirit supposed to be contained in or to pervade the constitution.
We think the plaintiff in the present case, although a national bank, has the power to accept and receive all the funds which its contract with the city authorizes it to accept or receive, and under the terms and conditions imposed upon it by the statutes, by the city ordinances and by its contract. Un der the authority of the United States Revised Statutes, § 5136, it has the power, under subdivision third, “to make contracts,” and under subdivision seventh, “to exercise . . . all such incidental powers as shall be necessary to carry on the business of banking.” And a bank may certainly, as a part of legitimate banking business, receive deposits, pay interest thereon, secure its depositors by bond or any other lawful means, and loan the money which it receives as general deposits; and it makes no difference that the depositor may be' a city, where the law permits the city to make general deposits with a bank and to receive interest on its deposits'. As to the powers of banks in general, see 1 Morse on Banks and Banking, §§ 47, 48, 63, and 309.
The defendant’s demurrer will be overruled, and as he asks for leave to make return to the alternative writ, he will be permitted to make such return within — days from this time.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 10th day of January, 1889, the Consolidated Barb-Wire Company commenced an action in the district court of Chautauqua county against A. J. and W. E. McGuire, on a protested check drawn by the McGuire Bros, on the Commercial Bank, of Independence, Kas., in favor of the barb-wire company, for $293.40, protest fees, interest, and costs. An attachment was caused to be issued, and levied on horses, cows, a two-horse buggy, a stack of hay and other property of the McGuire Bros. This levy was made on the 10th day of January, the same day that the suit was commenced and the process issued. In due time, upon proper application, this property was sold by the sheriff, on the 13th day of February, 1889, for the sum of $257.15, and the money returned into court.
On the 26th day of March, 1889, the defendant in error, C. C. Purcell, filed an amended interplea, by leave of the court, in which it is alleged that at the time of the commencement of this action he’had and still has a special ownership in the property taken by the sheriff under the attachment issued in this case; that his special ownership is described in an instrument in writing, filed in the office of the register of deeds in said county for record on the 17th day of December, 1888, a copy of which is attached to the interplea; that at the time of the commencement of said action he was' and still is entitled to the immediate possession of said property.
The facts constituting his special ownership he states as follows: On the 15th day of December, 1888, and for a long time prior thereto, this interpleader had in his possession and under his control, for the purpose of loaning and collecting the same, several large sums of money, belonging to the following-named persons: John Smith, C. M. Adams, J. W. Elpis, and others. Said interpleader being then engaged in business as loan and real-estate agent, it was understood and agreed by and between said parties and this interpleader that said sums of money should be loaned by said interpleader, and he should take notes therefor, the payment of which he should' guarantee and be liable for the same, and that when said notes should become due he should collect the same and retain his commission thereon, and reloan or return the same, as the parties might desire; that on the day of the execution of said written instrument, to wit, on the 15th day of December, 1888, and prior thereto, said interpleader had loaned to said defendants, McGuire Bros., out of said moneys, the several sums of money stated in the notes described in said written instruments, and had taken and still has said notes in his possession, and was then and still is liable to the said payees named in said notes for said sums of money j and that on the said 15th day of December he demanded and received from said defendants the said written instrument to secure the payment of said notes, and the several sums of money so loaned, and also the additional sum of $200, loaned by said interpleader to said defendants on the 15th day of December, 1888, said last-named loan being a part of the consideration for which said written instrument was executed; that all of said sums of money were actually loaned the defendants, and said notes and security taken in good faith and upon good consideration; that