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The opinion of the court was delivered by
Horton, C. J.:
On the night of Sunday, the 7th day of December, 1890, the dwelling-house of Edward Farris, a col>ored man, in Walnut township, in Atchison county, in this state, was burned. The size of the house was 12 by 16 feet. It was built of box lumber. The floor was pine. The ceiling was plastered. The house had one room only, with two windows. The east window was located near the center of the ■east end, and the west window was near the southwest corner. The door of the house was on the south side, nine feet from the edge of the door to the corner. The roof ran up to an angle of a five-foot pitch. At the time the fire commenced, there were in the house two children of Edward Farris, Maud, two. years of age, and Ethel, four months of age. There was a stove in the house at the west end, two feet from the wall. There was a stove-pipe running from the stove up through a hole in the ceiling of the house. The pipe was a six-inch one. There was a place two feet square for the pipe ■to run through the ceiling, and at the top of the roof the square was 10 inches. The pipe at the roof had sheet-iron around it, and this was nailed to the roof. A little after 6 o’clock p. M., on the 7th of December, 1890, Edward Farris, with his wife and a friend, left his house and went down to Mr, Potter’s, a neighbor who lived a quarter of a mile away. He left his little children in the house at the time, Maud being on the bed in the northeast corner of the house, and Ethel, the baby, in a cradle or box, (it had been a trunk, but it was used to lay the baby in, and was 12 inches high.) When Farris left the house, the cradle was against the south wall, and there was a little fire only in the stove. Farris testified: “You could not tell there was any fire in the stove, unless you raked among the ashes.” After Farris had been at Potter’s about 30 minutes, he saw a light in the direction of his house. He started for his house as fast as he could, and found it “burning very lively.” He tried to get in at the door, but he could not on account of the fire. The wind was in the northwest, blowing around the south side of the house. He then went to the east window, and after knocking the window in, got inside, and tried to get the little baby, but could not, because the southwest corner of the house fell on the child, which was burned up. He succeeded in getting his other child, Maud, out of the bed. When Farris first reached the house the flames were going up about the eaves, and the west end of the house was on fire, and it was also burning around the door on the south side. He did not see any fire on the roof when he first got to the house, nor any fire around the stove, or stove-pipe. For light Farris used a lamp aud coal oil, but on the night of the fire he did not light the lamp, and no light was burning in the house when he left it. George Nolan, also a colored man, lived about three-quarters of a mile from Edward Farris’s. About a month before the house was burned there had been a quarrel between Farris and Nolan.
Nolan was charged with arson in the first degree for setting' fire to and burning the house. He was convicted “of arson, as charged,” and was sentenced to the penitentiary of the state at hard labor for a period of 10 years. He appeals to this court. Pearson Potter, a witness examined on behalf of the state, testified as follows:
. “Ques. When you got to the house did you notice how the fire had started? Ans. Yes, sir.
“Q. Did it appear to have been started accidentally, or was it set on fire? A. Well, I think it was set on fire by some one.”
Of course, the opinion or belief of this witness about the house having been set on fire should not have been received by the court, and upon the request of the defendant it should have been taken away from the iury. ^ J J J Such evidence is wholly incompetent. (Tefft v. Wilcox, 6 Kas. 40; Monroe v. Lattin, 25 id. 351; Railroad Co. v. Peavey, 29 id. 170.)
The defendant, George Nolan, is a poor colored man, almost without friends, except his attorneys, who have prosecuted this appeal in his interest as a matter of charity. In the opinion as originally filed we stated that it was incompetent for Pearson Potter, a witness for the prosecution, to testify against the defendant that “I think the house was set on fire by some one.” Upon the argument, the court’s attention was almost wholly directed to the proposition that the sentence of the defendant to confinement and hard labor in the penitentiary of the state was not authorized by the statute, and was in violation of the constitution of the United States. For that reason the possible or probable influence of the incompetent testimony upon the jury did not receive sufficient consideration. We said in the opinion as first handed down that the admission of this incompetent evidence was not a material error. There was no testimony that any one saw George Nolan set the dwelling-house on fire. There were threats and certain admissions testified to; otherwise, the proof concerning the burning of the house was circumstantial only.
After a reexamination of all the testimony in the record, and especially in view of portions thereof which seem almost incredible, the members of the court are unanimously of the opinion that the ruling heretofore made must be changed. We cannot say that the error referred to was not material or prejudicial. It was decided in Gilleland v. Schuyler, 9 Kas. 569, that—
“Where testimony is erroneously received, which may have influenced the court or jury in the findings or verdict, the error cannot be considered immaterial.”
Mr. Justice Brewer, speaking for the court in that case, said:
“It may be said that the testimony was immaterial, and that the error worked no substantial injury to the plaintiffs in error, because, first, there was sufficient testimony without this to support the findings, and, secondly, there was no finding that these specific fraudulent votes, or indeed that any fraudulent votes, were cast. The rule that requires this court to sustain the findings of the district court, unless clearly against the weight of evidence, avoids the first reason, for we cannot say how much this testimony influenced the court in its findings, nor determine whether without it the findings would have been as they are. If testimony is erroneously received which may have influenced the court or jury in the finding or verdict, we cannot call the error immaterial. The findings or verdict must be based upon nothing but compe tent testimony before any presumption in favor of their correctness will arise in this court. For, otherwise, the court or jury may, disbelieving the witnesses who give competent testimony, reach their determination mainly or wholly on the incompetent evidence, and so a party obtain a judgment he is not in fact entitled to. The record must be clean, which, when passed upon by court or jury, is sought to be sustained in this court because it has been so passed upon.” (See also Railway Co. v. Pointer, 9 Kas. 620; Muscott v. Hanna, 26 id. 770.)
■ This is a criminal case, in which the defendant is charged with a felony. Before he could be convicted, it was necessary to establish before the jury, beyond a reasonable doubt, that the dwelling-house of Edward Farris was “set on fire.” We cannot say how much the incompetent testimony influenced the jury; therefore, as it was erroneously received, and may have influenced the jury in their verdict upon an important issue of the case, we cannot call the error immaterial.
It is contended that the instructions of the court and the form of the verdict were erroneous, because, it is urged, the defendant might have been found guilty of arson in the second degree under § 51 of the act regulating crimes and punishments, or § 54 of that act, or of arson in the third degree, under § 58 of the act. We think otherwise. Arson in the night-time, under §49 of the crimes act, does not include arson in the day-time as defined in §§ 51, 54, or 58. (The State v. Behee, 17 Kas. 402.) Again, in this case, it is clearly established that the house was burned in the night-time, and that there were in it at the time of the fire two children, one of whom — the baby — was burned up. If the defendant was guilty of setting fire to or burning the house of Edward Farri-», as is alleged in the information, he was clearly guilty of arson in the first degree; not of arson in the second.or any other degree. (The State v. Rhea, 25 Kas. 576; The State v. Hendricks, 32 id. 559; The State v. Mize, 36 id. 187.)
It is next contended that the court committed several errors in permitting the state to indorse the names of witnesses upon the information at the trial, and also in giving and refusing other instructions. We have examined these alleged errors with great care, and do not perceive any error therein, or anything to justify comment thereon.
The further contention is, that the sentence of the defendant to confinement and hard labor in the penitentiary of the state is in violation of the constitution of the United States» and not authorized by any statute of this state. The argument in support of this is, that a public offense, within the meaning of any statute of the state, is any act or omission for which the laws of the state prescribe a punishment; that public offenses are divided into felonies and misdemeanors; that a felony is an offense punishable by death or confinement and hard labor in the penitentiary; that all other public offenses are misdemeanors; that offenses committed against the laws of the state are punished in the county in which the offense is committed, except as may be otherwise provided by law, and that every person who is convicted of any degree of arson is to be punished as follows: “In the first degree, by confinement and hard labor not less than 10 years, nor more than 21 years,” etc. (Crim. Code, §§ 3, 4, 5, 20; Crimes Act, § 60.) Therefore, it-is concluded that as there is no express provision of the statute providing that a person convicted of arson in the first, or any other degree, shall be punished by confinement and hard labor in the penitentiary, the crime of arson is not a felony under the statute, but a misdemeanor only, if anything, and punishable, if at all, in the county in which the offense is committed.
The argument of counsel for the defendant against any confinement in the penitentiary for the crime of arson, very forcibly presented, is plausible, and upon first presentation seems of considerable force. But a consideration of other statutes inpari materia shows that the construction contended for would not only be unfortunate to the state, in opening the doors of the penitentiary to hundreds of convicts confined therein, but cannot be sustained. There are only two places of imprisonment provided by law: The penitentiary (Const., art. 7, §2; Gen. Stat. of 1889, ¶¶ 3534, 6456,) and the county jail. (Gen. Stat. of 1889, ¶ 3534.)
Section 60 of the crimes act reads:
“Every person who shall be convicted of any degree of arson shall be punished, by confinement to hard labor, as follows: First, in the first degree, by confinement and hard labor not less than ten years nor more than twenty-one years. Second, in the second degree, by confinement and hard labor not less than seven nor exceeding ten years. Third, in the third degree, by confinement and hard labor not less than five nor more than seven years. Fourth, in the fourth degree, by confinement and hard labor not more than four years, or by imprisonment in the county jail not less than six months.”
The obvious meaning of this section is, when its provisions are construed together, that, by use of the words “ by confinement and hard labor” for a term of years, the legislature plainly intended that the imprisonment therefor should not be in the county jail. Imprisonment in the county jail cannot be construed in the fourth subdivision to mean the same as “confinement and hard labor” in the first clause of this subdivision. “Confinement and hard labor not more than four years” is used disjunctively with the clause, “imprisonment in the county jail not less than six months.” See also §§ 426-435 of the crimes and punishments act. Section 434 of this act reads:
“A sentence of confinement and hard labor for a term less than life, suspends all civil rights of the person so sentenced during the term thereof, and forfeits all public offices and trusts, authority and power; and a person sentenced to -such confinement for life, shall thereafter be deemed civilly dead.”
It is not credible that the legislature of 1868, or any legislature since that date, intended that imprisonment in a county jail, with labor or without, suspends all the civil rights and forfeits all the public offices, trusts, and authority of a person restrained therein.
Again, the general statutes of Kansas were revised in 1868. The statutes establishing the code of criminal procedure and relating to crimes and punishments took effect October 31, 1868. At that time, there was a statute in force concerning the state penitentiary. This took effect March 7, 1868. (Ch. 77, p. 607, Gen. Stat. of 1868.) This statute expressly provides that every able-bodied convict of the penitentiary should be assigned to and kept at some employment suitable to his strength for at least eight hours per day, and it was made the duty of the warden to use every proper means to furnish employment to the prisoners in the penitentiary, most beneficial to the public and best suited to their several capacities. Provision was also made in the statute for carrying on manufacturing and mechanical business in the penitentiary by convicts. At the time the statute defining felonies and misdemeanors, and providing for the punishment of arson, went into force, the act concerning county jails also took effect. But this act made no provision for the keeping of prisoners in any county jail at hard labor, or other work. Therefore, on the 31st day of October, 1868, when the statutes relating to crimes and punishments and providing for the punishment of arson in the first degree at confinement and hard labor took effect, the only place provided by statute for the confinement of prisoners at hard labor was in the penitentiary of the state; not in the county jail, or at any other place. When the legislature expressly provided that arson in the first degree should be punishable by confinement and hard labor not less than 10 years, nor more than 21, we must assume the legislature intended that the confinement and hard labor would be at the place where the legislature had provided hard labor or like employment must be exacted of convicts. The only place in the state where prisoners were then confined at hard labor was in the penitentiary, and if the statutes referred to by counsel fox the defendant be read and construed as they should be, with other statutes and with those relating to the penitentiary and jails, it inevitably follows that the legislature intended the offense of arson in the first degree should be punjjy confinement and hard labor in the penitentiary; otherwise the provision in regard to the punishment of arson in the first degree has no force and is meaningless. This construction has been recognized by all of the district courts of the state, and also by this court, ever since the adoption of the statute of 1868, over 23 years.
While we fully recognize the rule to be “ that the penal and criminal statutes are to be strictly construed in those particulars which are against persons charged with their violation, but liberally construed in those particulars which are in their favor,” yet, for the purpose of liberating couviets and releasing parties guilty of crime, we are not to unnecessarily strain any statute by construction so as to give it no force or meaning. In 1863, John Millar was convicted in Leavenworth county of the offense of assault with intent to kill. He was “sentenced to two years at hard labor in the penitentiary of the state.” At that time the statute, while defining a felony to be any offense for which the offender was liable to be punished by confinement and hard labor, provided that any one guilty of assault with intent to kill might be punished by confinement and hard labor for a term not exceeding 10 years, but did not state that the confinement was to be in the penitentiary. It was urged by Millar, upon his appeal to this court, that there was no statute of the state authorizing his punishment “'by confinement in the penitentiary.” But in the case this court decided that “the term ‘penitentiary’ is an English word in common use, signifying a prison or place of punishment, . . . and means the place of punishment in which convicts sentenced to confinement and hard labor are confined by authority of law.” (Millar v. The State, 2 Kas. 174.)
Under the various statutes of the state, taken and construed together, the defendant, if properly convicted of arson, may be sentenced to confinement and hard labor in the penitentiary of the state. Such a sentence upon such a conviction is fully authorized by the laws of Kansas, and therefore not in violation of the constitution or the laws of the United States.
The judgment of the district court will be reversed and a new trial granted on account of the reception of incompetent evidence.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 11th day of January, 1889, J. B. Wadleigh, as plaintiff, commenced this action against William Imbody, Ed. Durbon, S. J. Cameron, B. F. Roberts, the Badger Lumber Company, Oscar R. Stone and J. J. Blattner to foreclose the mechanic’s lien of Ed. Durbon, that had been assigned to Wadleigh, on lot 7, in block 26, in Cuddy’s addition to Junction City, said lien originating on a contract made by Durbon with Wm. Imbody for the construction of a building on said lot. He alleged that Durbon complied with his contract, as provided by its terms, and completed the building about the 30th day of September, 1886; that Imbody did not pay; that he is a non-resident of the state. Wadleigh prayed judgment for $140, with interest at 7 per cent., from September 30, 1886; that the lot be sold and proceeds of sale distributed. On the 28th day of January, 1889, Blattner filed his answer and cross-petition to the petition of Wadleigh, in which he avers —
“1. That on the 28th day of October, 1886, in pursuance of a certain judgment, being of record in the district court of Geary county, in his favor and against Wm. Imbody, for the sum of $111.40, he caused execution to issue and be levied on said lot 7, and it was regularly advertised, appraised and sold by the sheriff of said county to the defendant J. J. Blattner for $266.
“2. That after the levy made by the sheriff on said lot No. 7, and before the sale, several parties, to wit, J. B. Wadleigh, S. J. Cameron, B. F. Roberts, Oscar Stone and the Badger Lumber Company, filed in the office of the clerk of the district court of said county certain lien statements against said lot for lumber and material furnished and used in the construction of a building thereon, and the said defendant alleges that said building was completed about the month of October, 1886, at least two years and three months before the commencement of this action.
“Wherefore he avers that all of said lien statements are forever barred on account of the failure of the several parties to commence and prosecute their actions to foreclose the same within one year after the completion of the building.
“ 3. He avers that the lien sought to be foreclosed in this action by Wadleigh was originally made and claimed by Ed. Durbon, and, being a statutory lien, was incapable of assignment.
“4. He alleges that he has been a resident of the county of Geary and state of Kansas during all this time, and at all times within the jurisdiction of the court, and that the property in controversy, to wit, the lot, has all this time been within the jurisdiction of the court.”
“ 6. He further avers, that the lien statement filed by Durbon was not sufficient in law, because i*t omitted to state who the owner of the property was.”
To this answer there was a reply. The case was tried by the court. The material facts are as follows: On the 21st day of September, 1886, Edward Durbon made a contract with William Imbody, the owner, to construct a building on lot No. 7, in block No. 26, in Cuddy’s addition to Junction City, for the sum of $140. The building was completed on or about the 30th day of September, 1886. On the 9th day of November, 1886, Durbon attempted to file a mechanic’s lien on said lot in the office of the clerk of the district court for the amount due him from Imbody. The statement of lien nowhere gives the name of the owner of the lot on which the lien is claimed. In entering the statement on the mechanics7 lien docket, the clerk of the district court, in the column and under the heading of “Name of Owner,” inserted the name of Wm. Imbody, but the statement itself contained no mention of the name of the owner, and made no allegation as to the ownership of the lot. On the 16th day of July, 1887, one Osear R. Stone filed his petition in the district court of Geary county against the said William Imbody, claiming a mechanic’s lieu on said lot No. 7, to which action all the parties claiming liens on said lot were made parties, including this plaintiff and defendant in error. Wadleigh filed an answer and cross-petition in this action, claiming that he had sold lumber to Ed. Durbon, the contractor, that was used in the construction of the house; that he had filed a lien statement with the clerk of the district court; that Durbon had also filed a lien statement, and that the same was duly assigned to him, and praying judgment for $140. At the September term, 1888, of the district court, this case of Stone v. Imbody et al. came on for hearing, on a motion made by Blattner to set aside the service by publication on Imbody; and, during the argument on that motion, Wadleigh asked for a continuance, and leave to file amended pleadings, and to obtain new service; and this was granted, and no decision made on the pending motion. Sixty days were given to file said amended pleadings, and the cause was continued until the next term. The time for filing amended pleadings was subsequently continued by the court until the 20th day of January, 1889. At the trial, it was admitted that Imbody had been a non-resident of the state since the 1st day of January, 1887. Wadleigh admitted that Blattner had judgment, as claimed;,that estecution issued; that the lot was levied upon and sold, as claimed; that Blattner purchased the same, and became the successor in title and interest to Imbody. It was admitted that the building on said lot was completed about the month of October, 1886, and that Blattner has, ever since October, 1886, been a continual resident of Geary county, and that the lot is situate in said county. Trial at the April term, 1889. Imbody, Durbon, Cameron, Roberts and Stone did not appear or answer herein thereupon the cause went to trial on the petition of the plain tiff, Wadleigh, and the answer and cross-petition of Blattner and the answer of the Badger Lumber Company.
The court made special findings of fact, as follows:
“1. Due and legal service was made on each and all of the defendants.
“2. There is due from the defendant William Imbody to the plaintiff, J. B. Wadleigh, the sum of $164.50.
“3. There is due from the defendant William Imbody to the defendant Badger Lumber Company the sum of $14.80.
“4. From September 21, 1886, to October 9, 1886, both days inclusive, the defendant William Imbody was the owner of the premises described in plaintiff's petition, to wit, lot 7, block 26, in Cuddy's addition to Junction City, in Davis (now Geary) county, Kansas. .
“5. The amount due the defendant the Badger Lumber Company from the defendant William Imbody is a lien upon the premises mentioned in the last finding.
“ 6. The amount due the plaintiff, J. B. Wadleigh, from the defendant William Imbody is also a lien upon said premises. To which finding the defendant J. J. Blattner at the time excepted.
“ 7. Both of the liens mentioned in the fifth and sixth findings are equal in priority. To which the defendant Blattner at the time excepted.
“8. Said liens are prior and superior to any lien, right, title or interest of the defendant J. J. Blattner in or to said premises. To which finding the defendant J. J. Blattner at the time duly excepted.
“ 9. The court finds, as a conclusion of law, that from all the facts proven and admitted in this case, together with all undisputed allegations of fact contained in the petition of the plaintiff, and the answer and cross-petition of the defendant J. J. Blattner, that the statute of limitations, within which an action must be brought to foreclose a mechanic’s lien, did not run in favor of the defendant J. J. Blattner. To which conclusion of law the defendant J. J. Blattner at the time excepted.
“10. The defendant J. J. Blattner purchased said lot 7, in block 26, in Cuddy's addition to Junction City, in Davis (now Geary) county, Kansas, at sheriffs sale, on the 6th day of December, 1886, and has been the ownor thereof ever since said purchase, subject to the liens aforesaid.''
The following judgment was rendered:
“Wherefore, it is by the court ordered and adjudged that the defendant the Badger Lumber Company recover from the defendant William Imbody the sum of $14.80. It is further adjudged, that the plaintiff, J. B. Wadleigh, recover from the defendant William Imbody the sum of $164.50. It is further adjudged, that said amount herein found to be due the Badger Lumber Company, to wit, $14.80, and also the amount herein found due the plaintiff, J. B. Wadleigh, to wit, $164.50, each are a first and prior lien upon the aforesaid described premises, to wit, lot 7, in block 26, in Cuddy’s addition to Junction City, in Geary county, Kansas. To all that part of the judgment making the amount found due the plaintiff, J. B. Wadleigh, a lien prior and superior to the right, title and interest of the defendant J. J. Blattner, the defendant J. J. Blattner at the time duly excepted.
“ Wherefore, it is by the court here ordered, that an order of sale issue out of this court to the sheriff of Geary county, Kansas, commanding said sheriff to advertise and sell, as upon an execution, according to law, said premises, to wit, lot 7, in block 26, in Cuddy’s addition to Junction City, Geary county, Kansas. And that out of the proceeds of said sale he pay to the defendant Badger Lumber Company said sum of $14.80, together with 6 per cent, interest thereon from the 3d day of April, 1889, and also pay to the plaintiff, J. B. Wadleigh, the said sum of $164.50, together with 6 per cent, interest thereon from the 3d day of April, 1889, and also pay the costs of this suit. To all of which the defendant J. J. Blattner at the time duly excepted.”
Blattner made a motion for a new trial, but this was overruled, and he saved all proper exceptions, and brings the case here for review.
Many questions are discussed by counsel for the plaintiff in.error, Blattner, who brings the case here. It se'ems to us that the important question is, whether the lien of Durbon, that was assigned to Wadleigh, was a fair compliance with the statutory requirements. Does the omission in the lien to state plainly and expressly the name of the owner of the lot invalidate the lien ? The statute under which the lien was attempted to be created, being § 632 of the code, (Comp. Laws of 1885,) is as follows:
“Sec. 3. Any person claiming a lien as aforesaid shall file in the office of the clerk of the district court of the county in which the land is situated a statement, setting forth the amount claimed, and the items thereof as near as practicable, the name of the owner, the name of the contractor, and a description of the property subject to the lien, verified by affidavit, etc.”
It will be noticed that, among other things, the section imperatively requires that the statement shall contain “the name of the owner.” In the case of Newman v. Brown, 27 Has. 117, this question was expressly decided against the validity of a statement of lien that did not charge some person by name with being the owner of the property. This court says: “It is not a complete statement; a mechanic’s lien is a creature of the statute, and he who would perfect one must follow the plain provisions of the statute; otherwise he must look to the man with whom he made his contract.” This is the construction given the old law, under which this contract was made, by this court, and it is strongly supported by the decisions of other tribunals, as cited in the brief of counsel for plaintiff in error. A reference to the records in the office of the clerk of the district court, or other county officers, showing that Imbody was the owner, is not sufficient, as contended by counsel for defendant in error. These do not create the lien; it is created by the statement filed, containing all the necessary allegations of the statute; and this statement cannot be reinforced by outside references; it must be complete within itself, to have effect as a statutory lien. This is the logic of the cases of Conroy v. Perry, 26 Kas. 472, Wood v. Gruble, 31 id. 69, as well as the express declaration in Newman v. Brown, supra. If the Durbon statement created no lien, then there was none to assign, and none to be barred by the statutes of limitation, and Wadleigh had no rights to be enforced.
We recommend that the judgment be reversed, and the cause 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
Valentine, J.:
This was an action brought in the district court of Wyandotte county, on May 2,1887, by James Kelley against W. H. Ryus, to recover $5,000, for personal injuries alleged to have been sustained through the negligence of the superintendent and foreman of the defendant in operating the defendant's planing mill. The case was tried before the court and a jury, and at the close of the trial the court instructed the jury to render, the following verdict, to wit: “We, the jury, find for the defendant;'' and the jury rendered such verdict, and judgment was rendered accordingly; and the plaintiff’, as plaintiff' in error, brings the case to this court for review.
Among the admitted facts are the following: The defendant owned and operated a planing mill in Kansas City, Kas. A. Gr. Millspaugh was his general superintendent, and J. F. Murray was his foreman for the work in the lower story of the planing mill. This lower story contained the planing-machines, and also contained boring- and mortising-machines. The plaintiff was at work at one of the planing-machines. Murray was at work at one of the boring-machines, and the work of the one interfered with that of the other. Murray changed the work at the planing-machine, with the intention that there should be no further interference, but the change did not seem to be successful. While the plaintiff was guiding a board through the planing-machine it struck the piece of timber which Murray had placed in the boring-machine, and the board was so disarranged and displaced that one of the plaintiff’s hands came in contact with the knives of the planing-machine, and one of his fingers was cut off; and this, with the consequent loss, constitutes the injury for which the plaintiff now claims damages.
There were of course three main questions to be tried in the court below: (1) Was Murray a vice-principal for whom the defendant was responsible, or was he only a coemployé with the plaintiff? (2) Did the injury occur through.the negligence of Murray ? (3) Was the plaintiff guilty of contributory negligence? The first question is probably the only one that can fairly be said to be presented to this court, and the only one which we need to consider, though possibly it may be claimed that the second one is also presented to this court; and these questions are embodied in the more general question: Was there any evidence introduced on the trial in the court below fairly tending to prove the affirmative of both the foregoing questions? If this general question should be answered in the affirmative, then the instruction of the court below to the jury to find for the defendant was erroneous; but if it should be answered in the negative, then ■the instruction was correct. Some of the evidence with respect to these matters is as follows:
Witness Edward S. Preston:
“Q,ues. Who was foreman in that room? [The lower ■story of the planing mill.] Ans. Murray. We all worked under Murray’s orders. Kelley told Murray that he couldn’t run that piece on account of him running the pulley stile. Murray changed Kelley’s rest as far back as he [Murray] •could, and cater-cornered. to clear the pulley stile, but he didn’t quite do it. I was standing there waiting to ask Murray a question. Millspaugh was so busy talking to him that I did not bother him, and when he jerked back and hit Kelley’s ■board, then Kelley run.”
Witness Plenry S. Preston:
“Ques. State what the duties of Murray were in the mill. Ans. He was foreman over the men. We all worked under his orders in the mill.”
Witness James Kelley, the plaintiff:
“Q,ues. Who employed you? Ans. Mr. Murray employed me the last time I worked at the mill there.
“Q,. Who was Mr. Murray? What position did he occupy? A. Well, he was foreman down stairs, down around the machinery.”
“Q,. You stated that was Mr. Ryus’s planing mill, and Mr. Murray employed you in the work? A. Yes, sir.”
“Q,. Who directed you to work upon that machine? A. Mr. Murray.
“Q. How long had Mr. Murray been there as foreman? A. Well, he was there when I went there at this time; he had been there some time before, I do not know just how loDg; been there some time, though.”
“Qii Just tell the jury what occurred between you and this foreman, Murray, when he first came up there and began to work on his machine. A. Well, he came up and went to work on the machine; I think the first piece that I run over, I had hit the piece that he was running through his machine; and I.spoke to him then and asked him if he was going to bore them pulley stiles on there, and he said he was. I told iim then maybe I had better wait until he got through. He says, ‘No, this wont bother you any,’ and he came over and changed the gauge of my machine round in a kind of cater-cornered shape across the table.”
“Q,. Now, what caused your fingers to drop down on the knives? A. Well, by running the piece that I was working on against the piece Mr. Murray had left in his machine sticking out, and the piece I run through ran against his and tipped the piece over and throwed my hands onto the knives.
“Q. If it tipped it over, it tipped it over before you got cut? A. It just knocked — run against it and tipped it out of my hands and throwed it right down onto the table, and my hand fell off, and hit right onto the knives when it went down.”
“Q,. What did Murray do about the mill? A. He did all the laying out of all the work; got it all laid out; made out all the bills of all the stuff that was to be got out.”
“ Q,. Murray did nothing about signing checks or anything of that kind? A. No, sir; he kept the time was all. He turned the time over every night to Mr. Millspaugh.”
“Q,. He stated what you were to work on? A. Yes, sir; he always gave me my work I did there.”
Other testimony might be given of the same general character, but this is deemed to be sufficient. Under all the testimony in the case, for and against the plaintiff, we think the instruction of the court below was erroneous. It is perhaps unnecessary to cite authorities, and yet with respect to the duties of employers towards employés, and with respect to who are co-employés, see the case of St. L. & S. F. Rly. Co. v. Weaver, 35 Kas. 412, 425-430, and cases there cited; and as to the province of the court and the jury with respect to each' other, see the following cases: K. C. Ft. S. & G. Rld. Co. v. Foster, 39 Kas. 329, 330, et seq., and cases there cited; Usher v. Hiatt, 18 id. 196, 202-205; Heithecker v. Fitzhugh, 41 id. 50. It is the duty of an employer in all cases to furnish his employés with a reasonably safe place at which to work, and with reasonably safe instruments or tools with which to work; and if he delegates these duties to another, such other becomes a vice-principal, for whose acts the principal is responsible; and where evidence is introduced on the trial which, if un contradicted, would fairly prove all that is necessary for the plaintiff to prove in order to make out his case, it is error for the trial court to instruct the jury to find for the defendant, although such evidence might be contradicted by other evidence. The court has nothing to do with any conflict in the evidence, but must submit the question as to which is true and which is not to the jury.
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
Johnston, J.:
Itheal P. Farnum brought this action before a justice of the peace to recover from Hatfield & Smith $132.65, for merchandise sold and delivered to them. Attached to the bill of particulars was an account, the correctness of which was duly verified by affidavit. Hatfield &- Smith answered by a bill of particulars, which admitted the correctness of Farnum’s account, but stated that he was indebted to' them in the sum of $216.90, which they claimed.. They alleged that, at the time they became indebted to Farnum, he and two other persons were engaged in the banking-business under the firm-name of the Bank of Ford, and that, they purchased from the bank three commercial drafts, aggregating $216.90, each of which was dishonored at the place-of payment, and Hatfield & Smith were compelled to redeem them. They asked judgment for the difference between-$216.90, the amount of their claim, and $132.65, the amount, of Farnum’s account, together with the costs of the action. Their bill of particulars was also verified. Farnum replied, denying every allegation in the answer or bill of particulars-of Hatfield & Smith, except wherein they admitted his account; and this reply was also verified.
A trial before the justice of the peace resulted in a judgment in favor of Farnum for $134.79, when an appeal was-taken to the district court. When the case came up for hearing in the district court, each party moved the court for judgment on the pleadings, and each party standing on the pleadings- and offering no evidence, judgment was rendered in favor of Farnum for the amount of his claim, $136.75. Hatfield &. Smith excepted to the ruling of the court, and bring the case- up for review. They contend that they were entitled to set off the partnership debt of the Bank of Ford, in which Farnum was a partner, against his demand for merchandise, and also to a judgment for the balance between the two demands in their favor; and hence they urged that the judgment given in favor of Farnum was erroneous.
Their defense was good, and, if it had been established by proof, they would have been entitled to a judgment against Farnum. Each member of a partnership is severally liable for the partnership debts, and as Hatfield & Smith might have maintained an independent action against Farnum alone, if a member of the firm of the Bank of Ford, so they are at liberty to set up the demand in the action of Farnum. This question has recently been determined in the case of Crane v. Ring, ante, p. 58. (See, also, Carson v. Barnes, 1 Ala. 93; Redman v. Malvin, 23 Iowa, 296; Pate v. Gray, 1 Hemp. 155; Dunn v. West, 5 B. Mon. 376; Newell v. Salmons, 22 Barb. 647.) No proof of the facts alleged in the answer, however, was offered, and as the pleadings stood they were not entitled to recover. It is true their answer was verified; but in that answer the correctness of Farnum’s account and his right to a credit for the full amount of his claim was specifically admitted. The verification of Farnum’s account did not shut out the defense of Hatfield & Smith. They had the right to introduce evidence to prove any set-off or counterclaim which they had against Farnum, although they did not deny the correctness of his account. (Baughman v. Hale, 45 Kas. 453.) The demand of Farnum being admitted,- no evidence was necessary to his recovery on the same, or at least to a credit of the amount of his account. By the verified reply of Farnum, he denied that he was a member of the partnership of the Bank of Ford, and it devolved on Hatfield & Smith not only to prove the existence of the partnership and that Farnum was a member of the same, but also to establish by competent proof that the Bank of Ford was indebted to them. For some reason they rested on their pleadings and offered no proof. It is difficult to understand 'what their purpose was; but declining to offer proof to establish their set-off, and standing upon the pleadings, no other course was left for the court than to render judgment for the plaintiff, Earnum, whose account was admitted.
The judgment of the district court must therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution, upon an information filed in the district court of Miami county, on July 28, 1891, charging the defendant, George Flack, with the larceny of an iron-gray gelding, and a saddle and bridle, the property of W. A. Tomlinson. A trial was had before the court and a jury, and the defendant was found guilty, and sentenced to imprisonment in the penitentiary for the term of four years; and from this sentence he now appeals to this court.
The first objection urged against the proceedings in the court below is, that the information upon which the defendant was tried is insufficient, for the reason that it does not give the full Christian name of the alleged owner of the stolen property; and it is also claimed that, upon the trial, there was a variance between the allegations and the proof, in this, that, the information alleged that the stolen property belonged to W. A. Tomlinson, while in fact and according to the evidence introduced on the trial it belonged to William A. Tomlinson. W. A. Tomlinson and William A. Tomlinson, however, was one and the same person, and there was no other W. A. Tomlinson in that county, so far as is shown. These objections are untenable. (Ferguson v. Smith, 10 Kas. 396, 401, 402; The State v. Rook, 42 id. 419.) It is seldom at the present time that the full Christian name of any man is used. The information in this case was signed and filed by “ W. H. Browne,”' county attorney. It was verified by him in the same manner. It was sworn to before “A. P. Williams,” clerk of the district- court, and the defendant’s transcript brought to this court is certified to by “A. P. Williams,” clerk of the district court; and there is nothing in the record to show what the full Christian name of either the county attorney or the clerk of the district court is. Besides, the sheriff who had the defendant in charge was “R. E. Matthews;” and the defendant’s counsel were Mr. “ Carroll,” “ W. H. Sheldon,” and “ E. J. Sheldon;” and nine of the jurors that tried the case were “A. J. Ticknor, J. D. Lindsay, N. B. Strainer, J. L. Moore, J. W. Whitaker, W. A. Wilgus, B. P. Cook, J. G. W. Yeater, and W. H. Underhill,” and there is nothing in the record to indicate what the full Christian names of any of these persons were.
The defendant claims that the court below erred in overruling his challenges to certain jurors for cause. A. J. Tick-nor belonged to a society which he says is called “ The Osage' Township Anti-thief Society,” and J. L. Moore belonged to a society which he says is called “ The Anti-thief Horse Association.” Neither of them had ever taken any oath in connection with such association. This association seems to be a matter of local concern. These two jurors seem to have been •competent in every respect, except that they belonged to this •association. It does not appear that they could not try the •case impartially. On the contrary, it would seem from their answers to questions upon their voir dire that they could try the defendant or any person charged with larceny as impartially as though he were charged with any other offense. There were still others who had been summoned as jurors, and who were first challenged for cause by the defendant, and then peremptorily, and who did not serve as jurors, who belonged to an association called “The Protective Association.” This association seems to be a more general organization, and it would seem that the duties of its members are to protect property from larceny, and to reclaim it if stolen, and to bring the offenders to justice; but there is nothing in the rules of the association or elsewhere, so far as is shown, that requires any member to prosecute an innocent man, or, if such member were a juror, to convict anyone unless he were shown to be guilty by as full, complete and convincing evidence as is required by law in any other case. It would seem that their duties as jurors are not affected by their membership in this association. They would not convict any person upon any less evidence or any weaker evidence than they would if they were not members of such organization. We cannot say that the court below erred in overruling the defendant’s challenges.
It is next claimed that error was committed and prejudice intervened because of the separations at different times of some of the jurors during their deliberations. It was about 18 hours after the jury retired for deliberation before they finally agreed upon a verdict, and during this time jurors were occasionally taken to the water-closet and returned; and these are the separations of which the defendant complains. The affidavit of the bailiff concerning this matter, omitting title, is as follows:
“Wm. Whitehead, of lawful age, being first duly sworn, on oath says, that he was the bailiff of the jury in the above case, and had charge of said jury while deliberating upon their verdict; that said jury were kept together all the time during their deliberations, and the instances mentioned in the affidavit of defendant’s attorney, of jurors being allowed to separate, were each and all instances and occasions when jurymen were compelled to go to the water-closet, and the said bailiff took them to the water-closet under the orders and instructions of the court, and that said jurors were not absent from the jury-room longer than was absolutely necessary to attend to the wants of nature in each case, and théir absence could not have exceeded five minutes at any time.
Wm. Whitehead.
“Subscribed and sworn to before me, this 9th day of October, 1891. A. P. Williams, Clerk”
It does not appear that anything of a prejudicial character occurred during any of the separations of the jurors, and we would think that nothing of such a character did occur, and in our opinion the court below did not err in refusing to set aside the verdict and to grant a new trial because of such separations. When the jury finally agreed upon their verdict they were polled, and each member answered for himself that the verdict of the jury was his verdict.
It is also claimed that the court below erred in refusing to sustain the motion of the defendant to require the stenographer of the court to furnish a transcript of the evidence to him for use on his appeal to the supreme court, and this for the reason that he was unable financially to pay for a transcript. We think the decision of the court below in this respect was correct.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action brought by Wellington & Brundage against L. L. Allen as principal, and A. N. McLennan and G. H. Luedde as sureties, on a bond executed by the plaintiffs in error and conditioned that the principal would faithfully perform a contract which Allen had entered into with the defendants in error, for the construction of certain parts of a building. The bond was in the sum of $2,000. The condition reads as follows:
“ Whereas, L. L. Allen has contracted with Messrs. Wellington & Brundage to execute, construct and complete the work specified in contract for the sum of $2,474, by a contract dated July 16, 1887, hereto annexed; and the condition of this obligation is, that if the said L. L. Allen shall duly perform said contract, then this obligation is to be void; but if otherwise, the same shall be and remain in full force and virtue.”
The contract between the parties was in writing, and provided that the work should be done “ agreeably to the plans, drawings and specifications prepared for said work by Abbott & Hohenschild, architects, to the satisfaction and under the direction and personal supervision of Abbott & Hohenschild, architects.” Before the contract and bond were signed the architects named had prepared plans, drawings and specifications. The contract contained the following provision in regard to changes and alterations in the work:
“ Should the proprietors, at any time during the progress of said work, require any alterations, or deviations from, or additions to, or omissions, in the said contract, specifications, or plans, they shall have the right and power to make such change, or changes, and the same shall in no way injuriously affect or make void the [this] contract, but the difference for work omitted shall be deducted from the amount of the contract by a fair and reasonable valuation; and for additional work required in alterations, the amount shall be agreed upon before commencing additions.”
To the petition of the plaintiffs below the sureties upon the bond answered that the plans and specifications agreed upon had been submitted to them before they signed the bond; that after they executed the bond the parties to the building contract, without the knowledge of the bondsmen, destroyed the plans and specifications and substituted new and entirely different plans and specifications in place of the original plans submitted to the sureties, and that the substituted plans were for a larger and more expensive building than proposed in the original plans. It was also alleged that the contract had been changed by the parties so that Allen was to be paid a reasonable price for his labor, and Wellington & Brundage were to furnish material and assume control of the work of constructing the building themselves. The case was sent to a referee, who reported, among other things —
“That on July 16, 1887, said plans and specifications, having numerous alterations noted thereon by erasures and interlineations, at the suggestion of the architects and with the consent of plaintiffs and L. L. Allen, were taken by said architects to their office in Salina, Kas., to be copied, where they remained about one week; that said original specifications as soon as copied were destroyed in said architects’ office; that on return of said specifications to Ellsworth, so copied as aforesaid, numerous additions were made thereto by Mr. Abbott, architect, in the presence of L. L. Allen; that said additions were immaterial, and said Allen then signed said specifications and proceeded with the construction ofj and constructed said building thereunder, a copy of which specifications is attached to plaintiffs’ petition; that thereafter a material change was made in the plan of said building by moving the north wall of same out two inches — that is, the brick wall to be built on the center of the stone basement, and being four inches narnower, was moved out flush on north side; that said A. N. McLennan and G. H. Luedde had no knowledge of the destruction of said original specifications, or of any alteration in the plans and specifications.” ' •
As a conclusion of law, the referee found that the destruc- ■ tion of a material portion of the plans and specifications, and the substitution of other plans without the consent of the bondsmen, and the change in the plans and specifications, released and discharged the bondsmen from liability. The court refused to render judgment in favor of the bondsmen ’ upon the report and conclusions of the referee, but gave judgment upon the findings of fact made by the referee for the sum of $1,244.14 against the sureties upon the bond, as well as the principal.
The plaintiffs in error bring the case here upon the pleadings, findings of fact and conclusions of law of the referee, and the motions made in reference to the same. The contention of the plaintiffs in error is, that the findings of the referee disclosed such alterations in the plans and specifications as released the bondsmen. As to the general proposition of counsel, which is urged with much force and well supported by a long line of authorities, we can quite agree with him as to the legal effect of a contract which has been materially altered, and are ready to hold, with Mr. Justice Story —
“That the liability of a surety is not to be extended by implication beyond the terms of the contract. To the extent and in the manner, and under the circumstances pointed out in the obligations, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may be for his benefit; he has a right to stand upon the very terms of his contract, and if he does not assent to any variation of it and a variation is made, it is fatal.” (Miller v. Stewart, 9 Wheat. 681.)