at the time of making the last loan mentioned said property was held by the sheriff of said county under an attachment issued in favor of the Simmons Hardware Company, and said last loan was so made to enable said defendants to pay the claim of said hardware company, and said claim was so paid, and that the said property was then turned over and delivered to this interpleader, and remained in his possession until taken by the sheriff under the order of attachment issued in this case; that the property is worth $1,000, and has been sold by the sheriff, and the proceeds of the sale are now held by the sheriff. The interpleader prayed that he be declared and held to be the owner of the property, and entitled to its possession; that he recover possession, or, in lieu thereof, the value of $1,000 and costs of suit. Exhibit “A” is as follows:
“ Know all Men by these Presents, That we, A. J. McGuire and Wm. E. McGuire, doing business under the firm-name of McGuire Bros., of Chautauqua, Kansas, for and in consideration of the sum of one thousand eight hundred and dollars, to us in hand paid by C. C. Purcell, of Chautauqua, Kas., the receipt whereof is hereby acknowledged, have bargained, sold, and delivered, and by these presents do bargain, sell, and deliver, unto the said C. C. Purcell, the following-described goods and chattels, tó wit:
“One white horse, four years old, about 14 hands high, bought of J. R. Skinner; one white horse, five years old, about 14 hands high, bought of J. R. Skinner; one sorrel mare, seven years old, about 15 hands high, bought of John Chittenden; one sorrel mare, seven years old, bought of Joseph Revard, jr.; one sorrel mare, nine years old, bought of Joseph Revard, jr.; one roan mare, five years old, bought of Franklin Revard; one roan mare, five years old, bought of Will. Rodimel; one iron-gray horse, four years old, bought of Will. Rodimel; one iron-gray horse, five years old, bought of Will. Rodimel; one yellow horse, five years old, bought of Sippel &. Pershall; one bay horse, five years old, bought of JohnNicholls;. one roan cow, four years old, bought of A. Higginbotham; one-red and white cow, six years old, bought of A. Higginbotham; one spotted cow, six years old, bought of J. K. Crockett; one red cow, five years old, bought of Frank Newell; one red cow, four years old, with calf by her side, bought of D. W. Dunn;, one roan cow, four years old, bought of Wibb Fowler; one two-horse buggy, bought of Geo. Inger & Co., Kansas City,. Mo.; one two-horse wagon, size 2f- in., bought of Joseph Revard; one set buggy harness, bought of J. N. Goff; one crib of corn, about 1,000 bushels in crib, on lots 14 and 16, ■in block 9, in Chautauqua Springs, Kas.: To have and to hold, unto the said C. C. Purcell, forever. Provided, however,. If the said McGuire Bros, do pay or cause to be paid at maturity 13 certain notes, amounting to $1,008.15, and described as follows: No. 172, amount $59, in favor of John Smith, signed McGuire Bros, and Frank Tinker, payable 90 days-after date; No. 142, amount $31, payable in 90 days after date to G. M. Adams, signed McGuire Bros, and Joseph Revard; No. 139, amount $149.44, payable within 30 days after date to John Smith, signed by McGuire Bros.; No. 256,. amount $74, payable within 90 days after date to G. M. Adams, and signed by McGuire Bros, and Leonard Revard; No. 118, amount $13, payable within 90 days after date, to John Smith, signed McGuire Bros, and G. E. Tinker; No. 88, amount $65, payable within 60 days after date to»G. M.. Adams, dated August 23, 1887, signed by McGuire Bros, and Jacob Kaufman; No. 283, dated December 6, 1888, amount. $78, payable to G. M. Adams, signed McGuire Bros.; No.. 232, dated July 20, 1888, amount $28, in favor of G. M. Adams, signed McGuire Bros, and B. S. McGuire; No. 405, dated Nov. 26, 1888, amount $20, in favor of J. W. Elpis,. signed by McGuire Bros.; No. 743, dated December 15,1888,. amount $335, in favor of George Adams, signed by McGuire Bros.; No. 409, dated December 4, 1888, amount $85.75, in favor of J. W. Elpis, signed by McGuire Bros, and William Howard; No. 745, dated September 29, 1888, amount $50,. in favor of C. W. Aldridge or order, signed W. E. McGuire and J. D. Day; No. 408, dated December 3, 1888, amount $24.50, in favor of J. W. Elpis, signed by McGuire Bros., then this sale be null and void; otherwise to remain in full: force and effect.
“In Testimony Whereof, We have hereunto set our
hands, this the 15th day of December, 1888.
McGuire Bros.
Signed m the presence oí:
John Y. Chittenden.
J. B. Beaston.”
Indorsed on back:
“State of Kansas, Chautauqua County, ss.