It will be observed from the findings of the referee already quoted that on July 16, 1887, the plans, with certain alterations noted thereon, were delivered to the architects to be copied. When copied, the original specifications were destroyed. We do not understand from this finding that there was any very great change made. In fact, the referee finds that the additions made.were immaterial. We also learn from the additional findings of the referee that the changes made were no more than are liable to occur in the construction of a building of the size and dimensions described in the plans. Indeed, it is very difficult to have plans and specifications so drawn that during the progress of the work some changes will not be found to be necessary. Now, we think just such changes as were made were provided for in the contract. If it was a part of the terms of the contract that changes could be made, and they were, in fact, made in the manner designated in the contract, the bondsmen cannot very well complain because they are bound by the terms and conditions of the contract they signed. They have the same rights that the defendants in error have to stand upon the terms and conditions of the contract. The obligation is mutual. They signed the contract with the express understanding that the parties erecting the building reserved the right to make changes and designated how the alterations were to be made.
Counsel for plaintiffs in error insists that the destruction of the original draft of the specifications and the substitution of the copy made by the architects released the bondsmen. It does not appear from the findings of the referee why or by whom the original draft of the specifications was destroyed. It is not found that the parties to the contract or either of them had anything to do with the destruction of the paper in question. There is nothing to show that the architects did not copy the specifications correctly, and, as already stated, the referee found that the additions made were immaterial, and the destruction of the original draft seemed to have been done inadvertently. • This ought not to avoid the contract. The rule has been laid down, that “ when the spoliation be done by an agent of one of the parties, it will not avoid the contract, if the agent had no express or implied authority to do it.” (1 AnL & Eng. Encyc. of Law, 505, note 1, and authorities there cited.) We do not think the changes made were such as would release the sureties upon the bond.
In a case not unlike this in some of its features the Missouri court of appeals said:
“The only other ground upon which it is assumed that the sureties were discharged is that relating to the changes in the work as it progressed. The mere fact that there were departures from the original plans and specifications could not operate such a discharge; because changes, under the direction of the architect, were expressly provided for in the contract.” (7 Mo. App. 283.)
In the case of Moore v. Fountain, 8 South. Rep. 509, the supreme court of Mississippi held: “That where the building contract provided that the parties might make such alterations in the plans as they might deem proper, the same to be ‘ agreed upon in writing’ before executed, the sureties upon the bond of the contractor for the construction of the building will not be released because they were not parties to such agreement in writing.”
In the case of Dorsey v. McGee, 46 N. W. Rep. 1018, the supreme court of Nebraska, in an action brought by the proprietors of a building against the contractor and his sureties, on a bond given for the faithful performance of a contract for the erection of a dwelling-house, where the specifications. contained a clause that the owner had a right to make alterations, additions or omissions of work or material, and changes were made in the construction of a stairway from the kitchen to a bed-room, the use of bronze hardware in place of No. 1 hardware, as specified, and a change was also made in the location of the cistern, decided that the additions and changes were provided for in the contract and held the bondsmen liable.
We recommend an affirmance of the judgment of the district court.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was brought by Charles Y. Ferguson, in the common pleas court of Sedgwick county, against George Morris, Sarah Morris, George P. Glaze, George C. Gardner, H. B. Gardner, and C. L. Andress, to recover on a promissory note, of date March 17, 1887, for $400, with interest from date to maturity at 8 per cent., and, if not paid at maturity, interest at 12 per cent. George Morris and Sarah Morris are charged as makers of the note. George P. Glaze was the payee. The note was given as a part of the purchase-money of lots 1, 3, 5, and 7, in Gardner’s addition to the city of Wichita, and a vendor’s lien was reserved in the deed from Glaze to Morris and wife for the amount of this note. At the time of the commencement of the action, Andress was the owner of the lots. This note was indorsed by Glaze to George C. Gardner and H. B. Gardner, and by them indorsed and delivered to Ferguson before maturity. Ferguson, in his petition, avers that at the time the note was indorsed and delivered to him that Glaze, Gardner and Gardner stated to him that the time of the payment thereof had been extended 30 days, and that this extension was granted by their consent, at the request of the makers, and that he (Ferguson) agreed not to present the note for payment to the makers until the expiration of 30 days after maturity, and that H. B. Gardner expressly agreed that if said note was not paid at the expiration of 30 days, he and G. C. Gardner and George P. Glaze would pay the same. George C. Gardner, H. B. Gardner and Glaze -filed answers, each pleading a general denial; and as the case is here only as to these parties, it is not necessary to state the action of the others.
When the case was called for trial, these plaintiffs in error objected to the introduction of any evidence under the petition, because it does not state facts sufficient to constitute a cause of action against them. This objection was overruled, and this raises the controlling question in the case. The jury found for Férguson, and returned a verdict for the amount of the note, with interest, against the defendants, and judgment was rendered on the verdict. As there was no evidence tending to show protest and the service of notice of dishonor on Gardner, Gardner, and Glaze, the verdict of the jury, under the instructions given by the court, was based upon the fact that the time for the payment of the note had been extended for 30 days by these parties, at the request of the maker, and that they had so informed Ferguson at the time of the transfer of the note by them to him. There is some evidence to sustain, the verdict on this theory. This leaves the legal question as to whether or not such an agreement dispenses with notice and protest so far as the indorsers are concerned. And if it does, the objection to the petition was properly overruled. It stated a cause of action against Gardner, Gardner, and Glaze. The plaintiffs in error, both in the court below and here, seek to have the questions determined on a strict construction of the rules of commercial law as to demand and notice, and consequently ignore any theory of the case that implies waiver of notice to the indorsers. That the presentment of a note, as well as protest and notice, can be dispensed with by agreement or waiver, is a familiar doctrine of the text-books. The waiver may be either verbally or by writing; it may be expressed in strict terms or inferred from the words or acts of the party. It may result from- any understanding between the parties which is of such a character as to satisfy the mind that a waiver is intended.
“Any. act, course of conduct or language of the drawer or indorser, calculated to induce the holder not to make demand or protest or give notice, or to put him off his guard, or any agreement of the parties to that effect, will dispense with the necessity of taking these steps.” (Daniel, Neg. Inst., § 1103, and authorities cited in foot-notes.) “Where the indorse'rs-agree to an extension of time of payment, it waives demand,, protest, and notice.-” (Id., §1106.)
Ridgway v. Day, 13 Pa. St. 208; Barclay v. Weaver, 19 id. 396; Bank v. Waples, 4 Har. (Del.) 429; Bank v. Moore, 37 N. H. 539, are the cases cited to sustain the text. In the case of Hudson v. Wolcott, 39 Ohio St. 618, the court say:
“At the time of the indorsement the parties thereto were fully informed that the maker could not at that time make payment, nor probably within 30 days, and the inference is clear that the parties, indorser and indorsee, intended to await payment for that period. If so, demand and notice within that period were waived. And clearly, demand and notice,, under the circumstances, were not required at the end of the 30 days by any rule of law, for the reason that the note had long been past due, and no contract had been made with the maker to extend the date of payment to any other time than that named in the note itself; so that neither the rule of law in respect to demand and notice at maturity of commercial paper indorsed before maturity, nor that in respect to indorsement of paper past due, were applicable in this case after the lapse of 30 days from the date of transfer.”
This case is a stronger one than the cited case, because here the indorsers themselves, before the transfer of the note to Ferguson, made an agreement with the maker to extend the time, and, according to the adjudicated facts, so informed the defendant in error at the time of the transfer. In a subsequent case, that of McGonigal v. Brown, 45 Ohio St. 499, the decision in Hudson v. Wolcott was affirmed, and the court say:
“It is contended, however, that a new time of payment was fixed by the extension to ‘about the 1st of April, 1877/ and that demand and notice, within a reasonable time after the 1st of April, were necessary in order to make the indorser liable. The extension to about the 1st of April, in our view, designated a time so indefinite as to be calculated to mislead the indorsee, and put him in doubt and off his guard in protecting his rights as against the indorser. It was beyond the power of the indorsee to determine definitely when the note was payable by the terms of the extension. To charge a drawer or indorser, demand should be made on the day of the maturity of the note or bill. If made before the note falls due, it is unavailing; and if made after, it is generally insufficient for the purpose of charging the indorser or drawer. The defendant in error, having contributed toward rendering the holder of the note incapable of definitely determining the day of payment, and of strictly complying with the rules of commercial law in respect to demand and notice, he is to be held as intending to waive such compliance. We have not been able to reach the conclusion that the indorser, after having received a valuable consideration, designed to place his indorsee in a situation of doubt and uncertainty, and afterwards to hold him rigidly to the requirement of demand and notice, in order that he might evade an indorser’s liability.”
This applies with great force to the facts in this case. The case of Boyd v. Bank of Toledo, 32 Ohio St. 526, will be found to be a very instructive case, citing many authorities on the question of waiver, and going far to support the judgment in this case. The case of Taunton Bank v. Richardson, 5 Pick. 435, holds that proof of a waiver of notice will support the allegation of actual notice, and that where the indorser of a note applied to a bank to have it discounted, and promised to attend to the renewal of it and to take care of it, and directed that a notice to the maker should be sent in his care, and such notice was sent accordingly, that this was a waiver of regular demand and notice, or at least from it a jury might legally infer a waiver. The cases of Jones v. Fales, 4 Mass. 251; Fuller v. McDonald, 8 Me. 213, are also cited to support this doctrine. These authorities establish the rule embodied in the instructions of the court, and support the theory upon which the jury acted.
The case of Doolittle v. Ferry, 20 Kas. 230, is invoked in support of the contention of the plaintiffs in error. That case holds that “ parol testimony is inadmissible to change a simple unqualified indorsement, whether in full or in blank, into an indorsement without recourse,” but there is no such question here; the indorsement is conceded; it imports a conditional liability; that liability can be made absolute by presentation, protest and notice in due time; and the question here is, did the indorsers waive the performance of certain things that fix liability if not waived? There is no pretense in this case, on either side, that there was any parol agreement contemporaneous with the indorsement that changed its legal implication. If counsel mean that waiver of demand, protest and notice cannot be made by parol, all the books contradict them. The same question is presented by the demurrer to the evidence at the trial as raised by objection to any evidence under the petition. And, so far as the controlling question is concerned, the instructions are in line with the authorities cited.
There is some contention in the brief of counsel for plaintiffs in error that this note was assigned and not indorsed, and the case of Hatch v. Barrett, 34 Kas. 223, is cited in support thereof. There are no points in common in the cases. In the cited case there was written on the back of the note these words: “I, James C. Rogers, do hereby assign the within note to Charles B. Hatch, of Osage county, Kansas. Said assignment is made without recourse on me either in law or equity.” In this case the names of George P. Glaze, George C. Gardner and H. B. Gardner are indorsed without other words. And now we invoke the authority of Doolittle v. Ferry, supra, against this contention. Apart from all this, the fact of indorsement by all three of the plaintiffs in error was fully established at the trial — in fact, not controverted. It is true that the Gardner Bros, claimed, when on the witness stand, that they borrowed money from Ferguson and deposited the note as collateral security, expecting to redeem it in a week or 10 days. If this had been true, it would completely demolish their defense that they were commercial indorsers, and entitled to notice of demand, protest, and non-payment. But they did not claim that they had ever redeemed the note, nor do they plead a tender of the amount borrowed and demand the return of the collateral. Their whole defense rested- on the claim that they were indorsers, and, as such, were entitled to notice of demand and non-payment.
The instruction complained of in the supplemental brief was not excepted to. The claim that no personal judgment could be rendered on the pleadings against the plaintiffs in error is not tenable, because, while the prayer is a little ambiguous, yet it is easily susceptible of a construction that sustains the judgment, and it is our duty to so construe it.
We think exact justice has been done, and there are no prejudicial errors in the record of the judgment, and recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
Max Rich sued the Northwestern Cattle Company, Benjamin Bird, and J. B. Hundley, in the district court of Cheyenne county, to recover a certificate calling for 20 acres of school land, which he claimed to own under an agreement with the defendants and others, as his share and interest in section 36, of township 3, in range 38, in Cheyenne county, which had been purchased for the purpose of laying out a town7site by a number of parties who were incorporated as the Northwestern Town-site Company. It seems the section had been bought of a party by the name of Bradshaw, who had previously secured it from the state. One hundred and sixty acres in the center of the section were platted as a town-site and named “ Bird City.” The persons composing the company were A. L. Burr, D. W. Cave, R. M. Pendarvis, the Northwestern Cattle Company, William H. Dimmick, and the plaintiff. It was alleged in the plaintiff’s petition, that previous to the organization of the town company it was agreed that the unplatted portion of the section should be divided as follows: D. W. Cave was to have the undivided one-fourth of the southwest quarter of the southeast quarter of the section; A. L. Burr was to have the west half of the northwest quarter, and the undivided one-fourth of the southwest quarter of the southeast quarter; R. M. Pendarvis was to have the east half of the southeast quarter, and the undivided one-fourth of the southwest quarter of the southeast quarter; the Northwestern Cattle Company was to have the east half of the northeast quarter, and the undivided one-fourth of the southwest quarter of the southeast quarter; the plaintiff was to have as his share the northeast quarter of the northwest quarter, and the northwest quarter of the northeast quarter’. It was further alleged, that with the consent of all the parties this agreement was modified so as to change the division as to the plaintiff and the cattle company, so that the latter should have the east half of the northwest quarter of the northeast quarter, and that the former should have the west half of the northwest quarter of the northeast quarter of the section; that immediately following this last agreement, the plaintiff went into possession of the last-described subdivision of the section and made lasting and valuable improvements thereon. The defendants answered, admitting the plaintiff’s interest in the land, but alleging that in the early part of the year 1887, in consideration of $2,500, the plaintiff assigned and sold to Benjamin Bird all of his interest in the land. The case was tried by the court, and resulted in a finding and judgment in favor of the defendants.
It is first claimed that the court erred in requiring the plaintiff to answer the question, upon cross-examination, whether or not other members of the town company had given a part of their land to the railroad company. "We do not think this was material error. It was alleged that the plaintiff was entitled to 20 acres of this section. The defendants answered that whatever interest the plaintiff had had been sold. While it may have been wholly immaterial, it was not prejudicial.
It is next urged that the court erred in refusing to allow the plaintiff to answer the question: “ What was the value of this 20 acres at the time he agreed to assign it over?” and the further question: “ What is the value of the land now ? ” We do not see how the value of the land became important or material. The only material question was, whether the plaintiff had sold his interest in the land; and evidence as to its value would throw no light upon that question.
It is next insisted that the court erred in refusing to strike out all of the oral evidence given by the defendant Bird in regard to the purchase óf the land from the plaintiff, when it was disclosed in the evidence that the contract was in writing. This is the most serious question in the case. It was admitted that the plaintiff was entitled to 60 acres of the unplatted portion of the section. It was alleged in the answer that the defendant Benjamin Bird bought such interest and paid him therefor the sum of $2,500. The evidence of Bird in the first instance was to the effect that the contract for the purchase of the plaintiff’s interest was verbal; but when his attention was called to the fact, upon cross-examination, that there was a written contract, and it was exhibited, he acknowledged that it was the contract. He said: “That is my signature, and that is the contract. It is in accordance with what I have stated. I made him sign the contract before I sent the sight draft.” When asked if all the land he purchased was included in that contract, he answered: “I suppose so, if it was written at that time; it might have been written before that; I don’t know.” The only explanation he made when the written contract was read in evidence was, that he 'had the other 40 already, but made no statement as to when he had purchased it. There was no evidence as to any other purchase or other consideration paid than the $2,500 alleged in the contract and stated by the plaintiff and defendant Bird; so that it seems from the evidence that the only consideration paid was the one mentioned in the written contract. If .this be true, we are of the opinion that the court erred in refusing to exclude the oral evidence concerning the purchase. If there was a mistake in the written contract, it should be reformed to correspond with the true intent and meaning of the parties. But it was clearly incompetent to admit the written contract as the agreement of the parties concerning the sale of the certificate of purchase in question, and then refuse to exclude the oral evidence in relation to the same transaction. ( Willard v. Ostrander, 46 Kas. 591.)
It is recommended that the judgment of the district court be reversed, and that a new trial be granted.
By the Court: It is so ordered. •
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The defendants in error commenced this action against the' plaintiff in error to recover damages occasioned by the destruction of her property, in the village of St. Mark, in Sedgwick county, on a contract of insurance made with the company on the 9th day of July, 1887. The house was burned on the 30th day of July, 1887. No policy was ever issued. The defendant below claimed that the application was never approved or acted upon by the home office, as required by the terms of all policies issued by this company; and also claims that the premium was never paid, or offered to be paid. Eno, a co-plaintiff below, is a mortgage creditor of Mrs. Sehroeder. At the trial in the district court, a jury returned a general verdict for Mrs. Schroeder for $763.46, with interest at 6 per cent, from October 2, 1887, and returned answers to the following special interrogatories, to wit:
“1. When was the note the plaintiff Sehroeder give to A. B. Sutherland due? Ans. 21 days after date.
“2. Was said note paid before the fire occurred, on July 30, 1887? A. No.
“3. Was the application made by the plaintiff and handed by Sutherland to Warren Foster approved by the home office of the defendant at Peoria, 111., before the destruction by fire of the property claimed to be owned by plaintiff in the case? A. Yes.”
The particular facts are, that before January 1,1887, a real-estate firm, composed of Warren Foster and A. B. Sutherland, as Foster & Sutherland, was located and doing business at the town of Gloddard, 15 miles west of the city of Wichita. Foster had been for some time the agent of the insurance company. Sutherland held no agency, but occasionally solicited insurance and got a “divide” with Foster, when he brought Foster a desirable application. After the dissolution of the partnership, both Foster and Sutherland, but not as partners, were doing a real-estate business in Wichita. Early in July, 1887? Sutherland came into Foster’s office at Wichita, with an application from Mrs. Sehroeder to have her property in St. Mark insured, but no action was then taken on the application, because it showed that the property was mortgaged, and did not show the name of the mortgagee. At the time Sutherland received the application from John Sehroeder to insure the property of the defendant in error, he executed and delivered a promissory note for $16 to Sutherland. The time at which this note was made in terms payable is uncertain, but it was to be paid when the policy was delivered. Foster, the agent of the company, swore that he never saw the note. At the trial several witnesses were produced, who testified to declarations and admissions made by Foster, at various times, to the effect that he had accepted the note; that he had approved the application; that he had reported the matter to the company in his daily report; and that the policy was not issued by reason of his neglect. Foster was called as a witness twice, but his attention was not called in the cross-examination to these alleged statements. The insurance company complains of the admission of these declarations. Mrs. Schroeder swore that she constituted her husband agent to procure this insurance. He swore to his agency for his wife. The insurance company complains of this, and claims that agency cannot be created in that manner by wife and husband. Other complaints are made.
It is useless to attempt a discussion of the various questions raised by the exceptions of the plaintiff in error, as the judgment must be reversed on account of the admission of improper testimony. The plaintiff below, to make her case, put witnesses upon the stand who testified to conversations with the agent of the insurance company after the fire, in which he stated that the application was accepted; the promissory note taken; and that the policy would have been- issued if it had not been for his negligence. The agent was not called upon to testify on these subjects; was not interrogated as to these statements, or his attention called to time, place, person, and words; in fact, was not examined by the plaintiff in chief, except, perhaps, to identify a copy of the usual policy of the company and to establish his agency. This class of evidence could in any event be only used for the purpose of impeaching the agent, if he had testified in chief. Its admission, under the circumstances, was not only erroneous, but aggravating. The testimony of Bunnell is particularly violative of all the rules of evidence, as he recited conversations he had with Foster, Sutherland, and Schroeder, at various times, but fixed the date of all of them after the fire.
The error is so manifest that 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
Valentine, J.:
This was an action brought in the district court of Miami county, on April 28, 1888, by S. W. Moore against J. D. Bryan, to recover $1,101.29, an alleged balance claimed to be due for a stock of goods composed principally of drugs and medicines, sold by Moore to Bryan on November 20, 1885. The defendant answered, alleging that he had paid to the plaintiff and for him to others, and would have to pay for him to still others, certain claims for which he (the defendant) was liable, the aggregate sum of $3,211.37, an amount in excess of the value of the stock of goods $729.15, for which amount the defendant asked judgment. The defendant also attached to his answer a copy of an agreement between himself and Moore relative to the purchase of the stock of goods and the mode of determining their value as between themselves, which agreement reads as follows:
“Louisburg, Kas., November 20, 1885.
“Substance of agreement between S. W. Moore and J. D. Bryan. Moore to sell outright his entire stock of goods, fix tures, etc., including the business and all the appurtenances thereto. To invoice as follows: Notions, toilet articles, etc., at 50 cents on the dollar of cost price. Albums and really salable books, 75 cents on the dollar of cost price. All staple articles at cost, less 10 per cent, off for damage. All these goods to be in reasonably good condition. Fixtures to be invoiced at 50 cents on the dollar of the cost price. All unsalable articles to go in free. Badly damaged at 20 to 50 cents on the dollar.
“Bryan to pay all the debts he is indorser for in full, and to pay the others so far as the overplus will go, according to the best arrangements that can be made, so as to settle them if possible.
J. D. Bryan. S. W. Moore.”
The plaintiff replied to this answer, admitting the aforesaid agreement, but claiming that after its execution the parties wholly abandoned it, and in invoicing the goods agreed upon the price and value separately of each and every article included in the stock sold by the plaintiff to the defendant. The case was referred to George Kingsley as referee, who tried the case and made a report, which, omitting title and signature, reads as follows:
“The undersigned, George Kingsley, heretofore appointed referee in this action by the above-named court, at its October term, 1888, a copy of which appointment, duly certified by the clerk of said court, with the qualifications of said referee,'is hereto attached, now hereby submits his report of the matters referred to his hearing and decision:
“The said parties, plaintiff and defendant, with their attorneys and witnesses, met at the office of said referee, in Paola, Kas., on the morning of December 18, 1888, and proceeded with the examination of the witnesses, and concluded the taking of the testimony on the evening of December 21, 1888. The arguments of counsel were heard on December 31, 1888. On consideration of the evidence and arguments of counsel, I find that on the 20th day of November, 1885, the stock of goods in question, with the fixtures, including the business and all the appurtenances, were sold by the plaintiff to the defendant; that on the same day a written contract of sale was entered into; that by the terms of the sale an invoice was to be made of said stock and fixtures, and the basis of valuation was agreed upon in said contract. I further find that the parties at the time of the making of the said invoice mutually abandoned the specifications of the contract as a mode of estimating prices in the invoice, and that the prices of articles were fixed upon as the invoice was proceeded with, without reference to the contract. I find that, in the taking of the invoice, there was a reduction made from the wholesale prices on goods that by the terms of the contract were to be invoiced, ranging from 5 and 10 to 25 per cent., and that said goods and fixtures invoiced at the total sum of $3,766.97. I further find that the said invoice was taken mostly under the control and influence of the plaintiff, and that the invoice was. too high, and was not assented to by defendant. I find that at the date of the sale, November 20,1885, the said stock of goods, fixtures, etc., were worth the sum of $3,390.28. I further find that, of this amount, the said defendant has paid the plaintiff the sum of $3,208.60, leaving a balance still unpaid of $181.68. I, therefore, find for the plaintiff, and that he is entitled to a judgment against the defendant, after all offsets and payments are allowed, of the said sum of $181.68, and interest on the same from the 20th day of November, 1885, at the rate of 7 per cent, per annum, and his costs of suit.”
This report did not satisfy either party. The plaintiff wanted a judgment for a larger amount than that recommended by the referee, to wit, the difference between the invoice price of the goods and the amount paid by the defendant, to wit, $558.37, and interest, and the defendant moved to set aside the report of the referee, and for a new trial; but the court below overruled all the motions of both parties, and confirmed the report of the referee, and rendered judgment accordingly, the judgment amounting, principal and interest,, to $224.33 and costs, in favor of the plaintiff and against the defendant; and the defendant, as plaintiff in error, brought the case to this court for review; and the plaintiff below, who is now the defendant in error, filed a cross-petition in error, asking that the judgment of the court below be modified by increasing the amount thereof to at least $558.37, with interest from November 20,1885.
In all probability both parties had full knowledge of the values of such goods as were sold by the plaintiff below to the defendant below. Bryan was a physician, and had been a druggist and pharmacist for many years. He had been a partner of Moore in this same business at the same place for several years, when finally he sold out his interest in the business to Moore; and afterward, and on November 20, 1885, Moore sold back the entire business to Bryan. Some of the very articles which had belonged to Bryan and Moore as partners were retransferred back by Moore to Bryan. The evidence upon the disputed points was conflicting, but we are inclined to think that there was sufficient evidence to support all the findings of the referee. Unquestionably there was sufficient evidence to support the finding that the contract between Moore and Bryan was abandoned at the time of making the invoice. It seems that the contract when executed was delivered to Bryan; that he put it away in his safe, and that it was never afterward seen or heard of until after this suit was commenced. It is possible, also, that there was sufficient evidence to have sustained a finding, if the referee had made the same, that the contract was not abandoned; but evidently upon this point the finding of the referee is in accordance with the great weight of the testimony. We think there was also sufficient evidence to support a finding, if it had been made by the referee, that the parties, at the time of making the invoice, agreed upon the-prices of all the articles contained in the inventory. It would almost seem that the preponderance of the evidence was that way; but still there is sufficient evidence to sustain the finding of the referee as made. There is also ample evidence to support a finding, if it had been made, that the goods were worth their full invoice price, to wit, $3,766.97, or even more; and there is also sufficient evidence to sustain a finding that the goods were not worth more than $3,000. We also think that there is sufficient evidence to sustain the finding of the referee as made, that they were worth just $3,-390.28.
There being evidence, then, to sustain all the findings of the referee, are such findings themselves sufficiently consistent with each other to authorize the judgment rendered upon them by the court below? We construe the findings to mean, among other things, 'substantially this: That the original contract as to the mode of estimating prices was wholly abandoned ; that the prices placed in the inventory were all agreed to by the plaintiff, but not by the defendant; that he at all times intended that the prices of the articles inventoried should continue to be open for further consideration, negotiation, and settlement, and never did intend that they should be final, and did not agree to them. In this manner we think the findings of the referee may be harmonized, and when so harmonized they will support and sustain the judgment rendered upon them by the court below. This judgment we would think does full justice to the plaintiff in error, defendant below; but we are not so clear that it does full justice to the defendant in error, plaintiff below. However, as the findings of the referee are sustained by sufficient evidence, and as the court below has approved them, we do not feel warranted in setting either them or the judgment aside, or in modifying the judgment. It will therefore be affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action in the nature of ejectment, brought by H. B. Smith, in the district court of Miami county, against Harriet C. Rudd, to recover lots 13 and 14, in block 91, in Ellensville, an addition to Osawatomie. The case was tried by the court, and the following findings of fact made:
“ 1. Upon and before the 1st day of August, 1870, L. Hendrickson was the owner of the property in .controversy, lots 13 and 14, in block 91, in Ellensville, an addition to the town of Osawatomie, in Miami county, Kansas.
“2. Upon the 1st day of August, 1870, L. Hendrickson and wife conveyed said property to S. S. Outman, by warranty deed, for the sum of $30, which sum was a fair price for said property at that time.
“ 3. The deed from L. Hendrickson and wife to S. S. Out-man was filed for record in the office of the register of deeds of Miami county, Kansas, and recorded on the 19th day of March, 1887. Said deed was acknowledged before H. B. Smith, a notary public of Miami county, Kansas, and who is now the plaintiff herein. Said deed was delivered to S. S. Outman by L. Hendrickson on the day it bears date, and L. Hendrickson, the grantor, wrote the deed; and, after the deed had been delivered to S. S. Outman, he left it with L. Hendrickson to be by him filed for record, and soon after left the state, going to East St. Louis, 111. [to live,] and the said deed remained in the care of the said L. Hendrickson until he delivered it to A. W. Rudd, at the request of said S. S. Outman, some time prior to the year 1879; and the said A. W. Rudd had charge of said deed from the time it was handed to him by said L. Hendrickson until the year 1879 as the agent of the said S. S. Outman; and the said A. W. Rudd, in the year 1879, handed the deed to S. S. Outman, the grantee, who retained it in his own personal possession from the year 1879 to the 19th day of March, 1887, without filing it for record.
“ 4. The said S. S. Outman now resides in Linn county, Kansas, where he has resided ever since the year 1879.
“5. The name of the said S. S. Outman was never entered upon the tax-rolls as the owner of said lots, or of either of them, prior to the year 1887. But for the year 1870, and each year thereafter until the year 1883, (excepting the years the property escaped taxation,) the name of L. Hendrickson appeared upon the tax-rolls and assessment rolls as the owner of the said lots. And on the tax-roll and assessment roll of the year 1883, (excepting the years 1874 and 1879 and 1881, which years the property escaped taxation,) the name of L. Hendrickson appeared upon the tax-rolls and assessment rolls as the owner of said lots. And the sale book in the office of the county treasurer shows that, upon the 7th day of May, 1872, said lots were sold to Miami county for the delinquent taxes, and were redeemed from said sale by S. S. Outman in September, 1879; and the cash-book in the office of the county treasurer shows that A. W. Rudd paid the taxes on said lots for the years 1875 and 1876 and 1877, and that S. S. Outman paid the taxes on said lots for the years 1878 and 1880.
“6. On the 27th day of November, 1883, L. Hendrickson and wife executed and delivered to Mary P. Smith, (who was then and still is the wife of the plaintiff herein,) a quitclaim deed for said lots, the consideration being $10, paid by said Mary P. Smith. At that time the said lots had been sold to the county for delinquent taxes, and the amount paid to L. Hendrickson for said quitclaim deed, together with the delinquent taxes then on the lots, was a fair price for them at that time. The plaintiff, H. B. Smith, acted as the agent of his wife, Mary P. Smith, in negotiating the purchase of the property from L. Hendrickson. Neither H. B. Smith nor Mary P. Smith knew that L. Hendrickson' had previously executed a deed to S. S. Outman for the property, at the time Mary P. Smith received the quitclaim deed from L. Hendrickson and wife and paid him the $10 for the lots; but they believed at the time that she was getting a good title to the property, subject to the taxes. Neither of them examined the treasurer’s sale book, or knew that S. S. Outman had redeemed the property from the sale of May 7,1872; but the said H. B. Smith, before the said Mary P. Smith received said quitclaim deed and paid said Hendrickson for said lots, did examine the records in the office of the register of deeds, from which it appeared that L. Hendrickson was the owner of the property, and he also examined the tax-rolls of the county.
“7. On the 3d day of April, 1884, said Mary P. Smith redeemed said lots from tax sale, and she paid the taxes on said lots for the years 1884 and 1885 and 1886.
“8. The said lots were vacant and unimproved until after the 19th day of March, 1887, the day the deed from Hendrickson and wife to S. S. Outman was recorded. On that day the said S. S. Outman first learned that L. Hendrickson and wife had made the quitclaim deed to Mary P. Smith, and the plaintiff then first learned that L. Hendrickson and wife had made the warranty deed to S. S. Outman.
“9. On the 18th day of July, 1885, said Mary P. Smith conveyed by warranty deed the lots in controversy, and other real estate, to the plaintiff; and the plaintiff, in consideration therefor, conveyed to said Mary P. Smith the homestead occupied by said H. B. Smith and Mary P. Smith. Said lots were conveyed to the plaintiff, H. B. Smith, the better to enable him to sell them.
“10. On the 21st day of March, 1887, said S. S. Outman took actual possession of said lots by fencing and planting trees.
“11. Upon the 21st day of July, 1887, S. S. Outman and wife sold and conveyed by warranty deed the lots in controversy to the defendant, Harriet C. Rudd, for the sum of $250, which was a fair price for the lots at that time; and at the time the defendant, Harriet C. Rudd, bought the lots of said S. S. Outman she knew of the deed from L. Hendrickson and wife to Mary P. Smith, and that the plaintiff claimed to own the lots."
“12. After purchasing the said lots and receiving the deed from S. S. Outman, and before the commencement of this suit, the defendant, Harriet C. Rudd, erected a dwelling-house and outbuildings on said lot 13, at an expense of $550, and erected a dwelling-house and outbuildings on said lot 14 at an expense of $350. And after the erection of this dwelling-house on lot 14, and before the commencement of this suit, the defendant, Harriet C. Rudd, contracted to sell said lot 14 to one Franklin Allard for the sum of $450, and received a payment of $30. And said Allard, in the autumn of the year 1887, removed the dwelling-house erected by defendant, Harriet C. Rudd, on lot 14 from the lot, and laid a foundation for a dwelling-house thereon. And since the commencement of this suit said Allard has erected another dwelling-house on said lot 14. The $30 is all that said Allard has paid on said contract for the purchase of said lot 14.
“13. The sale book in the office of the county treasurer of said county shows that lots 13 and 14 and 16, of block 91, in Ellensville, an addition to Osawatomie, were sold together for the taxes of 1871, and the taxes of 1872 charged up to such sale; and that lots 13 and 14 were redeemed from this sale by S. S. Outman, September 20, 1879. And the cashbook of the county treasurer’s office shows that the taxes on said lots 13 and 14 were paid by A. W. Rudd for the years 1873 and 1875 and 1876 and 1877; and that the taxes on said lots 13 and 14 were paid by S. S. Outman for the years 1878 and 1880; and that the taxes on lots 13 and 14 were paid by Mary P. Smith for the years 1884 and 1885 and 1886 ; and that said sale book shows that said lots 13 and 14 were sold to the county for the taxes of 1882, and that the taxes of 1883 were charged against these lots on the sale books, and that Mary P. Smith redeemed these lots from this sale. And said cash-book shows that the taxes on said lots 13 and 14 were paid by defendant, Harriet C. Rudd. And the tax-roll in said office shows that the said lots 13 and 14 escaped taxation for the years 1874 and 1879 and 1881. And the court finds from the testimony that said A. "W. Rudd, in paying said taxes, was acting as the agent of said S. S. Outman, although the cash-book does not show this agency.”
Upon the above findings of fact, the district court entered judgment in favor of Harriet C. Rudd. It is urged by the plaintiff in error that, upon the state of facts found by the court, he should have had judgment; that the quitclaim deed from L. Hendrickson and wife to Mary P. Smith, mentioned in the sixth finding, passed the title to the property. It is conceded that at the time Mary P. Smith bought the lots the property was encumbered for the amount of the delinquent taxes then due; these taxes and the sum of $ 10 constituted the purchase-price. This fact alone would make it necessary for her to examine the records to see what taxes had been assessed against the property which she proposed to purchase. It will hardly be presumed that she bought the lots without knowing the amount of the delinquent taxes. The exercise of reasonable diligence would have disclosed the fact that on the 20th day of September, 1879, S. S. Outman, the grantee in the-first deed from L. Hendrickson and wife, redeemed the lots in controversy from the tax sale for the delinquent taxes of 1871 and the subsequent taxes of 1872. The tax-sale book of the county treasurer showed this fact, and this was more than four years before Mary P. Smith took a quitclaim deed for the same property. The court found, too, that A. W. Rudd, acting as the agent for S. S. Outman, paid the taxes upon the same lots for the years Í873, 1875, 1876, and 1877, and that Outman paid the taxes himself for the years 1878 and 1880. We think the fact that a party pays taxes upon property is evidence that he claims some interest in the same; but the fact that he is permitted by the county treasurer to redeem property sold for taxes is a stronger evidence of interest. Paragraph 6976 of the General Statutes of 1889 provides that any owner, his agent or attorney, may redeem land sold for taxes. Now, the fact that the record in the county treasurer’s office showed that Outman had redeemed the property from tax sale and had paid subsequent taxes was sufficient notice to the grantee in the quitclaim deed that he claimed some interest in the property — notice sufficient, we think, to put a person upon inquiry. It was said in the case of Johnson v. Williams, 37 Kas. 182:
“We would think that in all cases, however, where a purchaser takes a quitclaim deed, he must be presumed to take it with notice of all outstanding equities and interests of which he could, by the exercise of any reasonable diligence, obtain notice from an examination of all records affecting the title to the property, and from all inquiries which he might make of persons in the possession of the property, or of persons paying taxes thereon, or of any person who might, from any record, or from any knowledge which the purchaser might have, seemingly have some interest in the property. In nearly all cases between individuals, where land is sold or conveyed, and where there is no doubt about the title, a general warranty deed is given; and it is only in eases where there is a doubt concerning the title that only a quitclaim deed is given or received; hence, where a party takes a quitclaim deed, he knows he' is taking a doubtful title, and is put upon inquiry as to the title.”
The same principle was adhered to in the case of Merrill v. Hutchinson, 45 Kas. 59. It is insisted that this case differs in principle from the case of Johnson v. Williams, supra, for the reason that the conveyance from Mary P. Smith to the plaintiff was not a quitclaim but a warranty deed. We fail to see the distinction. The plaintiff acted as the agent of his wife, Mary P. Smith, in buying the property from L. Hendrickson. She was bound by his knowledge concerning the transaction, and he accepted a deed to the lots from his wife, as the court found, “the better to enable him to sell them.”
We do not think the district court erred in its conclusion of law, and therefore 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.:
This was an action in the nature of ejectment, brought by Eli A. Tefft against J. W. Redden, to recover a quarter-section of land, being the northwest quarter of section 23, township 13, range 13 east, in Shawnee county. Redden filed an answer, admitting possession of the land, and alleging ownership thereof. He further set up the two- and five-year statutes of limitation against any claim of title by Tefft under any tax deed. Trial before the court with a jury. The jury returned a verdict for Tefft. Judgment was entered accordingly. It having been suggested subsequently to the court below that Eli A. Tefft had died intestate, leaving Tamar Eliza Tefft and Arthur I. Tefft his sole surviving* heirs, upon proper application, and with the consent of the defendant, they were substituted as plaintiffs in the action.. Redden excepted, and brings the case here.
The facts in the case, as disclosed upon the trial, are as follows: On the 15th day of June, 1860, the land was patented by the United States to John Thayer. It does not appear that he ever took actual possession of the land, or paid any taxes after 1865. The taxes upon the land for 1866 not having been paid, the treasurer of Shawnee county sold the same on the 10th day of May, 1867, to Erastus Tefft. On the 17th day of May, 1870, a tax deed was issued to Erastus Tefft, including this and several other tracts of land sold at the same tax sale, for the gross sum of $118.46. This tax deed was filed for record on the 29th day of May, 1870. On the 28th day of December, 1870, Erastus Tefft and wife conveyed the land to Eli A. Tefft. On the 21st day of September, 1873, Eli A. Tefft and wife conveyed the land to John Anderson. On the 26th day of September, 1878, John Anderson and wife reconveyed the land to Eli [Eliza] A. Tefft. This was filed for record on December 16, 1882. Erastus Tefft paid the taxes on the land for 1867, 1868, and 1869. Thereafter Eli A. Tefft, while in possession of the land, paid taxes thereon from year to year. On the 16th day of June, 1884, H. C. Root, as the agent for Eli A. Tefft, took actual possession of'the land, and employed a man living near by to break two acres on the east side thereof. The breaking was done as requested, and Eli A. Tefft paid for the same. Soon after this, J. T. Davis, who also lived near the land, was employed by Root for Tefft to inclose the land with a fence. Davis inclosed the land with a barbed-wire fence the last of June or the first of July, 1884, at the cost of $150 to $200, the posts being one or two rods apart, and the fence having three wires/ In December, 1884, Eli A. Tefft and his son built a house upon the land, having four rooms, and also constructed a cheap stable. The next spring they broke other portions of the land, set out shrubbery and trees, and also improved the land in other ways. On the 3d day of May, 1883, there was filed for record in the office of the register of deeds of Shawnee county what purported to be a written conveyance or deed from John Thayer to Wm. H. McClure. II. H. Harris, claiming to be one of the owners of the land with W. H. McClure, under the deed from John Thayer, went upon the land on April 29, 1883, and had five and one-half furrows plowed around a piece four by six rods square; then inclosed this by six or eight posts, with two barbed wires; also set out six or seven wild gooseberry bushes, three cottonwoods, and two box-elders. This was done by him for the purpose of taking possession of the land under the alleged Thayer deed. John Thayer, the original patentee of the land, never signed or executed any deed to W. H. McClure. The deed was fabricated and forged by some one. On the 23d day of July, 1883, W. H. McClure and wife, by their attorney in fact, James W. McClure, conveyed the land to J. W. Redden, the defendant below. At the time Redden purchased, most of the improvements made by Harris were upon the land. In the winter of 1883 and the spring of 1884, J. W. Redden contracted for some breaking on the land, and also for fencing it. On the 2d day of June, 1885, Redden commenced an action of forcible entry and detainer against Arthur I. Tefft, the son of Eli A. Tefft, for the land. Judgment was rendered in that case in favor of Redden against Arthur I. Tefft for restitution, and also for his costs, taxed at $25.
As the tax deed of the 17th of May, 1870, executed to Erastus Tefft, shows several tracts of land sold together at the tax sale, for a gross sum, it cannot be legally claimed that plaintiff below acquired a good title thereby, and as John Thayer, the original patentee of the land, never signed or executed the deed to W. H. McClure of the 3d of April, 1883, that deed, having been fabricated and forged, conveyed no title to W. H. McClure, H. H. Harris, or J. W. Redden. It was decided in Duffey v. Rafferty, 15 Kas. 1, that—
“In an action in the nature of ejectment, the plaintiff may recover, if he has any right to the property, and if that right is paramount to any right to the same possessed by the defendant, although the legal title to the property may be outstanding in some third person, and although some third person may have a better right to the property than the plaintiff.”