“This instrument was filed for record this 17th day of December, 1888, at 9 o’clock a. m., and duly recorded in book “C” of chattels, at page- 50 cts.
C. W. Dubendorff, Register of Deeds.”
There was a trial at the June term, 1889, of the issue between the interpleader and the plaintiff in error, that resulted in a judgment for the interpleader and a decree giving him a prior right to the plaintiff in error. The plaintiff in error brings that issue here for review, and raises by a demurrer to-the interplea, and objection to testimony offered at the trial, and by a demurrer to the evidence introduced to support it, several questions. One of these is, that Purcell had no title to the property described in the mortgage or otherwise stated in the interplea, and hence could not maintain his suit, or the instrument itself discloses that he is a naked trustee, or that the instrument is void, being in violation of the assignment laws of the state. Again, it is insisted that there was no-change of possession under the instrument. All these objections are not tenable. The written instrument executed and delivered to Purcell on December 15, 1888, and filed for record on the 17th of the same month, is a chattel mortgage-Purcell, the interpleader, by reason of being the person who loaned the money, who guaranteed the payment of the notes, had such a beneficial interest in the notes, and was so personally responsible for them, that he could take the mortgage in his own name, and could have maintained an action in his own name against the makers of the notes. He had title for all the purposes of this interplea and of this action. Possession was not necessary, as his mortgage was on record prior to the-attachment levy of the plaintiff in error. But if actual pos session was necessary as against the plaintiff in error, there is some evidence to sustain any finding that might be included in the general judgment rendered.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In May, 1887, Mark Dill and David W. Dill purchased, at Cedar Falls, Iowa, three stallions, and contracted in writing with the Chicago, Rock Island & Pacific Railroad Company to transport the stallions from Cedar Falls, Iowa, to Eskridge, in this state. Among these stallions was one English-Shire horse, about four years old, and weighing from 1,500 to 1,600 pounds. The contract at Cedar Falls was for a through rate, and the horses were loaded in a car there and shipped through to Eskridge in the same car, being transferred at Atchison, in this state, from the Chicago, Rock Island & Pacific Railroad to the Atchison, Topeka & Santa Fé Railroad. At Atchison, this contract was taken up and a new one attempted to be executed in duplicate by the Atchison, Topeka & Santa Fé Railroad Company and Mark Dill, in charge of the stock. At Eskridge, freight was paid for the entire transportation, and* the horses came through to that point in the same car in which they were shipped at Cedar Falls. When they arrived at Eskridge, the horse whose name was “Blyth Uniform” had an acute attack of laminitus, or founder, an inflammation of the foot, and was in very bad condition, hardly being able to stand on his feet. Mark Dill and David W. Dill claimed that this inflammation or disease was brought on by the negligence in the handling of the car the horse was in, in the yards at Atchison and Topeka, after it was delivered to the Atchison company. Mark Dill and David W. Dill brought their action against the railroad company to recover $3,500, their alleged damages. The cause was tried by a jury, which returned a verdict for $800, and judgment was rendered accordingly. The railroad company complains of this judgment.
The principal contention is, whether the so-called written contract of May 19, 1887, alleged by the Atchison company to have been entered into by Mark Dill, is binding, and therefore controls. That contract required the shipper to give notice in writing of his claim for damages for any injury to the stock shipped to some officer or agent of the railroad company, before the stock was removed from the place of destination or from the place of delivery, and before it was mingled with other stock. No such written notice was given. In reply to this contract, set forth in the answer, the plaintiff below alleged that he was compelled to sign the contract as a condition precedent to the transportation of his horse; that different rates or charges were not stated to him by the Atchison agent; that he was not given or offered any option between the different rates of the railroad company, and that ie protested against signing the contract; and that, therefore, the contract was not binding or of any force. In certain ■cases it has been decided by this court that a special contract for a notice in writing of damages or injuries, when reasonably and fairly made, is binding upon the parties. (Goggin v. Railway Co., 12 Kas. 416; Sprague v. Railway Co., 34 id. 347; W. & W. Rly. Co. v. Koch, 47 id. 753.)
As a general rule, and in the absence of fraud or imposition, a common carrier is answerable for the loss or injury to stock, if there is no special contract or acceptance; but in all cases where the statute will permit, it is just and reasonable that a contract requiring a written notice of the injury or damages claimed before the stock is removed from the place of destination or mingled with other stock, when properly entered into, should be upheld. Such a contract, however, inust be freely and fairly made with the railroad company — not exacted as a condition precedent of shipment. Railroad companies cannot arbitrarily fix any valuation on the property of the shipper, or arbitrarily demand or exact the execution of a contract limiting the common-law liability. (K. P. Rly. Co. v. Nichols, 9 Kas. 236.) If a railroad company has two rates for the transportation of goods or stock — one if the goods or stock are carried under the common-law liability, and the other if carried under a limited or special contract— the shipper must have real freedom of choice. He cannot be denied the right to have his goods carried by the carrier under its common-law liability; but if he desires, and if the statute permits and public policy does not forbid, he may enter into a special contract with the carrier limiting the common-law liability. (K. P. Rly. Co. v. Reynolds, 17 Kas. 251; Railroad Co. v. Simpson, 30 id. 645; Express Co. v. Foley, 46 id. 457; Railroad Co. v. Lockwood, 17 Wall. 367; Hart v. Railroad Co., 112 U. S. 331.)
Plaintiff below testified that when he reached Atchison, in the forenoon of May 19th, he went at once to see the agent of the railroad company; that the agent told him to come back in the afternoon, an'd that he understood he was to get a waybill ; that his train went out at 4 p. M.; that he went back to the office of the agent, as requested, and the agent was not in; that about this time the train was ready to go, and the conductor asked him if he had a way-bill; that he told the conductor he had not, and that the conductor then said he could not get his stock out, and that he had but a short time to get to the train; that he went over to the office of the agent and obtained what he thought was a way-bill, but the agent told him he must sign his name; that, before signing, he told him he did not want to sign his rights away, and that the agent replied “he'would have to sign before his stock would go;” that nothing was said by the agent about different rates and charges, and that he hurriedly signed his name to the contract just as the train was to go out, but did not know what he signed. The plaintiff had already signed a contract with the Rock Island Railroad Company for the carrying of his horse to Eskridge, and therefore he very naturally might have-supposed that no new contract would be imposed upon him. Upon this and other like evidence, the court instructed the jury that—
“It is claimed by the plaintiff, as an excuse for not giving the written notice, that the contract was not entered into by him voluntarily, but he was constrained to execute it by imposition. The mere fact that he approached the agent at Atchison and signed that contract without knowing its contents, he being able to read, would not release him from his liability under the contract. ... If the defendant’s agents at Atchison, by any active conduct on their part, misdirected, misinformed or misled the plaintiff, and by reason thereof he was induced to sign the contract, when but for such imposition or misleading conduct he would not have done so, I think for that reason the contract would not be binding. The burden of proof is upon him to show that the contract under which this animal was shipped was improperly secured from him, and that he was induced to make it under such circumstances as I have named, before he can ask a jury to find he is not liable thereunder.”
Under the pleadings and evidence, there was sufficient for the court to give this instruction, and therefore we do not think it was misleading or erroneous. (K. P. Rly. Co. v. Reynolds, 17 Kas. 251.) If plaintiff below had signed and received the contract freely and fairly, without objection, he would, we suppose, be conclusively presumed to have assented to its conditions. (Express Co. v. Foley, supra; Merrill v. Express Co., 62 N. H. 514; Grace v. Adams, 100 Mass. 505.)