Therefore the pivotal question in this case is, whether, at the commencement of the action in the court below, the possession of the land by Eli A. Tefft, under the void tax deed of April 3, 1883, his subsequent payment of taxes, improvements, etc., conferred a better right and title than the possession of J. W. Redden, who acquired the rights, if they had any, of Harris and McClure. “ Priority of possession gives precedence, where no better title can be shown as belonging to either.” (Duffey v. Rafferty, supra.) Counsel for Redden contend that the judgment in the action of forcible entry and detainer brought against Arthur I. Teffc, in June, 1885, determined the prior and lawful possession of the land, and is therefore a bar to this action; that Eli A. Teffc was estopped, if not by the judgment, at least by the verdict. Two sufficient answers dispose of this contention: First, article 13 of procedure before justices, relating to forcible entry and detainer, provides that “Judgments, either before a justice or in the district court, in an action brought under this article, shall not be a bar to any after action brought by either party.” (Buettinger v. Hurley, 34 Kas. 585; Waite v. Teeters, 36 id. 604.) If the judgment rendered is no bar, the doctrine of estoppel by a verdict will not apply in this case. Second, Arthur I. Tefft, the son of Eli A. Teffc, was only holding the land, at the commencement of the action of June 2, 1885, under his father as a tenant. It does not appear that Eli A. Teffc was notified of the pendency of that action, or defended it. Not being a party thereto, he cannot be bound by the judgment, or any proceedings therein. A landlord, without notice or knowledge, cannot be prejudiced in his title by his tenant’s acts or defaults.
With the proceedings of Redden against Arthur I. Tefft before the justice eliminated, the inquiry occurs as to the rights and equities of the parties under the verdict and findings of the jury. The payment of taxes is always very strong evidence prima fade of ownership. Such evidence is deemed sufficient evidence of title as against the mere wrong-doer. (Gilmore v. Norton, 10 Kas. 491.) “Possession with a claim of ownership is not only evidence of title, but it is title itself in a low degree.” (2 Bl. Com. 195.) And it is such a title as will descend to heirs. (2 Bl. Com. 196; Ludlow v. McBride, 3 Ohio, 341; Phelan v. Kelley, 25 Wend. 389.) With reference to what interest in land will enable a plaintiff to recover in ejectment in this^state, see Duffey v. Rafferty, supra; O’Brien v. Wetherell, 14 Kas. 622; Simpson v. Boring, 16 id. 248.
Upon the foregoing authorities, there is sufficient evidence in the record, notwithstanding the invalidity of the tax deed, to justify a recovery by the plaintiff below, if Redden, through his grantors, has no better title or possession. The prior possession claimed by Redden is based upon the acts of Harris and McClure, in April or May, 1883. Their possession was taken under the fabricated and forged deed of April 3, 1883. The evidence clearly supports the forgery of that deed.. The findings of the jury bring the knowledge of this forgery very near to H. H. Harris and James W. McClure, the attorney in fact of W. H. McClure. W. H. McClure seems to have been a mere “figure-head” or “dummy;” he lived in Iowa; did not know anything about the purchase of this land, but had given J. W. McClure power of attorney to buy and sell lands in Kansas. Harris and James W. McClure were the active participants. The trail of the serpent is so close to their path, in the acquisition of the false title and the possession thereunder, that it is evident, if they had acted prudently, they ought to have discovered marks of the crime before selling or attempting to sell. The suspicion that they had full knowledge of the crime at its inception ripens almost into, conviction. If Harris or either of the McClures had been contending in the court below with Eli A. Tefift, their alleged possession of the land in the spring of 1883 would count for-nothing. The courts will not tolerate a criminal act to be the basis of title or possession as against another having the claim and possession which Eli A. Tefft held at the commencement of his action. As was said in Howell v. McCrie, 36 Kas. 636, “ We will not temporize or refine with this question.” Fraud and crime have no standing in the courts upon which to build rights or equities. “Whatever fraud creates, justice will de stroy.” J. W. Redden seems in this case to be the victim. He paid $825 for the land, and we assume he was deceived, and acted in good faith in making his purchase; but he stands in the shoes of his grantors, Harris and McClure, in asserting a prior possession through them. His possession, thus claimed, is no better than if asserted by them. The fountain of possession, being polluted with crime, confers on him no title or rights whatever.
“It is always the case that some innocent person suffers by reason of the commission of a criminal act, for no good results can flow from it, nor any rights be acquired by it or in consequence of it. We cannot conceive of any state of facts or any chain of circumstances, except it possibly be by estoppel, whereby any person can acquire any interest, estate or lien upon real estate by an instrument to which signatures are forged and a false certificate of acknowledgement is attached.” (Howell v. McCrie, supra.)
Therefore we conclude that the equities of the case, and also possession, with the claim of ownership, were in Eli A. Tefft prior to that of any bona fide or valid possession by Redden.
It is further contended by counsel for Redden, however, that the verdict and special findings of the jury were the result of incompetent evidence and erroneous instructions. We must therefore examine the principal complaints in these matters. Upon the trial, two witnesses, Johnson and Garrett, were permitted to testify about a deed to the land which Johnson testified Harris and McClure gave him in 1882, and requested him to go out of Shawnee county and execute. And in the same connection there was offered in evidence the petition and other papers in the case of W. H. McClure v. John Thayer et al., filed in the district court of Shawnee county on January 3, 1883, to quiet the title to this land in W. H. McClure. That action seems to have been dismissed without trial. If Redden had not claimed prior possession through Harris and McClure, who held under the forged deed, all of this evidence would have been improper; but for the purpose of showing what steps were taken by Harris and McClure .to obtain title and possession, and also as to their transactions concerning this land, this evidence was properly received. The deed produced by Johnson and Garrett, in describing this land, was in Harris’s own handwriting; was dated at the time they were trying to get title, December 11, 1882, and the name “John Thayer,” written on the back of this deed, was in Harris’s writing. The action of McClure v. Thayer, which was commenced but not carried on to trial, seems to have been brought soon after the failure to induce Johnson to fabricate or forge a deed to the land in the name of John Thayer. The refusal of the court to allow S. T. Griffin to testify as to the general reputation of Johnson for truthfulness and veracity was not erroneous. Griffin had not shown himself a competent witness. He testified, among other things, “that he was not much acquainted with the general reputation of Johnson in the community where he lived.” He further testified, “that he could not say exactly what his reputation was.”
Counsel also contend that the alleged deed from John Thayer to W. H. McClure cannot be set aside by a preponderance of the evidence, and therefore that the instruction upon this point was not sufficient. The plaintiff below was entitled to recover if he had the weight or preponderance of evidence in his favor. And this is so although the verdict might have reflected on the witnesses of the losing side. In civil cases the preponderance of evidence controls, but, of course, where a deed is signed and duly acknowledged, a jury will not find the deed to be a forgery, and a court will not affirm such a finding, unless the evidence is sufficient in its preponderance to establish the wrong or crime. The certificate of acknowledgment to a deed is only prima faoie proof, and may be overcome by a preponderance of evidence. It may be said, to set aside a deed, that the evidence should be clear and satisfactory; but although some instructions were refused which might have been given, the instructions were sufficiently full, in view of all the evidence. The notary public who took the acknowledgment to the forged deed testified that he did not and does not know the person who signed the same as John Thayer.
It is also contended that the court erred in its instruction to the jury, that the deed from John Anderson and wife, of the 26th day of September, 1878, was to Eli A. Tefft, and thereby conveyed to him the rights of Erastus Teffo, acquired by him under the tax deed. In the record it appears that the deed is to Eliza A. Teffc, not to Eli A. Teffc. One of the counsel arguing this case said that the record is at fault; that the deed introduced was in fact to Eli A., and not to Eliza A. But we are bound by the record brought here, and therefore must treat the deed as it reads. But even if written Eliza A., it was intended for Eli A. Tefft, and therefore Eli A. acquired in equity all the rights and interest of Anderson and wife to the land, and, as a consequence, the rights of their grantor, Erastus Teffc; so the instruction was not prejudicial.
Finally, it is contended that the trial court committed error in calling the attention of the jury to the evidence of Redden concerning the failure to produce the forged deed. Redden was introduced as a witness by plaintiff below, and testified that at one time he had possession of the deed, but had lost it, and therefore was unable to produce it. “The party calling a witness is not precluded from proving the truth of any particular fact by any other competent testimony in contradiction to what the witness may have testified.” (1 Greenl. Ev., 14th ed., § 443.)
All the facts and circumstances testified to were before the jury for their consideration, and, after carefully reading all of ■ the instructions, we cannot say, upon the whole record, that there was any error affecting the rights of the defendant below.
The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This action was brought by the plaintiffs, as plaintiffs in the court below, upon a promissory note executed to them by A. L. Dunnwoody and Mary J. Dunnwoody, and indorsed by the defendant, W. R. Hill. The action was also for the foreclosure of a real-estate mortgage, given by A. L. Dunnwoody and wife to secure in part said note. Hill answered, and alleged that at t'he time he indorsed the note he did so only upon the special agreement with the plaintiffs and the other defendants that, if he would indorse the note, they would, when od e-half the amount of said note was paid, surrender said note and take a new note for 'the balance, secured by a mortgage to be given ■ by the Dunnwoodys tipon certain real estate. He also says that subsequent to his indorsement of the note one-half of said note was paid, and the mortgage was given by the Dunnwoodys and taken by the plaintiffs as agreed; but that, instead of surrendering the old note and taking a new one, the plaintiffs retained the old note, and took the mortgage as security for the balance due thereon. A reply was filed, denying generally the allegations of HilPs answer, and the case went to trial on the issue made by Hill. Judgment was taken for plaintiffs against A. L. and Mary J. Dunnwoody for the balance due, and the mortgage was foreclosed. The trial was by the court, which found in favor of Hill, that he was not liable on the note, and he recovered judgment for his costs. Motion for new trial was overruled, and the plaintiffs bring the case here, and allege for error the overruling by the court of the objection to the reception of evidence under the answer of defendant Hill. And, secondly, they allege that the court permitted Hill, over their objection, to introduce evidence in proof of a concurrent parol agreement, limiting his written liability on the note sued on.
The first inquiry in this case is, what is the character of Hill’s liability on the note sued on? Hill was a stranger to the note. What liability did he incur by writing his name across the back thereof? This question was settled in this state at a very early day. In the case of Firman v. Blood, 2 Kas. 497, this court declares that the liability incurred by an irregular indorsement of a promissory note, that is, the writing of his name by a stranger to the note across the back thereof, is, prima facie, that of a guarantor.
Judge Kingman, delivering the opinion of the court, says:
“If the note is designed for the payee, then he cannot be held as an indorser. He is a stranger to the note. He must be held either as an original promisor or guarantor. . . . Holding then that, in settling this question for the first time, it is well to follow those decisions that seem best to interpret the original understanding of the parties, we think, in the absence of proof, Wilder and Morrow should be held as guarantors.”
Wilder and Morrow, strangers to the note, had written their names across the back of said note; They sustained, prima facie, the same relation to the note sued on in that case that Hill does to the note sued on in this case.
The case of Fuller v. Scott, 8 Kas. 25, follows the Firman case. In that case it is said: “The indorsement of the name of a third person upon the back of a promissory note is prima facie evidence of a contract of guaranty.”
In the case of Whittenhall v. Korber, 12 Kas. 620, the Fir-man case is again recognized and referred to as stating the law on this question. (See also Sarbach v. Jones, 20 Kas. 497; Withers v. Berry, 25 id. 373; Talley v. Burtis, 45 id. 151, and cases there cited.)
The liability of Hill being fixed, prima facie, as that of guarantor instead of that of commercial indorser, parol testimony may be given to show his exact relation to the other parties to the note, and the exact liability assumed by him when he put his name thereon.
“The difference is this: In Massachusetts he is presumed to be an original promisor; in Ohio he is presumed to be a guarantor; but in either state parol evidence is received to rebut the presumption, and show what liability it was intended he should assume, and what relation he should sustain to the paper.” (Firman v. Blood, supra.)
In Fuller v. Scott, 8 Kas. 25, the court says that the liability incurred by a stranger to a promissory note, by writing his name across the back thereof, is that of an implied guaranty, unless the same is inconsistent with the understanding of the parties, clearly recognizing the right to show, by parol proof, the exact liability so incurred, according to the understanding of the parties at the time of the indorsement and delivery of the note.
In Withers v. Berry, supra, one, a stranger to a note, who had written his name across the back thereof, was permitted when sued thereon to show that at the time the note became due the maker thereof was solvent, and that the note could have been collected of him by the exercise of reasonable diligence, but that afterwards the maker became insolvent, and such showing was held a good defense. In the case of Talley v. Burtis, 45 Kas. 147, the same principle is recognized.
Counsel cite the case of Doolittle v. Ferry, 20 Kas. 230, to show that oral testimony may not be received to affect the liability of the indorser on a note. The distinction between that case and this is, that in this case Hill was a stranger to the note he indorsed, and in law became, prima facie, a guar ant or thereof, while in the case cited Ferry and Watson were the payees in the note, and by their indorsement became liable as commercial indorsers. Their indorsement carried with it the title to the note, while in the case at bar Hill’s indorsement did not in any way affect the title to the note. A different rule prevails in the cases because of the different liabilities incurred by the indorsement of a note by the payees therein and by a stranger to the note. We think the defense of Hill was one that could properly be set up and proven in the case, and the court having made a general finding in favor of Hill thereon, the case must be affirmed, and it is so recommended.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion was delivered by
Luckert, J.:
This case involves interpretation and application of the Kansas Insurance Guaranty Association Act, K.S.A. 40-2901 et seq. (Guaranty Act). The district court ruled that the Guaranty Act barred all subrogation claims. Appellant argues that the Act bars only those subrogation claims that would have been covered by the tortfeasor s insolvent insurer.
This action was brought by Exploration Place, Inc. (EPI); Dondlinger and Sons Construction Co., Inc. (Dondlinger); and Dondlinger’s insurance carrier, Travelers Insurance Company (Travelers). The plaintiffs sued Midwest Drywall Co., Inc. (Midwest Diywall) for damages resulting from the October 18,1999, collapse of a suspended ceiling installed by Midwest Drywall during the construction of Exploration Place in Wichita. Dondlinger was the general contractor for the construction project, and Midwest Drywall was a subcontractor.
EPI claimed damages of $191,676 in lost revenue because it had to delay the opening of Exploration Place as a result of the accident. Dondlinger claimed damages of $543,984.71, all of which was reimbursed by Travelers except for Dondlinger s $5,000 deductible.
At the time of the accident, Midwest Drywall had insurance coverage with Reliance National Indemnity Company (Reliance) for commercial general liability up to $1,000,000 per occurrence. Reliance became insolvent and was placed under order of liquidation by the Pennsylvania Commonwealth Court in October 2001.
Midwest Drywall sought partial summary judgment on two grounds. First, Midwest Drywall argued that Dondlinger’s negligence claim should be dismissed because Dondlinger should not be allowed to assert a tort theory of recovery in what is essentially a contract action. The district court agreed, granting partial summary judgment on this basis. Travelers does not challenge this portion of the court’s ruling.
Second, Midwest Drywall sought summary judgment against Travelers, arguing that the Guaranty Act precluded Travelers’ subrogation claims. Again, the district court agreed, granting summary judgment in favor of Midwest Drywall as to Travelers’ claim but allowing Dondlinger’s $5,000 claim to proceed. Travelers then filed a motion for reconsideration, which the district court denied. Travelers timely appealed. The appeal was transferred to this court on its own motion pursuant to K.S.A. 20-3018(c).
Both Dondlinger and Exploration Place have subsequently resolved their claims against Midwest Drywall, leaving only Travelers and Midwest Drywall involved in this appeal. Travelers was not originally a party to the lawsuit, but was added as an additional party after the other parties’ claims were settled. Travelers previously brought its subrogation claim in Dondlinger’s name. For ease of reference, where an action was taken or argument made by Dondlinger at the trial court level, this opinion will refer to Travelers as the real party in interest rather than Dondlinger. This is consistent with the parties’ references in their briefs.
Standard of Review
Because this case was decided on a summary judgment motion, Travelers contends that this court should review the case under the usual summary judgment standard of review:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we.apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Midwest Drywall, on the other hand, contends that this court should apply an abuse of discretion standard because the arguments Travelers makes on appeal were first asserted in the district court in a motion to reconsider. Motions to reconsider are generally treated as motions to alter or amend under K.S.A. 60-259(f). Honeycutt v. City of Wichita, 251 Kan. 451, 460, 836 P.2d 1128 (1992). The standard of review of the denial of a motion to alter or amend the judgment is an abuse of discretion standard. Subway Restaurants, Inc. v. Kessler, 266 Kan. 433, 441, 970 P.2d 526, cert. denied 526 U.S. 1112 (1998).
Midwest Drywall’s argument is only partially accurate. In its response to Midwest Drywall’s motion for summary judgment, Travelers argued that the Guaranty Act specifically required a determination that the claim in question was within the coverage of the insolvent insurer and that a material question of fact remained as to whether Travelers’ claims would have fallen within Reliance’s coverage. Travelers pointed out that while Midwest Drywall had provided a copy of the declarations page of its policy with Reliance, it had yet to provide a copy of the full policy.
Midwest Drywall filed a reply to Travelers’ response to its motion for summary judgment, to which it attached a copy of the full policy. Midwest Drywall argued that the policy clearly would have covered plaintiffs’ claims.
In its motion for reconsideration, Travelers argued that a different policy exclusion applied than the one it had relied upon during its oral argument on Midwest Drywall’s summary judgment motion. Thus, Travelers did raise the general issue of coverage during summary judgment proceedings, but it relied specifically upon the work product exclusion only in its motion to reconsider.
Additionally, this case primarily involves the interpretation of the Guaranty Act and the interpretation of an insurance contract. Both are questions of law over which this court exercises unlimited review. See Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003); Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
Did the District Court Err in Ruling That the Kansas Insurance Guaranty Association Act Barred Travelers’ Subrogation Claim Against Midwest Drywall?
The Guaranty Act created an association to provide coverage for claims against insolvent insurance companies which arise before the determination of insolvency or within 30 days thereafter. K.S.A. 40-2906(a)(l); Hetzel v. Clarkin, 244 Kan. 698, 700, 772 P.2d 800 (1989). The stated purpose of the Guaranty Act is
“to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers. This act shall be liberally construed to effect such purpose which shall constitute an aid and guide to interpretation.” K.S.A. 40-2901.
Thus, “[t]he Guaranty Act was designed to put claimants and policyholders in the same position in which they would have been had the policyholders’ insurance company remained solvent.” Hetzel, 244 Kan. at 706.
The Kansas Insurance Guaranty Association (the Association) is obligated to pay only “covered claims,” which are defined as follows:
“ ‘Covered claim’ means an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this act applies issued by an insurer, if such insurer becomes an insolvent insurer after the effective date of this act and (1) the claimant or insured is a resident of this state at the time of the insured event; or (2) the property from which the claim arises is permanently located in this state. ‘Covered claim shall not include any amount due any rein-surer, insurer, insurance pool or underwriting association, as subrogation recoveries or otherwise.” (Emphasis added.) K.S.A. 40-2903(c).
The two italicized parts of the above definition are the ones at issue in this case.
Travelers concedes that the majority of its $543,984.71 subrogation claim is barred by the Guaranty Act, since the definition of “covered claim” generally excludes the subrogation claim of an insurance company. However, Travelers argues that the Act does not bar that portion of the claim which would not have been covered by Midwest Drywall’s policy with Reliance. According to Travelers, $142,360 of its subrogation claim was paid to Midwest Drywall to repair and replace the suspended ceiling or, in other words, to perform the same work it had originally performed incorrectly before the ceiling collapsed. Travelers argues this portion of its claim would not have been covered under the Reliance policy because of a work product exclusion.
The policy contained the following exclusions for property damage:
“This insurance does not apply to: . . . ‘[p]roperty damage’ to: . . . [T]hat particular part of any property that must be restored, repaired or replaced because your work’ was incorrectly performed on it.”
“This insurance does not apply to: . . . ‘[pjroperty damage’ to your world arising out of it or any part of it. . . .”
Setting aside for the moment the question of whether the above exclusions would actually apply to bar coverage, the first question to be resolved is whether the Guaranty Act bars all subrogation claims against an insured with an insolvent insurer, or only those which fall within the policy’s coverage.
The Guaranty Act has been interpreted and applied in only a few prior cases, only two of which relate to the issue before us. In Bartee v. R.T.C. Transportation, Inc., 245 Kan. 499, 781 P.2d 1084 (1989), an uninsured motorist case, the plaintiffs were involved in an automobile accident caused by a tractor-trailer crossing the turnpike median. The plaintiffs sued the driver of the tractor and the owner of the semitrailer rig. The tractor and semitrailer were insured by a company which became insolvent, thus requiring the Georgia Insurers Insolvency Pool to assume defense of the case. The plaintiffs all sought uninsured motorist benefits from their own insurance carriers, one of which was Kansas Fire & Casualty Company (KFC), an intervenor.
At trial, judgment was entered against the defendants for approximately $500,000. KFC’s liability for uninsured motorist coverage was limited to $1.3 million; thus, the district court entered judgment for plaintiffs’ damages against KFC. KFC appealed, raising several claims of error, including the claim that KFC had a right of subrogation against the tortfeasor defendants (the driver and owner of the tractor-trailer) for the amounts KFC had paid to the plaintiffs.
After discussing the provisions of Georgia law, this court turned to Kansas law, stating: “No Kansas cases have specifically examined whether an uninsured motorist insurer who must pay uninsured motorist coverage may pursue subrogation interests against the Kansas insurance guaranty fund or an insured whose company is insolvent. Unlike Georgia, the Kansas statutes do not explicitly prohibit it.” 245 Kan. at 508. With regard to subrogation claims against the fund, the court found that the provisions of K.S.A. 40-2903(c) seemingly prohibited such claims by defining “covered claim” to exclude “any amount due any reinsurer, insurer, insurance pool or underwriting association, as subrogation recoveries or otherwise.” 245 Kan. at 508.
With regard to subrogation claims against a tortfeasor with an insolvent insurer, the court found that allowing such a claim would violate the stated purpose of the Guaranty Act, which is “ To avoid financial loss to . . . policyholders because of the insolvency of an insurer.’ K.S.A. 40-2901.” 245 Kan. at 508-09. Thus, the court held that KFC could not maintain a subrogation claim against the tortfeasor defendants. 245 Kan. at 509.
The Court of Appeals extended the holding of Bartee in Maston v. Harper, 18 Kan. App. 2d 739, 859 P.2d 405 (1993). There, the issue was whether an uninsured motorist insurer could bring a subrogation action against the tortfeasor for the difference between the tortfeasor s policy limit with her insolvent insurer and the amount of stipulated damages.
In Maston, the plaintiff Maston sued for injuries she received in an automobile accident caused by the defendant Harper. Harper’s policy limits with her insolvent insurer had been $25,000. Maston also named her own uninsured motorist carrier, Shelter, as a defendant. Under her policy, Maston’s uninsured motorist benefits were limited to $50,000, but she settled with Shelter for $45,100. Shelter then asserted a subrogation claim against Harper for $5,000, the difference between Harper’s policy limits of $25,000 and the amount of stipulated damages, $30,000.
The Maston court discussed Bartee as follows:
“Bartee seems to indicate that an uninsured motorist carrier such as Shelter cannot in any instance exercise subrogation against the insured of the insolvent insurer. This prohibition is appropriate in cases where the damages for which the insured is liable do not exceed the limits of the coverage the insured had with tire insolvent insurer. In these instances, making the insured pay or reimburse the uninsured motorist carrier would cause financial loss to the insured because of the insolvency of his or her liability carrier. This result would contravene the Act’s express purpose. See K.S.A. 40-2901.” 18 Kan. App. 2d at 743.
However, the Maston court found that prohibiting Shelter’s claim would actually contravene the purpose of the Guaranty Act:
“ ‘The Guaranty Act was designed to put claimants and policyholders in the same position in which they would have been had the policyholders’ insurance company remained solvent.’ Hetzel v. Clarkin, [244 Kan. at 706.] To prohibit an uninsured motorist insurer from recovering the difference between the limit of the insured’s policy with an insolvent insurer and the damages for which the insured is hable when those damages exceed the policy limit is to put the insured in a better position than if his or her insurer had remained solvent. If the insurer were solvent, the insured would remain personally hable for any damages exceeding his or her liability policy. Under the blanket prohibition espoused by Harper and evidently endorsed by Bartee, this personal liability is erased as long as the insurer is insolvent.” 18 Kan. App. 2d at 743.
The Maston court concluded that an uninsured motorist carrier may pursue a subrogation claim against the insured of an insolvent insurer when: “(1) the damages owed by the insured exceed the insured’s coverage with tire insolvent carrier; and (2) the uninsured motorist carrier seeks to subrogate the insured only for the amount by which the damages exceed the insolvent carrier’s coverage.” 18 Kan. App. 2d at 744.
In our case, Midwest Drywall relies on the literal language of the holding of Maston and argues that, because Travelers’ entire subrogation claim falls well within the policy limits of Midwest Drywall’s coverage, the entire claim is barred. Travelers, on the other hand, persuasively argues that the rationale of Maston supports its position.
Because a “covered claim” must arise out of and fall within the coverage of the policy, Travelers argues that the Guaranty Act does not bar this portion of its subrogation claim. If Midwest Diywall’s insurer had not become insolvent, Midwest Drywall would have been liable for any portion of the damages that were not covered under its policy with Reliance. According to Travelers, $142,360 in damages would not have been covered by the policy; thus, Midwest Drywall would have been hable for that amount had Reliance not become insolvent. Assuming the validity of this portion of Travelers’ argument, the district court’s decision places Midwest Drywall in a better position than it would have been had ReHance not become insolvent. It is consistent with Maston to allow Travelers to sue Midwest DrywaH to recover that portion of the damages which Midwest DrywaH’s policy with ReHance would not have covered. This ruHng is also consistent with the purpose of the Guaranty Act “to put . . . poHcyholders in the same position in which they would have been had the policyholders’ insurance company remained solvent.” Hetzel, 244 Kan. at 706.
Midwest Drywall cites a variety of different reasons for rejecting Travelers’ position. First, Midwest Drywall points out that the Association has assumed the defense of Midwest Drywall without denying any claim based on the exclusion in question. According to Midwest Drywall, the issue of coverage is between Midwest Drywall and the Association and, as a third party, Travelers has no standing to challenge the Association’s coverage decision.
Midwest Drywall also contends that requiring it to prove that it would have had coverage and that no exclusion would have operated to bar coverage imposes a burden greater than it would normally have in any other insurance dispute. Generally, the burden is on the insured to prove that a loss falls within the scope of an insurance policy. Brumley v. Lee, 265 Kan. 810, 816, 963 P.2d 1224 (1998). However, the burden of proving that an exclusionary provision applies to preclude coverage falls upon the insurer. See Speth v. State Farm Fire & Casualty Co., 272 Kan. 751, 753, 35 P.3d 860 (2001).
Both of these arguments ignore the fact that Midwest Drywall was attempting to use the Guaranty Act as a shield to protect itself from Travelers’ subrogation claim. Since Midwest Drywall asserted the Guaranty Act’s provisions as a defense and ordinarily is required to show that a loss falls within the scope of the policy, Midwest Drywall is required to show that Travelers’ subrogation claim met tire definition of “covered claim” under the Guaranty Act because it arose out of and fell within the coverage of tire policy. See K.S.A. 40-2903(c).
Midwest Drywall also argues that requiring it to show that its claim would have been covered would be an exercise in mere speculation because its insolvent insurer, Reliance, could no longer offer a coverage opinion. Along those same lines, Midwest Drywall contends that if this court accepts Travelers’ argument, such a decision would open the floodgates to subrogation claims that would ordinarily be barred by the Guaranty Act because any insurer subject to the subrogation bar will seek a second opinion from the appellate courts on coverage issues. Furthermore, requiring the Association to litigate coverage issues would be costly, and that cost would ultimately be borne by the public.
These types of policy considerations are more appropriately considered and decided by the legislature. The Kansas Guaranty Act, unlike other states’ acts, does not specifically prohibit subrogation claims against tortfeasor insureds. Such a prohibition is only inferred from the Guaranty Act’s statement of purpose. Bartee, 245 Kan. at 508-09. Thus, the plain language of the Act does not require Travelers’ subrogation claim to be barred under the circumstances presented in this case. While Midwest Drywall is correct that the legislature vested claims responsibility with the Association and limited the right of subrogation when there was coverage, this does not mean that the Association is immune or exempt from coverage disputes. If anything, placing the Association in the shoes of the insolvent insurer means that the Association will have coverage disputes. The Act leaves open the possibility of disputed claims and potential litigation as a risk the Association, like any insurer, bears.
Midwest Drywall also argues that if Travelers is allowed to bring its subrogation claim, Midwest Drywall will in turn submit any judgment amount to the Association for payment; therefore, Travelers will be receiving payment indirectly from the Association, a result prohibited by the Guaranty Act’s bar against subrogation claims. This argument ignores the fact that Travelers can only bring a claim for the amount of damages not covered by Midwest Drywall’s policy with Reliance. If the claim would not have been covered by that policy, it is by definition not a “covered claim” under the Act and the Association would have no liability. On the other hand, nothing in the Act requires Travelers to absorb the cost of a claims error or misjudgment by the Association if the Association did not deny coverage where the policy excluded the loss. Further, there is nothing in the Act which would prohibit the Association from seeking a declaratory judgment regarding a coverage question.
Finally, Midwest Drywall cites a list of cases from other jurisdictions which hold that an insurer may not directly subrogate a claim against a tortfeasor with an insolvent insurer. None of those cases, however, address the issue presented here regarding whether the insurer can litigate coverage questions. However, one out-of-state case which was not cited by the parties does address the issue before us. In Window Coverings, Inc., v. Campbell, 91 Or. App. 335, 755 P.2d 719 (1988), airplane owners filed suit against the members of a partnership, Airvest, which owned and operated an airport hangar that collapsed, damaging plaintiffs’ airplanes. Airvest’s insurer became insolvent; thus, the Oregon Insurance Guaranty Association (OIGA) assumed defense of the case. The trial court granted summaiy judgment in favor of the defendants on the basis of an Oregon statute, Or. Rev. Stat. § 734.695, which barred subrogation recoveries against the insured of an insolvent insurer.
On appeal, the plaintiffs argued that there were questions of fact about whether the defendants or their conduct came within the coverage of the insolvent insurer s policy. The defendants countered that both the insolvent insurer and, later, OIGA had acknowledged that the policy covered the defendants and the claims and that determination could not be challenged.
The Oregon Court of Appeals disagreed with the defendants’ argument that the insolvent insurer’s and OIGA’s acceptance of the claims was dispositive of the coverage issue. The court stated, “Although the consensual construction the parties to a contract give it is highly relevant, [citation omitted] it is not conclusive, and a third party whose interests are affected by the meaning of a contract may challenge the parties’ interpretation.” 91 Or. App. at 340.
Next, the court considered the plaintiffs’ argument that the claim must fall within the coverage of the policy before defendants can take advantage of the subrogation bar. The court found this argument to be “circular and somewhat self-defeating” given the statutory language involved. 91 Or. App. at 341. On one hand, the statutory scheme provided that OIGA must pay covered claims, except to subrogating insurers. On the other, the statute did not specifically limit an insured’s liability to covered claims. Nonetheless, the court agreed that, in order to benefit from the statutory bar against subrogation claims, the defendants “must be the insureds of an insolvent insurer or their conduct must come within the coverage of the insurers policy.” (Emphasis added.) 91 Or. App. at 341. The court then went on to discuss whether the defendants’ alleged conduct came within a specific policy exclusion and found that it did not. 91 Or. App. at 341-42.
While the usefulness of the above case is limited because of the differences between the Oregon and Kansas statutory provisions, it does lend support to Travelers’ argument that it should be allowed to litigate coverage issues, and the analysis is persuasive.
We conclude, under the facts of this case, that Travelers, as the plaintiff s insurer, may exercise rights of subrogation against Midwest Drywall for those amounts for which there was no coverage under Midwest DiywaU’s policy with Reliance. Subrogation in such circumstances is not prohibited by the Act and is consistent with the purpose of the Act which is to place policyholders of insolvent insurers in the same position as the policyholder would have been had its insurance company remained solvent.
Does the Exclusion Apply to Bar CoverageP
The remaining question is whether Travelers’ argument that the “work product” policy exclusion would have barred coverage is correct. While Travelers made this argument before the district court in its motion for reconsideration, the basis for the district court’s decision overruling that motion is unclear. The court simply stated it believed Midwest Drywall had correctly set out the law in its response. Looking to that document, Midwest Diywall had asserted several alternative bases for rejecting Travelers’ motion for reconsideration. Midwest Drywall argued that Travelers should be precluded from raising new arguments not briefed during summary judgment; that Midwest Drywall should not be required to prove that the policy exclusions at issue would not apply to bar coverage; and that the policy contained exceptions to the exclusions so that, in fact, there was no bar to coverage. Thus, it is not clear from the record whether the district court rejected Travelers’ argument because it found that Travelers should not be allowed to litigate the coverage issue or because it found that the policy exclusions did not apply.
Given the procedural history of the issue, and specifically given the policy was not part of the record of Midwest Drywall’s motion for summaiy judgment, it appears the trial court’s decision was based upon a determination that Travelers should not be allowed to litigate the coverage issue. As we have already held, that decision was erroneous. If the court’s decision was based upon a determination that the policy exclusions applied, that decision was also erroneous.
The policy exclusions at issue read as follows:
“This insurance does not apply to: . . . ‘[p]roperty damage’ to: . . . [T]hat particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.”
“This insurance does not apply to: . . . ‘[property damage’ to ‘your work’ arising out of it or any part of it. . . .”
In support of its argument, Travelers cites Owings v. Gifford, 237 Kan. 89, 697 P.2d 865 (1985), a case involving faulty work by a contractor/builder of residential construction, which discusses these types of insurance policy exclusions. The policy at issue in Owings excluded coverage for “property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.” 237 Kan. at 91. The court held that the policy excluded coverage for property damage to the residence caused by the contractor’s negligence in faulty construction. 237 Kan. at 93.
The Owings court explained that the purpose of a general liability policy is to provide coverage where the insured’s work or product actively malfunctions, causing injuiy to a person or damage to another’s property. 237 Kan. at 94. However, the policy excludes coverage for property damage due to the insured’s own faulty work. For coverage of that risk, the builder may obtain a performance bond or purchase a guarantee of contractual performance. 237 Kan. at 93.
Travelers contends that $142,360 of its subrogation claim falls within the work product exclusion of the Reliance policy and thus would not have been a covered claim. If this contention is correct or Travelers is able to establish some other amount as within the exclusion, Travelers should be able to recover that amount from Midwest Drywall. However, Midwest Diywall contests this conclusion, arguing that under the facts the scope of the “work product” exclusion is not as far-reaching as Travelers claims. Midwest Diywall argues that once definitions and exceptions are applied under the facts, the exclusion would not apply or at most exclude only a few hundred dollars of the repairs rather than the $142,360 claimed by Travelers. These issues raise factual questions making summary judgment inappropriate. Under the facts of this case where discovery regarding the terms of the policy had not occurred and factual issues related thereto were not explored, it was an abuse of discretion to not grant the motion for reconsideration, and these issues should be considered on remand.
Travelers should be allowed to proceed with its subrogation claim against Midwest Drywall for those amounts not covered by the Reliance policy. Those amounts, if any, are not a “covered claim” under the Guaranty Act. Accordingly, the Guaranty Act’s bar against subrogation claims does not apply.
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The opinion of the court was delivered by
Luckert, J.:
A jury convicted Peter J. Davis of first-degree murder, attempted first-degree murder, and conspiracy to commit first-degree murder. Davis appeals, raising three issues: (1) Was the defendant’s right to a speedy trial violated? (2) Did the trial court err in refusing to sever the defendant’s trial from that of his codefendants? (3) Was there sufficient evidence to support the jury’s verdicts?
The facts of the case are more fully discussed in State v. White, 275 Kan. 580, 67 P.3d 138 (2003), in which this court affirmed the convictions of a codefendant, Michael White. The charges against Davis and White arose from two separate drive-by shootings, the first occurring on January 24, 2000, and the second on the afternoon of January 26, 2000.
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. All of them talked to the investigators, describing the events of the two shootings to various degrees, with Shawndell Mays and White admitting to firing shots during both incidents and all of them admitting to being a witness to one or both occurrences. The redacted statements of each of the five codefendants were played for the jury over defense counsel’s objections.
Davis admitted that he was driving the vehicle in which Shawn-dell Mays and White were riding when they fired shots during the second incident.
In the same information, the State charged White, Shawndell Mays, Davis, Keith Mays, and'England with various charges relating to the shootings on January 24, January 26, or both. The five codefendants’ joint trial lasted nearly 3 weeks during which 39 witnesses testified. Generally, all of the defendants denied the allegations and, through cross-examination of the State’s witnesses, sought to create reasonable doubt. They also generally relied upon a self-defense theory. Davis was not charged in the first shooting and presented evidence at trial that he was in custody when the first shooting occurred.
The jury convicted Davis of the first-degree murder of Christopher Union, the attempted first-degree murder of Lee Brooks, and conspiracy to commit first-degree murder. The jury acquitted Davis of criminal possession of a firearm. The juiy also convicted Shawndell Mays and White of various charges but acquitted Keith Mays and England of all charges.
The trial court sentenced Davis to life imprisonment on the first-degree murder conviction, to 272 months’ imprisonment on the attempted first-degree murder conviction, and to 117 months’ imprisonment on the conspiracy conviction. The court ordered the first two sentences to run concurrently and the last sentence to run consecutively, for a controlling sentence of life (hard 25) plus 117 months’ imprisonment.
Davis timely appeals. Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime. We affirm.
Issue 1: Was the Defendant’s Right to a Speedy Trial Violated?
Davis’ first argument on appeal is that his right to a speedy trial was violated. K.S.A. 22-3402(1) provides that aperson charged with a crime and held in jail solely because of that crime must be brought to trial within 90 days unless the delay is the result of the application or fault of the defendant or the trial court orders a continuance under subsection (3). Subsection (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.” K.S.A. 22-3402.
First, Davis 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. According to Davis, die State did not request the ballistics report until after the continuance was granted; therefore, the State’s efforts to obtain material evidence were not reasonable pursuant to K.S.A. 22-3402(3) (c).
The State accurately points out that Davis’ codefendant White made the same argument in his direct appeal. In White, we 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.’ ” 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. Davis offers no reason why this court should change its previous ruling.
Next, Davis argues that, after the trial court granted the continuance, the court erred in calculating the new trial date. He contends that the trial court should have set the trial date 90 days from the date the continuance was granted rather than 90 days from the original trial date. Again, this court considered and rejected this argument in White, holding that “the 90-day period under K.S.A. 22-3402(3)(c) is counted from the date of the trial setting, not from the date on which the motion to continue was granted.” 275 Kan. at 601. Davis’ right to a speedy trial was not violated.
Issue 2: Did the Trial Court Err in Refusing to Sever the Defendant’s Trial from That of His Codefendants P
Next, Davis argues that the trial court erred in denying his motion to be tried separately from his codefendants. Although codefendant White made a similar argument in his direct appeal, the basis of Davis’ argument is different. White argued that the cod efendants had antagonistic defenses. While Davis relied, in part, upon that ground at trial as a basis for severance, he does not make that argument on appeal. Rather, on appeal, Davis contends that he was prejudiced by evidence regarding the first shooting which he argues was incompetent as to him because he was not charged in regard to that incident.
Davis filed a pretrial motion to sever on June 5, 2000. In that motion, Davis argued that his case was improperly joined with his codefendants’ cases pursuant to K.S.A. 22-3202 and that it would prejudice him to be tried with codefendants who were charged in two murders, whereas Davis was charged in only one murder. After a hearing on June 1, 2000, the district court denied Davis’ motion to sever “for the reasons set out more fully in the record herein.” The record on appeal does not include a transcript of the June 1, 2000, hearing.
The State contends that Davis’ failure to designate a sufficient record on appeal precludes meaningful review of this issue. The State cites State v. Trotter, 245 Kan. 657, 783 P.2d 1271 (1989), in support. In Trotter, the defendant filed a pretrial motion for separate trials pursuant to K.S.A. 22-3204, but he failed to include the transcript of the hearing on that motion in the record on appeal. Thus, the court could not determine whether the issue of misjoinder pursuant to K.S.A. 22-3202 was ever presented to the trial court. 245 Kan. at 658-59. The Trotter court held: “Failure to furnish a record showing that the issue of misjoinder under K.S.A. 22-3202 was raised before the trial court precludes consideration of that issue on appeal. A motion for separate trials made under K.S.A. 22-3204 is insufficient to raise a misjoinder issue under K.S.A. 22-3202.” 245 Kan. 657, Syl. ¶ 1.
This case is distinguishable from Trotter in that, here, Davis’ written motion clearly raised misjoinder pursuant to K.S.A. 22-3202 and requested a separate trial pursuant to K.S.A. 22-3204. On the record before us we are able to adequately review the claimed error.
K.S.A. 22-3202(3) provides:
“Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
This court has interpreted the statute as follows:
“We conclude two or more defendants may be joined and tried together (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of die defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.
‘We further conclude if two or more defendants have been tried together and none of the requirements in the preceding paragraph have been met a misjoinder results and is an absolute ground for reversal and separate trials.” State v. Roberts, 223 Kan. 49, 55, 574 P.2d 164 (1977).
In this case, Davis could not be joined under the first test enunciated in Roberts. Of the eleven counts in the third amended information, Davis was charged with murder of Union on January 26, attempted murder of Brooks on January 26, criminal possession of a firearm on January 26, and conspiracy to commit first-degree murder. Specifically, die conspiracy count alleged that Davis and his codefendants
“did agree with each other to commit a crime to wit: First Degree Murder, in violation of K.S.A. 21-3401, or to assist in committing said crime and did commit an over [sic] act in furtherance of such conspiracy, to wit: on both January 24, 2000, and January 26, 2000, got guns and loaded them, drove around looking for the intended victims (members of the Quinn family), and fired shots from their vehicles at other vehicles thought to have the intended victims (members of the Quinn family) inside, all in violation of K.S.A. 21-3302.”
Other defendants were charged with murder, attempted murder, or criminal possession of a firearm arising out of the January 24 shooting, but Davis was not. Consequently, the first test of Roberts is not satisfied.
The State argues, however, that this case met both the second and third tests listed in Roberts. Clearly, as originally charged, the joinder was permissible under the second test enunciated in Roberts which recognizes that K.S.A. 22-3202 allows joinder “when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy.” 223 Kan. at 55. In this case, all five codefendants were charged with conspiracy to commit murder and each defendant was charged with one or more crimes which constituted an overt act in furtherance of the conspiracy. White and Shawndell Mays were charged with committing overt acts on both January 24 and 26; the other defendants, including Davis, were charged with committing overt acts on January 26 only.
Our conclusion that joinder was proper under the conspiracy test is supported by the United States Supreme Court’s decision in Schaffer v. United States, 362 U.S. 511, 4 L. Ed. 2d 921, 80 S. Ct. 945 (1960), in which the Court applied Rule 8 of the Federal Rules of Criminal Procedure to a fact pattern similar to this case. In one count, Schaffer and his codefendants were charged with transporting stolen ladies’ and children’s apparel. In two other counts, Schaffer was not charged, but other defendants were charged with similar movements of stolen goods. The final count charged all of the parties with conspiracy to commit the substantive charges alleged in the other three counts. A single trial was conducted. On appeal, the Supreme Court concluded that the joinder of all defendants in the same indictment was proper under Rule 8. 362 U.S. at 513.
In Roberts and subsequently, this court has stated that K.S.A. 22-3202 corresponds to Rule 8 and has found federal cases interpreting that rule to be persuasive. State v. Moore, 226 Kan. 747, 749-50, 602 P.2d 1359 (1979). Consistent with this, we find the Supreme Court’s analysis in Schaffer to be persuasive and conclude that the initial joinder of the charges against Davis with the charges against the other defendants was proper since Davis was charged with conspiracy and all other counts were allegedly overt acts in furtherance of the conspiracy. Thus, the district court did not err in denying Davis’ pretrial motion under K.S.A. 22-3202.
However, the case did not go to the jury with the allegation of a conspiracy which tied the events of January 24 and January 26 together. After the State rested, Davis and other defendants moved for a directed verdict of acquittal on the conspiracy charge. Davis’ counsel argued there was no evidence of a conspiracy and, more specifically, no evidence that Davis joined in a conspiracy during a time when he was in custody on January 24. In response, the State moved to amend the conspiracy charge so that it referred only to overt acts occurring on January 26 and not January 24. The trial court granted the State’s request over defense counsel’s objection, finding there was no evidence of conspiracy on January 24 but there was evidence of conspiracy on January 26. As the jury was eventually instructed, the conspiracy charge alleged that the five codefendants agreed to commit first-degree murder and committed an overt act in furtherance of that agreement on January 26. Thus, there was no longer even an allegation that Davis was tied to the January 24 crimes by the conspiracy.
A similar situation arose in Schaffer when the defendants moved for acquittal at the close of the government’s case and the trial court dismissed the conspiracy count for failure of proof. Analyzing the issue of misjoinder when the conspiracy count no longer tied the counts together, the United States Supreme Court rejected a “hard-and-fast formula that, when a conspiracy count fails, joinder is error as, a matter of law.” 362 U.S. at 516. However, the Court held that, although there was not misjoinder under Rule 8, the trial judge has a continuing duty under Rule 14 of the Federal Rules of Criminal Procedure at all stages of the trial to grant a severance if prejudice appears, and should be especially sensitive to the possibility of such prejudice when the proof has failed on the charge that originally justified joinder. The Supreme Court found no prejudice to the petitioners in the case before it and upheld their convictions on the substantive counts. 362 U.S. at 516.
Following Schaffer, a good-faith test has emerged in the federal circuit courts of appeal: “[I]f the conspiracy charge was brought in good faith, dismissal of it does not require severance of the defendants, except on a showing of actual prejudice sufficient to satisfy Rule 14.” 1A Wright, Federal Practice and Procedure: Criminal 3d § 144 (1999).
We adopt this view and hold that, if joinder was appropriate under K.S.A. 22-3202 and the joinder was made in good faith, an amendment to conform the charges to the evidence which removes the basis for the joinder does not require reversal for misjoinder unless reversal would be required by K.S.A. 22-3204.
In this case, there is no allegation of bad faith. Thus, we must determine whether severance should have been granted under K.S.A. 22-3204, which states:
“When two or more defendant are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.”
In this case, although Davis did not specifically renew his motion to sever at the time the State moved to amend, he did so before the case was submitted to the jury. During a recess before closing arguments and after the jury had been instructed, Davis’ counsel asked the court to dismiss the conspiracy count or direct a verdict on it. He also argued:
“[A]ll this information about the 24th came in which can prejudice my client when the jury decides the case against him. So I think — I think this case should have been severed for that reason, but at the very least I think the Court should not allow conspiracy upon an amended count after the fact to go to the jury.”
The trial court, treating the motion as one to dismiss the conspiracy charge, denied the request.
Additionally, before trial, Davis requested severance under K.S.A. 22-3204. Then again, on a motion for new trial, Davis argued that he was prejudiced by the introduction of evidence relating to the January 24 shooting which could not have been introduced in evidence in a separate trial against him because the evidence would not have been relevant. Davis makes this same argument on appeal.
When applying K.S.A. 22-3204, this court has stated that severance should be granted when it appears necessary to avoid prejudice and ensure a fair trial to each defendant. State v. Aikins, 261 Kan. 346, 360, 932 P.2d 408 (1997). Severance pursuant to K.S.A. 22-3204 lies within the sound discretion of the trial court. State v. Hunter, 241 Kan. 629, 633, 740 P.2d 559 (1987). The trial court’s denial of severance will be reversed only when a clear abuse of discretion is established. State v. Van Pham, 234 Kan. 649, 653, 675 P.2d 848 (1984).
On several occasions, this court has listed several “factors to be considered in determining whether there is sufficient prejudice to mandate severance.” State v. Butler, 257 Kan. 1043, 1063, 897 P.2d 1007 (1995), modified on other grounds 257 Kan. 1110, 916 P.2d 1 (1996). These factors include:
“ ‘ “(1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury-, (4) that the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.” ’ ” (Emphasis added.) 257 Kan. at 1063 (quoting State v. Martin, 234 Kan. 548, 549, 673 P.2d 104 [1984]).
Davis relies upon the third factor, emphasizing in his argument that there was evidence related to the first shooting which was not relevant to the second shooting or to establishing the conspiracy and which was arguably prejudicial, including the testimony of the victim who survived, the testimony of the witness who drove the mortally wounded victim to the hospital, and the testimony of the coroner who performed the autopsy. However, in conspiracy cases where the defendant is not charged with committing all overt acts in furtherance of the conspiracy, there will often be evidence admitted that might not be admitted if separate trials were conducted. Despite this, joinder is still permissible if not prejudicial.
Therefore, we must examine other considerations which weigh upon a determination of whether the trial court abused its discretion in deciding against severance. In Schaffer, the Supreme Court noted that the trial court had determined there was no prejudice. That was also the conclusion of the trial court in this case. In ruling upon Davis’ motion for new trial, the district court stated: “I don’t believe that if Mr. Davis would have been tried separately that the outcome as to him would have been any different.”
Another consideration is whether the jury was instructed to consider each defendant and count separately. The United States Supreme Court in Schaffer noted that the trial court was aware of the possibility of prejudice and in the charge to the jury outlined what evidence could and could not be considered regarding each count. Although the instructions in this case did not specifically identify evidence that could or could not be considered on each count, and such an instruction would have been preferable, the jury was instructed consistent with PIK Crim. 3d 52.07 that it should give separate consideration to each defendant and that any evidence limited to one defendant should not be considered as to any other defendant.
Federal courts have considered the fact a jury did not convict all defendants on all counts as evidence of the jury’s ability to compartmentalize the evidence and charges against each defendant. See United States v. Miller, 116 F.3d 641, 679 (2d Cir. 1997) (denial of severance upheld because jury verdict acquitting 6 of 7 defendants on at least 1 count showed jury heeded limiting instruction); United States v. Miranda, 248 F.3d 434, 439 (5th Cir. 2001) (denial of severance upheld because jury’s acquittal of one codefendant showed that jury could follow Hmiting instruction); United States v. Tocco, 200 F.3d 401, 413 (6th Cir. 2000) (denial of severance upheld because fact that jury found defendant not guilty on 10 counts and acquitted codefendants on other counts showed that jury was able to “sort out the issues”).
Here, the jury found some defendants not guilty as to all charges. Davis himself was found not guilty on the charge of possession of a firearm. Thus, the jury was able to compartmentalize the evidence and charges against each defendant.
Additionally, the weight of the evidence against the defendant is relevant in determining if there was prejudice. See Van Pham, 234 Kan. at 653-54. The trial court concluded: “I think the evidence was clear as to what occurred in this particular case and Mr. Davis’ involvement in those crimes with which he was convicted.” Indeed, Davis’ own statement to police, which, contrary to Davis’ assertion, is included in the record on appeal, tied him to the shootings of January 26 through his admission that he was driving the vehicle from which White and Shawndell Mays fired the shots that hit the victims. These shootings and Davis’ act of aiding and abetting were the basis of Davis’ convictions for first-degree murder, attempted first-degree murder, and conspiracy to commit first-degree murder.
Given this record, we cannot find that the trial court abused its discretion in refusing to sever the trials of the defendants. Since we have reached this conclusion we need not consider the third test stated in Roberts.
Issue 3: Was There Sufficient Evidence to Support the Jury’s Verdicts?
Finally, Davis contends that the evidence was insufficient to support the jury’s verdicts. “When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
Davis correctly points out that very few of the witnesses in the trial mentioned his name or identified him in connection with the shooting of Union and Brooks. However, the testimony of Anthony Dantzler, who lived in a crack house where White sometimes stayed, connected Davis to the case. Dantzler identified Davis as one of several young men, including White, who came in and out of the house near the end of January 2000. Although Dantzler remembered the young men having guns, he could not recall whether Davis in particular had a gun. 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 observed White and his “buddies” with guns at the house around the time of the shootings, although he did not specifically identify Davis. 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.
Finally, as discussed in the previous issue, the most important evidence came from Davis himself in his admission to police that he was driving the vehicle in which White and Shawndell Mays were riding when they shot at the truck occupied by the victims. Davis claimed that the occupants of the truck shot first and that his passengers fired back in self-defense. However, the surviving victim, Brooks, testified that neither he nor the victim who died, Union, fired shots at anyone.
It was the role of the jury to weigh the credibility of Brooks’ testimony versus Davis’ statement. See State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000). Viewed in the light most favorable to the prosecution, a rational factfinder could find that Davis participated as an aider and abettor in the shooting of Union and Brooks. The evidence was sufficient to support Davis’ convictions.
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The opinion of the court was delivered by
Allegrucci, J.:
Wendell E. Parker was convicted by a jury of theft and first-degree premeditated murder. Before trial, Parker pled guilty to a misdemeanor charge of endangerment of a child. Parker appeals his jury convictions.
Destiny Hutcherson lived in a townhouse with her baby and her long-time friend, Dainna Counce. In May 2001, Destiny’s boyfriend, the defendant Wendell Parker, also moved into the apartment. On Saturday, June 9, 2001, at approximately 10:15 p.m., Destiny and her 8-month-old son visited Destiny’s mother, Eva Hutcherson. Destiny wanted Parker to move out. She told her mother that having him in her apartment was like having two kids, and she complained that he had taken her car a couple of times. Destiny left her mother’s after 11 p.m. to return to her apartment.
Jaime Moten’s townhouse was close to Destiny’s and catty-cornered from it. Because Moten’s apartment was hot on the night of June 9, Moten was sitting on her front porch. Dawn Dixon joined Moten at approximately 11 p.m., and they talked for up to an hour. Moten heard a loud banging noise and then saw the shadow of a person’s torso and hands going up and down accompanied by pounding noises. Dixon recognized Parker by his out-of-shape Afro as the person making the shadow. Following the pounding noises, Moten heard a baby crying. The crying lasted for several minutes. After Moten had gone back into her townhouse, she looked out the window and saw Parker open the front door and look out of Destiny’s apartment. Later he came out of the apartment 3 or 4 times, moved some bags around and put them in Destiny’s car, removed something from her car, perhaps an infant car seat, and took it into the apartment. He said, “I will be back,” and, “I love you, too, baby,” before getting into the car and driving off. Moten heard no response to Parker’s good-bye.
On Monday, June 11, Eva Hutcherson heard from her niece that Destiny had not been at work on Sunday or Monday. Eva went to Destiny’s apartment. Destiny’s car was not there. Eva knocked, but got no answer. She looked in the mail slot and heard a little sound. She testified, “I heard a slight little sound. . . . Sounded almost like a cat meowing.” Her daughter did not have a cat. Eva went to the apartment manager’s office and called the police.
Officer Ludolph testified that he was dispatched to Destiny’s townhouse on June 11 to meet Eva. After a maintenance man let them into the residence, Ludolph went upstairs and found a baby in a crib. He took the child outside to Eva. Destiny’s body was found on the floor in another bedroom.
The apartment was in disarray. There was a telephone in a pan of water in the kitchen sink, piles of clothes and wastebasket contents on the floors, and furnishings strewn about.
Destiny’s body was face-up on the floor clothed in pants and a bra with outer clothing around her anides and pushed up to her neck and armpits. There was a writing tablet on her stomach, a bottle filled with blue liquid in her right hand, a bloody barbell on the floor to her left, a large knife on the floor above her head, and the handle of a large knife sticking out of her neck. Blood was pooled on the floor around her head and spattered on the floor and wall.
A note on the writing tablet said: “I told that Bitch about fucking with me you know what my is Diana C. I killed the bitch.” A documents examiner identified Parker as the person who wrote the note that was found on Destiny’s stomach. In a statement to police, Parker said that he wrote the note and put Dainna Counce’s name on it.
Parker gave a statement to police. He said that he and Destiny were arguing and that he “snapped.” He choked her, struck her with his fist, and hit her on the left side of her face with a barbell. Then he went downstairs, got two knives, and went back upstairs where he stabbed Destiny in the neck with one knife and in the stomach with the other. He took the knife out of her stomach and threw it on the floor near her, placed a St. Ides beer bottle filled with blue liquid in her hand, wrote the note, and put it on her stomach. He gave the baby a bottle and put him to bed. Looking for the keys to Destiny’s car, Parker took her jeans off. He found the keys downstairs in the cabinet under the kitchen sink. He tried to make a telephone call, but knocked the phone into the sink when he was unable to complete the call. Parker left town in Destiny’s car.
External examination of the body at the autopsy showed that Destiny had crush and tear injuries related to impact on the left side of her face, a stab wound that went through her neck with the knife still in place, and a stab wound to the front of her abdomen. The cause of death was a combination of the stab wounds and blunt trauma from at least 3 blows to the head.
A blood pattern analyst with the KBI testified that the absence of blood stains on the bottle found in Destiny’s hand even though there were stains behind it showed that the bottle was placed in her hand after the blood stains were deposited on the wall. The patterns of blood spatters were consistent with blows being delivered with the barbell, and the presence of several separate patterns of blood spatters on the wall indicated that there had been at least three blows. The placement of the blood spatters on the wall indicated that one blow was delivered when Destiny’s head was up off the floor and another when her head was on the floor.
We first consider whether the district court abused its discretion in admitting evidence regarding the-murder victim’s child.
Parker complains of the admission of evidence that Destiny had a young child. The evidence he complains of is the crime-scene videotape and certain testimony of Eva Hutcherson, Officer Ludolph, Jaime Moten, and Dawn Dixon.
Parker filed a motion in limine in which he requested, among other things, exclusion of any evidence relating to Destiny’s child, D.H. The district court granted the request in part “in that the State is not to present any evidence relative to the condition of the child.” The district judge, however, declined to exclude “anticipated testimony that the child was heard crying and that’s what alerted certain witnesses to the offense tak[ing] place at the deceased person’s apartment or residence.” The district judge treated Parker’s motion as a continuing one and granted him a continuing objection to evidence relating to the child.
The crime scene videotape is a walk-through of Destiny’s townhouse, which concludes with shots of her body on the floor of her bedroom. The videotape shows that the townhouse was in considerable disarray. Because it was a residence where an infant lived, there are a number of child-related items visible in the videotape. Among them are a playpen, a toy car, an infant car seat, stuffed animals, a crib, and photographs. Most are seen briefly and incidentally as the camera panned across a room, but the camera seemed to linger for a moment on a photograph of an adult and a baby.
Jaime Moten’s townhouse was close to Destiny’s and catty-cornered from it. While she was sitting on her front porch talking to Dawn Dixon the night of June 9, Moten heard a loud banging noise, saw a figure through the shade that was moving up and down with accompanying pounding noises, and then heard a baby cry. According to Moten, the baby cried for 2 or 3 minutes and then stopped. Dixon testified that she heard a baby crying “just a little bit.”
Parker relies on State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998). He asserts that Donesay and the present case involve similar evidentiary issues. Comparison of the two cases, however, reveals little, if any, similarity.
In Donesay, “the only real question was whether the killing of Officer Easter was premeditated.” 265 Kan. at 89. Over objection, his widow testified at length about Easter’s personality, accomplishments, and their relationship, none of which had “any tendency in reason to prove any material fact.” See K.S.A. 60-401(b).
She testified that Easter was very happy, full of life, would light up a room by walking into it, was always smiling, was well-liked and well-respected, was prom king, was named most inspirational player for the wrestling team. She also said that his mother called him “[h]er happy boy." 265 Kan. at 83. She testified that Easter had accepted a position with the Drug Enforcement Administration, she testified in detail as to her family and Christmas visits to her parents, and she described their last kiss. 265 Kan. at 84. The court concluded: “It is beyond clear that Mrs. Easter’s testimony was irrelevant, prejudicial, and inflammatory.” 265 Kan. at 84. The court further stated:
“The purpose of the State’s eliciting Mrs. Easter’s testimony was not to identify the defendant as the killer, was not to show that he intended to Ml Officer Easter, and was not to show premeditation. Her testimony was not intended to show the guilt of the defendant, and it did not. We can only conclude that it was intended to infuriate and inflame the jury against the defendant.” 265 Kan. at 89.
As a result, the court concluded that the error could not be harmless: “The district attorney s insistence in presenting this testimony to the jury, and die trial court’s allowing her to do it, affected the substantial rights of the defendant to a fair and impartial trial. Thus, we have no choice but to reverse the defendant’s convictions.” 265 Kan. at 89.
The evidence at issue in the present case is not comparable to the widow’s testimony in Donesay. The evidence Parker complains of is related to Destiny’s murder and its investigation. Eva Hutcherson and Officer Ludolph testified about finding Destiny’s body, Moten and Dixon testified about what they saw and heard the night Destiny was killed. The videotape is of die crime scene. In contrast, the testimony of Mrs. Easter in Donesay was unrelated to the murder. Eva, Ludolph, Moten, and Dixon were called as witnesses because they had first-hand information about either the investigation or the murder. Their reférences to a baby were incidental to their accounts of the investigation or the crime. In contrast, Mrs. Easter had no first-hand information about the investigation or murder. She testified only about the deceased’s personal life.
In Donesay, the court stated that the “admission of evidence in a murder trial regarding the victim’s family, . . . which has been intentionally and not incidentally elicited by the prosecuting attorney during the trial, is patently improper and reversible error.” 265 Kan. 60, Syl. ¶ 9. In this case, some evidence that Destiny had a baby was incidentally elicited by the prosecutor during the State’s presentation of evidence of the murder and investigation, but the circumstances of the present case are not patently improper and reversible as they were in Donesay. In the circumstances of this case, we look to the regular standard of review for the admission of evidence.
Admission of evidence is entrusted to the sound discretion of the trial court. Discretion is abused only where no reasonable person would take the view adopted by the trial court. Absent a clear showing of abuse of discretion, evidentiary findings of the trial court will not be set aside on appeal. 265 Kan. at 82. It cannot be said of the • evidence regarding Destiny’s having a baby that no reasonable person would take the view of the trial court. Thus, there was no abuse of discretion.
Parker next contends that the State violated the pretrial ruling by presenting evidence of the child’s condition.
He contends that the following exchange regarding Eva’s going to Destiny’s townhouse on June 11 is evidence of D.H.’s condition, which should have been excluded by the district court’s ruling on the motion in limine:
“Q. Did you knock on her door?
“A. Yes, I did.
"Q. Did you receive any answer?
“A. No, I did not.
“Q. Does her door have any kind of a mail slot to it?
“A. Yes, it does.
"Q. Did you do anything with the mail slot?
"A. I looked in the mail slot. You can barely see in there. I looked in there and I listened after I knocked on the door. I heard a slight little sound.
“Q. I’m sorry?
“A. I heard a little sound.
“Q. You heard a little sound?
“A. Sounded almost like a cat meowing.
“Q. Did your daughter have a cat?
“A. No, she didn’t.”
Parker charges that the prosecutor’s eliciting evidence of the baby’s condition in violation of the motion in limine ruling demonstrates “ill will and was so gross and flagrant as to prejudice” Parker’s right to a fair trial.
The State contends that defense counsel’s continuing objection to the admission of evidence concerning the baby is insufficient to preserve a violation of the motion in limine ruling for appeal. The State cites State v. Whitesett, 270 Kan. 259, 283-84, 13 P.3d 887 (2000). In Whitesett, which does not involve a continuing objection, the court stated that the defendant could not “raise an issue on appeal where no contemporaneous objection was made and where the trial court did not have the opportunity to rule.” 270 Kan. at 283. The court has made clear that the rationale underlying the contemporaneous objection rule is to permit the trial court to avert error by precluding improper evidence. State v. Gordon, 219 Kan. 643, Syl. ¶ 9, 549 P.2d 886 (1976). Where the trial court has granted counsel’s request for a continuing objection to evidence excluded by an order in limine, the trial court is in a position to avert error on account of the introduction of objectionable evidence. Thus, the rationale underlying the contemporaneous objection rule has been met, and the issue is preserved for appeal.
The threshold determination to be made with regard to the exchange Parker complains of is whether it in fact constitutes evidence of the baby’s condition, which was prohibited by the motion in hmine ruling. In other words, was there a violation of the order in limine? See State v. Galloway, 268 Kan. 682, 692-93, 1 P.3d 844 (2000). Parker argues that the evidence of a little sound, “almost like a cat meowing,” showed that the child’s condition was exhaustion coupled with dehydration. The appellant’s position as stated in his brief is: “A juror could reasonably speculate that a child left alone in a crib for over two days [sic], without a diaper change, bottle, or food, would be so exhausted from ciying, so dehydrated from lack of nourishment, that it couldn’t even manage to ciy — it could only ‘meow.’ ” Parker’s exaggeration of the length of time and his speculation seem to unnaturally inflate a minor bit of testimony far beyond reasonable inference. The jury heard that Eva had been told that Destiny did not report for work on Sunday or Monday, that Eva went to Destiny’s townhouse and did not see Destiny’s car in the parking lot, and that Eva heard a little sound through the mail slot in Destiny’s door. It reasonably may be inferred that the little sound was an indication to Eva that, even though Destiny’s car was not in the lot, someone was inside her townhouse. Eva then went to the manager’s office and called the police. Neither the baby nor the baby’s condition was mentioned, and reasonable inference does not extend to exhaustion and de hydration. There was no violation of the order in limine in the complained-of exchange.
Parker also contends that the trial court acted contrary to its own order in limine.
Parker argues that the trial court’s ruling, due to a misapprehension of the elements of endangerment of a child, did not accomplish what the trial court intended. Parker requested that any evidence relating to Destiny’s child be excluded. At the time Parker pled guilty to endangerment of a child, the judge ruled: “The Court is not going to allow any evidence that relates to the condition of the child. That is [underlying] facts to the conviction for child endangerment. The Court feels that that would inflame the jury against the defendant and unfairly prejudice the defendant.” Before the State’s opening statement at trial, the judge stated: “Again the caution to the State is because I did grant the motion in limine in part in that the State is not to present any evidence relative to the condition of the child. I am concerned about that inflaming the jury . . . .”
Parker seems to focus on the trial judge’s parenthetical to evidence of the condition of the child — the facts underlying the conviction for child endangerment. Parker’s point seems to be that the condition of the child is not an element of endangerment of a child. He does not direct the court’s attention to any objection in the record to the order in limine on this ground. The scope of an order in limine is subject to the abuse of discretion standard. No abuse of discretion has been shown in the trial court’s ruling.
Parker also contends that the district court abused its discretion in admitting gruesome photographs and video. He concedes that the set of photos are relevant.
Parker’s appellate counsel complains that the jury was shown three different sets of gruesome photographs of the crime scene. In fact, the jury saw a videotape of Destiny’s townhouse, where the crime occurred, and one set of photographs, which was used for several purposes. The photographic prints are also present in the record on a compact disc. The photographs on the compact disc were downloaded to the hard drive of a laptop computer used by the State’s witness, Michael VanStratton, to give a power point presentation on blood pattern analysis.
Parker contends that the trial court abused its discretion in admitting the videotape and the photographs in that they were unduly repetitious and cumulative. He further complains that the videotape ”piggy-backed“ into evidence irrelevant and prejudicial indications of the baby. Parker cites no cases in which the court found an abuse of discretion in the admission of cumulative photographic images.
In State v. Green, 274 Kan. 145, 147, 48 P.3d 1276 (2002) (quoting State v. Bell, 273 Kan. 49, 52-53, 41 P.3d 783 [2001]), the court quoted the following well-established rules relative to the admission of photographs in homicide cases:
“ ‘The admission of photographs in a homicide case is a matter -within the trial court’s discretion, and the trial court’s ruling will not be disturbed on appeal absent the showing of an abuse of that discretion. State v. Verge, 272 Kan. 501, 515, 34 P.3d 449 (2001). An abuse of discretion has occurred when the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice. The admission of photographs in a murder case has rarely been held to be an abuse of discretion. State v. Deal, 271 Kan. 483, 493, 23 P.3d 840 (2001).
“ ‘Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. State v. Groschang, 272 Kan. 652, 667, 36 P.3d 231 (2001). Photographs which are relevant and material in assisting the juiy’s understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining die cause of death are admissible. Deal, 271 Kan. at 493. Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible. Groschang, 272 Kan. at 667.’ ”
Although the court stated in Deal and repeated in Green that it would be an abuse of discretion to admit photographs that are unduly repetitious and cumulative or introduced solely for the purpose of prejudice, neither case involved those issues. In State v. Deal, 271 Kan. 483, 493, 23 P.3d 840 (2001), the court cited State v. Spears, 246 Kan. 283, 286, 788 P.2d 261 (1990), for the principle that admission of unduly repetitious and cumulative photographs may constitute an abuse of discretion. In Spears, the court found no abuse of discretion in the admission of photographs and a crime scene videotape. The court stated: “An abuse of discretion maybe reached if the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice.” 246 Kan. at 286. The Spears court cited State v. Randol, 212 Kan. 461, 467, 513 P.2d 248 (1973), for the unduly repetitious and cumulative photographs or prejudicial principle. 246 Kan. at 286.
Twenty-five photographs and the crime scene videotape were shown to the jury in this case. Although the number is high, most of the photographs were essential to VanStratton in explaining the blood patterns and linking them to the wounds on the victim’s body and the instruments that caused the wounds. The videotape of the townhouse was useful, but certainly not essential, for acquainting the jurors with the scene of the crime. Our case law, however, requires only usefulness. We find no abuse of discretion in the trial court’s admission of the photographs and videotape.
Parker’s final contention is that he was denied a fair trial by cumulative errors. Cumulative trial errors, when considered collectively, may be so great as to require reversal of tire defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Humphery, 267 Kan. 45, Syl. ¶ 10, 978 P.2d 264 (1999). However, here there are no errors to accumulate.
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In In re Nelson, 275 Kan. 377, 64 P.3d 413 (2003), this court placed Victor S. Nelson, an attorney admitted to the practice of law in Kansas, on supervised probation for 2 years with specified conditions. This court ordered that if respondent failed to abide by those conditions, a show cause order would issue and this court would take whatever disciplinaiy action it deems just and proper, including disbarment, without further formal proceedings. It was further ordered that the respondent shall not violate any Kansas Rules of Professional Conduct.
On March 10, 2004, this court issued an order to Victor S. Nelson directing that he appear in person before this court on May 13, 2004, at 9 a.m. to show cause, if any he may have, why his supervised probation should not be revoked and that he be suspended from the practice of law.
The show cause order was issued as a result of a motion filed by the office of the Disciplinaiy Administrator. The motion alleged that respondent committed violations of the terms and conditions of his supervised probation and that a hearing panel found clear and convincing evidence of violations of the Kansas Rules of Professional Conduct and Supreme Court Rules. In addition, the review committee has found probable cause for two additional complaints that will be set for hearing before a panel. Respondent’s conduct arises out of the practice of law and there are numerous allegations of injuiy to clients, as well as a failure by respondent to cooperate in the investigation of the complaints, in violation of Supreme Court Rule 207(b) (2003 Kan. Ct. R. Annot. 250).
On May 13, 2004, respondent appeared pro se before this court. He responded to the show cause order. One of the conditions of respondent’s probation was that he “shall immediately obtain professional liability insurance.” Respondent acknowledged that he has not obtained such insurance coverage.
On March 8, 2004, a hearing panel rendered its final report, finding respondent violated KRPC 1.3 (2003 Kan. Ct. R. Annot. 336), 1.4 (2003 Kan. Ct. R. Annot. 349), 1.5 (2003 Kan. Ct. R. Annot. 362), 1.7 (2003 Kan. Ct. R. Annot. 372), 8.1 (2003 Kan. Ct. R. Annot. 459), 8.4 (2003 Kan. Ct. R. Annot. 464), and Supreme Court Rules 207(b) and 211(b) (2003 Kan. Ct. R. Annot. 264). The panel further found respondent violated the terms of his probation by violating KRPC 8.1 and Kansas Supreme Court Rule 207(b) and by failing to obtain liability insurance.
The panel noted that the respondent suffers from depression and attention deficit disorder which has contributed to his misconduct. The panel was concerned that respondent did not have his mental problems under control.
A majority of the panel recommends that the respondent be suspended from the practice of law for a period of 2 years, be subject to reinstatement pursuant to Rule 219 (2003 Kan. Ct. R. Annot. 296), be required to show he has undergone appropriate mental health treatment, and that he can handle the stress of the active practice of law. The third member of the panel recommended that respondent should be indefinitely suspended, stating:
“Based upon my participation on the hearing panel in the previous disciplinary case regarding Respondent and the length of time that has passed since the difficulties that led to that case began, I believe that it will take Respondent three or more years to receive the necessary mental health treatment to be in a position to safely return to the active practice of law. Respondent has been undergoing mental health treatment for a period in excess of three (3) years, yet continues to have the same land of difficulties even now. I have wanted to believe that the Respondent’s mental health condition can and will improve to the point that he can safely practice law. . . . Unfortunately, the Respondent has not improved to the point that had been hoped for as evidenced by the facts of this case. In my opinion a two-year suspension will not provide the protection that the public needs.”
After due consideration of the argument of the Disciplinary Administrator, responses of respondent to the order to show cause, and the panel’s final report dated March 8, 2004, this court finds that respondent has failed to abide by the conditions of his probation or show cause why this court should not revoke his supervised probation and impose appropriate discipline.
It Is Therefore Ordered that respondent’s supervised probation be revoked and that Victor S. Nelson be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective the date of this order.
It Is Further Ordered that Victor S. Nelson shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286), that he shall pay the costs of this action, and that this order be published in the official Kansas Reports.
Dated this 28th day of May, 2004. | [
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The opinion of the court was delivered by
Luckert, J.:
This is a garnishment action arising out of a personal injury lawsuit filed by Sunny Crist against Hunan Palace, Inc. (Hunan) and its delivery driver. The matter was tried upon stipulations resulting in judgment in Crist’s favor, and Crist instituted garnishment proceedings against Hunan’s commercial general liability insurance carrier which had refused to defend the suit. The district court granted Crist’s motion for summary judgment and denied the insurer’s motion for summary judgment. The insurer appealed, and the Court of Appeals affirmed in an unpublished opinion. Crist v. Hunan Palace, Inc., No. 89,326, unpublished opinion filed July 25,2003. This court granted the insurer’s petition for review pursuant to K.S.A. 20-3018.
Three issues are presented on appeal: (1) Did the Court of Appeals correctly uphold the district court’s grant of summary judgment to Crist on the ground that Crist’s automobile accident personal injury claims were covered by the insurer’s commercial general liability policy? (2) Should this court reverse the four-to-three decision in Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 961 P.2d 1213 (1998)? and (3) Did the Court of Appeals correctly uphold the district court’s judgment as comporting with due process?
The case arises from an accident which occurred in July 1999 when De Tong Chen, acting within the scope of his employment as a delivery driver for Hunan, crossed over the centerline and struck Crist’s vehicle. Crist filed suit against Hunan and Chen for (1) Chen’s negligent operation of his vehicle; (2) negligence imputed to Hunan under the theory of respondeat superior; and (3) Hunan’s negligent training and supervision of Chen. Hunan’s business automobile liability policy had lapsed. Hunan requested a defense and coverage from its commercial general liability insurance carrier, Utica National Insurance Group, Utica National Assurance Company (Utica). Utica refused to provide a defense or indemnify Hunan because of an automobile exclusion in the general liability policy.
Chen and Hunan reached an agreement with Crist resolving the matter through the presentation of stipulations and testimony of Crist. Chen and Hunan agreed to factual stipulations demonstrating their negligence, and Crist agreed not to execute on the real or personal property of Chen, Hunan, or Hunan’s owner, Yuhua Bai. As relevant to this appeal, the journal entry of judgment set out the following stipulations:
“6. The parties stipulate that on or about July 9,1999, Defendant De Tong Chen was operating his motor vehicle on the Fort Riley Military Reservation within the scope of his employment with Defendant Hunan Palace, Inc. and crossed over the center line thereby striking Plaintiff s motor vehicle.
“8. The parties stipulate that Plaintiff would provide testimony from military policemen who were then assigned to the Fort Riley Military Reservation that Defendant De Tong Chen had been observed on many occasions to operate Defendant De Tong Chen’s motor vehicle in an unsafe manner and to [sic] fast for conditions.
“9. Neither Defendant stipulates to the fact that Defendant Hunan Palace, Inc. negligently retained or supervised Defendant De Tong Chen. However, the parties do stipulate that a finder of fact would find by a preponderance of evidence that Defendant Hunan Palace, Inc. knew or should have known Defendant De Tong Chen operated his vehicle in an unsafe manner on many occasions and, therefore, an undue risk of harm to others existed as a result of Defendant De Tong Chen’s employment by Defendant Hunan Palace, Inc. Therefore, a finder of fact would find Defendant Hunan Palace, Inc. was negligent in its retention and supervision of Defendant De Tong Chen.”
The district court found that Hunan had breached its duty of care and was negligent in failing to provide proper training and supervision of Chen, as alleged in Count III of Crist’s petition. The court entered judgment in favor of Crist.
Crist then initiated garnishment proceedings against Utica. Utica moved to set aside the underlying judgment and moved for summary judgment on the basis of the automobile exclusion in the general liability policy. The district court denied both of Utica’s motions. Instead, the court granted Crist summary judgment on her garnishment claim against Utica, ruling that the general liability policy provided coverage for Hunan under the authority of Marquis, 265 Kan. 317 and Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974).
The Court of Appeals, in affirming the district court, ruled that Utica could not collaterally attack the validity of the underlying civil judgment as a defense in the garnishment proceeding. The Court of Appeals also found that the district court did not err in denying Utica summary judgment and in granting Crist summary judgment. In so ruling, the court relied on Marquis for the premise that an automobile exclusion does not exclude coverage for claims of negligent supervision, hiring, or retention because “ ‘the theory of liability rather than the cause of the accident governs coverage.’ ” Slip op. at 10 (quoting Marquis, 265 Kan. at 328-29).
We granted review of all issues.
Did the Court of Appeals Correctly Uphold the District Court’s Grant of Summary Judgment to Crist on the Ground That Crist’s
Automobile Accident Personal Injury Claims Were Covered by the Insurer’s Commercial General Liability Policy ?
Utica argues the Court of Appeals erred in affirming the district court’s grant of summary judgment to Crist on the ground that Crist’s claims were covered under Utica’s general liability policy.
The Court of Appeals correctly noted that the facts relating to the coverage issue were not in material dispute and that the district court’s decision hinged on interpretation of a written insurance contract, which is a question of law over which appellate courts have unlimited review, citing Marquis, 265 Kan. at 324. Slip op. at 9.
The automobile exclusion in Utica’s commercial general liability policy read as follows:
“2. Exclusions.
“This insurance does not apply to:
“g. Aircraft, Auto or Watercraft
“ ‘Bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading or unloading.’ ”
The Court of Appeals held that under the mandatory authority of Marquis, although Crist’s injuries were caused by an automobile accident, the above exclusion did not apply to Crist’s claim that the accident occurred because Hunan negligently trained and supervised Chen. Slip op. at 10.
The facts of Marquis were similar to the facts of the case at bar. Barbi Marquis was severely injured when her car was struck by a vehicle driven by Jerry Auck. Auck was acting in the course and scope of his employment when the accident occurred. The Marquis court was asked to determine whether a contractor’s policy issued to Auck’s employer provided coverage for Marquis’ claims of negligent hiring, retention, or supervision.
The policy contained an exclusion for “ ’bodily injuiy or property damage arising out of the ownership, maintenance, use or entrustment of others of any aircraft, auto, or watercraft owned or operated by or rented or loaned to any insured.’ ” The insurer argued this provision excluded any claims for negligent supervision, hiring, or retention because such claims arose out of the use of an automobile by the insured. Marquis, 265 Kan. at 328.
The Marquis majority opinion was written by Justice Davis, who was joined by Justices Lockett, Allegrucci, and Abbott. The majority stated the following standards for reviewing insurance policies:
“Generally, exceptions, limitations, and exclusions to insurance policies require narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes the duty to define any limitations on that coverage in clear and explicit terms. [Citation omitted.] If an insurer intends to restrict or limit coverage, it must use clear and unambiguous language in doing so, otherwise the insurance policy will be liberally construed in favor of the insured. [Citation omitted.] The burden is on the insurer to prove facts which bring a case within the specified exception. [Citation omitted.]” 265 Kan. at 327.
Applying these principles, the majority examined the two policies at issue in Marquis. One, a homeowner’s policy, specifically excluded damage arising from entrustment or supervision “ ‘with regard to any ownership, maintenance or use of aircraft.’ ” In contrast, the second policy, a contractor’s policy, did not specifically except claims arising from supervision; the exclusion, like the one in this case, applied to damages ‘ “arising out of the ownership, maintenance, use or entrustment of others of any aircraft, auto or watercraft ....’” The majority found that the exclusion in the contractor’s policy, “unlike that contained in the homeowner’s policy, fails to clearly and unambiguously exclude coverage for negligent supervision, hiring, or retention, and, thus, such claims were covered.” 265 Kan. at 327-28.
Next, the Marquis court cited Upland Mutual, 214 Kan. at 149-50, which held that a homeowner’s policy exclusion for bodily injury or property damage arising from the ownership, maintenance, operation, or use of automobiles did not exclude coverage for the insured’s liability for negligent entrustment of an automobile to another. The court distilled from Upland the rule that the theory of liability rather than the cause of the accident governs coverage. Applying Upland, the court held that the contractor’s policy failed to clearly and unambiguously exclude coverage for claims of negligent hiring, retention, or supervision of an employee. In so ruling, the court noted that claims of negligent hiring, retention, or supervision are separate and distinct from claims that a driver was negligent. Marquis, 265 Kan. at 328-29.
The Marquis majority noted: “Upland is a minority rule in its recognition that policy provisions excluding coverage for the use of an automobile owned or operated by any insured do not necessarily exclude coverage for the distinct and separate liability theory of negligent entrustment.” 265 Kan. at 329-30. The court observed that die majority rule found the use of the automobile to be the “ ‘nexus between the supervisor and supervisee’ ” and thus the claim for negligent supervision is “ ‘inextricably intertwined’ ’’with the use of the automobile. 265 Kan. at 330 (quoting Oakley Transport v. Zurich Insurance. Co., 271 Ill. App. 3d 716, 727, 648 N.E.2d 1099 [1995]).
However, the majority in Marquis noted that the court had repeatedly rejected this view, citing Upland and Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 840 P.2d 456 (1992), a case in which the court recognized “coverage for parents’ liability for negligent supervision of their child was sufficient to invoke coverage even though the intentional act of the child in causing damage to a school was excluded from coverage.” Marquis, 265 Kan. at 330-31. The majority concluded: “At the time the insurance contract was entered into by the parties, the law of Kansas was clearly established.” 265 Kan. at 331. Thus, the majority determined that coverage was owed. 265 Kan. at 331.