If the agent of the railroad company had stated to him the different rates and charges for transporting stock, plaintiff below might have tendered a reasonable sum for the services and risk, and demanded transportation of his horse, according to the common-law liability of the company. The mere fact that a carrier’s contract is not read or explained to a shipper is not sufficient to avoid it, especially where he receives a duplicate or copy. The rule concerning the liabilities of shippers on contracts of this kind, which they fail to read or understand through their own negligence, is stated in Hutchinson on Carriers, § 240; St. L. I. M. Rld. Co. v. Weekly (Ark.), S. W. Rep. 137. But a common carrier cannot exact of a shipper his signature to a special contract limiting the common-law liability as a condition precedent of shipping or transporting stock, because, in such a case, the carrier resorts to unfair means. A contract thus exacted is not freely and fairly entered into. In the Reynolds case, after Reynolds had loaded his cattle in the car, the agent demanded that he sign a special contract, or have the cattle unloaded. This court said “this was not right.” In this case, if the plaintiff’s evidence is to be believed, and we do not find in the record any conflict therewith? his horses were in the car at Atchison, ready to go with the train to Eskridge, when the agent demanded “that he sign a special contract, or his horses would n’t go on that train.” The cases are therefore very similar, especially so, as one of the conditions of the contract referred to was to relieve the Atchison company “ from the liability of a common carrier in the transportation of the stock.”
It is further argued, that the contract with the agent of the Rock Island Railroad Company at Cedar Falls inured to the benefit of the Atchison company. (Kiff v. Railroad Co., 32 Kas. 263.) There is no evidence in this case that the Atchison company was, at the time of receiving the horse which was subsequently injured, the agent of the Rock Island company, nor does it appear from the evidence that the Atchison company ratified or accepted any arrangement or contract entered into between the plaintiff below and the Rock Island railroad company. On the other hand, it does appear that that contract was wholly ignored and repudiated. When the horses were shipped from Atchison, a new contract was attempted to be executed in writing. Under the contract executed at Cedar Falls with the Rock Island railroad, the price for transportation to Eskridge, Kas., was $62 only; when the horses reached Eskridge, there was collected not only $62, but in addition $27, which probably were the charges for the transportation of the horses and Mark Dill from Atchison to Eskridge. Therefore, there was no error in proving the amount that the agent at Eskridge charged and received. If the defendant below had accepted the contract of the Rock Island company, had carried the horses to Eskridge at the price and on the conditions therein named, it might have claimed the limitation upon the amount of damages agreed to in that contract. (Kiff v. Railroad Co., supra; Express Co. v. Foley, supra; and Hart v. Railroad Co., supra.)
Complaint is made that the verdict and many of the special findings of the jury are unsupported by the evidence. Three experts testified upon the trial. Two of them testified that the acute attack of laminitus, from which the horse suffered, was the result of its standing upon its feet during its long journey in the cars. The other expert differed in his opin ion from these witnesses. The evidence of negligence of the railroad company is not, to the writer, very satisfactorily established ; but considering all of the evidence, this case comes within the rule that, where there is some evidence sustaining the verdict and special findings, and such verdict has received the approval of the trial court, this court will not interfere, even though the evidence seems to greatly preponderate the other way. (K. P. Rly. Co. v. Kunkel, 17 Kas. 145.)
Complaint is further made that improper evidence was admitted and erroneous instructions given and refused, but, after an examination of all these matters, we do not perceive any prejudicial error therein.
There are several questions concerning the federal act relating to interstate commerce and other statutes discussed in the brief of plaintiff below, but, in view of the conclusion we have reached, it is not necessary to comment upon them.
The judgment of the district court will be affirmed.
Johnston, J., concurring. | [
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Opinion by
Green, C.:
This was an action for an injunction, commenced in the district court of Harvey county, by T. C. Brewer, as the assignee of Chas. A. Malm. A temporary injunction was granted. The facts, briefly stated, are as follows: Chas. A. Malm made an assignment for the benefit of his creditors to T. C. Brewer, on the 17th day of June, 1889. The sheriff of Harvey county levied an attachment upon the assigned stock of goods, and took possession of the same; and, while he was holding the property under several orders of attachment, the assignee commenced a replevin action against the sheriff to recover the possession of the stock of goods or their value, which he alleged to be $10,000. The sheriff gave a redelivery bond in double the amount of the value of the goods as stated in the affidavit for the writ of replevin, and the coroner returned the property to the sheriff, who continued to levy other writs upon the property at the instance of the creditors of Malm. One of the writs was an execution, which the sheriff levied upon the stock of goods subsequent to the giving of the redelivery bond, at the suit of the plaintiffs in error Otto Young & Co. The sheriff, Ryan, was proceeding to advertise the property upon the execution in favor of Otto Young & Co. when he was restrained by a temporary injunction. After the order had been obtained, T. C. Brewer died, and he was succeeded by E. L. Parris as assignee. It is urged that the court erred in allowing the temporary injunction, for the reason that the assignee had a plain and adequate remedy at law. • The answer to this contention of the plaintiff in error is, that this court has already held that, pending an action in replevin, where the property remains in the manual possession of the sheriff, the property in controversy is in custodia legis; and, being in the possession of the court, cannot be disturbed by any other officer holding writs of attachment or execution. It has been said:
“For convenience of the parties, and to save cost and expenses, 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 property, pending the action, any less in custodia legis.” (McKinney v. Purcell, 28 Kas. 447, and authorities there cited.)