We agree with the Court of Appeals that there is no basis to distinguish the holding in Marquis, and under that precedent the district court correctly determined that the automobile exclusion did not apply to Crist’s claim of negligent supervision and training, which was a separate and distinct theory of recovery from the use of an automobile.
Should this Court Reverse the Four-to-Three Decision in Marquis v. State Farm?
Utica urges this court to reverse the four-to-three decision in Marquis. Utica notes that a comprehensive argument for why the decision should be reversed was presented in the concurring and dissenting opinion, which was written by Justice Larson. Chief Justice McFarland and Justice Six joined in the concurring and dissenting opinion. See Marquis, 265 Kan. at 335-40. Utica builds upon die dissent and argues that the authority underlying the majority’s rationale has been further weakened and a significant conflict has developed in Kansas cases.
As the dissent in Marquis noted, the authority cited in Upland has been “distinguished almost out of existence” or significantly limited in application. Marquis, 265 Kan. at 336. This trend has continued. See Calvin v. Janbar Enterpnses, Inc., 856 So. 2d 88, 91 (La. App. 2003) (questioning Smith v. USAA Cas. Ins. Co., 532 So. 2d 1171, 1174 [La. App. 1988], one of the cases supporting the majority); Society for Christian Activities, Inc. v. Markel Ins. Co., 440 Mass. 1006, 795 N.E.2d 545 (2003) (distinguishing Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 606, 373 N.E.2d 966 [1978], another case supporting the majority); Allstate Ins. Co. v. Moraca, 244 N.J. Super. 5, 12, 581 A.2d 510 (1990) (distinguishing McDonald v. Home Ins. Co., 97 N.J. Super. 501, 235 A.2d 480 [1967], cited by majority because of difference in language of exclusionary clause); Scarfi v. Aetna Cas. & Sur. Co., 233 N.J. Super. 509, 516-19, 559 A.2d 459 (1989) (distinguishing and disagreeing with McDonald); Mt. Vernon Ins. Co. v. Creative Housing Ltd., 88 N.Y.2d 347, 351, 645 N.Y.S.2d 433, 668 N.E.2d 404 (1996) (limiting Lalomia v. Bankers & Shippers Insurance Company, 35 App. Div. 2d 114, 312 N.Y.S.2d 1018 [1970], to its facts); New Hampshire Ins. Co. v. Jefferson Ins. Co. of New York, 213 App. Div. 2d 325, 329, 624 N.Y.S.2d 392 (1995) (same). It is clear that what was the majority rule in 1998 when Marquis was decided continues to be the majority rule today. See Annot., Construction and Effect of Provision Excluding Liability for Automobile-Related Injuries or Damage from Coverage of Homeowner s or Personal Liability Policy, 6 A.L.R.4th 555.
Utica also argues, as noted by Justice Larson in his dissent, that the Upland rule has been disregarded to some extent by the Court of Appeals. The dissenting opinion in Marquis cited United Services Auto. Ass’n v. Morgan, 23 Kan. App. 2d 987, 939 P.2d 959, rev. denied 262 Kan. 969 (1997) (intentional act of insured causally connected to use of car, automobile exclusion of homeowner s policy applies, Upland not mentioned); Newton v. Nicholas, 20 Kan. App. 2d 335, 887 P.2d 1158, rev. denied 257 Kan. 1093 (1995) (Upland not mentioned, negligent acts were failure to inspect and secure water tank on truck, directly connected to use, no coverage); and Farmers Ins. Co. v. Rosen, 17 Kan. App. 2d 468, 839 P.2d 71, rev. denied, 252 Kan. 1091 (1992) (negligent instruction claimed, Upland distinguished, theory of liability test ignored, no coverage found). 265 Kan. at 340.
Utica points out two other Court of Appeals decisions which ignored or declined to extend the "theory of liability” approach: Bush v. Beal, 26 Kan. App. 2d 183, 987 P.2d 1103, rev. denied 268 Kan. 885 (1999), and State Farm Mut. Auto. Ins. Co. v. Cummings, 13 Kan. App. 2d 630, 637, 778 P.2d 370, rev. denied 245 Kan. 786 (1989).
Finally, Utica argues that this court’s decision in First Financial Ins. Co. v. Bugg, 265 Kan. 690, 962 P.2d 515 (1998), issued just more than 1 month after Marquis, is irreconcilable with Marquis and Upland. In his dissenting opinion in Brumley v. Lee, 265 Kan. 810, 831, 963 P.2d 1224 (1998), Justice Six opined that the Upland rule had not been consistently followed in Kansas, citing Bugg. See State Farm Ins. Co. v. Gerrity, 25 Kan. App. 2d 643, 646, 968 P.2d 270 (1998), rev. denied 267 Kan. 887 (1999) (“theories of liability are irrelevant when injuries occur from intentional acts”; Marquis and Upland involved negligence claims).
In her response to Utica’s petition for review, Crist argues that this case is not the proper vehicle for overturning Marquis since Utica denied coverage and refused to defend Hunan. According to Crist, an insurance carrier wishing to overturn Marquis should recognize its duty to tender a defense, subject to a reservation of rights, while filing a declaratory judgment action which would allow sufficient facts to be developed to allow this court to decide whether Marquis should be reconsidered.
In a related argument, Crist contends that under the doctrine of stare decisis, this court should not change settled principles of law simply because there is a change in the composition of the court. Crist argues the importance of stare decisis is that it gives parties the ability to predict the legal consequences of their actions.
We agree. In reaching the holding in Marquis, the majority impliedly relied upon the doctrine of stare decisis, noting that the law in Kansas was clearly established at the time the insurance contract was entered into. With the additional precedent of Marquis in 1998 and the passage of the additional time, stare decisis considerations are even stronger.
In Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 (1990), overruled on other grounds Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 (1991), we discussed the basis for the doctrine of stare decisis and its importance:
“It is recognized under the doctrine of stare decisis that, once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised. Stare decisis operates to promote system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by a court. . . . The application of stare decisis ensures stability and continuity— demonstrating a continuing legitimacy of judicial review. Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law.
“. . . The general American doctrine as applied to courts of last resort is that a court is not inexorably bound by its own precedents but will follow the rule of law which it has established in earlier cases, unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. [Citation omitted.]”
Although Utica cites additional authority in support of the dissent in Marquis, it does not make a new argument or point to any factor not considered and rejected by the majority in Marquis. There is no “changing condition” requiring us to abandon the prior authority of Marquis.
In addition, more harm than good is likely to come from a departure from precedent on this issue. We are mindful that “[considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved.” Payne v. Tennessee, 501 U.S. 808, 828, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991). For many years the law in Kansas has been clear that an insurance exclusion for damage or injuiy arising from an automobile will not exclude a claim based upon negligent supervision. Insurers have been clearly advised that if they wish to have such an exclusion, the policy should include clear language stating an exclusion such as was used in the homeowner’s policy at issue in Marquis. Insureds and insurers alike have relied upon Marquis and Upland. As such we decline to overrule such precedent.
Did the Court of Appeals Correctly Uphold the District Court’s Judgment as Comporting with Due ProcessP
Utica also contends that the Court of Appeals failed to scrutinize the underlying judgment to ensure that the consensual stipulations of the parties did not infringe on Utica’s due process rights. Specifically, Utica complains that none of the parties clearly admitted liability on the negligent training or supervision claim stated in Count III of the petition. Utica argues that paragraph 9, which purports to stipulate as to what a finder of fact would find, is invalid and insufficient to support the judgment against Hunan.
Utica raised this same argument in its motion to set aside the judgment. The district court denied the motion. The court’s journal entiy does not reflect its reasoning, and a transcript of the hearing was not included in the record on appeal.
The Court of Appeals rejected the argument, stating:
“Utica malees a good point with respect to the defendants’ stipulation in paragraph 9, where they refuse to stipulate that Hunan negligendy retained or supervised Chen, but stipulate that a finder of fact would nevertheless make such a finding by a preponderance of the evidence. A defendant’s speculation as to how a judge or jury would decide a case, coupled with the defendant’s refusal to admit wrongdoing, does not strike us as substantial competent evidence upon which a judge may rely to support his or her decision. Nevertheless, the stipulation in paragraph 8 provided other facts from which the trial court could draw all reasonable inferences. See Kopp’s Rug Co. v. Talbot, 5 Kan. App. 2d 565, 571-72, 620 P.2d 1167 (1980) (although the stipulation concerning the completion of the house was not clear, it and the hen statement raised a reasonable inference that the subcontractor completed its work).” Slip op. at 6.
Utica argues this conclusion is questionable given that the stipulation in paragraph 8 says nothing about whether Hunan knew or should have known of Chen’s unsafe driving habits, stating only that on many occasions military policemen had observed Chen operating his vehicle in an unsafe manner and too fast for conditions.
Utica’s argument ignores the reasonable inferences which the trial court could draw from the evidence and consider before entering judgment. There may not have been direct evidence that Hunan knew of Chen’s unsafe driving, but liability can be established by showing that the employer should have known of the employee’s incompetence or unfitness. See Prugue v. Monley, 29 Kan. App. 2d 635, 639, 28 P.3d 1046 (2001). The stipulation in paragraph 8 was sufficient to allow the trial court to draw the reasonable inference that Hunan, as the employer dispatching a driver for various deliveries, should have known of Chen’s unsafe driving habits. In reaching tire consent agreement, the parties, in paragraph 9, recognized that a trier of fact would probably reach this conclusion. We agree that paragraph 9 did not bind the trial court to reach the conclusion; but the parties’ agreement does indicate the reasonableness of the conclusion reached by the trial court in entering judgment on the claim of negligent supervision.
More critical to the outcome of the issue is the Court of Appeals’ ruling that Utica was bound by the underlying judgment because it failed to provide a defense and was in privity with its insured, citing Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 732 P.2d 741 (1987). Slip op. at 6-7. Harmon states:
“The mutuality rule provides that a person who is a party or privy to a party to an action in which a valid judgment ... is rendered is bound by or entitled to claim the benefits of an adjudication upon any matter decided in the action. Three questions must be asked in considering whether mutuality applies: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the claim is asserted a party or in privity with a party to the prior adjudication? [Citation omitted.]
“Patrons candidly requests this court to create an exception to the mutuality requirement of collateral estoppel for insurance companies. Because Patrons was in privity with a party ... in the wrongful death action, it was bound by that judgment. An exception to the rule would allow Patrons, the insurer, to refuse to defend its insured in the original action and, if the insured lost, would allow the insurer to relitigate the same issue against its insured in a subsequent action.
‘We are not inclined to create a special exception to the mutuality requirement of collateral estoppel for insurance companies.” 240 Kan. at 710-11.
In Neville v. Hennigh, 214 Kan. 681, 522 P.2d 443 (1974), this court recognized that a consent judgment has collateral estoppel effect. Thus, the doctrine of collateral estoppel applies.
In addition, as the Court of Appeals noted, only a void judgment is subject to collateral attack. Slip op. at 7-8 (citing Bank IV Wichita v. Plein, 250 Kan. 701, 708, 830 P.2d 29 [1992]). A judgment is void when the district court lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process. Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1024, 58 P.3d 1284 (2002).
Utica does not contest this portion of the Court of Appeals’ ruling, conceding that an insurance carrier can collaterally attack a judgment in garnishment only if the judgment is void. Utica argues, however, that the underlying judgment in this case was void because the trial court’s reliance on an insufficient stipulation violated due process.
The basic elements of due process include notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Bethany Medical Center v. Niyazi, 18 Kan. App. 2d 80, 82, 847 P.2d 1341 (1993). Utica does not argue that it lacked notice or an opportunity to be heard. Its challenge to the sufficiency of the district court’s findings does not implicate due process.
Utica also urges this court to adopt standards requiring a trial court to examine consent judgments to ensure they are free from fraud or collusion and have a reasonable good faith factual basis. See, e.g., Pruyn v. Agricultural Ins. Co., 36 Cal. App. 4th 500, 42 Cal. Rptr. 2d 295 (1995); Miller v. Shugart, 316 N.W.2d 729 (Minn. 1982). In this case, there is nothing in the record to suggest fraud or collusion in the trial or judgment. The stipulations, although narrowly drawn, are sufficient to support the judgment entered in this case.
As the Court of Appeals noted:
“Utica had the means by which it could have protected itself. It chose not to enter the fray in defense of Hunan or to file a declaratory judgment action to define its contractual obligations. This choice was made after the filing of Marquis, which should have put Utica on notice [regarding notice].” Slip op. at 7.
Procedural safeguards were adequate and available to Utica. As stated before, the law regarding coverage was clear. Thus, on the record before us, we see no basis to expand the procedural safeguards which were available to Utica.
Affirmed.
Beier, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
This is an appeal in a juvenile proceeding on a question reserved by the State regarding the placement of the juvenile in a juvenile correctional facility. The question reserved asks whether a juvenile, who has a prior adjudication as a felon and three prior misdemeanor adjudications with a present misdemeanor adjudication, may, upon revocation of probation involving both prior and present adjudications, be placed in a juvenile correctional facility as a chronic offender II, escalating felon, pursuant to K.S.A. 38-16,129(a)(3)(B)(i) involving one present felony adjudication and two prior misdemeanor adjudications. We answer the question reserved no and affirm.
The facts are not in dispute and involve the following juvenile proceedings:
(1) January 5, 2001, case number 00JV332 in Douglas County District Court: D.M. was adjudicated for aggravated assault in violation of K.S.A. 21-3410(a), which would have been a severity level 7 person felony if he had been an adult, and at the same time was adjudicated for three counts of cruelty to animals in violation of K.S.A. 2003 Supp. 21-4310(a)(l), which would have been class B nonperson misdemeanors if he were an adult.
(2) February 12, 2001, based on the above adjudications: D.M. was sentenced and placed on order of assignment with Douglas County Youth Services to successfully complete the program.
(3) December 18, 2001, case number 01JV265, in Douglas County District Court: D.M. was adjudicated for theft in violation of K.S.A. 21-3701(a), which would have been a class A nonperson misdemeanor if he were an adult.
(4) February 1, 2002: Based on the ábove adjudication, D.M. was sentenced and placed on order of assignment with Douglas County Youth Services to successfully complete the program.
(5) December 2, 2002: The State filed a motion for violations of assignment and detention in both 00JV332 and 01JV265.
(6) December 3, 2002: The hearing on the State’s motion was held. D.M. was found to be in violation of his order of assignment in both cases.
(7) December 17, 2002: Sentencing was held for both cases. Contrary to the State’s request for a direct commitment to a juvenile correctional facility, pursuant to K.S.A. 38-1663(a)(4), D.M. was placed in the legal custody of the commissioner of the Juvenile Justice Authority (JJA) with a recommendation for out-of-home placement.
(8) January 8,2003: The State filed a motion to reconsider, which was denied on January 9, 2003.
(9) January 7, 2003: The State appealed to the district court of Douglas County. The appeal was heard on May 13, 2003, and the district court upheld the ruling of the pro tern judge.
(10) August 1, 2003: The State appealed the decision in both cases to the Kansas Court of Appeals, and the cases were consolidated on September 4, 2003. This case was transferred to the Kansas Supreme Court on January 15, 2004.
The Question Reserved: Whether a juvenile who has a prior adjudication as a felon and three prior misdemeanors adjudications with a present misdemeanor adjudication may upon revocation of probation involving both prior and present adjudications be placed in a juvenile correctional facility as a chronic offender II pursuant to K.S.A. 38-16,129(a)(3)(B).
The State argues that the district court erred in finding that D.M. was not eligible for placement in a juvenile correctional facility pursuant to K.S.A. 38-16,129(a)(3)(B).
The interpretation of a statute is a question of law subject to unlimited review. In re J.M., 273 Kan. 550, 552, 44 P.3d 429 (2002).
“The fundamental rule of statutory construction is that the intent of the legislature governs when that intent can be ascertained from the statute. The general mile is that criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about tire 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. 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.” 273 Kan. 550, Syl. ¶ 2.
“The KJJC incorporates a detailed placement matrix based on the unique history of a juvenile’s past offenses and his or her present offense, providing guidance and alternatives to the sentencing judge for confinement as set forth in K.S.A. 38-16,129. Offenders are classified according to the seriousness of their particular crimes.” (Emphasis added.) In re W.H., 274 Kan. 813, 819-20, 57 P.3d 1 (2002).
K.S.A. 38-1663 provides in relevant part: “When a respondent has been adjudicated to be a juvenile offender, the judge may select from the following alternatives: .... (8) Commit the juvenile offender to a juvenile correctional facility as provided by the placement matrix established in K.S.A. 38-16,129, and amendments thereto.” (Emphasis added.) K.S.A. 38-1666 provides that if a court finds that a juvenile offender has violated a condition of probation or placement, “the court may extend or modify the terms of probation or placement or enter another sentence.”
Relevant to this case, K.S.A. 38-16,129 provides:
“On and after July 1,1999: (a) For the purpose of committing juvenile offenders to a juvenile correctional facility, the following placements shall be applied by the judge in felony or misdemeanor cases for offenses committed on or after July 1, 1999. If used, the court shall establish a specific term of commitment as specified in this subsection, unless the judge conducts a departure hearing and finds substantial and compelling reasons to impose a departure sentence as provided in K.S.A. 38-16,132 and amendments thereto.
“(3)(B) The chronic offender II, escalating felon is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute:
(i) One present felony adjudication and two prior misdemeanor adjudications.
“Offenders in this category may be committed to a juvenile correctional facility for a minimum term of six months and up to a maximum term of 18 months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of 12 months.”
The State relies primarily upon In re J.M. in arguing that D.M. met the requirements to be sentenced to a juvenile correctional facility under this statute. In that case, the juvenile offender pled no contest to one count each of burglary and felony theft and was sentenced to probation. A few months later, the State filed a motion to modify his sentence because he had run away from the assigned home a number of times and had stolen a vehicle. In sentencing the juvenile offender to a juvenile correctional facility, the district court determined that he was a chronic offender II, escalating felon under K.S.A. 38-16,129(a)(3)(B)(i) (one present felony and two prior misdemeanor adjudications) based on a record which included one prior juvenile case in which the juvenile offender had pled no contest to two misdemeanors.
On appeal, the JJA argued that the district court erred in finding that the prior case should be considered as two separate misdemeanor adjudications. This court rejected that argument, reasoning that because Chapter 38 of the Kansas Statutes Annotated contemplates multiple counts in a single juvenile case, it is logical to give meaning to such multiple adjudications for purposes of K.S.A. 38-16,129. Moreover, the legislature’s failure to expressly require separate proceedings, when it had done so in the past, compelled the finding that separate proceedings were not intended under the statute. 273 Kan. at 553-56.
Relying on this holding, the State argues that because separate proceedings were not intended under K.S.A. 38-16,129, “the practical result is that the words present’ and prior’ have no effect on a juvenile’s eligibility for a [juvenile correctional facility], as long as the juvenile has the required number of adjudications.” Following this reasoning, the State argues that D.M.’s one felony and three misdemeanor adjudications in 00JV332 alone would have classified him as eligible for a juvenile correctional facility as a chronic offender II, escalating felon. The State further argues that because he was being sentenced for probation violations in both this case and-a separate, subsequent case involving a misdemeanor, he was eligible for placement in a juvenile correctional facility under In re J.M.
D.M. correctly distinguishes this case from In re J.M. by pointing out that J.M.’s second (present) set of adjudications were both felonies while his earlier (prior) adjudications were two misdemeanors, which clearly demonstrated an “escalating” pattern of less serious adjudications to more serious adjudications. In the case we now consider, the more serious adjudications were the earlier (prior) adjudications and the most recent was a misdemeanor adjudication, demonstrating a de-escalating pattern of tire severity of the adjudications. As such, In re J.M. clearly did not address the situation at issue in this case.
“Statutes must be construed to avoid unreasonable results, and there is a presumption that the legislature does not intend to enact useless or meaningless legislation.” KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). When interpreting a statute, this court should give words in a statute their ordinary and plain meaning. State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993).
Relevant to K.S.A. 38-16,129, “chronic” is defined as “marked by long duration or frequent recurrence: not acute.” Webster’s New Collegiate Dictionary, 199 (1973). “Escalating” is defined as increasing “in extent volume, number, amount, intensity, or scope.” Webster’s New Collegiate Dictionary, 389 (1973). “Prior” is defined as “earlier in time or order.” Webster’s New Collegiate Dictionary, 915 (1973). “Present” maybe defined as “now existing or in progress,” “existing in something mentioned or under consideration,” or “constituting the one actually involved, at hand, or being considered.” Webster’s New Collegiate Dictionary, 910 (1973).
Under K.S.A. 38-16,129(a)(3), four ways are listed in which a juvenile offender may be classified as a chronic offender II, escalating felon. All four definitions, including K.S.A. 38-16,129(a)(3)(B)(i), involve prior less serious adjudication(s) followed by a more serious present felony adjudication. This differentiation in the time that the offenses were committed is necessary to establish that the juvenile offender is indeed a chronic, escalating felon, i.e., that his offenses were frequently occurring and increasing in severity. If the legislature were simply concerned with the number and type of adjudications without reference to when they occurred, the juvenile offender in this case would have met those requirements in his first case, and the term “chronic offender II, escalating felon” would have no meaning.
Although both cases were technically open at the probation violation hearing, the intent of the legislature was to categorize the offenses by the date of adjudication by including the terms prior and present in the statute. Without using dates, it is difficult to categorize an adjudication as prior or present, and it could result in much confusion as to which cases were prior and which cases were present if all open cases were considered present. The legislature could have omitted the terms prior and present but that would defeat its intent to provide for more severe punishment options as the severity of a juvenile offenders offenses increases. As this court has recognized, “[o]ur legislature has established in painstaking detail, a comprehensive sentencing scheme [in the KJJC], essentially complete as written.” 274 Kan. at 822.
In this case, the January 2001 (00JV332) case involving the felony adjudication, was clearly “earlier in time or order” to the December 2001(01JV265) case involving the misdemeanor adjudication. Thus, the district court’s conclusion that the defendant was not eligible for placement in a juvenile correctional facility under K.S.A. 38-16,129(a)(3)(B)(i) must be affirmed. We answer the question reserved by the State in the negative: A juvenile who has a prior adjudication as a felon and three prior misdemeanor adjudications with a present misdemeanor adjudication may not upon revocation of probation involving both prior and present adjudications be placed in a juvenile correctional facility as a chronic offender II, escalating felon, pursuant to K.S.A. 38-16,129(a)(3)(B)(i).
Appeal denied. | [
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The opinion of the court was delivered by
Gernon, J.:
This appeal from the denial of a K.S.A. 60-1507 motion centers on whether a court is required to order DNA testing if the criteria in K.S.A. 2003 Supp. 21-2512 are shown.
John D. Bruner s wife’s decomposed body was found in the Arkansas River near Wichita in May 1979. She had been missing for 2 months.
The evidence against Bruner was circumstantial and included Bruner’s inconsistent versions of events, his cancellation of the missing person report, his previous physical abuse against his wife coupled with threats of killing her, and his confession to a girlfriend over a year after his wife’s body had been found.
Bruner was convicted of first-degree murder, and his conviction was affirmed in State v. Bruner, No. 53,520, unpublished Supreme Court opinion filed May 8, 1982. Two previous K.S.A. 60-1507 motions filed by Bruner were ruled on by the Court of Appeals and may be found in Bruner v. State; No. 60,087, unpublished opinion filed August 6, 1987, and Bruner v. State, No. 62,389, unpublished opinion filed December 29, 1988.
Bruner filed a third K.S.A. 60-1507 motion seeking DNA testing, asserting trial errors for admitting allegedly false testimony, and claiming ineffective assistance of his trial counsel. The trial court summarily denied Bruner’s third K.S.A. 60-1507 motion without appointing counsel or conducting an evidentiaiy hearing. The current appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
Bruner first argues that the district court failed to apply K.S.A. 2003 Supp. 21-2512 when it summarily denied his request for DNA testing.
K.S.A. 2003 Supp. 21-2512 provides no procedure for requesting DNA testing, beyond stating that
“a person in state custody, at any time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material that:
(1) Is related to the investigation or prosecution that resulted in the conviction;
(2) is in the actual or constructive possession of the state; and
(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.”
We note that nothing in the statute precludes someone in custody from including a petition or written request for DNA testing in a K.S.A. 60-1507 motion. We conclude that Bruner’s K.S.A. 60-1507 motion should be liberally construed to include a request for DNA testing pursuant to K.S.A. 2003 Supp. 21-2512. It is immaterial that Bruner did not specifically identify the statute. “Pro se pleadings are to be liberally construed.” State v. Andrews, 228 Kan. 368, 370, 614 P.2d 447 (1980).
The district court denied Bruner’s request for DNA testing because Bruner failed to allege exceptional circumstances excusing his failure to raise the issue in his direct appeal and failed to claim that the DNA testing was unavailable or impossible at the time of his trial. In making its decision, the district court applied the standards for K.S.A. 60-1507 rather than the standard for ordering DNA testing set forth in K.S.A. 2003 Supp. 21-2512.
K.S.A. 2003 Supp. 21-2512(a) states: “Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder . . . may petition the court ... for forensic DNA testing.”
We conclude that the trial court erred by not applying the language of K.S.A. 2003 Supp. 21-2512 to the facts in the petition and determining whether the requirements of that statute had been met.
The State presents two arguments to support its position that Bruner’s petition for DNA testing should be denied: (1) The evidence against Bruner was overwhelming and (2) there was no indication that Bruner’s conviction was based on any biological evidence.
Our reading of the plain language of K.S.A. 2003 Supp. 21-2512 finds no reference limiting the statute to cases where the evidence was not overwhelming. Here, the evidence was circumstantial. While no part of the circumstantial evidence is biological, there is no reason to believe that testing of available biological evidence might not produce noncumulative, exculpatory evidence.
Bruner claims that a police report noted the collection of blood samples, skin samples from the victim’s hands, and hair samples, but does not provide any further details including the source of the samples.
K.S.A. 2003 Supp. 21-2512 does not require the prisoner to make specific allegations regarding how the DNA testing would produce noncumulative, exculpatory evidence. The statute merely requires the prisoner to allege that the evidence is related to the investigation or prosecution of his or her conviction, that the State has possession or constructive possession of the evidence, and that the evidence was not previously subjected to DNA testing or that it could be tested using new DNA testing techniques. K.S.A. 2003 Supp. 21-2512(a).
New scientific methods of testing samples of evidence, coupled with the statute here, will inherently require evidence to be preserved, catalogued, and indexed, and also suggests to the trial courts that the destruction of evidence which might one day be subject to testing will be a rare event.
We find that Bruner’s failure to include specific assertions regarding what noncumulative, exculpatory evidence would be produced is not fatal to his request for DNA testing.
We conclude that under the facts before us, the district court should have appointed counsel and conducted an evidentiary hearing. While some aspects of K.S.A. 2003 Supp. 21-2512 might allow a “fishing expedition,” we must conclude such an expedition is one the legislature has concluded is worth conducting. Presently, the requirements of K.S.A. 2003 Supp. 21-2512(a) will limit the hearing’s scope, and a request for DNA testing will be determined on a case-by-case basis.
Bruner also argues that the district court should have appointed counsel and conducted an evidentiary hearing before it dismissed his K.S.A. 60-1507 motion.
The district court has discretion to determine whether the petitioner’s claim is substantial before granting a full evidentiary hearing and ordering the petitioner’s presence at the hearing. Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000). Kansas law gives the district court three options for proceeding on a 60-1507 motion. The court may:
(1) determine that the motion, files, and records conclusively show that the petitioner is entitled to no relief and summarily deny relief;
(2) determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner; or
(3) determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a prehminary hearing after appointment of counsel to determine whether the issues in the motion are substantial. 270 Kan. at 170-71.
Aside from the DNA testing issue already decided, Bruner raises two other issues in his K.S.A. 60-1507 motion: (1) that he was denied a fair trial because the trial court admitted perjured testimony and erroneous findings from the pathologist and (2) that his trial counsel was ineffective because he failed to investigate two alibi witnesses.
Though we are reversing to require a hearing on the DNA testing issue, the other issues raised by Bruner do not require a hearing.
Bruner’s claims of error regarding the admission of perjured testimony and the admission of the pathologist’s findings are not properly before this court. Mere trial errors must be corrected by a direct appeal unless the petitioner raises trial errors affecting his or her constitutional rights and there were exceptional circumstances excusing the petitioner’s failure to raise the issue in his or her direct appeal. Supreme Court Rule 183(c)(3) (2003 Kan. Ct. R. Annot. 213). Bruner fails to allege any exceptional circumstances excusing his failure to raise these issues in his direct appeal.
The only other issue raised by Bruner, the ineffective assistance of counsel claim, is not properly before this court. This issue was considered before in a K.S.A. 60-1507 motion, and the denial of the claim by the trial court was upheld by the Court of Appeals in Bruner v. State, No. 62,389.
Supreme Court Rule 183(d) provides:
“The sentencing court shall not entertain a second or successive motion for relief on behalf of the same prisoner, where (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on tine merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.”
Because Bruner already raised the issue of ineffective assistance of counsel in his previous K.S.A. 60-1507 motion, the district court was not required to consider the issue again in Bruner’s subsequent K.S.A. 60-1507 motion.
The trial court’s ruling regarding the DNA testing is reversed and remanded for appointment of counsel and an evidentiary hearing. The trial court is affirmed as to all other issues. ' | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against David L. Polsley, of Ottawa, an attorney admitted to the practice of law in Kansas.
The complaint filed against the Respondent alleged that the Respondent violated KRPC 8.4(b) (2003 Kan. Ct. R. Annot. 464) (misconduct). A disciplinary panel of tire Kansas Board for the Discipline of Attorneys conducted a formal hearing as required by Kansas Supreme Court Rule 211 (2003 Kan. Ct. R. Annot. 264). The office of the Disciplinary Administrator appeared by and through Stanton A. Hazlett, Disciplinary Administrator. The Respondent appeared pro se and files no exceptions to the disciplinary panel’s final hearing report.
The final hearing report of the panel makes the following findings of fact, conclusions of law and recommendations to this court:
“FINDINGS OF FACT
“1. David L. Polsley (hereinafter ‘tire Respondent’) is an attorney at law, Kansas Attorney Registration No. 11104. His last registration address with the Clerk of the Appellate Courts of Kansas is Spring Hill, Kansas. At die hearing on this matter, the Respondent testified that his current address is Ottawa, Kansas. The Respondent was admitted to the practice of law in die state of Kansas on October 2, 1981. (On October 7, 2002, the Kansas Supreme Court suspended the Respondent’s license to practice law for failing to pay the Annual Registration fee, for failing to pay the annual Kansas Continuing Legal Education Commission fee, and for failing to comply with die annual requirements of the Kansas Continuing Legal Education Commission. To date, the Respondent has taken no action to reinstate his license. As such, the Respondent’s license remains suspended.)
“2. The Respondent is married to Kathryn S. Polsley. Mrs. Polsley is also an attorney at law, Kansas Attorney Registration No. 10370.
“3. In 1998, the Mrs. Polsley s mother, Lois Ann Simpson, became seriously ill. In January, 1999, Mrs. Simpson was released from a hospital to her home. Mrs. Simpson’s condition required twenty-four hour care. The Respondent, Mrs. Polsley, and their four children moved into Mrs. Simpson’s house. From January, 1999, and continuing until Mrs. Simpson’s death on July 3, 2000, the Respondent and Mrs. Polsley provided the care that Mrs. Simpson needed.
“4. Prior to her death, Mrs. Simpson had been receiving benefits from the Social Security Administration. The Social Security Administration benefits were paid by direct deposit into a trust set up for the benefit of Mrs. Simpson. Mrs. Polsley was the trustee of the trust.
“5. Following Mrs. Simpson’s death, the Respondent and Mrs. Polsley notified the Social Security Administration that Mrs. Simpson had died. However, the Social Security Administration continued to directly deposit benefit checks into Mrs. Simpson’s trust. The Respondent and Mrs. Polsley knew that the funds had been deposited in error.
“6. After Mrs. Simpson’s death, the Respondent and Mrs. Polsley used funds from Mrs. Simpson’s trust, including the Social Security benefits, to meet their personal obligations. One of the checks written on Mrs. Simpson’s account, after her death, was made payable to the Respondent. The Respondent negotiated that check and converted the funds to his own use.
“7. On November 14, 2002, the United States government charged the Respondent in a fifteen (15) count indictment with having violated 42 U.S.C. § 408(a)(4), 18 U.S.C. § 2, and 18 U.S.C. § 641. The indictment alleged that the Respondent committed the offense of theft of government property. On February 5, 2003, the government filed a superseding indictment with the same charges.
“8. On April 9, 2003, the Respondent entered into a Plea Agreement with the government. According to the Plea Agreement, the Respondent agreed to enter a plea of guilty to Count 2 of the superseding indictment, charging him with violating 18 U.S.C. § 641 and 2 U.S.C. § 2, theft of government property, a misdemeanor. The Respondent filed a Petition to Enter Plea of Guilty. In that document, the Respondent admitted that he knowingly and willfully converted government property to his own use.
“9. Pursuant to the Plea Agreement, on April 9, 2003, the Respondent entered a plea of guilty to Count 2 of the indictment. Thereafter, on August 18, 2003, the Court sentenced the Respondent to home detention for three (3) months, perform 100 hours of community service work, and probation for three (3) years.”
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b), as detailed below.
“2. ’It is professional misconduct for a lawyer to:.. . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b).
“3. Kan. Sup. Ct. R. 202 provides that
‘A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon the conviction or judgment.’
“4. On April 9, 2003, the Respondent was convicted of theft of government property, a crime that reflects adversely on his honesty and trustworthiness. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(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 injuiy caused by the lawyer’s misconduct, and tire existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duly to the public to maintain personal integrity.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused damage to the legal profession.
“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 previously disciplined on two occasions. In 1999, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 4.2. Then, in 2001, the Kansas Supreme Court censured the Respondent in a published opinion for having violated KRPC 1.1, KRPC 3.1, KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 211(b). In re Polsley, 275 Kan. 233 [, 61 P.3d 715] (2001).
“Dishonest or Selfish Motive. A conviction of theft of government property necessarily requires that the Respondent engaged in dishonest or selfish conduct. As such, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“A Pattern of Misconduct. According to the indictment, the Respondent repeatedly engaged in criminal behavior for a period of time exceeding one year.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1981. At the time the Respondent engaged in the criminal conduct, the Respondent had been practicing law for a period of nineteen (19) years.
“Illegal Conduct. By converting property belonging to the United States government, the Respondent engaged in illegal conduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. The Respondent and his wife have made restitution with the United States government.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully and freely acknowledged the wrongful nature of his conduct.
“Imposition of Other Penalties or Sanctions. The Respondent has been sentenced to home detention for three (3) months, perform 100 hours of community service work, and probation for three (3) years.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; ... or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.’ Standard 5.11.
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2. ‘Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’ Standard 8.2.
“In this case, because of the circumstances relating to the nursing care provided by the Respondent and his wife to Mrs. Simpson, the Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for an indefinite period of time. At the hearing on this matter, the Respondent requested that, at some point in the future, that he be allowed to apply for reinstatement. Based upon the arguments of the parties, the findings of fact, the conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the state of Kansas and subject to the reinstatement procedures provided by Kan. Sup. Ct. R. 219. At the reinstatement hearing, the Hearing Panel recommends that the Respondent be required to establish that he is psychologically able to handle the rigors of the active practice of law.”
The Respondent files no exceptions to the panel’s final hearing report. The court, having considered the final hearing report, accepts and adopts the findings of fact, conclusions of law, and recommendation of the panel. Those findings of fact establish by clear and convincing evidence that the Respondent violated KRPC 8.4(b) (2003 Kan. Ct. R. Annot. 464). We conclude that the panel’s conclusions of law are supported by its findings.
It Is Therefore Ordered that the Respondent, David L. Polsley, be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective on the date of this opinion, March 19,2004, in accordance with Supreme Court Rule 203(a)(2) (2003 Kan. Ct. R. Annot. 226).
It Is Further Ordered that the Respondent shall forthwith comply with the provisions of Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the Respondent. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the court below brought by Lizzie M. Richolson against Cyrus D. Christy, to recover the possession of lot 98, in block' 62, in the city of Howard. Trial before the court without a jury, at the February term, 1889. Mrs. Richolson claimed title and possession to the lot in controversy, under an invalid tax deed of the 7th of May, 1878, and also on account of improvements upon the lot while in possession, and the payment of taxes thereon. John Cummings conveyed the lot, for $60 or $65, to W. G. Maloney, on the 13th of November, 1877. On the 14th of June, 1886, Maloney and wife conveyed the lot to Cyrus D. Christy, the defendant below. It seems to be admitted that Christy’s possession was subsequent to that of Mrs. Richolson, but he claims that Cummings, or Maloney, or both, had the prior possession of the lot, and that the trial court erred in rendering judgment against him. As neither of the parties-was the owner in fee-simple of the lot, the question in the case is, which had the better title or prior possession? Possession, with claim of ownership, is not only evidence of title, but is title itself in a low degree. The payment of taxes is always very strong evidence, prima fade, of ownership. Priority of possession gives precedence, where no better title can be shown as belonging to either. (Gilmore v. Norton, 10 Kas. 491; Duffey v. Rafferty, 15 id. 1; Simpson v. Boring, 16 id. 248; Mooney v. Olsen, 21 id. 691.) The evidence introduced was somewhat conflicting as to the prior possession of the parties. We think there was sufficient evidence to sustain the finding and judgment of the trial court, and therefore we cannot interfere.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Lyon county, on November 19, 1887, by Seigfried Schulein and A. Schulein, partners, as Seigfried Schulein & Co., against D. W. Hainer, for the recovery of $243.85 and interest. The case was tried before the court and a jury, and the verdict and judgment were in favor of the defendant and against the plaintiffs; and the plaintiffs, as plaintiffs in error, bring the case to this court.
It appears that the plaintiffs were engaged in a wholesale drug, stationery and notion business, at Fort Scott, in Bourbon county. The defendant was engaged in a retail business of the same character at Emporia, in Lyon county; and J. E. Thomas was engaged in a like retail business at Dunlap, in Morris county. Thomas purchased of the plaintiffs certain goods, and sold them to the defendant, Hainer, for the eon- . sideration only of the payment of a preexisting debt due from Thomas to Hainer. At the time of these purchases and sales, Thomas was insolvent and had an outstanding chattel mort gage on his goods for all that they were worth; and there was also some evidence tending to show that he bought the goods from the plaintiffs with the intention of defrauding them and of not paying for them. On the trial in the court below the court instructed the jury, among other things, as follows:
“ 6. The burden of proof is upon the plaintiff to establish the claim of fraudulent intent on the part of said Thomas, as alleged, and the knowledge thereof on the part of the defendant, Hainer, and that the goods sued for were received by defendant, Hainer, and the value thereof, all of which must be shown by a preponderance of the evidence in the case.”
The plaintiffs rely principally upon the case of Henderson v. Gibbs, 39 Kas. 679, in which it was decided, among other things, as follows:
“Where personal property is fraudulently procured by purchase from an innocent owner, and the fraudulent vendee afterward sells the property to an innocent and bona fide purchaser, except that the only consideration moving from the second purchaser to the fraudulent vendee is the payment or partial payment of a preexisting debt due from the fraudulent vendee to the second purchaser, the original owner may rescind the contract made by him with his fraudulent vendee and recover the property from the second purchaser.
“Where personal property is fraudulently procured by purchase from an innocent owner, and the fraudulent vendee afterward transfers the property to some third person, the title passes from the original owner, first to the fraudulent vendee and then to the third person, subject only to the right of the original owner to rescind his contract with his fraudulent vendee and retake the property; and this only when he places or leaves both his fraudulent vendee and the second purchaser in the same condition they were in before their respective purchases.”
For the purposes of this case, we shall treat the two cases as being precisely alike, except in the following particulars: The first case was an action of replevin, brought by the original vendor against the second purchaser to recover the identical property sold by the original vendor; while this case is an action by the original vendor against the second purchaser for the recovery of $243.85, the value of the goods which had previously been sold by the original vendor to the fraudulent vendee, and transferred by him to the second purchaser. In other words, the two cases are precisely alike, except that one was’replevin for the identical property, while the other is for its value. We shall discuss these things hereafter. Of course, a bona fide purchaser from a fraudulent vendee would obtain a good title, and would not be subject to any liability; but Mr. Tiedeman, in his work on Sales, § 329, says that, in order that one may claim to be a bona fide purchaser, three things must be establised. The first we shall omit; the second and third are as follows:
“In the second place, the interest must be acquired -for a valuable consideration. Something of value must be parted with, or some contingent liability, like a guaranty, acceptance, or indorsement, must be assumed by the party acquiring the interest in the goods.
“Although there are a few cases which maintain that a preexisting debt is a sufficient consideration to make an attaching creditor a bona fide purchaser, the better opinion is, that it is not sufficient, because there is no parting with value in reliance upon the title to the goods thus acquired, and that an attaching or other creditor is not a bona fide purchaser, unless the debt was incurred subsequently and upon the credit of the goods, or something of value has been given in the way of security, such as notes in consideration of the transfer of property, or where additional property is given to the transferer as part consideration of the transfer. And the same rule has been applied to assignees in bankruptcy, and assignees for the benefit of creditors.
“Finally, the purchaser must take the goods in good faith and without notice of the defect in his vendor’s title. But not only must he be without knowledge of the defect, but he must not even know facts which are calculated to arouse the suspicion of a reasonably prudent man that everything was not right. And he is a bona fide purchaser only to the extent of the consideration which he has transferred before learning of the defect of title. He cannot claim to be a bona fide holder as to the consideration which he transfers after knowledge of the defect.
“ The burden of proof is on the party who claims the protection of a bona fide purchaser.”
We are inclined to think that in principle the case of Henderson v. Gibbs, 39 Kas. 679, is controlling in the present case, notwithstanding the differences existing between them. The rule as enunciated in that case was stated only just broadly enough to cover the facts of that case, and not as broadly as it might have been stated, or as it in fact is. In that case it was decided that the original vendor had the right to pursue his property into the hands of the purchaser from his fraudulent vendee, and to recover it in an action of replevin; and that was upon the theory that the original vendor had the right to treat the sale to his fraudulent vendee as void, not only as to the fraudulent vendee, but also as to the purchaser from such fraudulent vendee, for the reason that such purchaser was not a bona fide purchaser, and this for the reason that he took the property from the fraudulent vendee only in payment of a preexisting debt; and treating the sale as void, the said purchaser from the fraudulent vendee obtained no title to the property. To this extent the case of Henderson v. Gibbs, ante, controls this. And considering the property as still belonging to the original vendor, he would certainly, as against such a purchaser, have the right to resort to any of the remedies, at his election, which would be proper in a case where one party is wrongfully detaining the property of another from him, or has converted the same to his own use. The remedy might be an action of replevin for the specific property, or it might be an action for money up to the value of the property, or up to the amount of the benefit derived therefrom by the purchaser from the fraudulent vendee, as, for instance, the proceeds of a sale of the property made by such purchaser. The action of replevin would nót always be an adequate remedy. As to real estate, it could never be a remedy at all; and as to personal property, it could be a remedy only where the identity of the property was still' preserved and could be established.
In the present case, the defendant, Hainer, after purchasing the goods from Thomas, so mixed them with his own that probably they could not afterward be identified. We can im agine other eases still worse. Suppose that the goods were cattle or hogs, and immediately after their sale to the second purchaser they should be butchered and the meat sold in small quantities to a thousand different purchasers: then what would the action of replevin be worth? And would the original vendor be without any other remedy? In our opinion, the foregoing instruction given by the court to the jury was erroneous so far as it instructed the jury that in order that the plaintiff might recover he should establish, by a preponderance of the evidence, that the defendant, Hainer, had knowledge of the fraudulent intent on the part of Thomas. In further support of the views herein expressed, we would cite the following cases: Hyde v. Ellery, 18 Md. 496; Pope v. Pope, 40 Miss. 516; Thompson v. Rose, 16 Conn. 71; same case, 41 Am. Dec. 121.
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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Opinion by
Strang, C.:
Action on a draft drawn by the defendant bauk on the Union National Bmk, of Kansas City, in favor of the plaintiff-, A. B. Symns & Co., for $126.50. The answer of the defendant admits the execution of the draft, but it alleges the existence of the following facts as a defense: A. E. Bennett, a merchant of El Dorado, Kas., was in debt to A. B. Symns & Co., and on or about May 21, 1888, they drew upon him for the amount of the draft sued on in this case. Bennett went to the defendant bank, where he kept his account, and purchased the draft sued on, giving in payment therefor his check against his account in said bank. After Bennett had left the bank, and after the draft purchased by him in favor of A. B. Symns & Co. had been delivered to him, it was discovered that Bennett had at the time no funds in said .bank to check against. At this time, one Larrimore, agent of A. B. Symns & Co., was in El Dorado for the purpose of collecting or securing the full amount of Bennett’s indebtedness to said firm. In pursuance of said object said Larrimore purchased and took an absolute bill of sale of all of Bennett’s stock, and the fixtures in his store, in payment of the full debt owing by him to the plaintiffs. The cashier of the defendant bank informed Larrimore of the draft purchased by Bennett for his firm, and that the draft was not paid for, and asked Larrimore to protect the bank against said draft in his settlement with Bennett. Larrimore said he had purchased and taken the stock of goods in payment of the whole debt of Bennett to his firm without regard to the draft. . Redden, the president of the defendant bank, called on Larrimore and also explained to him the situation of his bank in regard to the draft, and asked Larrimore if he had enough to pay the firm in full without taking into account said draft. Larrimore said he had taken the stock in payment of the full debt; that he had not taken the draft into account. Redden then said he would stop payment of the draft, and Larrimore said, “All right, I’ve not taken it into consideration.” Payment of the draft was then stopped. The plaintiffs then replied, denying the facts set up in the answer. The case was tried by the court and a jury, and resulted in a verdict for the defendant. The plaintiffs bring the case here for review, and assign the following errors: (1) The admission of testimony over the objection of the plaintiff; (2) the instructions given by the court to the jury.
The objection to the evidence relates to the admission of the statements of Larrimore to Fleming, Schumacher, and Redden, in regard to the consideration for the goods, accounts and fixtures named in the bill of sale, obtained from Bennett by Larrimore for A. B. Symns & Co. The plaintiffs contend that the alleged statements of Larrimore testified to by Fleming and Redden, to the effect that he had made an absolute purchase of the property named in the bill of sale, in full payment of the whole debt of A. B. Symns & Co. against said Bennett, without taking into consideration the drafc that day sent by Bennett to A. B. Symns & Co. for $126.50, were erroneously admitted and constitute error, because they were statements of an agent made after the transaction to which they related was completed. The record shows that Larrimore was the collection agent of A. B. Symns & Co. He says in his evidence that he got a letter from the plaintiffs to go to El Dorado to collect or secure their claim against Bennett. He went there, and, for the purpose of getting payment of said claim, .purchased the entire stock of goods of said Bennett, together with notes and accounts amounting to $500, and all the fixtures in the store of said Bennett. Bennett claimed at the time that the goods alone would inventory over $1,000. He took an absolute bill of sale of all of said property, and he says he never returned any of said property nor any of the proceeds thereof to Bennett.
Larrimore took possession of the Bennett store, including the goods, accounts and fixtures purchased. It is conceded that he had authority from his principals to collect or secure their debt against Bennett, and for that purpose to purchase Bennett’s stock of goods, the fixtures in his store, and all or a portion of his outstanding and uncollected notes and accounts. Such an agency is a very general one. It seems to include authority to exercise his own judgment in the method to be pursued by him in making the collection. He was not limited to a collection of the debt in money, or securing the payment thereof in money, but was authorized to purchase goods, accounts and fixtures to pay such debt. With such general authority over the debt to be collected, when did the transaction which constituted the collection end? It did not end when the agent had obtained for his principals a bill of sale of the property named therein, because he went further and took possession of the store in which the goods were, and possession of the goods and notes and accounts and fixtures. Did the transaction end with the possession of the goods and other property? Clearly not. Something had to be done with the property. It had to be sold on the ground, and converted into money, or shipped elsewhere and turned to the account, in ‘some way, of the firm. We think it a very serious question whether the transaction was completed until the property was either converted into money, or turned over by the agent to his principals on the debt owed by Bennett to them; and, if not, then any statement made by the agent while in possession of the goods, and before they were converted into money or turned over by him to the firm, relating to the transaction, would bind the principals and be properly admissible in evidence.
But in this case there seems to be an abundance of evidence to sustain the finding of the jury and the judgment of the court without the statements of Larrimore made to Fleming and Redden out of court. Larrimore was called as a witness by the plaintiffs, and as such testified in court, in answer to repeated questions, that he took the property named in the bill of sale in full payment of the whole debt of Bennett to the plaintiffs, and that in the settlement with Bennett he did not take the draft into account. It is true that when reexamined, and after asked the direct question by counsel for plaintiffs, he said he did take the draft into account. But when recrossed, he said he did that the next morning after he had taken possession of the store, and when questioned further on this point he again contradicts himself; and we think shows that he did not make any allowance for the draft at any time. This evidence of Larrimore renders his alleged statements, testified to by Redden and Fleming, somewhat immaterial. Larrimore also says as a witness that, at the time he took the bill of sale, the draft was mentioned by Bennett and that he refused to take it into account. This is corroborated by Mr. Cubbison.
The objection to Mr. Schumacher’s testimony is not tenable because his conversation with Larrimore was before the latter had taken possession of the goods and immediately after he obtained the bill of sale. In that conversation Larrimore told Schumacher he had taken au absolute bill of sale of the property in full payment of the whole debt of Symns & Co. He also said to Schumacher at that time that the stock of goods was more than sufficient to pay his claim, and that he also had an assignment of book accounts. This evidence of Mr. Schumacher was not objected to.
Another witness testified upon this point. Mr. Bennett’s deposition was taken and read in evidence, and however objectionable some portions of it may have been, as the expression of an opinion, his statement of the transaction with Larrimore was not subject to such objection. Mr. Bennett was a party to the bill of sale. He knew as much about the terms of sale of the property to Larrimore as the latter did, and had quite as good a right to state them. He also swears that Larrimore took the property in full payment of the whole of the debt of A. B. Symns & Co., and that the draft for $126.50 was not taken into account in the transaction at all.
With so much concurrent testimony upon the question of the consideration of the bill of sale by Bennett to the plaintiffs, and upon the question as to whether the draft was taken into consideration in said transaction, we do not think the admission of the testimony of Fleming and Redden relative to the alleged statements of Larrimore was material error, if error at all, and especially so as Larrimoré went upon the stand in behalf of the plaintiffs and made under oath practically the same statements.
Counsel for plaintiffs say the court erred in instructing the jury that the defendant must prove by a preponderance of the evidence that Bennett did not, at the time the draft was issued, have funds to the amount of the draft in the bank. This claim is based upon the ground that the draft had, in the usual course of trade, come into the hands of innocent third parties, and therefore it was no defense for the bank to say it had received no consideration for it. Counsel seem to have labored under some mistake in this connection. The draft was drawn to A. B. Symms & Co., who retained it and sue-on it themselves. It was never transferred, and was not in the hands of innocent purchasers for value without notice. The court charged the jury, in effect, that, as the defendant admitted the execution of the draft, it must prove by a preponderance of the evidence that it received no consideration for the draft, and also that the plaintiffs paid nothing for it. The instructions were meager, but there is in our judgment no error therein prejudicial to the rights of the plaintiffs.
•We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
David N. MoPheeters brought an action of replevin against Valentine Birk, in the district court of Coffey county, to recover certain specific personal property which had been mortgaged by Birk to John Seiferlein on the 20th day of May, 1887, to secure the payment of the sum of $280 and interest. On the 16th day of May, 1888, the note and chattel mortgage were assigned to MoPheeters, who commenced this action on the 18th of July, 1888. The property was taken by the sheriff of Coffey county and delivered to the plaintiff, wbo sold the same at chattel-mortgage sale on the 5th day of August following. The defendant answered that the debt secured by the mortgage was not due; that an extension of 30 days had been agreed upon from the 2d day of July, 1888, for which he executed his note for $35. The plaintiff replied by a general denial, and by way of new matter alleged that after the defendant had filed his answer and the property described in the chattel mortgage had been sold, the parties to the action and their respective attorneys met and had an accounting and settlement concerning their matters in difference, as to the note and mortgage, and the taking and selling of the property replevied; that the plaintiff, with the assent of the defendant, retained of the proceeds of the sale of the personal property the amount due him from the defendant on the note and mortgage, together with the costs and expenses attending the taking and selling of the property; and that he delivered to the defendant his note and paid to him the surplus, with the understanding that it was to be in full settlement and satisfaction of all their matters in difference as to the note and mortgage, as well as the personal property in controversy. Upon the issues thus made by the pleadings, a trial was had by the court and a jury, and a general verdict was returned for the defendant; that the value of the property in controversy was $790; that the usable value of the property was $250; that the amount of the plaintiff’s claim, debt and interest, amounted to $291.46. The jury returned the following answers to the particular questions of fact submitted to them by the court:
“ 1. Was the defendant present at the sale of the mortgaged property in controversy in this action? A. Yes.
“2. After the property in controversy had been sold by the plaintiff, did plaintiff and defendant and their respective attorneys meet together and have an accounting of and concerning the proceeds of said sale? A. Not in full.
“3. Did plaintiff at such meeting, with the assent of the defendant, retain of said proceeds the full amount due to him •on defendant’s note and mortgage, together with the costs and •expenses attending the taking and selling the property in con troversy, and then pay to the defendant the surplus money with the understanding that it was in full settlement of their differences as to said note and mortgage and the property in controversy taken and sold by the plaintiff? A. $10.30.
“4. Did defendant agree to accept the proceeds and the surplus money in full settlement and satisfaction of his note, mortgage and the sale of his said property in controversy by plaintiff, and did plaintiff, with that understanding, pay to said defendant said surplus money, and deliver to him his note, and has said money and note ever since been retained by the defendant? A. Yes.
“5. Did plaintiff, after defendant had received said surplus money and his note, at the request of the defendant, satisfy and discharge the chattel mortgage? A. Yes.
“6. After said accounting, settlement, payment of said surplus money, and delivery of said note, did defendant sign and deliver to plaintiff his written receipt for said surplus money? A. Yes, under protest.”
The plaintiff objected to the answers returned to questions numbered 2, 3, and 6, because, as alleged, they were evasive, indefinite, and irresponsive, and requested the court to resubmit to the jury the three questions, which request the court refused. The plaintiff then moved for judgment on the special findings, notwithstanding the general verdict. This motion was overruled, and the court rendered a judgment upon the general verdict in favor of the defendant. The plaintiff in error brings the case here upon two assignments of error:
“1. The court erred in refusing to require the jury to return more specific answers to special questions 2, 3, and 6.
“2. The court should have given the plaintiff judgment upon the special findings of the jury, notwithstanding the general verdict.”
It is evident from an examination of special findings 2, 3 and 6 that the plaintiff was entitled to more specific answers than the jury returned. It is difficult to say what the jury meant when they answered question number 2 by saying “Not in full.” The evidence established the fact that the parties did meet and had an accounting, and the following receipt was signed by the defendant, under the advice of his counsel:
“Burlington, Kas., August 4, 1888. Received of David N. McPheeters ten dollars ($10.30), which David N. Mc-Pheeters claims to be the overplus of money after deducting his expenses, court costs and note and interest to date, on sale made under chattel mortgage on horses, seven head.
Valentine Birk.”
This receipt clearly showed that the parties had an accounting. Its execution and the payment of the sum named in it to the defendant was admitted. Question numbered 3 was not intelligently answered. It is urged as a reason for not answering this question that there are three or four questions embodied in this one. This is hardly a sufficient excuse. The defendant could have had the question separated and properly divided, so that each part could have been answered. As to the answer made to the sixth interrogatory, the evidence was clear that the defendant signed and delivered the receipt, and the plaintiff was entitled to an unequivocal answer. It is one of the clear legal rights of a party to an action to have material questions of fact, that are based upon competent evidence and within the issues of the case, submitted to and answered by the jury, upon proper request being made to the trial court. (Insurance Co. v. Hathaway, 43 Kas. 399; W. & W Rld. Co. v. Fechheimer, 36 id. 45, and authorities there cited.)
Upon the second assignment of error, we are of the opinion that the plaintiff should have had judgment upon the special findings. It appears from the evidence, as well as the fourth and fifth special findings, that the defendant accepted and retained the surplus money realized from the sale of the mortgaged property and the note secured by the chattel mortgage,, and that the plaintiff satisfied such mortgage at the request of the defendant. This, we think, was a satisfaction and affirmance of the sale. (Watterson v. Rogers, 21 Kas. 529; France v. Haynes, 57 Iowa, 139; McConnell v. People, 71 Ill. 481; Bush v. Sherman, 80 id. 160; Watson v. Sherman, 84 id. 263.)
It is insisted by the defendant in error that any fact, to be pleaded in estoppel, must have existed at the time the plaintiff commenced his action; that nothing that arose subsequently could be pleaded in estoppel of the right of the defendant to defend against such action. This position is not tenable under our code of procedure, which expressly authorizes supplemental pleadings to be filed, alleging facts material to the case occurring after the filing of the former petition, answer, or reply. (Civil Code, § 144.) Under this authority and the amended reply, the evidence as to what had taken place after the sale was competent, and estopped the defendant from questioning the fact that the note secured by the chattel mortgage was due, or that the sale was invalid.
We are at a loss to know why the plaintiff did not dismiss his replevin suit after he had disposed of the property, accounted to the defendant for the proceeds, surrendered the defendant his note, and satisfied the mortgage. The subject-matter of the action had been settled; there was really nothing further to litigate. It would seem from the receipt which was in evidence that the plaintiff had retained the court costs in this action which had accrued up to the time the surplus money remaining from the proceeds of the sale was paid to the defendant. We are of the opinion that the plaintiff was rightly adjudged to pay all the costs made in the district court since the accounting was had between the plaintiff and defendant.
It is recommended that the judgment of the district court be modified by entering judgment in favor of the plaintiff for the possession of the property described in his petition, that the cause be remanded to the district court with instructions to enter such judgment, upon the special finding, in favor of the plaintiff below, and that he be adjudged to pay the costs in the district court, and that the costs in this court be equally divided between the parties.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
In this action, which was to foreclose a mortgage, the plaintiff declared on a promissory note and real-estate mortgage given to secure the same, and alleged that by the terms of the mortgage the defendant was in default because of the non-payment of taxes, that the mortgage had become absolute, and the. plaintiff was entitled to foreclosure of the same. All of the defendants answered, and the plaintiff replied. But upon the trial of the cause the defendants objected to any evidence being received under the petition, for the reason that the petition did not state facts sufficient to constitute a cause of action. This'objection was sustained, and the cause dismissed at the cost of the plaintiff, who brings the case here for review. The only question in the case is, whether the petition' showed such a default as gave the plaintiff the right to foreclose the mortgage. That portion of the plaintiff's petition which alleges default for the non-payment of taxes reads as follows:
“Plaintiff further shows, that taxes were duly levied on said described lands for 1887, to the amount of $24.80; that the defendants, and each of them, failed and neglected to pay said taxes for the year 1887, but made default in the whole of said payment, and that on the 15th day of August, 1888, the plaintiff paid, for and on. account of said taxes on said described lands, the said sum of $24.80.''
That part of the mortgage relating to the defaults reads as follows:
“And this conveyance shall be void if such payment shall be made as herein specified. But if default be made in such payments, or any part thereof, or interest thereon, or the taxes, or if the insurance is not kept up thereon, then this conveyance shall be due and payable; and it shall be lawful for the said party of the second part, his executors, administrators, and assigns, at any time thereafter, to sell the premises hereby granted, or any part thereof, in the manner prescribed by law.”
An examination of the mortgage attached to the petition in this case fails to disclose any provision under which the mortgagor promises or agrees to pay any taxes, or to secure and keep any insurance on the premises. It is true that the default provision of the mortgage declares that “if default be made in such payments, or any part thereof, or the interest thereon, or the taxes, or if the insurance is not kept up thereon, the conveyance shall become due and payable,” and the mortgagee may sell. What taxes are referred to? Taxes on the land described in the mortgage? Probably. But there is nothing in the mortgage to show what taxes are meant. What insurance is “to be kept up?” And on what property is it to be kept up? There is no agreement in the mortgage by which the mortgagor is to insure anything, and no provision pointing out what property is to be insured, nor what amount of insurance is to be kept thereon. The usual provisions found in mortgages, whereby the mortgagor stipulates to pay the taxes on the premises mortgaged, and keep them insured, are omitted in this mortgage. The debt sued on in this ease was not due when the action was begun, except upon the theory that default had been made in the payment of taxes by the mortgagor. We are not willing to hold a debt, otherwise not due, to have become due by reason of a provision in a mortgage relating to defaults, when the mortgage contains no provision for payment of taxes by the mortgagor, and the only provision in the mortgage relating to taxes is as indefinite and uncertain as the one involved in this case, especially when the whole debt is now due, and if not paid at once, the mortgage may be foreclosed without further trouble in this respect. It is recommended that this case be affirmed.
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.:
Prior to August 16, 1887, the firm of Watson & McCormick had been engaged in a general hardware and agricultural implement business in Marquette, McPherson county, in this state. To secure indebtedness, they executed chattel mortgages upon their stock in trade as follows, to wit: (1) Bank of Marquette, $470; (2) Baker Wire Company, $1,988; (3) Smoky Valley Bank, $1,054; (4) Wyeth Hardware Company, $402; (5) Townley Metal Company, $329.60. These mortgages were executed in the order recited, and the amounts purporting to be secured by these exceeded the value of the stock of goods mortgaged. A mortgage subordinate to the mortgages named was tendered to, and declined by, the Simmons Hardware Company. On January 10, 1888, an action on its claim for $424.65 was begun by the Simmons Hardware Company in the district court of McPherson county against Watson & McCormick, and a writ of attachment levied upon the stock of merchandise embraced in the chattel mortgages. The stock was sold by order of the district court in the attachment action, which ripened into judgment in favor of the Simmons Hardware Company. On the 14th of April, 1888, Heath, Darrah & Co., who composed the Smoky Valley Bank, began this action to recover $1,886.12, for the stock of merchandise taken and sold by the sheriff of McPherson county for the benefit of the Simmons Hardware Company, in the attachment proceedings against Watson & McCormick. They claimed both under their mortgage and under the chattel mortgage of the Baker Wire Company, assigned to them. On the trial of the action,' it was agreed between the parties that if the plaintiffs were entitled to recover, the amount of their recovery should be, on their first cause of action, $832.12, and on their second cause of action, $69.19. At the close of the evidence, the court instructed the jury to return a verdict for the plaintiff below for the amounts agreed upon by the parties, as the defendants had failed to prove fraud. The defendants below excepted, and complain of various rulings of tbe trial court. Attached to the petition of the plaintiff below and made a part thereof, were copies of the chattel mortgages executed to the Baker Wire Company and to Heath, Darrah & Co. These mortgages were filed with the register of deeds of McPherson county, as required by law, several months prior to the attachment proceedings of the Simmons Hardware Company. The Baker Wire Company took immediate possession of the stock of hardware under their -chattel mortgage, and placed Watson & McCormick in charge of the same as their agents.
It is contended that the trial court erred in holding the burden of proof was upon the defendants below. The amended answer of the defendants expressly admitted the taking of the goods, wares and merchandise mentioned in the. petition, and also admitted the execution and delivery of the chattel mortgages referred to and made a part of the petition; but attempted to justify the taking by reason of the attachment proceedings, and then alleged in general terms that the chattel mortgages “were not executed in good faith, but for the purpose of hindering, delaying and defrauding the creditors of Watson & McCormick.” The court required the plaintiffs to prove the amount due upon the mortgages, which was finally agreed upon by the parties, and also to prove the assignment of the mortgage of the Baker Wire Company to Heath, Darrah & Co. Therefore the burden of proof was upon the defendants that the mortgages were fraudulently executed. There was no error in this ruling for two reasons: First, the party who alleges fraud must make proof thereof; second, the allegations that the mortgages “ were fraudulently executed” were mere legal conclusions, not a statement of any facts, and had no force. No issue was presented thereby and no proof was admissible. (Railroad Co. v. Comm’rs of Douglas Co., 18 Kas. 169; The State v. Williams, 39 id. 517.)
In view of the pleadings, the admissions of the amended answer, the agreement of the parties, and the absence of any sufficient allegation of facts charging fraud in the execution of the chattel mortgages referred to, the trial court committed no error in instructing the jury to find for the plaintiffs below. The vigilant creditor is entitled to the advantage secured by his watchfulness and attention to his own interests. (Randall v. Shaw, 28 Kas. 419; Bliss v. Couch, 46 id. 400.) Under a chattel mortgage, the mortgagee may place the mortgagor in possession of the mortgaged property as his agent, and make sale of the merchandise for his benefit, and such agent may receive compensation for his services. (Frankhouser v. Ellett, 22 Kas. 127; Bliss v. Couch, supra.)
The plaintiffs below were not estopped from maintaining their action, or recovering judgment, on account of the attachment action and other proceedings of the Simmons Hardware Company, through Watson & McCormick. They were not parties or privies to that action, and therefore not bound in any way.
We have examined the other matters suggested in the briefs, but do not think they require comment.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
The plaintiff in error brings this case here upon the certificate of the trial judge that there is a constitutional question involved in the action. The suit was brought to recover the value of a fence claimed to have been built along the right-of-way of the railroad operated by the plaintiff in error. The action was based upon the provisions of ¶¶ 1317-1320 of the General Statutes of 1889; and the amount in controversy was less than $100, exclusive ■of costs. The validity of that statute was challenged in the district court. Since the trial of this case in the court below, the statute has been upheld. (Mo. Pac. Rly. Co. v. Harrelson, 44 Kas. 253.)
The constitutional question upon which the case was brought here having been settled by this court, we cannot pass upon the other questions discussed by counsel. The object of the law was to limit appeals and proceedings in error, where the amount in controversy did not exceed $100. The legislature made certain exceptions, such as cases covering tax or revenue laws, or where there was a constitutional question to be settled. The supreme court obtains jurisdiction of this ease through the certificate of the district judge that there is a constitutional question to be determined. Our jurisdiction is limited to that question, and, it having already been decided adversely to the plaintiff in error, it follows 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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Opinion by
Strang, C.:
August 3,1887, W. R. Jones was in possession, under a lease, of the southeast quarter of section 20, in township 25 south, of range 5 east of the 6th principal meridian, in Butler county, Kansas. On that day the grass on said real estate was- destroyed by fire. Said grass was claimed to be of the value of $200. Jones alleges that the fire which consumed the grass escaped from the train of the Fort Scott, Wichita & Western Railway Company. He presented a claim for said grass to the aforesaid railway company, which it refused to pay. Whereupon, on the 3d day of May} 1888, said Jones began a suit in the district court of Butler county, against said railway company, to recover the value of the grass consumed, as damages, and also for a reasonable attorney’s fee for presenting his claim. Defendant answered, issues were joined, and the case tried before the court and a jury February 13,1889, resulting in a verdict and judgment for the plaintiff therein, for $88.40 damages, and for attorney’s fee, $80, or $168.40. The jury also returned answers to special questions submitted by the defendant in the case below, among others, as follows:
“Ques. Did the fire escape by accident? Ans. No.
“Q,. State fully what negligence the defendant was guilty of, upon which the jury base the verdict — whether defective engine, condition of right-of-way, or negligence of defendant’s servants in operating the train, or all of these; and state fully in what negligence consisted. A. Negligence of the company for not keeping the right-of-way free from grass and weeds.”
The motion for a new trial was overruled. The first error complained of is the giving of the fifth instruction. Counsel for plaintiff insist that the court in this instruction tells the jury that a railroad company must so construct its rolling-stock, and so operate its trains and care for its right-of-way, that the property of those living along its line may not, under any circumstances, and without regard to the degree of care, skill and diligence employed by the company, be damaged. This instruction standing alone, unaffected by other instructions given, is somewhat subject to the criticism put upon it by counsel; and perhaps, if there were no other instructions in the case upon the question of liability and damage, we would think it so faulty as to constitute error. But construed together with the other instructions given, we do not think the jury were led to the conclusion that counsel say resulted therefrom. In answer to a question submitted to the jury by the company, relating to negligence, the jury say they placed the liability of the company upon its negligence in permitting dry weeds and grass upon its right-of-way. The jury did not, then, place the liability of the company upon the law of instruction No. 5 as construed by counsel objecting thereto.
The second complaint relates to the last clause of instruction No. 6. We think the clause objected to in this instruction is foreign to anything in the case, but we see nothing in it calculated to mislead the jury to the prejudice of the party complaining. This whole instruction is much more favorable to the company than it is to Jones, and more favorable to the company than it should be; but of that the company cannot complain. Under the facts in this case, neither party was guilty of gross negligence. The jury simply found the company guilty of negligence in caring for its right-of-way. There is no finding that the company was guilty of gross negligence. The land occupied by Jones was a quarter of a mile away from the right-of-way of the railroad company, and separated therefrom by the lands of another. He could not go upon the lands of his neighbor, adjacent to the right-of-way of the company, to plow or burn a fire-guard, or make any other provision against fire. It is claimed by counsel for defendant in error that the plaintiff in error cannot complain of either of the above alleged errors, because neither is alleged in its petition in error. But as they are included in the motion for a new trial, and the petition in error alleges the action of the court in overruling the motion for new trial as error, we think counsel have a right to be heard thereon.
The third assignment of error is the alleged wrongful admission of proof as to the measure of damages. An examination of the evidence as shown in the record satisfies us that the court guarded the rights of the company as well as it could, considering the apparent want of intelligence of the witnesses produced to prove the value of the grass, except so far as permitting proof of the fair value of the grass, instead of limiting the proof to the market value of. said grass. In this case the evidence of one witness, at least, shows that there was no market value for the grass destroyed. And more than one witness testified that there was no other grass like that destroyed in the neighborhood, and no other pasture in the neighborhood in like condition. We might therefore, under the rule contended for by plaintiff, affirm the case as to this point, for counsel admit that, where there is no market value for a thing, its fair value should be proved. However, this court has practically held that there is no substantial difference between the fair value and the market value of a thing. (K. C. & S. W. Rld. Co. v. Ehret, 41 Kas. 22.) .
We do not think this case should be reversed on anything appearing in this assignment of error. This also disposes of the fourth and last assignment, the objection to instruction 7, which relates to the measure of damages, since, if it was proper to prove the fair value of the grass consumed, then, upon such evidence, it was proper to instruct the jury that the proper measure of damages was the fair value of the grass destroyed, with interest upon such value.
We do not think there is anything serious in the point made against this instruction, that the court did not limit the jury, in their estimate of the value of the grass, to the place where it was consumed. Damage was obtained for but one piece of grass, and that was upon a tract of land definitely located. Error, to be reversible, must be prejudicial. We do not see how the jury in this case could have been misled by the omission of the word “place,” in this instruction, in connection with the measure of damages.
The court refused to give the jury certain instructions submitted by the defendant company, relating to the measure of damages. But the court instructed the jury upon the subject of the measure of damages fully; and, as we hold that the instructions of the court in that respect are not erroneous, the court did not err in refusing to give defendant’s instructions on the same subject.
It is recommended that the judgment of the district court be affirmed.
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 a criminal prosecution in the-district court of Leavenworth county, upon information charging the defendant, David E. Davis, with committing murder-in the first degree, in killing his wife, Matilda Davis, on October 9, 1890. The information charges, among other things, as follows:
“And the said David E. Davis, with a certain pillow, and a certain substance the exact character of which is to said county attorney unknown, which he, the said David E. Davis, in his hand then and there had and held, did unlawfully, feloniously, willfully, deliberately, premeditatedly, and with malice aforethought, and with the intent then and there to- kill the said Matilda Davis, choke, smother, cover the mouth and nose of and stop the breathing of the said Matilda Davis for a long time, to wit, 15 minutes; and the said David E. Davis, with a certain instrument, the precise nature of which is to said county attorney unknown, did unlawfully, feloniously, willfully, deliberately, premeditatedly, and with malice aforethought, and with the intent then and there to kill the said Matilda Davis, assault, beat, strike, bruise and wound the body of the said Matilda Davis, inflicting then and there in and upon the body of the said Matilda Davis certain mortal wounds, from all of which, the choking, smothering, covering the face of and stopping the breathing of the said Matilda Davis, and the assaulting, beating, striking, bruising, and wounding, as aforesaid, and the wounds aforesaid, she, the said Matilda Davis, then and there died.”
A trial was had before the court and a jury from January 26 to January 31, 1891, and the defendant was found guilty of murder in the first degree, and was sentenced accordingly on April 4, 1891; and he now appeals to this court. The principal ground upon which a reversal is asked is, that the verdict and sentence in the court below are not supported by sufficient evidence. It is claimed that the defendant not only did not have any connection with the offense charged in the information, but that no such offense was ever in fact committed by any person. It is admitted, however, that Mrs. Davis died on the night of October 8 and 9, 1890, shortly after 12 o’clock; but it is claimed by the defendant that her death resulted from natural causes, and not from any wrongful act or acts on the part of any person; and that whatever may have been the causes of her death, the defendant had no connection with them. The evidence, however, seems to have been sufficient to satisfy the court below and the jury beyond all reasonable doubt that her death was caused by the deliberate, premeditated and felonious acts of her husband, the defendant, Davis; and there certainly was some evidence from which the court below and the jury might have found such facts. The theory of the prosecution is, that the deceased died from asphyxia, suffocation, smothering, produced by the external application of something in the hands of the defend ant, Davis. On the other side, the defense claims that if Mrs. Davis did die from asphyxia, which is not admitted, it was produced principally by internal disease, aggravated, possibly, by fright from fire in the room and from smoke. Taking the evidence of the physicians, and it is proved almost conclusively that she died from asphyxia, and the question then arises, how was this produced ? Was it caused by the wrongful acts of the defendant, Davis, or was it caused by internal disease and fright and smoke ?
We shall now pass to another ground urged for reversal and consider the two grounds together. Such other ground is that the court below, before it was sufficiently shown by the evidence or otherwise that any offense at all was committed, or, in other words, before sufficient evidence was introduced to prove the corpus delicti, erroneously permitted the prosecution to introduce evidence tending to show that the defendant may have been guilty of the supposed offense; that he entertained hostile feelings toward the deceased; that he had previously used personal violence toward her, and made threats of killing her, and that he had strong personal and pecuniary motives for desiring and causing her death. We do not think that any such error was committed; for although the court permitted evidence to be introduced as is claimed, yet all the evidence of the defendant’s supposed guilt was introduced along with the other evidence for the purpose not only of showing that he was in fact guilty, but also of showing that the offense was really and in fact committed by some person, or, in other words, of proving the corpus delicti. In a case like this, it would be almost if not utterly impossible to prove the corpus delicti without at the same time or previously introducing evidence tending to show that it was the defendant who was the principal if not the sole actor in committing the offense. Under the circumstances of this case, it was absolutely necessary either to prove both the corpus delicti and the defendant’s connection with the offense at the same time, or else to utterly abandon all proof, for one could not at all be proved without proving the other. Was the corpus delicti proved? Or, as the question is presented to this court, was there sufficient evidence introduced to sustain the decision of the court below and the jury that it was proved?
As before stated, we think it was shown beyond all question that Mrs. Davis died from asphyxia. Then, was this asphyxia brought about by the acts of the defendant, Davis, in suffocating or smothering her, or did it originate from internal disease, and from fright and smoke, as contended by the defendant ? Mrs. Davis, up to the time when she went to bed, about 10 o’clock in the evening of October 8, 1890, was in apparently good health. She was over 70 years old, however, and from the post mortem, examination it was found that she had a diseased kidney. Her other kidney and lungs were also slightly diseased, and she also had bruises about her arms and face. When she was first found after her death she was lying on her back, her hands thrown back and open and palms upward, and she was limber, and her lower jaw dropped down. Her bedroom was on the first floor of the house, and connected by an open door with the sitting-room, and one of the sitting-room windows was open to the outside of the house. The defendant Davis’s bedroom was upstairs. The next morning it was found that there were tracks of some person on the ground outside of the house going up to that window, into which tracks Davis’s shoe fitted exactly. Harry Crook, a grandson of the deceased, about T 5 years old, slept in the'same room with the deceased, on a feather tick on the floor. Before going to bed he had been reading, but on retiring he put the lamp on the bureau, extinguished the light, and went to bed and to sleep. Some time during the night he heard, or dreamed he heard, his grandmother calling to him, “Harry, Harry! help, help!” Afterward, he also heard, or dreamed he heard, some one going upstairs, and then some one walking over the sitting-room floor, and the boards creaking. Davis’s room was over the sitting-room, and he was the only person who slept upstairs. Afterward, Harry Crook became completely aroused from his slumbers, and got up and called Charles Morton and his wife, who slept in a back room of the house on the first floor. At this time there was a small fire on the floor near the middle of Mrs. Davis’s sleeping room, which fire, before it was extinguished, increased in extent. The lamp, also, which had been left on the bureau, was down on the floor, and the bowl broken, the burner “unscrewed’’ from the bowl, and the chimney not broken. When Morton first came into the deceased’s room he called, “ Grandma, grandma! ” but she made no answer, and he found that she was dead. She was lying on her back, her hands thrown back, palms up and open. About that time the defendant, Davis, came down-stairs in his night-gown and socks. No one at that time, except Morton and the murderer, if a murder was committed, knew that Mrs. Davis was dead, yet, nevertheless, according to Morton’s testimony, Davis, when he got to the sitting-room door and in the hall, exclaimed, “My wife is dead !” and pretended to cry, but did not; and shortly afterward Davis inquired where Mrs. Davis kept her money, and he looked into a bureau drawer and found a tin box and looked into it.
At some time prior to the commencement of the divorce suit, and while Davis and his wife were living together, she executed a will in his favor, but when she commenced the divorce suit she destroyed the will. Also, at the time when Harry Crook went to bed the little dog was in the sitting-room, and the door leading from this room into the hall was so locked that it could be opened from the inside, but not from the hall. After the alarm, and when this door was opened, the little dog was found in the hall, and not in Mrs. Davis’s bedroom, nor in the sitting-room. And this dog was in the habit of following Davis. Davis’s bed upstairs did not show any signs of any person having lain down upon it or in it, but it appeared as though some person had simply sat down upon its side. The prosecution also introduced evidence tending to show that Davis had strong pecuniary and personal motives for taking the life of Mrs. Davis. They had been married nearly eight years. He had previously been a convict in the penitentiary for horse stealing, and at the time of the marriage and after ward had but little property, while she was worth about $7,000. During their married life they had frequent quarrels and bickerings, and he had several times used violence toward her, had struck her, and choked her, and had threatened to kill her. Finally she commenced an action in the district court to procure a divorce, and the trial of this divorce action was set for October 11, 1890. Only about three days before the death of the deceased, and only six days before the time fixed for the trial of the divorce suit, the defendant, in conversations about the divorce suit with Joseph Keenan and his wife, Eliza Keenan, threatened in substance that he would kill both the old lady (Mrs. Davis) and Harry Crook, the grandson; and stated to Mrs: Keenan that there would be nobody living to enjoy the property. Mrs. Keenan had at the time been subpoenaed as a witness in the divorce case, but Davis told her that she would never go or be called into court, and also stated that Mrs. Davis would never die a widow.
The theory of the prosecution in this case is, that if Davis went upstairs to his room on the night of October 8, 1890, at about 10:30 o’clock, as he claims he did, then that afterward, and about midnight, he came down-stairs, went out of the house at the front door, and in any case, he was outside of the house, and went around to the open sitting-room window, climbed into the sitting-room through the window, went through the sitting-room to Mrs. Davis’s sleeping room, and then smothered her with a pillow or with something else equally effective, and then passed out through the sitting-room and sitting-room door, and into the hall and upstairs to his room. There is no direct evidence to prove this. It is all circumstantial; but the court below and the jury believed it to be sufficient. The evidence of the defense presents some seeming explanations to some of the inculpatory evidence introduced on the part of the state. The defendant in fact, who was a witness for himself on the trial, denied and contradicted almost everything that would seemingly tend to criminate him. He testified that he never struck or choked his wife or offered her any violence; that he never threatened her life or Harry Crook’s life, nor even intended any such thing; that he was not in fact in her bedroom during the night of October 8 and 9, 1890; that he did not suffocate or smother her, nor even touch her that night; and that the little dog was not in her room at all that night, but went upstairs with him about 10:30 o’clock, and remained there near his door until the alarm was given, after 12 o’clock. Also, three physicians who made a post mortem examination made a written statement that “Mrs. Davis was laboring under a disease from which she was liable to die at any time suddenly.” It is probable that they did not mean to use the words “liable to” in the sense of “likely to.” Two of such physicians testified on the trial that they did not mean that it was probable, but only that it was possible for Mrs. Davis to die suddenly from such disease; and, taking the entire testimony of all the physicians who testified in the case, and considering it in connection with the other evidence in the case, it would seem that it was not at all probable and scarcely possible that Mrs. Davis did in fact die from natural causes; and the questions as to the causes of her death, and as to the defendant’s guilt or innocence, were under the evidence questions of fact, primarily for the jury and then for the trial court. And while the evidence which tends to show that Mrs. Davis was murdered, and that Davis was responsible for it, .is not as conclusive or as convincing as it might be, yet we cannot say that the court below and the jury erred in finding these facts. Nor can we say under the facts of this case that the court below erred in permitting evidence to be introduced tending to prove the defendant’s guilty connection with the offense before the corpus delicti was sufficiently proved. Under the facts of this case, we think ths court had the right to permit the evidence tending to show the corpus delicti and the defendant’s connection with the offense to be introduced at the same time, as the two kinds of evidence could not well be separated. We think a trial court in any case, civil or criminal, has a wide discretion in determining the order for the introduction of a party’s evi dence. A trial court will generally adopt the most convenient order for the introduction of evidence, the one that will most facilitate the business of the trial, and at the same time will least embarrass the parties, and will in the end be the most likely to bring about substantial justice.
It is claimed by the defendant that the court below erred at' the beginning of -the trial in refusing the request of the defendant to separate the witnesses. Such request will generally be granted by a trial court, and yet the matter rests almos* wholly within the sound judicial discretion 0f such court. The trial court in the present case exercised its discretion, and we cannot say that it abused its discretion; and therefore we cannot say that it committed any material error by its refusal. No special reasons were given why the witnesses should be separated.
It is further claimed that the court below erred in permitting the jury to remain in the court-room during the argument of counsel upon the defendant’s demurrer to the evidence of the prosecution. It is not. shown that any thing was said in the argument by counsel, or at any time by the court, prejudicial to the substantial rights of the defendant, and it is shown affirmatively that the court in overruling the demurrer did not make any comment, or give any reasons for its ruling. Therefore no error is shown in this regard.
It is claimed that the court below erred in refusing to give the instructions asked to be given by the defendant. Now, many of these might have been given without the commission of any error, and the substance of many of them was in fact given by the court. Some of them, however, could not have been given without the commission of error as against the state. As sufficient and proper instructions were given, we do not think that any substantial error was committed in refusing the defendant’s instructions.