In this case the sheriff retained the possession of the property by executing a redelivery bond. He was first attempting to hold the stock of goods under the various writs of attachment when the action in replevin was commenced. He then gave the statutory bond and continued to hold the property, which he afterward attempted to sell under an execution levied after he had given such bond. This, we have seen, cannot be done by any other officers, and obviously it cannot be done by the sheriff himself. By making the levy under the execution, the plaintiffs in error asserted that the property was subject to sale to satisfy the judgment of Otto Young & Co. There was a replevin action pending which raised the question as to who was entitled to the assigned stock of goods. If the petition of the assignee be true, the purchaser at the sheriff’s sale could acquire no title to the property, but it might embarrass the assignee in obtaining a return of the specific property. If this be true, he would be injured, and the purchaser would be without title to the property attempted to be sold under the execution. It was said, in Kimberly v. Sells, 3 Johns. Ch. 470, by Chancellor Kent: “If the execution creditor is permitted to sell while the title is doubtful and unknown, who would buy? Probably no person would be induced to bid, but on mere speculation, or for a nominal sum.” The supreme court of Ohio has held that courts of equity would prevent a sale on execution where no title could be conferred. (Norton v. Beaver, 5 Ohio, 178. See also, as affirming this doctrine: Gas Light Co. v. Munsell, 19 Iowa, 305; Macklott v. City of Davenport, 17 id. 379; Hagan v. Lucas, 10 Pet. 400; Wells, Repl., §470; Turner v. Reese, 22 Kas. 319.)
It follows from these views that the judgment of the district court should be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
It is conceded that the injunction asked for by the plaintiff below should be denied, unless the premises levied upon were a part of his homestead at the time of the levy. In 1860 a strip 90 feet in width separated the two tracts of land which are claimed by plaintiff below as his homestead. This strip at that time was a street in Quindaro. If these 90 feet, or if 60 feet thereof, was a public street in Quindaro at the time of the levy, then the homestead did not extend on both sides of the same.
“Whenever several lots or pieces or parcels of land claimed to be held and occupied as a homestead are not contiguous, but are separated by lands in which the person claiming the homestead has no title or interest, as by lands owned by another, or by a street, alley, or other public ground in a town or city, such several lots or pieces or parcels of land cannot be included in or constitute one and the same homestead.” (Randal v. Elder, 12 Kas. 257.)
“If, however, the 90-foot strip had been vacated, or if all of it not vacated was a public highway merely, the homestead could extend on both sides. An easement may be created upon or through the land, such as a common road, a railroad, or a water privilege, without in any manner affecting its character aé a homestead.” (Randal v. Elder, supra.)
On the 30th day of August, 1873, a petition containing a description of the land in controversy, signed by plaintiff below and nine others, was filed in the office of the county clerk of Wyandotte county, and presented to the board of commissioners of that county, asking that the lots, blocks, streets and alleys within the boundaries therein described, in the town of Quindaro, not occupied for the purposes of a town or village, be vacated, with the exception of 60 feet on the west side of Kansas avenue, from Walnut avenue to Seventh street, a part of the strip above referred to, which they asked to be declared a public highway. On the 3d of September, 1873, this petition was considered by the board of county commissioners, and then the matters were continued for final hearing until the 9th of October, 1873. On that day it was shown to the board that all the parties in interest had had due notice and consented thereto. Thereon the board allowed the prayer of the petitioners, and vacated the several portions of the town-site of Quindaro and the additions thereto, as fully described in the order. By that order it was understood that the 30-foot strip was absolutely vacated, and the 60-foot strip vacated as a public street and changed to a public highway.