But it is claimed that, sufficient instructions were not given. For instance, it is claimed that the court below erred in not defining the words “ reasonable doubt.” The court instructed the jury, among other things, as follows:
“You are to presume the defendant to be innocent until his guilt shall be established by the evidence, to your satisfaction, beyond a reasonable doubt. Attempts have often been made by judges to define the phrase ^reasonable doubt/ as used in eriminal proceedings, but with doubtful success, inasmuch as the words themselves are as simple and as generally understood as any others the language affords. In some cases which have come under my observation, where the judge attempted to elucidate these terms by a multiplication of words, some of them have been seized upon as catch-words to wrench the phrase from the meaning it conveys to the mind of every juror fit to participate in the administration of the law. Hence, I content myself with the use of the words the statute employs, believing you to be equal to their full comprehension. This presumption of innocence must attend the defendant through all the stages of this trial. . . . Under this information, the defendant may, if the testimony warrants it, be lawfully convicted of either of the degrees of murder. If you shall have a reasonable doubt of which of two degrees of a crime the defendant was guilty, if guilty of any, it will be your duty to convict him, if at all, of the lesser degree. If, in considering the testimony of this case, you should come to the conclusion that it is wholly circumstantial, including the testimony of no witness who testified to having seen the defendant do any act of violence tending to produce the death of his wife, it would nevertheless be your duty to find him guilty, if from all the evidence you are satisfied beyond a reasonable doubt of his guilt. But if, considering all the circumstances surrounding the death of the deceased, as detailed in the evidence, you have a reasonable doubt as to whether she came to her death from natural infirmity or disease in her system, or from any cause other than violence from the defendant, it will be your duty to give the defendant the benefit of such doubt, and acquit him. A few facts or a multitude of facts, proven or consistent with the supposition of guilt, are not enough to warrant a verdict of guilty. In order to convict on circumstantial evidence, not only the circumstances must all concur to show that the defendant committed the crime, but they must all be inconsistent with any other rational conclusion.”
It is to be presumed that the jury understood what the words “reasonable doubt” meant. The idea intended to be expressed by these words can scarcely be expressed so truly or so clearly by any other words in the English language. And generally the attempted definitions of them by courts or others are simply misleading and confusing, and not proper explanations of their meaning at all. There are definitions or paraphrases of these words, however, which have been held to be good by the courts, but even they are scarcely as good as the words themselves. We do not think that the court below committed any material error in refusing to define these words.
It is also claimed that the court below erred in not signing the instructions given by the court to the jury, and in not giving the paper containing them to the jury so that the jury could take them to their room. The instructions were really given to the clerk, and are retained by him among the files of the court. Now it does not appear that either the defendant or his counsel or the jury or anyone else requested the court to give the paper containing these instructions to the jury, or that the jury should be permitted to take them to their room for the purpose of consulting them during their deliberations; hence, how can it be said that the defendant was prejudiced because of the fact that the court below, or rather the judge, did not sign the instructions? {The State v. Buffington, 20 Kas. 599.) And certainly it cannot be said that the court below erred in not giving the paper containing them to the jury when no one requested any such thing. The defendant, however, seems to think that the trial court should have done whatever he thinks it ought to have done, without any request. Sometimes a trial court is required to do some particular thing without a request, but this is not one of such things. The criminal code with respect to charging the jury reads as follows:
“Sec. 236. The judge must charge the jury in writing, and the charge shall be filed among the papers of the case. In charging the jury, he must state to them all matters of law which are necessary for their information in giving their verdict. If he presents the facts of the case, he must inform the jury that they are the exclusive judges of all questions of fact.”
This section says nothing about the judge signing the instructions or giving the paper containing them to the jury, although perhaps ordinarily such would be his duty. From the record in this case, we would think that the court in charging the jury complied literally with the foregoing section. The charge seems to be in writing. The judge stated to the jury that they were the exclusive judges of all questions of fact, and he charged them with respect to all matters of law which were necessary for their information in giving their verdict.
We think no material error of law was committed during the trial, nor indeed at any time; and as to the questions whether the offense was in fact committed, and whether the defendant was in fact the guilty perpetrator, which under the evidence are pure questions of fact, the court below and the jury before whom the case was tried, who saw all the witnesses and the defendant and heard them all testify, and who seem to have been satisfied beyond all reasonable doubt that the defendant was guilty, had much better means of determining these questions than we have, who know nothing about the case'except as we obtain our information from the record.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
In 1885, Fritz Schnitzler was the owner of lot 18, on Market street, in the city of Wichita, in this state. Charles Zeininger was the owner of the adjoining lot, No. 16,. on Market street. In the spring of 1885, Schnitzler built a stone foundation and brick wall, intending it to be upon the division line between lots 16 and 18. About two years afterward Charles Zeininger erected a brick building on his lot, 16, and in the construction of his building appropriated one-half of the foundation and brick wall built by Schnitzler. The petition which was filed by the plaintiff below alleged that he “was the owner of a certain stone foundation and brick wall on the division line between lots Nos. 16 and 18, on Market street, in the city of Wichita, being the south wall of ‘ the brick building located on said lot No. 18,” and that “the defendant, Charles Zeininger, erected a certain brick building on said lot No. 16, and in the construction of said building used the south half of the stone foundation and brick wall built by the plaintiff as the north wall of the brick building erected on lot No. 16; that the defendant then and there permanently appropriated the south half of said wall to his own exclusive use as a part of said last-above-mentioned building.”' The defendant below filed an answer containing a general denial only. The city engineer testified that in measuring the-lot of Schnitzler the latter was allowed about two feet on account of a.surplus in the block; this surplus was given toSchnitzler because he told the city engineer he had bought it. It also appeared that Zeininger was present when the stakes-were put down at the corners of the lots, and was frequently present during the construction of the foundation and wall.
Upon the motion for a rehearing, it was strenuously insisted, that Schnitzler has been guilty of fraud in inducing the city engineer to allow him a greater part of the surplus of the block-than he was entitled to, and therefore that, as the foundation and brick wall were not built exactly upon the division line between lots 16 and 18, Schnitzler is not entitled to any judgment. It appears from the evidence that Zeininger acted in good faith. If the surplus had been distributed pro rata among the lots, and not added more to one lot than to another, the correct division line between lots 16 and 18 would be a little different from the one upon which the foundation and brick wall were erected; but no allegation of fraud was contained in the answer against Schnitzler in fixing the division line. Zeininger did not use the foundation and brick wall until one or two years after it was constructed. When the case was presented to this court, the only errors alleged were as follows:
“ 1st. The court erred in admitting evidence for the purpose of proving an estoppel.
“2d. Upon the findings of fact, the defendant was entitled to a judgment in his favor.
“ 3d. The court erred in refusing the instruction requested by the defendant.
“4th. That the defendant below was under no liability to the plaintiff, legally or equitably.”
In the former opinion handed down, we ruled that the trial court committed no error in admitting evidence showing that Zeininger was present at the construction of the foundation and brick wail, and made’no objection, and afterward used this wall in the construction of his own building. There •was no error in admitting the evidence complained of. The ■findings of fact certainly sustain the judgment, because, if the foundation and wall were not built upon the correct division line, yet if, without any fraud, they were built upon the present location, with the consent or agreement of Zeininger, it is too late for him to make objection. It appears from the evidence that R, H. Brown, who was city engineer of Wichita in 1887, in July of that year made a survey of Zeininger’s lot with reference to the north line of the same. At that time he found the foundation and brick wall to be upon Zeininger’s lot — not upon Schnitzler’s. Zeininger built upon the same after this time, and therefore, with full knowledge of all the facts, he used the foundation and brick wall without objection or notice to Schnitzler of any trouble or mistake. Defendant below asked only one instruction. This was, that no verdict could be rendered for the plaintiff, unless the party wall was constructed upon the exact division line between lots 16 and 18. This is not the law, if the parties without fraud consented that any-particular line should be designated as the division or party line. Such a line may be used as the division line, if the parties consent.
In view of what we have said, the third point presented is not tenable. It does not appear that Schnitzler acted secretly or intended to deceive Zeininger, or anyone else. He may have been mistaken about his right to buy any surplus, but if the so-called party wall was erected upon the wrong lot, publicly, openly, and without any deception or fraud, and thereafter Zeininger used the same as a party wall, this might have been shown under the petition without being such a variance from its allegations as to be prejudicial. It is probable, if in the answer of Zeininger fraud had been alleged against Schnitzler, and this had been established, Zeininger might have succeeded, but there is not anything in the case showing other than good faith. If by mistake Schnitzler erected a foundation and brick wall upon the lot of Zeininger, with the latter’s consent, Schnitzler would have been entitled to remove the same to his own premises, when his attention was called thereto; but long after the party wall was erected, and at a time when Zeininger must or ought to have known all the facts in the case, he made use of and appropriated a part of it for himself.
The motion for a rehearing will be denied. | [
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Opinion by
Green, C.:
George W. Moore brought an action against Thomas E. Durham in the district court of J.ohnson county to foreclose a mortgage given to secure two promissory notes. Service was made upon the defendant by publication. At the September term of the court, 1888, the service by publication was approved by the court, and a finding was made of the amount due, and the mortgaged premises were ordered sold in six months, under a special execution. The mortgaged premises were sold on the 22d day of April, 1889, and the sale was afterward confirmed by the court. On the 18th day of July, 1889, Thomas E. Durham made a special appearance and filed a motion to set aside the sale and the order confirming the same, for the reason that the court had no jurisdiction either of the person of the defendant or the subject-matter of the action. Four days thereafter the plaintiff filed a motion asking for a nunc pro tunc order, correcting the judgment so as to show that the land was to be sold without appraisement. On August 30th following Durham appeared specially, and moved to strike the last motion from the files because the court had no jurisdiction to hear and determine the matter. The court sustained the motion of Durham to set aside the sale and the order confirming the same, and also overruled the motion of Durham to strike the motion of Moore to correct the record from the files. . This motion was afterward sustained, and the record corrected so as to show that the mortgaged premises were to be sold without appraisement. On the 10th day of September, 1889, Durham gave notice, filed his affidavit and offer to pay costs, verified answer, and motion to open up the judgment and be let in to defend, under § 77 of the code. The motion was overruled, and this action of the court is assigned as error.
The plaintiff in error attacks the sufficiency of the petition and the findings and order of the court in the first instance. Under an application to open up a judgment, we do not understand that a defendant is in a position to attack the regularity of the proceedings. He asks to have the judgment opened up which had been rendered against him upon service by publication. Now, it would hardly be in consonance with good reason for the defendant to say that the judgment he asked to have opened up was not a judgment, or that no judgment was ever rendered, and all of the proceedings of the court were an absolute nullity. The plaintiff in error calls the record he wishes to have opened up a judgment, and he cannot now be heard to say that it is void. This attack comes too late. It is urged that, because the court below had notice of the application to open up the judgment, the defendant had filed the affidavit required by law and offered to pay the costs, if the court required him to pay them, and had filed an answer, it erred in refusing to open up the judgment. To support the contention of the plaintiff in error, there seems to be one essential finding lacking. The court does not find that he filed a full answer to the petition of the plaintiff. ..This is one of the necessary requirements of the statute; and we understand “ a full answer” to mean, not wanting in any essential requisite; a meritorious answer. The answer filed fails.to show a complete defense to the petition. The defendant first denied the allegations of the petition not admitted. He then says:
“Defendant, for further answer and defense to plaintiff’s petition, states that no notes or copies of notes and no mort gage or copy of mortgage is attached to the plaintiff’s petition at the time of filing this answer. He, therefore, denies that he executed or delivered to plaintiff any notes or copies of notes or any mortgage or copy of mortgage which are attached to said petition.
“For further answer and defense to plaintiff’s petition, defendant says, that on the 22d day of April, 1889, the notes referred to in said petition amounted to, principal and interest, the sum of $6,523.14; that costs have been taxed in said cause at $58.20, making a total sum of $6,571.34; that on said date there was a pretended sale of real estate, made under a special execution therefor, issued in said cause, and said real estate was sold to the plaintiff at and for the price and sum of $3,000, leaving a balance of said notes in the sum of $3,571.34; that immediately after said sale, and on the 23d day of April, 1889, the said George W. Moore sold, assigned and transferred said notes to one Allen Moore, who is now and has ever since been the owner and holder of said notes; and so this defendant denies that he is indebted to said plaintiff, as alleged in his petition.”
It is obvious, from a reading of this answer, that the defendant did not comply with the statute. He says that on, the 22d day of April, 1889, the notes referred to in the petition amounted to the sum of $6,523.14. What notes? He must have had in mind some notes which he had executed. Yet because these notes had been detached from the petition long after the suit had been brought and judgment had been rendered, he saw fit to deny that he ever executed any notes which were then attached to the petition.
We do not think the plaintiff in error brought himself clearly within the provisions of § 77 of the code, and the district court committed no error in overruling his application to open up the judgment.
We recommend that the order of the court refusing the application be approved.
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.:
On November 9, 1887, C. A. Betz, with the assent of W. S. Maxwell, the owner of the premises, took possession of a store building on lot 4, block 39, in the city of Newton, as a tenant at will. The rent was to be $50 a month. On November 23, 1887, Betz began to remove his property from the leased premises, and on that day Maxwell brought an action against him to recover $624, which he claimed as rent for the building for one year, from-October 1,. 1887, to October 1, 1888. At the commencement of that action, Maxwell filed an affidavit for attachment, under the provisions of ¶ 3636, General Statutes of 1889. Betz removed the last of his goods and vacated the premises on December 8, 1887. The case was tried on the 1st day of October, 1888, and Maxwell obtained judgment for $77.14, and costs. The court, in that action, allowed Maxwell rent from November 9, to December 23, at $50 a month, amounting to $77.14 in all. This judgment Betz paid. On the 27th day of October,. 1888, Maxwell brought another action against Betz, for $500, as rent of the same premises for 10 months, from December 23, 1887, to October 23, 1888, at the rate of $50 per month. The answer of Betz contained a general denial, and also set up the former recovery of rent for $77.14. To this Maxwell filed a reply. On the 28th of February, 1889, trial was had before the court without a jury. Judgment was rendered in favor of Maxwell and against Betz for $525. Betz excepted,, and brings the case here.
It is contended upon the part of Betz, that as he began to remove from the premises on November 23, 1887, and as Maxwell had actual notice of his intention to cease occupying the premises, and as he (Maxwell) acted upon such notice by commencing an action by attachment to recover the rent, and as he obtained in that action judgment for rent up to the 23d day of December, 1887, being one rent period after actual notice of Betz’s intention to vacate the premises, Maxwell had no claim for rent after that date.
The opposite contention of Maxwell is, that as the statute provides that “30 days’ notice in writing is necessary to be given by either party before he can terminate a tenancy at will, or from one period to another for three months or less,” (Gen. Stat. of 1889, ¶ 3613,) therefore, that a tenancy at will cannot be terminated in any other way than by giving the notice prescribed. Counsel for Maxwell say:
“It is absurd that an abandonment of the premises amounts to notice; for, when a tenancy at will is created, it continues until terminated by a legal notice. The estate does not depend upon a continuance of possession; for a tenant cannot put an end to the tenancy and his liability for rent by withdrawing from the occupation of the premises. The notice is a condition of the contract, arising out of it, and must be complied with in order to absolve him from further responsibility. Betz, by an abandonment of the premises without the statutory notice, violated the agreement, but did not terminate the tenancy. He was not bound to occupy the premises, but he still had the right of possession and the right to occupy for all time, until the required notice was given by either party.” (Whitehead v. Clifford, 5 Taunt. 518; Rollins v. Moody, 72 Me. 135; Barlow v. Wainwright, 22 Vt. 88; Batchelder v. Batchelder, 84 Mass. 105; Thomas v. Steamship Co., 71 Me. 548; Woodrow v. Michael, 13 Mich. 187.)
We think that the better reason supports the contention of Betz, the defendant below. The 30 days’ notice prescribed by the statute as necessary to terminate a tenancy at will, like almost every other species of notice required by law, may be waived. If a tenant at will quits the demised premises without giving the notice required by law to terminate the tenancy, and the landlord resumes actual possession of the premises at once, no statutory notice is necessary to terminate the tenancy, and the landlord cannot recover rent for the premises after he has resumed possession thereof. It was decided in Cornellison v. Cornellison, 1 Bush, 149, that where a notice is necessary to a tenant in possession for years, before an action can be properly commenced against him for the recovery of the premises, an action commenced without such notice and dismissed before trial answers for all purposes the giving of a notice. Thereafter, an action for possession can be brought without notice to terminate the tenancy.
In Whitney v. Gordon, 1 Cush. 266, it was’ distinctly announced by Shaw, C. J., that'a tenant who quitted at the end of a quarter without giving legal notice was prima faeie liable, in an action for use and occupation, for the amount of another quarter’s rent. (See, also, Walker v. Furhush, 11 Cush. 366.)
Betz had the right to terminate his tenancy by giving 30 days’ notice in writing. Maxwell knew, on the 23d day of November, 1887, when he commenced his action and filed his affidavit, that Betz was removing from the leased premises because the building was not fit for his business. Soon thereafter, on December 8, 1887, he ceased to occupy the premises and offered the keys to Maxwell, who refused them. It is not claimed or pretended by anyone that, after the 8th of December, 1887, Betz occupied the premises in any way. In the action commenced by Maxwell on the 23d day of November, 1887, when Betz commenced to vacate the premises, he recovered for the rent, not only to November 23, 1887, but also for one rent period thereafter, namely, 30 days, up to and including December 23, 1887. That judgment has not been appealed from. On the other hand, Betz paid the same, with all costs. Maxwell is bound by the judgment rendered, of which he has accepted payment. As he has recovered from Betz for one rent period after actual notice and after commencing his action for rent, and as such judgment has been paid and accepted, we think the special notice prescribed by the statute was thereby waived. In other words, it was unnecessary. It would have served no useful purpose. If Maxwell had not received his money in the first action for the rent to December 23, 1887, it is probable he would have been entitled to recover for 30 days, or one rent period, from the 8th of December, 1887, the date of final abandonment of the premises.
The trial court should have admitted the evidence excluded, but perhaps this error was not very material, because there was other evidence offered clearly showing such a state of facts as to prevent any recovery of rent by Maxwell against Betz after the date of December 23, 1887.
The judgment will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Action by Fuller against Crane for damages for deceit in the sale of certain promissory notes. The petition alleges that on June 30, 1886, he conveyed a. “residence property,” on Walnut street, in Ottawa, worth $2,200, to defendant, in exchange for “about 100 promissory notes,” then held by him, given by parties residing in “various parts” of Kansas, for “life insurance in the Temperance Mutual Benefit Union,” and ranging in amounts from $13 to $60, “payable to bearer,” and transferred by Crane to Fuller * “by delivery.” The misrepresentations averred are:
“ That said notes were all perfectly good, and would be paidi promptly when due, and that Crane had, before that time, sold and transferred to the firm of Hunt & Kelly, contractors and builders, of Ottawa, Kas., a large number of the same class of notes, that is, notes given for life insurance in the said Temperance Mutual Benefit Union, to wit, about $7,000 in amount, and that they had collected nearly the entire amount of them, and that said notes had been paid promptly, and without trouble to the holders, and he referred the plaintiff to the said firm of Hunt & Kelly, ‘to substantiate’ the truth of his statement that the notes he had transferred to them had been paid • promptly, and without any trouble in collecting; that thereupon the said plaintiff called upon Mr. G. A. Kelly, of the firm of Hunt & Kelly, and made inquiry of them in relation thereto, and was informed by said Kelly that the firm of Hunt & Kelly had purchased notes from the said defendant to the amount of $7,000, and that nearly the entire amount of the notes so purchased by them were paid promptly, and with but little trouble to them; that there was only about $200, out of said $7,000 of notes, unpaid; that said plaintiff did not inquire of said Kelly what class or kind of notes they were that the firm of Hunt & Kelly had purchased from said Crane, because of the aforesaid statement made to him by the said defendant that they were of the same class with those he was offering to transfer to the plaintiff, that is, notes taken for life insurance in the Temperance Mutual Benefit Union, but relied implicitly on said statement, believing it to be true, and had no thought that they might be of a different class.
“ 2. In fact, the notes taken by Hunt & Kelly were ‘lightning-rod notes,’ and a ‘different class from’ those transferred, as the defendant well knew, etc.'
“ 3. When the benefit union took the notes, Crane was its superintendent, had ‘general charge of the business of soliciting insurance,’ and ‘ of taking said notes; ’ but they were, ‘ or a large portion of them were, obtained from the makers by fraud and misrepresentation,’ etc., as defendant well knew, and so could not be collected, although plaintiff has made great effort to collect them, and brought suits on a number of them, but was defeated, and has incurred expense and loss in such attempts; that they were not good, or collectible, as defendant always well knew.
“4. Fuller was ignorant of all these things, when he purchased the notes; had no ‘means at hand of ascertaining the facts, but relied solely and entirely on Crane’s statements;’ was ‘induced thereby,’ etc.; and otherwise would not have done so; that he has received ‘no consideration whatever,’ for his .‘residence property,’ and has been damaged $3,000.”
Crane’s answer was: (1) A general denial, except as admitted. (2) Alleges that he did exchange the notes for the realty, but that at the time of the dealing it was “ well understood and agreed” by Fuller and himself that it was not worth in cash over $1,000; that some of the notes might not be collectible; that the “residence property” was valued at $2,200, “so as to equalize and compensate for any loss which Fuller might sustain by reason of his inability to collect some of the notes, but that he has collected on the notes more than the cash value of the house and lot. “ The reply was a general denial. On these pleadings, the case was tried by a jury, October 30, 1888. The defendant “objected to the introduction of any evidence” under the petition, for the reason that it “ does not state facts sufficient to constitute a cause of action.” Objection overruled. The testimony was then adduced; the court charged the jury; a verdict of $300 was found for the plaintiff, judgment entered, a motion for a new trial overruled, and a case-made brought to this court.
The first question is, does the petition state facts sufficient to constitute a cause of action? To support the contention that it does not, counsel for plaintiff in error insist that the statement, “that said notes were all perfectly good and would be promptly paid when due” is only an expression of opinion, and not a representation. When this statement is taken and considered in connection with other averments in the petition, notably that which alleges that Crane “had sold a large number of the same class of notes to Hunt & Kelly, and they had collected nearly the entire amount,” referring Fuller to them for verification of this statement, and that these notes were taken on the strength of and in full reliance of these representations, and they were false, and Crane knew them to be false, the petition states a cause of action. We think that the statement that “the notes were all perfectly good” is a representation, and not the expression of a mere opinion. Crane professed that they belonged to him; were his property; that he had taken them; “that they were as good notes as he had ever taken;” and he made that and other statements of like import to induce Fuller to make the exchange; made them with the intent to induce Fuller to rely on the truth of his statements concerning the notes. This construction accords with common usage and the ordinary course of business in such affairs. No sane man will buy a large number of promissory notes, without knowledge of the financial condi ticm of the persons who executed them, on the strength of an opinion merely that they are good. Crane was in possession of the notes; they were taken by his agents or under his superintendency; he had, or ought to have had, knowledge as to whether they were good or not; Fuller was not in a condition to know whether they were good or not; and it seems to us, under these circumstances, that the statement of Crane was a representation, and not the mere expression of an opinion. We do not care to split hairs, or try to reconcile conflicting authorities on this question. The evidence at the trial, and all the circumstances of the transaction, impress upon our minds that a fraud was perpetrated on Fuller. We think, too, that Crane put Fuller off his guard by his reference to Hunt & Kelly, and that, after Crane had expressly asserted that Hunt & Kelly bought the same class of notes, he cannot now be allowed to say to Fuller, “you ought to have found out from Hunt & Kelly that I deliberately lied to you.”
The evidence objected to about the interview with the bank officers at Cottonwood Falls is the evidence of Fuller as to statements made to him by Crane. It is true that these statements are not alleged in the petition in the exact words, but substantially they are statements that the notes were “perfectly good,” because the bank officers said so. We do not understand that the rules of pleading in cases of this character require that, where separate and distinct statements are made at various times, each must be alleged, or else only one can be proved. We take the rule to be that the distinct misrepresentation must be alleged, and when so incorporated into the pleadings it can be proved to have been made at different times.
The pleadings and transcripts of cases brought by Fuller against the makers of some of these notes to enforce payment are admissible in evidence for several purposes.' They show that the particular notes sued upon could not be collected. They show an effort on the part of Fuller to do so; that he had been at trouble and expense in the attempt to do so; and they tend to show that the representations made by Crane, that the notes were “perfectly good,” were false. They are not in any sense an adjudication against Crane. There is nothing conclusive about them as evidence, but they do make a prima facie case against Crane that these particular notes are not perfectly good. There is no prejudicial error in the ruling of the trial court on the question and answer from Crane’s deposition in the cases of Fuller v. Crawford and Fuller v. Sehimpf. While some general criticism is indulged in as to the instructions by counsel for plaintiff in error, they content themselves with a general attack, rather than pointing out their special infirmities, and cite no authorities to sustain any claim they make. The truth is, that the real quarrel of the plaintiff in error is with the jury; but as we are compelled to say that the verdict is sustained by the evidence, that it has the approval of a painstaking and laborious trial court, and that the general result is in accordance with natural justice, we can afford no relief, because we do not find any prejudicial error in the record that would justify us in sending the case back for a new trial.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
Jacob Mushrush owned 162J acres of land in Menoken township, in Shawnee county, upon which he resided with his family until the fall of 1887. In November, 1885, he leased to J. D. Small one acre in the southeast corner of the farm, near the Menoken depot, for the term of four years, for the purpose of carrying on the business of buy ing, selling, shipping and doing a general grain business. The lessee was to have the privilege of erecting cribs, scales and bins upon the leased ground. This lease was assigned to the Capital Elevator Company in 1888. Cribs, bins and scales were erected, and a general grain business was conducted on the leased premises. In the fall of 1887 the plaintiff in error removed his family to Lawrence, for the purpose of educating his children. He leased a portion of his farm to his brother-in-law for crop rent, but reserved some rooms in the house, in which he stored some household goods, and occupied with members of the family, as occasion required. He cultivated a portion of the farm himself, and worked upon the premises during the farming season. Henry Zarker obtained a judgment against Mushrush in July, 1888, upon which an execution was issued, directed to the sheriff of Shawnee county, which was levied upon a fraction less than two acres of land, including the leased ground, in the southeast corner of the premises. The plaintiff in error notified the sheriff that he claimed the whole tract as his homestead. He served another notice a% short time before the sale that the land levied upon was a part of the 160 acres selected as his homestead from the 162J acres, and that the sheriff might levy his execution upon the remainder of the farm, consisting of a strip of land 73 links wide, containing 2J acres, on the northern boundary of the place, the meandering center of which was Soldier creek, which counsel for defendant in error are pleased to describe as “a strip almost entirely in the bed of that classic stream, crooked as a ram’s horn, and as worthless as a lease on the shifting clouds.” This action was commenced by the plaintiff in error to enjoin the sale of the land levied upon by the sheriff, because it was alleged to be a part of the homestead, and therefore exempt from forced sale. The defendants below denied that the tract levied upon was a part of the homestead of the plaintiff. The case was tried by the court, and resulted in a general finding and judgment for the defendants. There were no special findings of fact.
It is earnestly contended by counsel for plaintiff in error that the land levied upon was not subject to sale upon execution ; that there had been no abandonment of the homestead, or any portion of it, by the debtor and his family. This involves a question of fact. That question'was submitted to the trial court and a general finding was made in favor of the defendants below. We are strongly impressed with the argument of counsel, and are inclined to the position taken by them upon the law of the case, but, unfortunately, the record is in such a condition that we cannot extend relief to the plaintiff in error. We cannot say there was an utter lack of evidence to support the general finding of the court. No special findings were asked or made by the court; so we only have the general finding and judgment of the trial court to guide us. We must adhere to the long-established principles and the numerous decisions of this court, that the general finding of the court trying the case includes in it every material fact necessary to sustain it, and that, where there is any evidence to support such general finding, a judgment based thereon cannot be disturbed by the supreme court.
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.:
This action was brought by Martin L. Sargent, who claimed he was an equitable stockholder in the Kansas Midland. Railroad Company, subsequently consolidated with the Lawrence & Topeka Railway Company, and thereafter known as the Kansas City, Topeka & Western Railroad Company, upon the following instrument, acceptance, and assignment:
“KANSAS MIDLAND BAILBOAD, OONSTBUOTION DEPABTMENT. GEOBGE D. CHAPMAN, OONTBAOTOB AND GENEBAL MANAGES.
“Topeka, Kas., July 1, 1874. “Kansas Midland Railroad Company, H. Bartling, President:
“Please deliver to T. J. Peter, trustee, 1,000 shares of the full-paid stock of the Kansas Midland Railroad Company, and oblige, Yours, etc., George D. Chapman.”
“Accepted: H. Bartling, president. 7-l-’74.”
“July 2, 1877, for value received, I hereby assign to Martin L. Sargent the within certificate for 1,000 shares of the Kansas Midland Railroad Company’s capital stock.
T. J. Peter, Trustee.”
Trial before the court without a jury, at the November term for 1886. After the evideuce was submitted and the arguments of counsel, the court took the case under advisement until the May term of the court for 1888; and on the 23d day of July, 1888, stated in writing its conclusions of fact and of law. After the case was brought to this court, Martin L. Sargent died, and on February 2, 1892, the case was revived in the name of John A. Sargent, as administrator of the estate of Martin L. Sargent, deceased. It appears that on the 2d day of December, 1868, the Lawrence & Topeka Railway Company was organized under the laws of the state, with a capital stock of $750,000, divided into 7,500 shares of $100 each, for the purpose of constructing and operating a railway from Topeka to Lawrence. On the 29th day of May, 1873, the Kansas Midland Railroad Company was organized to construct and operate a railroad from Kansas City, Mo., through the counties of Wyandotte, Johnson, Douglas, and Shawnee, to Topeka, in this state. On October 31,1874, certain creditors of the Lawrence & Topeka Railway Company and the Kansas Midland Railroad Company organized under the laws of the state “The Consolidated Railroad Construction Company,” for the purpose of paying the debts of the Lawrence & Topeka and Midland companies, and of constructing and completing a railroad from DeSoto, in this state, to Kansas City, Mo. On July 13,1875, the Kansas Midland Railroad Company and the Lawrence & Topeka Railway Company were consolidated as the Kansas City, Topeka & Western Railroad Company.
The stock which Martin L. Sargent claimed was a part of the stock issued to the construction company, which company afterward transferred it to F. H. Peabody, trustee for certain parties who had large interests in the Atchison, Topeka & Santa Fé Railroad Company. After the Kansas Midland and the Lawrence & Topeka companies were consolidated as the Kansas City, Topeka & Western Eailroad Company, this company issued its stock to an amount equal to the aggregated stock of its two constituent companies. Afterward, this company purchased all the stock of the construction company. In 1879, the shares of stock of the Kansas City, Topeka & Western Eailroad Company were exchanged for those of the Atchison, Topeka & Santa Fé Eailroad Company, share for share. Prior to the 14th day of July, 1873, the Lawrence & Topeka Eailway Company entered into a contract with Blush, Armil & Co. for the construction of its proposed railway from Topeka to Lawrence. On the 14th day of July, 1873, the Lawrence & Topeka Eailway Company executed and delivered to the Kansas Midland Eailroad Company a deed to its property, rights, and privileges. On the same day the Lawrence & Topeka Eailway Company, the Kansas Midland Eailroad Company and Blush, Armil & Co. mutually made, executed and delivered to each other their certain agreement in writing of that date, whereby the Kansas Midland Eailroad Company was to construct the railroad from Topeka to Lawrence, before that time contracted for by Blush, Armil & Co. The Kansas Midland Eailroad Company agreed to pay to the Lawrence & Topeka Eailway Company $35,-041.72, and to Blush, Armil & Co. the unpaid balance of the .claims and liens of the latter for work • done and materials furnished for the Lawrence & Topeka Eailway Company, amounting to $55,000, with interest at 12 per cent, from July 1, 1873; also, to pay and discharge the certain other claims against the Lawrence & Topeka Eailway Company, its officers and directors, amounting to $15,027.44, and to pay for right-of-way, expenses, etc. After the execution and delivery of the deed and written agreement of July 14, 1873, the Lawrence & Topeka Eailway Company had no property except the payments reserved to it.
On the 14th day of July, 1873, the Kansas Midland Eailroad Company entered into an agreement in writing with Geo. L. Chapman to complete the railway between the cities of Lawrence and Topeka, so partially constructed by Blush, Armil & Co., for the Lawrence & Topeka Railway Company, but conveyed to the Kansas Midland Railroad Company. Under this contract, Chapman was to fully complete and put in running order a railroad between Topeka and Lawrence, and, by a subsequent modification of the contract, the cars were to run regularly thereon by the 1st day of June, 1874; and when Chapman had fully performed all of the conditions of the contract upon his part, which said contract also included certain matters and things embraced in the tripartite contract of the same date between the Lawrence & Topeka Railway Company, the Kansas Midland Railroad Company, and Blush, Armil & Co., he was to receive in part pay 9,730 shares of the capital stock of the Kansas Midland Railroad Company. On the 29th day of May, 1874, Chapman had the railroad of the Kansas Midland Company constructed from the city of Topeka to a point within the city of Lawrence, and the cars running thereon regularly from June 1. Ata point about 500 feet east of the west limits of Lawrence, the building of the road was delayed by an injunction obtained by a land-owner, so that the road was not completed to the depot of the Pleasant Hill road until June 13, 1874, a distance of about one mile from the point above named. The railroad had no depot of its own at Lawrence or Topeka, nor at any other point on its line. It used, however, the Atchison, Topeka & Santa Fé depot at Topeka, and the depot of the Pleasant Hill road at Lawrence, after June 13, under lease with the respective companies owning them. The length of the line between the depots named was 26T6ff miles. Chapman was a member of the executive committee ■of the Kansas Midland Railroad Company from the 29th day •of May, 1874, until the 7th of November, 1874; and, soon ■after the cars were running on the road from Topeka to Lawrence, he was made the general manager of the Kansas Midland Railroad Company. On October, 1874, Chapman was heavily indebted, not only on the obligations assumed in the agreement of July 14, 1873, but to various persons and cor porations. He was financially embarrassed and unable to complete his contract.
It appears that “trustee” to Peter’s name in the order sued on was written by him for the reason that Martin L. Sargent, then the general freight agent of the Atchison, Topeka & Santa Fé Railroad Company, was jointly interested with him. When this action was brought, Martin L. Sargent owned three-fifths of the alleged cause of action, and Peter two-fifths. The trial court specially found that Chapman failed to carry out or perform the conditions of his contract of July 14,1873, with the Kansas Midland Railroad Company. " Upon all of the findings of fact, the trial court made the following 'conclusions of law:
“That Chapman was not, on July 1, 1874, or afterward, the owner of 9,730 shares of the full-paid stock of the Kansas Midland Railroad Company, a part whereof were included in the order sued on; that Mr. Bartling, as president of the company, had no authority to accept the order, and his indorsement thereon did not bind the company; that neither Martin L. Sargent nor his assignee, T. J. Peter, ever became the equitable owner of the 1,000 shares so attempted to be transferred.”
Subsequently judgment was rendered for the defendants for costs.
We think the conclusions of law of the trial court must be sustained. Chapman was not entitled to any stock of the Kansas Midland Company, excepting under the provisions of the contracts to which he was a party. The contract of the 14th of July, 1873, provided that —
“In case of a failure on the part of Chapman to do and perform the several matters and things, or any of them, by him agreed to be done in this agreement, and at the time or times hereinafter specified, then, and in that case, this agreement shall be and become null and void and of no effect, and the said parties shall be and remain as to all matters herein mentioned the same as if this agreement had never been made, and the said party of the second part hereby releases the said party of the first part from any claims for damages by reason of the same.”
This contract was further hedged about by the tripartite contract of the same date, which contained this provision:
“ The Kansas Midland Railroad Company further agrees, that no more than the sum of $5,000 of its capital stock, and no more than the sum of $450,000 of the first-mortgage bonds of said company shall be issued by said company until all and singular the obligations of this agreement, on the part of said parties of the second part, are fully fulfilled, carried out, and discharged.”
The contract of July 14, 1873, was attempted to be modified on March 6, 1874, but neither the Lawrence & Topeka Railway Company, nor Blush, Armil & Co., parties to the tripartite contract, signed or agreed to this modification. That modification contained this provision:
“In case Chapman shall fail to carry out and complete his contract, according to the terms and effects thereof, in all respects and as herein modified, or if the said Chapman shall fail to have said. railroad completed and the cars running thereon on or before the 1st day of June, 1874, then and in that case this agreement shall be null and void and of no effect.”
It is clear that Chapman did not perform all of the obligations he assumed under the contract of July 14,1874, even as modified. He neither paid the debts of the Lawrence & Topeka Company, nor Blush, Armil & Co., nor for the right-of-way. If Chapman had no legal or equitable right to any of the stock of the Kansas Midland Company on July 1, 1874, he could not transfer to Peter, or any one else, any stock in that company. His attempt so to do would not avail anything. At most, the action of Bartling, the president of the Kansas Midland Company, in accepting or indorsing the order of Chapman, would be only notice to the company of the claim of Peter, but would not be conclusive or binding. Under the modifications of the contract of July 14, 1873, Chapman might perhaps have been entitled to the stock in the Midland company, but those modifications were not signed by all the parties to the tripartite contract, and as that contract was a part of the original contract, any modifi cation of the original contract, changing in any way the terms <of the original or tripartite contract, would not, in the absence of the signatures of all the parties, be valid. We specially refer to the clause of the tripartite contract limiting the issuing of stock to the amount of $5,000 only, because at the 'date of the order sued on the Kansas Midland Company had issued 1,600 shares of its stock to the city of Topeka, 61 shares to sundry individuals, and 2,400 shares in trust as otherwise provided; therefore, at the date of the order, the Kansas Midland Company had issued more stock than the tripartite contract permitted. This clause referred to is found in the contract attached to and made a part of the amended and supplemental petition filed February 12,1888. The contract as therein recited is admitted by the answer. The. provisions of the contract therefore are not only admitted, but cannot be contradicted. The trial court in its findings of fact irefers to this contract and makes it a part thereof.
The proceedings to reverse the judgment of the trial court come here by a case-made. Not only are we bound by the allegations of the petition, which are admitted by the answer, Ibut even if these allegations are incorrectly copied the caseanade cannot now be amended or changed. We must assume tthat the pleadings as preserved in the case-made are correctly ¡recited. (Dowell v. Williams, 33 Kas. 319; Snavely v. Buggy Co., 36 id. 106; Lewis v. Linscott, 37 id. 379; Graham v. Shaw, 38 id. 734; Hill v. National Bank, 42 id. 364.)
We make these comments concerning the $5,000 limitation, Ibecause in the briefs and in some portions of the evidence offered $500,000 of capital stock is mentioned in the place of ;$5,000. But in view of the findings of the trial court, even iif $500,000 of capital stock were permitted to be issued, if all ¡the contracts had been complied with by Chapman, we do riot think the judgment can be reversed. The reasons for this are -manifold; sufficient are stated herein; others might be menitioned. After Chapman became financially embarrassed and failed to perform the contract of July 14, 1873, the Consolidated Railroad Construction Company was organized (as be fore stated), in October, 1874, by the creditors of the Kansas Midland and the Lawrence & Topeka companies, to pay the debts of those companies and construct the railroad which Chapman had commenced from De Soto to Kansas City. This company, on November 7, 1874, entered into a written contract with the Kansas Midland Railroad Company to carry out the purposes of its organization. If it performed the conditions of that contract it was to have “all of the stock of the Kansas Midland Company, all the bonds issued or to be issued by the company, and all the property and assets of the company in its possession or thereafter to be possessed by it.” Afterward, the stockholders of the Kansas Midland Railroad Company adopted the following resolution: “That'all the capital stock of the company, excepting that issued to the city of Topeka, in payment of its subscription, and one share each issued to the directors, be, and the same is hereby, turned over to the trustees of the Consolidated Railroad Construction Company, to be disposed of according to the terms of the agreement between the Kansas Midland Railroad Company and said company.” Before this time, at a special meeting of the board of directors of the Kansas Midland Company, it was unanimously resolved that the contract of July 14, 1873, with Chapman, to construct the Kansas Midland railroad, be annulled, on the ground that he had failed to carry out the stipulations of the same. N otice of this resolution was directed t© be served on Chapmau. It is not necessary to decide whether this special meeting was properly called. We only refer to ifc to show the claim of the Midland company that the contract of Chapman had not been complied with.
It is urged, however, that, as the Consolidated Railroad Construction Company, on the 2d of January, 1875, entered into a contract with Chapman for an assignment and transfer of his contracts with the Lawrence & Topeka Railway Company and the Kansas Midland Railroad Company, for which $5,000 was paid, and also agreed to perform the conditions therein mentioned, and as the construction company completed the railroad commenced by Chapman, and paid or discharger! all obligations assumed by him in the contracts, there was no forfeiture of the Chapman contracts, and therefore that the stock sued for was earned, if not by Chapman, by his assign or successor. But the contract between Chapman and the construction company contained this clause:
“And the said party of the first part (Geo. D. Chapman) covenants and agrees to and with the said party of the second part that he has not, either as contractor or general manager of the Kansas Midland Railroad Company, contracted or incurred any debts or liabilities in the carrying out of his said contract herein mentioned, or in the construction or management of the said railroad, and for which the said railroad company is or can be held liable, other and except such as are now noted in and standing upon the books of the Kansas Midland Railroad Company.”