Since 1873 a part of what was designated as Kansas avenue on the plat of the town-site of Quindaro has been used as a public highway, and has been worked and kept in repair by and under the supervision of the road overseer of one of the road districts of the township of Quindaro, within the limits of which the land is situated, and by the township officers of the township, the same in all respects as other roads and highways in the road district. The levy was not made until the 31st day of January, 1888. The judgment upon which the levy was made was rendered on the 1st day of August, 1887. The 30-foot strip was considered by all of the township and county officials as vacated from the 9th of October, 1873, and the 60-foot strip was considered by the township and county officials as vacated as a public street from the 9th of October, 1873. Thereafter the 60-foot strip was used and occupied as a highway only, for about 14 years before the levy.
It seems to be admitted in the brief filed for a rehearing that the board vacated 30 feet of the strip, or at least attempted so to do. The only defect alleged in the vacation as to the 30 feet is the want of official or proper notice; but this defect cannot apply to parties who were present and consented, nor can it apply to any creditors of these parties, if they seek to step in and stand in their shoes. If the board had authority, upon proper notice or publication being given, to vacate 30 feet of the strip, it had the authority, if the parties interested were present and consented, to vacate the 30 feet without notice; at least, so far as the parties present are concerned, and those who claim through or under them. If the board had the authority to vacate 30 feet, then it had the authority to vacate all the street, the whole 90 feet. If it could vacate the 90 feet, it could absolutely vacate 30 feet of the street, and then vacate the other 60 feet as a street, or grant the prayer of the petition, which it did in this case, if the parties interested were present and consented. If present and consenting, no notice was necessary; at least, the parties present and consenting, and those claiming through or under them by deed, judgment, execution, or otherwise, cannot com-, plain of any want of notice.
The vacation of a public street of a city or town and the changing of such a street.into a highway might, under some cases, be beneficial to the contiguous land-owner. In other cases, the street might be more valuable to him than the public highway, on account of the mode of grading or repairing adopted by cities. In the brief for the rehearing, it is said that “it is wrongfully assumed that the board declared the 60-foot strip to be a public highway.” The record, we think, sustains this construction.
The original petition asked for certain lots, blocks, streets, and alleys to be vacated, and also asked for 60 feet of the street referred to to be declared a highway. The proceedings before the board, of the date of the 9th of October, 1873, show that the prayer of the petition was granted, and the subsequent use of the 60 feet of the strip as a public highway further shows that it was intended that the street should be vacated as a street and changed and used as a highway only.
All that we intended to decide in the former opinion (47 Kas. 690) was, that the parties to the proceedings of vacation of the 30-foot strip and the changing of the 60-foot strip from a street to a public highway are in no condition, in view of their agreements and actions before the board of county commissioners, and the subsequent acts of the township and county officials, to question such vacation or change. If the parties interested in a matter pending before a board of county commissioners, and concerning which the board has authority to act, consent to a vacation or other order, such vacation or order is binding upon the parties present and consenting, even if the proceedings are so irregular as not to control or estop others not properly summoned or noticed. In this case, no one owning any lands described in the proceedings of the board of county commissioners of the 9th of October, 1873, is complaining. But a creditor of plaintiff below contends that those proceedings are so irregular or imperfect as not to vacate or change the 60-foot strip of the former street into a highway merely. We do not think that a creditor of a party consenting to the proceedings referred to can insist upon any want of notice or irregularity therein.
Since the 9th of October, 1873, excepting the part of the former street which was wholly vacated, the balance of the street has been deemed a public highway only. Therefore we perceive no good reason to change or modify the judgment heretofore rendered by this court. There are some things stated in the opinion which we do not approve. But it is not necessary to affirm all of the language of the commission to support the judgment rendered by the court below.
The motion for a rehearing will be overruled. | [
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