The books of the Kansas Midland Company did not show the order to Peter, or that Chapman, or Peter, was entitled to 1,000 shares of stock. At the date of the order sued on, the Kansas Midland Railroad Company had issued 4,061 of its shares.
i. contract-asbmerns?tof While three or four of the stockholders of the construction company were informed of the existence of the order of Chapman to Peter of July 1,1874, they must also have known that at the date of the order Chapman had earned no stock and was not entitled to any stock. No notice of the order was given to the corporation, or to the persons named as officers of the corporation. When the construction company entered into the contract of January 2, 1875, Chapman was not entitled to the stock, nor was Peter entitled to the stock, because of the non-performance of the conditions of the contracts of Chapman. On the same day that the construction company obtained an assignment and transfer from Chapman of all contracts held by him with the Lawrence & Topeka and Kansas Midland companies, it also obtained from H. Bartling, the president of the Kansas Midland Company, by assignment in writing, his right, title and interest in the various contracts between Chapman and the railroad companies. It is possible that the construction company obtained the assignments and transfer of the contracts from Chapman and Bartling to purchase peace, or to relieve itself from all complications in performing its contract of November 7,1874, with the Kansas Midland Railroad Company. It is, under the facts disclosed, difficult to decide.
Chapman expended $8,000 a mile upon the road from Topeka to Lawrence. Its cost to him on May 29, 1874, when he quit work, was about $212,800. He received from Topeka bonds at 80 cents on the dollar, $128,000; from $450,-000 mortgage bonds, at 70 cents (price fixed in contract of February 28,1874), $204,800; total, $332,800. In addition! he was to have 9,730 shares of the capital stock of the Midland company, although the city of Topeka was thereby to be deprived of its 1,600 shares of stock, paid for with $160,000 of city bonds. The Atchison company expended on the line from Topeka to Kansas City about $15,000 to $20,000 per mile in putting it into suitable repair and condition for business. This shows better than anything else the manner the road was constructed by Chapman from Topeka to Lawrence. In view of the conduct of Bartling and Chapman and the sale of Bartling’s interest in the Chapman contracts, it is very probable that Bartling and Chapman had a secret arrangement or understanding, whereby Bartling, the president of the Midland company, had some interest in these contracts; therefore, very much might be said, if it were necessary, in condemnation of the contracts which Chapman had obtained. (Jackson v. Traer, 64 Iowa, 469; 52 Am. Rep. 449; Green’s Brice, Ultra Vires, 143; Port v. Russell, 36 Ind. 64; Mor. Corp., 2d ed., §§ 517, 520; Wardell v. Railroad Co., 103 U. S. 657; Railroad Co. v. Kelly, 77 Ill. 436; Ryan v. Railroad Co., 21 Kas. 365; Savings Bank v. Wulfekuhler, 19 id. 60.)
It does not benefit the plaintiff to urge, in defense of the Chapman contracts and the conduct of Bartling, that the contracts of the construction company with the railroad companies are also subject to censure. This is an action asking for the specific performance of a contract. The appeal for relief is to the equitable jurisdiction of the court, and proof that the de fend ants or their grantors have unclean hands will not cleanse those of a plaintiff, so as to compel the enforcement of a claim based upon transactions which the court cannot approve. If all the parties to a transaction are unclean, a court of equity will give relief to none. But it is immaterial, under all the findings, whether the construction company completed its railroad and paid the obligations which Chapman had assumed on account of its contract with the Kansas Midland Company of November 7,1874, or the contract with Chapman of January 2, 1875. The rule would be otherwise if, at the date of the order from Chapman to Peter, Chapman was then entitled to the stock. The construction company paid the debts of the Lawrence & Topeka and the Kansas Midland companies, and under both of the contracts with the Kansas Midland Qompany and Chapman it was entitled to the stock not actually issued. Chapman did not earn the stock according to his contracts. The construction company obtained the stock by doing and performing certain things, and, before it agreed to do and perform these things, Chapman expressly stipulated that he had not contracted or incurred any debts or liabilities excepting those found upon the books of the Midland company. What was subsequently earned by the construction company,' whether it was stock, money, or property, ought not, in fairness, to go to the benefit of Chapman or Bartling, or Peter or his assignee. Even if plaintiff below may make an equitable claim to any stock on account of the completion of the contracts of Chapman, by the construction company, a formidable obstacle, however, forbids its enforcement, in an action of this kind.
Upon the trial, L. K. Thacher, of Kansas City, Mo., who was president of both of the railroad companies organized for the purpose of constructing a railroad from Kansas City, Mo., .to De Soto, in this state, and who was also one of the trustees having charge of $100,000 of bonds of Kaw township, in Jackson county, Mo., voted to secure the Atchison Railroad Company, testified:
“Kaw township, in Jackson county, Mo., proposed to vote bonds for the purpose of building a railroad to make a connection with the Atchison, Topeka & Santa Fé railroad, and according to our laws the bonds could not be voted to a corporation outside of the state; hence it became necessary to organize a company to build the line from Kansas City to the state line; and the bonds were voted to that corporation; and then to procure the line to De Soto from the state line the other corporation was organized. The vote, I think, was in 1872 or 1873.
“Q,. What was the amount voted? A. $100,000. . . . All my conversation and intercourse with Mr. Peter was with him as representing the Atchison, Topeka & Santa F6 Railroad Company. It was not my first acquaintance with him. He knew, of course, as I had frequently stated to him, that our people would not be satisfied with any arrangement that did n’t result in bringing the Atchison into Kansas City; and we did not dare to deliver the bonds to any company that did n’t secure us that connection with the Atchison. We were afraid that, if we gave the contract to the Carbondale people, we would be sold out to the Union Pacific, or the Kansas Pacific. I naturally felt somewhat anxious about the matter, because I knew that if we failed to get the connection with the Atchison, and fell into the hands of the Kansas Pacific, our people would hold us responsible for it. That was why we sought Mr. Peter and the other gentlemen of the Atchison company.
“Q. Did anybody suggest to you to go and see him? A. If anybody did it was Mr. Chapman.
“Q,. Would you have sought Mr. Peter and had interviews with him upon the subject if you had not understood him to be an officer and representative of the Atchison, Topeka & Santa Fé Railroad Company? A. I should not.
“ Q,. Did you know at that time that Mr. Peter was an officer of the Atchison, Topeka & Santa Fé Company? A. I think he was an officer.”
George D. Chapman, among other things, testified that—
“After the completion of the Kansas Midland railroad from Topeka to Lawrence, I found that the Atchison road was not inclined to cooperate in any way with the road, and as I had been led to suppose it would, from statements made to me by C. K. Holliday, who was a director in the Atchison, as well as a director in the Kansas Midland road. According to my best recollection, I was then the general manager of the Kan sas Midland Company and T. J. Peter was a director in the Atchison company. I also understood that Peter was the confidential agent of the Atchison company in the purchase of mineral lands; in the investigation of the advisability of building branch lines; in the acquirement of rights-of-way for any extensions anticipated; and while I had understood he had resigned as general manager of construction, I had been led to believe, by conversation with D. L. Lakin and C. K. Holliday, that he was really the confidential agent for the Atchison company. He held a very large stock interest in the company and a large landed interest along its line. . . . I found upon investigation that there had been voted by Kaw township, in Missouri, $100,000 of bonds in aid of the construction of a line of road from De Soto to Kansas City, and that these bonds had been placed in the hands of Major Thacher and Mr. Hunt as trustees. I opened negotiations with these gentlemen, endeavoring to get them to agree that they would turn over these bonds to me on the completion of such a road. They refused, on the ground that they were holding the bonds for the purpose, through the medium thereof, to get the Atchison road to build into Kansas City, and they would not give up such bonds until they made such arrangement. I then went to Mr. Holliday and endeavored to get him to assist me in inducing the gentlemen in Kansas City to turn the bonds over to me, and to go down there and satisfy them that if this road was completed it really meant the building of the Atchison road, and that by aiding in building the road they would acquire what they wanted. Mr. Holliday stated that he had no influence with these gentlemen, and that the best man to bring about such an arrangement was Mr. Peter. I then requested Mr. Peter to go, or requested, I think, Mr. Holliday to use his influence with Mr. Peter to get him to go. Mr. Peter said ‘ he would go there and explain to them what I was endeavoring to carry out, and give them his views in regard to the ultimate outcome, and the position of the Atchison, Topeka & Santa Fé road in the matter, if I would give him 1,000 shares of stock.’ I agreed to this, and told him ‘I would give him the stock when I got the bonds.’ He wanted some evidence of my being willing to carry out this arrangement, and asked me to give him an order for the stock, which I did. I never got the bonds. In my transfer of my interest to the Consolidated Construction Company, I made no reservation of this order, because its consideration was never received by me. Mr. Peter, as an officer of the Atchison company, had of course influence with the Kansas City people, and it was because both he and Holliday were such officers that I talked with them.”
Upon the foregoing and' other evidence, the trial court found that at the time Peter obtained the order sued on he was a stockholder and director of the Atchison Eailroad Company, and had so been from 1868, and had been general manager up to April, 1873. At this time the Atchison company had no connection with Kansas City by any railroad of its own, but was seeking such connection, and it was the desire of Chapman to persuade the itchison company to use the Kansas Midland road in making such connection. Chapman was also building the link in the Kansas City connection between Kansas City and De Soto Junction, on the Pleasant Hill road, and from that junction the Pleasant Hill road extended westwardly to Lawrence. Kaw township, in Jackson county, Missouri, (which included Kansas City,) had voted $100,000 bonds to a local company to secure the Atchison connection at Kansas City, and the parties holding these bonds in trust would not permit them to go in any other direction, nor to any company that did not have the approval of the Atchison company. Chapman was desirous of procuring these bonds, and made several overtures to the Kansas City trustees holding them. Learning, however, that the trustees holding these bonds were willing to accept the statements of Peter as to the intentions and purposes of the Atchison company, and understanding that Peter was the managing agent of that company, and influential in determining its policy, he proposed to Peter to go to Kansas City and procure the trustees to turn over the bonds to the Kansas Midland Company, of which he, Chapman, was the general manager. The trustees also understood that Peter was a director and agent of the Atchison company and authorized to speak for it, and were willing to act upon his representations as to what that company proposed to do in the premises. Thereupon Chapman applied to Peter to assist him in such negotiations, and to make such representations of the purpose of the Atchison company with respect to a connection with Kansas City as would satisfy .the trustees and induce them to turn over the bonds to Chapman. Peter consented to do this, on condition that Chapman would give him 1,000 shares of stock in the Kansas Midland Company, and to-this Chapman agreed.
Before proceeding to Kansas City, however, to enter upon the negotiations, Peter applied to Bartling, the president, to know whether he would accept the order and issue the stock,- and Bartling promised to issue the stock, “if he, Peter, could do for Chapman what he had promised.” Peter then went to Kansas City and made such representations to the trustees holding the bonds as satisfied them that the Atchison company would adopt the Kansas Midland railroad as a part of its line in case it should be completed as contemplated. The trustees understood and believed at the time, and Peter intended that they should understand and believe, that he was speaking as the representative of the Atchison company, and they were thus induced to consent and agree to the contract. The Kaw township bonds had been voted to a local Missouri corporation called the Kansas City, Lawrence & Topeka Railway Company, which was under the control of the same trustees who controlled the bonds, and thereupon the Kansas City, Lawrence & Topeka Railway Company, so induced by Peter, entered into a contract with the Kansas Midland Company to construct the entire line between De Soto Junction and Kansas City, Mo., in consideration of the Kaw township bonds and certain stock of the local company. This contract was dated June 11, 1874, is signed by George D. Chapman, general manager for the Kansas Midland Company, and by the proper officers of the other company. By its terms the road was to be completed October 1, 1874, and the bonds were not to be delivered until the road was so completed, and cars running thereon. Upon the execution and delivery of this contract, Chapman, in consideration of Peter’s services in th.e negotiations as above stated, executed and delivered the order for 1,000 shares of Kansas Midland stock, and there was no other consideration for this order.
Upon the findings of the court and the evidence referred to, if Peter deceived or misled Chapman or Thacher and Hunt, the trustees in Kansas City, as to his power or influence with the Atchison Railroad Company, then the order . _ _ - . sued on was obtained by iraud, and the contract cannot be enforced in equity. If, on the other hand, Peter was using his influence as a director or agent of the Atchison company, he could not speculate upon his fiduciary relations. The relation between the directors of a corporation and its stockholders is that of trustee and cestui que trust. The directors are persons selected to manage the business of the company for the benefit of the shareholders. It is an office of trust, which, if they undertake, fit is their duty to perform fully and entirely. No director of a railroad company or any other corporation can use his official position to secure a personal advantage to himself. A contract made by a director under such circumstances is either void or inures .. _ . , , to the benefit of the corporation of which he is an officer. (19 Eng. L. & Eq. 361-365; same case, 16 Beav. 485-491; Scott v. Depeyster, 1 Edw. Ch. 513; Verplanck v. Insurance Co., 1 id. 46; Railway Co. v. Poor, 59 Me. 277; Bestor v. Wathen, 60 Ill. 138; Ryan v. Railway Co., 21 Kas. 365.)
The objection to the evidence introduced'showing that the order from Chapman to Peter for stock was not for labor or service is not tenable. The petition, as amended, alleged that the consideration of the order sued on was for labor and services. This was denied generally and also specifically. The court, therefore, committed no error in permitting the transactions between Bartling, Peter, and Chapman, concerning the order for the stock, to be fully disclosed to establish that the consideration therefor was not for labor or services, within the terms of the contracts between Chapman and the railroad companies.
The judgment of the district court will be affirmed.
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Opinion by
Simpson, C.:
This is an original proceeding in mandamus, instituted by the Hutchinson & Southern Railroad Company, to compel the board of county commissioners and county clerk of Kingman county to issue the bonds of Rich-land township, in Kingman county, in the sum of $13,000, to the plaintiff. These bonds were voted by Richland township on the 27th day of November, 1889, to the Omaha, Hutchinson & Gulf Railway Company, under the laws of the state of Kansas, as aid to such company in the construction of its railroad through Richland township. The Hutchinson & Southern Railroad Company, having purchased the railroad property, real and personal, and all the rights, privileges, franchises, etc., of the Omaha, Hutchinson & Gulf Railway Company, now claims these bonds as such purchaser and assignee. The defendants claim that the plaintiff is not now entitled to such bonds, and ought not to prevail in this suit, for four reasons: First, because the petition on which the bond election of November 27,1889, was held did not contain two-fifths of the resident tax-payers of Richland township; second, because the notice of the election was defective; third, because the Omaha, Hutchinson & Gulf Railway Company sold out to the Hutchinson & Southern Railroad Company, and the Hutchinson & Southern Railroad Company could acquire no right to such bonds under such sale; fourth, that no demand was made on defendants by plaintiff for the bonds before suit was brought.
Plaintiff contends that two-fifths of the resident tax-payers of Richland township did sign the petition on which the election was called; that due and proper notice of such election was given, but that if the notice was defective, it was an irregularity which was cured by actual notice to the voters of the township, and a very full vote; that the plaintiff has the right to demand the bonds as purchaser from the Omaha, Hutchinson & Gulf Railway Company; that proper demand, oft repeated, was made by plaintiff for the bonds, which was as often refused; that even if two-fifths of the resident taxpayers of Richland township did not sign the petition on which the bond election was called and held, defendants are now estopped from raising any such question.
The original writ in this cause contained the averments that, on the 18th day of October, 1889, a petition (which is fully set out in the writ), signed, by more than two-fifths of the resident tax-payers of Richland township, was presented to the board of county commissioners of Kingman county, praying that such board call an election for the purpose of submitting to the voters of Richland township the question of voting aid to the Omaha, Hutchinson & Gulf Railway Company; that said board duly considered said petition in special session, and determined and found that said petition was signed by two-fifths of the resident tax-payers of Rich-land township, called the election prayed for in said petition, to be held in Richland township on the 27th day of November, 1889, and ordered the sheriff of Kingman county, Kansas, to give due notice thereof; that said sheriff did give due notice of such election, by proclamation duly published, etc.; that all the voters of said township also had actual notice of such election and attended the polls on the 27th day of November,
1889, and voted, without exception, at said election; that a large majority of such voters voted for the bonds; that the board of county commissioners of Kingman county duly canvassed the returns of said election and declared the result to be that a majority of the votes polled at said election were in favor of the issuance of the bonds, and ordered the county clerk of Kingman county to subscribe to the capital stock of the Omaha, Hutchinson & Gulf Railway Company, for and in behalf of said Richland township, in the sum of $13,000, the amount voted at said election, and that said county clerk did duly make its subscription, as ordered by the board of county commissioners. It is also shown that the railroad was completed through the township on the 27th day of May, 1890, in accordance with the terms of the subscription. The election resulted in favor of the subscription, by a vote of 73 for and 40 against. This action was commenced on the 6th day of December, 1890. Other facts that may be material will be noticed hereafter.
The petition of the resident tax-payers presented to the board of county commissioners, praying that an election be. ordered, recites that “We, the undersigned, your petitioners, being two-fifths of the resident tax-payers of the municipal township of Richland, Kingman county,” etc. The board of county commissioners, in ordering the special election, entered on their journal this statement, to wit:
“And having examined said petition, find that the same was in due form, and was duly signed by more than two-fifths of the resident tax-payers of said Richland township, and being regular in all other respects, and the said county commissioners being so satisfied, do so find.”
The second, third and fourth defenses relied upon by the respondent township are not good, for various reasons. The objection that the notice of election was defective is met by the showing in the record that every legal voter in the township except one attended the election and cast his vote, and hence had knowledge of the time and place at which the election was held. The third defense, “because the Omaha, Hutchinson & Gulf Railroad Company sold out to the Hutchinson & Southern Railroad Company, and the latter company could acquire no right to the bonds under such sale,” is met by the decisions of this court in the eases of A. C. & P. Rld. Co. v. Comm’rs of Phillips Co., 25 Kas. 261 ; S. K. & P. Rld. co. v. Towner, 41 id. 72; Bates Co. v. Winters, 112 U. S. 325; Scotland Co. v. Thomas, 94 id. 682; and ¶ 1269, Gen. Stat of 1889. The fourth defense, that no demand was made by the plaintiff of the defendants for the bonds before the suit was brought,.is disposed of by evidence contained in the record.
It seems to us, regarding the legal effect of the recitations in this record, that the petition for the election declares on its face that the signers thereof are resident tax-payers; that the board of county commissioners found and determined that the petition was good, and contained the names of two-fifths of the resident tax-payers of the township of Richland; that the election was ordered by reason of that finding and determined by the board; that the election was held, the votes canvassed, and the result declared, and that all this was done without objection or protest from any of the citizens of that township; that the relator presents at least a very strong prima facie case for the allowance of the peremptory writ, so strong, in fact, that if the writ cannot be granted, it must be that it is because the township has made such a strong showing that the petition was- defective, by reason of not being signed by the requisite number of resident tax-payers, as to completely overcome the prima fade case. And in relation to this question, some other facts, and some very strong inferences arising from the record, very vigorously reinforce the prima fade showing made by the relator. The tax-roll of that year is introduced in evidence, and this shows that the number of resident tax-payers in the township of Richland was about 70. This tax-roll was made by the township trustee before any proposition for railroad aid was discussed, or, so far as we know, even thought of, and is therefore free from any suspicion that it was made either in the interest of or adverse to such a proposition. Again, the ■evidence discloses that there were two factions in the township, and that the resident tax-payers were besieged both in favor of and against signing the petition calling for an election; that the attention of the entire population of the township was called to the subject, and that there was an earnest and determined •effort made by both-factions; and yet we find that the insufficiency of the petition is first alleged after demand is made for the issue of the bonds. These things are so entirely inconsistent with the claim now made of the insufficiency of the petition, that great weight should be given them.
The writer of this opinion has read somewhat carefully the voluminous mass of evidence taken on both sides of this question, and is inclined to the opinion that upon the whole record the petition is sufficient, but the decision of this case is based upon other facts that are indisputable. Many of these facts have been already referred to, and as they are thoroughly established by the evidence, or stated by both parties in such a manner as to be taken for granted, and as some others are asserted and not disputed, they are to be accepted as controlling. We allude to certain facts, independent of the petition for the election, such as the efforts of one party to secure, and the other to prevent, the required number of resident tax-payers to sign the petition; the presentation of the petition to the board of county commissioners; its allowance; the findings and determination of the board with respect to its form and legality; the holding of the election and almost unanimous participation ■of the electors of the township in that election; the canvass and declaration of the result; the subscription of the stock by the county clerk, as authorized by a resolution of the county board; the acceptance of that subscription by the railroad company; the construction and operation of the railroad in accordance with the terms of the subscription; the acceptance and retention by the township treasurer of the amount of capital stock of the railroad company authorized by the subscription. It also appears from the evidence that in consideration of the subscription of Richland township the railroad company adopted a route through the township that required them to make a bend after leaving a village in said township called 4t Cleveland,” and to turn due east near a certain half-section line t.o a certain point near the center of the township, and then to turn due south and follow a half-section line to near the southern boundary line of the township, and that this made nearly a right angle in the road; that the arrangement as to route was made to satisfy the people of the township; that the company agreed to locate two depots in the township, one at Cleveland and one in the center of the township. The township is only six miles square. The company also agreed to put in two side-tracks. The route was changed from the original intention of the company on account of the subscription of this township; the route adopted by virtue of the subscription was from one and a half to two miles longer and more expensive than the original route adopted by the company; the route through Richland township finally adopted and built and operated would not have been chosen if it had not been influenced and controlled by the expectation of the company to receive the $13,000 aid voted by the township. The road was built through the township on a minimum grade of one foot to the 100, with compensation for all curves. First-class ties were used, 2,640 to the mile, and same number and class in all side-tracks on the main line. First-class steel rails, weighing 60 pounds to the yard, were laid on the main line and all sidetracks, manufactured at the Alleghany Bessemer Steel Works. The most approved splice bars — the Sampson splice bars— and Tudor bolts and spikes, were used. The switches were the best that could be bought, and everything connected with the construction was first class. The road is well drained, and, in a word, is a first-class one, and has complied in all respects with the terms of the subscription.
Under this state of facts, can the municipal township urge as a defense to this action that the petition presented to the board calling for an election did not contain the names of two-fifths of the resident tax-payers of the township, and that the finding and determination of the board that it did was incorrect, as a matter of fact, aud that therefore the contract of subscription was void for want of power on the part of the board to make it ? Every prerequisite of the law affirmatively appearing upon the records to have been complied with, is not the township estopped under all the circumstances of this case from denying the illegality of the petition calling the election ? It has been held by this court, in the case of Sleeper v. Bullen, 6 Kas. 300, that—
“ Where a petition for grading a certain street appears to be good on its face, and the city council of the city decides and declares that it is good, and makes a contract under it, and after the grading has been done, and the city has levied a special tax to pay for the same, the city is estopped from denying the validity of its contract, or of denying its liability to the contractors for the grading.”
The authorities quoted to sustain this part of the opinion are the cases of Louisville v. Hyatt, 5 B. Mon. 199; Bissell v. Jeffersonville, 24 How. 287; Kearney v. Covington, 1 Metc. (Ky.) 339; Swift v.Williamsburgh, 24 Barb. 427. Later, it is said by this court, in the case of Stewart v. Comm’rs of Wyandotte Co., 45 Kas. 708 :
“A land-owner who voluntarily invokes for his benefit the provisions of chapter 214, Laws of 1887, for the purpose of improving a county road contiguous to his land; signs, circulates and presents a petition under the provisions of that statute to the board of county commissioners and asks for the improvement subsequently made; lives in the immediate vicinity of the improvement during its entire progress; is present upon the work at different times; knows that the petition is insufficient under the statute; and the improvement greatly enhances the value of his property, much in excess of any tax or assessment attempted to be imposed, is not entitled to an injunction to restrain the collection of such tax or special assessment, although the improvement is made without any authority whatever. A party cannot invite and encourage a wrong and then ask a court of equity to protect him by an injunction from the consequences of that wrong.”
This is supported by Sleeper v. Bullen, supra; Lee v. Tillotson, 24 Wend. 337; Ferguson v. Landram, 5 Bush, 230; and Daniels v. Tearney, 102 U. S. 415; and this case cites Elliott, R. & St. 422; The State v. Mitchell, 31 Ohio St. 592; Burlington v. Gilbert, 31 Iowa, 356; Motz v. Detroit, 18 Mich. 526. See, also, Brown v. Atchison, 39 Kas. 37. These cases cited from our own court, as well as the supporting ones, go to the extent that, even when the municipality has no power to make the improvement, the lot-owner may, by his own acts, be es-topped from asserting that want of power; and some of the supporting cases hold that where a party has availed himself of the benefits of an unconstitutional law he cannot, in a subsequent litigation with others not in that position, aver its unconstitutionality as a defense. We cite these cases to establish the general rule that courts will carry the doctrine of estoppel to great lengths in the interests of justice, because it has its foundation in a wise and salutary policy. It promotes fair dealing, and often gives triumph to right and justice where no other principle known to our jurisprudence can secure these ends. It is a conservator; and without its frequent operation vast public and private enterprises would be paralyzed. The strength of this principle of estoppel has been held sufficient to overcome jurisdictional defects in proceedings of this kind, as in the case of Prettyman v. Tazewell Co., 19 Ill. 406, where it was alleged that the petition did not contain the requisite number of signatures, and there was not a majority of legal voters in favor of the proposition. Also, in the ease of C. D. & V. Rld. Co. v. Coyer, 79 Ill. 376, where the petition was insufficiently signed; and in the case of B. C. R. & N. Rld. Co., v. Stewart, 39 Iowa, 267, where the notice of the election was insufficient; and in Packard v. Jefferson Co., 2 Colo. 336, where the election was called at an illegal meeting of the board. In the last case, the court held that the proceedings were without jurisdiction and void, but that the action of the board at a subsequent regular meeting having treated the proceedings as valid, they were thereby ratified and validated. In the-case of Mills v. Gleason, 11 Wis. 490, the court says:
“That a subsequent ratification will render valid acts thát ' in point of strict law were unauthorized when they were done,, is a familiar rule in the case of individuals.”
And the court held that it was equally applicable in that, case to estop a city from denying the validity of certain bonds.. And in the case of Kneeland v. Gillman, 24 Wis. 39, the court,, speaking of municipal corporations, says:
“As to matters within the scope of their power, the doctrine-of estoppel applies; and that agreements in their behalf maybe ratified by acquiescence and accepting the benefits of them, with knowledge of the facts, is as well settled as in the case-of natural persons.”
And further, in the same opinion:
“If all this was done with the knowledge of the common council, and it took no action to express any dissent or to prevent its agents from making the agreement, it is as clearly bound as though it had formally authorized the whole by express act.”
This case is expressly affirmed in Houfe v. Town of Fulton, 34 Wis. 618, which is another strong case in support of this doctrine.’ See, also, Curnen v. City of New York, 79 N.Y. 511. In the case of Peterson v. Mayor of New York, 17 N. Y. 449, 453, Judge Davis said: “This ratification may be by acts or-conduct inconsistent with any other supposition than that it intended to own and adopt the act as its own.” See, also,. Story, Agency, § 253; Dill., Mun. Corp., § 385; Argenti v. San Francisco, 16 Cal. 255; People v. Swift, 31 id. 26; Hooper v. Bank of Rochester, 30 N. Y. 83; Hoyt v. Thompson, 19 id. 208; Supervisors v. Schenck, 5 Wall. 782; Hart v. Stone, 30 Conn. 94; Howe v. Keeler, 27 id. 538; Emerson v. Newbury, 13 Pick. 377; Hodges v. Buffalo, 2 Denio, 110; Dubuque, etc., v. Township, 13 Iowa, 555; Detroit v. Jackson, 1 Doug. (Mich.). 106; Merrick v. Plank-Road Co., 11 Iowa, 47; Herman, Estop., § 554; Burlington v. Gilbert, 31 Iowa, 357; Cross v. City of Kansas, 90 Mo. 13; Moore v. Mayor, 73 N. Y. 238;. Markle v. Clay Co., 55 Ind. 185.
This court has laid down this doctrine of ratification in the strongest terms. In the case of The State, ex rel., v. Comm’rs of Pawnee Co., 12 Kas. 426, 439, the court says:
“ It is a general principle of almost universal application, that whenever a state, county, corporation, partnership or person has power originally to do a particular thing, it also-has the power to ratify and make valid an attempted effort to do such thing, although the same may have been done ever só defectively, informally, and even fraudulently, in the first instance. This principle is so elementary in its nature as to-require no citation of authorities to uphold it.”
Upon the strength of this principle, municipal corporations-•have been estopped from denying their liability to pay for benefits received, in some cases, where there was no contract at all; in others, where there was an absence of power even to-make the contract. (City of East St. Louis v. Gaslight Co., 98 Ill. 415; Gas Co. v. San Francisco, 9 Cal. 469; Hitchcock v. Galveston, 96 U. S. 341.) In the last case the supreme court says: “ Having received the benefits at the expense of the other contracting party, it [the city] cannot now object that it was not empowered to perform what it promised in return”' — citing numerous cases in support of this proposition.
This court has recognized the rule that requires prompt action on the part of the plaintiff in cases of this kind. In the case of Comm’rs of Morris Co. v. Hinchman, 31 Kas. 736, this court says:
“ It is a well-established rule in equity, that if a party is- guilty of laches or unreasonable delay in the enforcement of his rights, he thereby forfeits his claim to equitable relief. Under this rule,” says Chief Justice Horton, “it was decided that an injunction will not be granted to restrain the payment of money illegally voted by a town, if the petitioners had been guilty of gross laches, and knowingly have permitted others to incur liability in good faith, .relying upon such appropriation for reimbursement.”
Citing Tash v. Adams, 64 Mass. 252. See also Thomas v. Woodman, 23 Kas. 217; Ritchie v. City of South Topeka, 38 id. 368; same case, 16 Pac. Rep. 832.
As said by the court in the case of Kellogg v. Ely, 15 Ohio St. 67: '
“ When the first spade had been thrust into the earth in the execution of the pontract, before the contractors had expended any money or the laborers any sweat, then, if ever, was the remedy by injunction open to plaintiff below; but he did not invoke it. It does not appear from the record that he ever warned the contractors or laborers that he intended for himself to resist the collection of the assessment which must follow to raise the money to pay them, but, remaining inactive and silent until his swamp lands were drained by a ditch of nearly a mile in length, he then, for the first time, asks the interposition of a court of equity. We think he comes too late.”
See also Chapman v. M. N. & L. E. Rld. Co., 6 Ohio St. 137; The State, ex rel., v. Van Horne, 7 id. 327; State v. Union Township, 8 id. 394; Goshen Township v. Railroad Co., 12 id. 624; The State, ex rel., v. Goshen Township, 14 id. 569; Comm’rs of Knox Co. v. Nichols, 14 id. 260. Judge Redfield, in his work on Railways, vol. 2, 5th ed., p. 388, says:
“The right to interfere by injunction is one that should always be asserted on fresh suit, or it will be regarded as voluntarily waived and lost by acquiesence.”
Citing numerous authorities in support of the proposition.
In 2 Herman on Estoppel, § 1221, the author says:
“If a party is guilty of laches or unreasonable delay in the enforcement of his rights, he thereby forfeits his claim to equitable relief. This rule is more especially applicable to cases where a party, being cognizant of his rights, does not take those steps to assert them that are open to him, but lies by and suffers other parties to incur expenses and enter into engagements and contracts of a burdensome character.”
Mr. Daniell, in his Work on Negotiable Instruments, (vol. 2, § 1536,) in speaking of the voting of bonds and the subscribing of stock by municipalities to aid in the building of a railroad, says:
“ The tax-payers of the municipality may also enjoin the proceeding of the corporate authorities to carry out the subscription, on the ground of fraud, bribery, non-fulfillment of preexisting conditions, or other sufficient cause, but they must do so, if at all, in apt time, and before the rights of bona fide third parties have accrued.”
In Brown v. Kramer, 25 N. W. Rep. 356, the supreme court of Nebraska says:
“A tax-payer who seeks to enjoin the payment of money for the erection of a public bridge, which he claims is being constructed in violation of law, must act with reasonable promptness. If he is guilty of gross laches, and knowingly permits. the contractor to incur liabilities in good faith in the construction of the greater part of the work, an injunction will be denied.”
See also Lamb v. B. C. R. & N. Rld. Co., 39 Iowa, 333, where it was held that because the plaintiff had delayed his action until the railroad was completed (as in this case) he was estopped; and in B. C. R. & N. Rld. Co. v. Stewart, 39 id. 267, where the election notices were insufficient, the same principle was applied. In the case of Prettyman v. Tazewell Co., 19 Ill. 406, it was held that a delay of four months after the election was fatal to plaintiff’s right to enjoin the issue of the bonds; that “the presumption was that rights had been acquired and liabilities incurred on the faith of the bonds that would make it inequitable to restrain their issue.” The same principle was recognized in later cases in the same court. (See Johnson v. Stark Co., 24 Ill. 90; Butler v. Dunham, 27 id. 474; and The People, ex rel. v. Cline, 63 id. 394; C. D. & V. Rld. Co. v. Coyer, 79 id. 376.) In the Tazewell county case, the supreme court of Illinois held, where it was alleged that hundreds of illegal votes were east, and that-there was not a majority of the legal voters in favor of the subscription, that proceedings of this kind are binding until impeached, and that they —
“Might be impeached, ... by establishing a proper case in apt time; but justice and reason would alike prohibit a party, after acquiescing until' the road should incur liabilities, acquire credit, etc., on the faith that these bonds would issue, from i hi peaching the election and enjoining them from issuing.”
And the same doctrine has been recognized and affirmed in later cases in that state. (Johnson v. Stark Co., 24 Ill. 90; Marshall Co. v. Cook, 38 id. 48, 51; The People, ex rel., v. Supervisors of Logan Co., 63 id. 374; The People, ex rel., v. Cline, 63 id. 394. See, also, Railroad Co. v. Town of Chatham, 42 Conn. 465; Gilmore v. Fox, 10 Kas. 509, 512; Kellogg v. Lorain Co., 15 Ohio, St. 64; Chapman v. Railroad Co., 5 id. 127, 137; Olapp v. Cedar Co., 5 Iowa, 15; Markle v. Clay Co., 55 Ind. 188.)
The settled policy of this state, both by legislative enactment and judicial expression, is that before the agents of a municipality are authorized to subscribe aid for such public improvements as railroads, they are required to be authorized so to do by the public in the manner provided by statute. (Township v. Sumner Co., 25 Kas. 519.) The preliminary steps required by law, such as a petition signed by two-fifths of the resident tax-payers, an election, and a majority vote, are steps in the creation of that authority, and are steps with which the railroad company necessarily has no connection. (L. L. & G. Rld. Co. v. Davis Co., 6 Kas. 256.) Whether these steps have been legally taken is a question that must be determined by the board of county commissioners, who are public agents to whom the determination of many other important questions is confided. Under the terms of our statute, no other tribunal or authority could determine whether a sufficient petition had been presented, or whether there was a majority vote cast for the subscription. When the' board acted, and determined in favor of the subscription, and ordered the county clerk to make it, and it was accepted by the railroad company, then for the-first time was there a contract which necessarily required action by the railroad company. Up to this point, all the proceedings affirmatively show on their face that every requisite of the-statute had been complied with; and now we quote largely from a case already cited, that of Bissell v. City of Jeffersonville, 24 How. 287 — a decision of the supreme court of the United States, decided so long ago, and followed so often, that it is now not assailable. If it should be said that this was a case in which innocent third persons were the holders of the bonds sued upon, the reply is, and it is a patent one, that the-court considered the case from the stand-point of the railroad-company’s rights. The court says:
“Having ascertained and determined that three-fourths of the legal voters -had petitioned, they adopted the resolution reported by the committee, and entered into the contract with the railroad company. Clearly, therefore, the common council had contracted the obligation to take the stock; and, in case of refusal, would have been liable in damages for a breach of the contract. . . . It is insisted by the plaintiffs that the defendants had no right to disprove the verity of their own records, certificates and representations concerning the facts necessary to give validity to the bonds. On the other-hand, the defendants controvert that proposition, and insist, that it was competent for them, under the circumstances, to-prove, by parol testimony, that the records given in evidence-did not speak the truth, and that, in point of fact, three-fourths, of the legal voters had not petitioned, as required by the charter. . Unless three-fourths of the legal voters had petitioned, it is clear that the bonds were issued without authority, as by the terms of the explanatory act it could only apply to a case where the common council of a city had contracted the obligation or liabilities therein specified upon the petition of three-fourths of the legal voters of such city; and if no such petition had been presented, or if it was not signed by the requisite number of the legal voters, the law did not authorize the common council to ratify and affirm the subscription. The fact, however, had been previously ascertained and determined by the board to which the petition was originally addressed.
“After the explanatory act was passed, the common council- were fully authorized to revise the finding of the former board; and if it did not appear, upon inquiry and proper investigation, that it was correct, it was their duty, as the representatives of the city, to have refused to ratify and affirm the contract for the subscription. Such an inquiry might have been made through the medium of a committee, as it had been when the petition was presented, or in any other mode satisfactory to the board which would enable them to ascertain the true state of the case. By the terms of the explanatory act they were authorized to ratify and affirm its subscription, if the obligation or liability incurred had been contracted on the petition of three-fourths of the legal voters of the city; and, of course, the necessary implication is, that they must be satisfied that the requisite number had petitioned. . . . Whether three-fourths of the legal voters had petitioned or not, was a question of fact; and if not ascertained and conclusively settled before the bonds were issued, it would remain open to future inquiry, and might be determined in the negative; and clearly the common eonncil could not lawfully ratify and affirm the subscription unless that proportion of the legal voters had petitioned; and without such ratification the bonds would be invalid. Beyond question, therefore, that construction must be rejected.
“Jurisdiction of the subject-matter on the part of the common council was made to depend upon the petition, as described in the explanatory act, and of necessity there must be some tribunal to determine whether the petitioners whose names were appended constituted three-fourths of the legal voters of the city; else the board could not act at all. None other than the common council, to whom the petition was required to be addressed, is suggested, either in the charter or the explanatory act, and it would be difficult to point out any other, sustaining a similar relation to the city, so fit to be charged with the inquiry, or one so fully possessed of the necessary means of information to discharge the duty. Adopting the language of this court in the ease of Comm’rs of Knox Co. v. Aspinwall, 21 How. 544, we are of the opinion that 'this board was one, from its organization and general duties, fit and competent to be the depository of the trust confided to it.’ Perfect acquiescence in the decision and action of the board seems to have been manifested by the defendants until the demand was made for the payment of interest on the loan. So far as appears, they never attempted to enjoin the proceedings, but suffered the authority to be executed, the bonds to be issued, and to be delivered to the railroad company, without interference or complaint.
“When the contract had been ratified and affirmed, and the bonds issued and delivered to the railroad company in exchange for the stock, it was then too late to call in question the fact determined by the common council, and, a fortiori, it is too late to raise that question in a case like the present, where it is shown that the plaintiffs are innocent holders for value.
“Duly-certified copies of the record of the proceedings were exhibited to the plaintiffs at the time they received the bonds, showing to a demonstration that further examination upon the subject would have been useless; for, whether we look to the bonds or the recorded proceedings, there is nothing to indicate any irregularity, or even to create a suspicion that the bonds had not been issued pursuant to lawful authority; and we hold that the company and their assigns, under the circumstances of this case, had a right to assume that they imported verity.
“ Citation of authorities to this point is unnecessary, as the whole subject has recently been examined by this court, and the rule clearly laid down that a corporation, quite as much as an individual, is held to a careful adherence to truth in their dealings with other parties, and cannot, by their representations or silence, involve others in onerous engagements,, and then defeat the calculations and claims their own conduct has superinduced.”
It will be noticed that this case is cited and strongly relied upon by this court in Sleeper v. Bullen, 6 Kas. 300; and in the more recent cases of Water- Works Co. v. City of Burlington, 43 id. 725; Brown v. Atchison, 39 id. 48, and The State, ex rel., v. Dennis, 39 id. 509, it is very strongly asserted that contracts with innocent persons made by municipalities cannot be avoided by defects that are shown outside of the record.
In the case of Bill v. City of Denver, decided by Mr. Justice-Brewer, and reported in 29 Fed. Rep. 344, there is a decision in harmony with that of Sleeper v. Bullen, supra. It was an action against the city of Denver for services as inspector of sewers; the defense was that it had no power to make such a contract. Justice Brewer comments on this defense, .and says:
“ It is true that its power to proceed in the premises depended upon the petition of a majority of the property-owners; but no tribunal is in terms provided to determine whether such petition has been filed; and there being no statutory provision for a tribunal to so determine, when the city council as the general representative of the city, with power to act thereon, determined by its action that such a petition has been filed, third parties have a right to rely upon that, and say that the city is estopped • thereafter to deny that such petition was filed.”
We again quote from the supreme court of the United States:
“The function of making the subscription and issuing the bonds was confided to the county court. They had jurisdiction over the entire subject. They were clothed with the power and duty to hear and determine. The power was exercised and the duty performed. In this case, as it is before us, the result is conclusive; and the county is estopped to deny that such is the result.” (County of Macon v. Shores, 97 U. S. 279.)
It seems clear to us that, under the authorities, the doctrine of equitable estoppel applies, and should be applied in this case, but we desire to call attention to some of these authorities, making copious quotations from them, as follows:
“Corporations, as much as individuals, are bound to good faith and fair dealing, and the rule is well settled that they cannot by their acts, representations or. silence involve others in onerous engagements, and then turn around and disavow their acts, and defeat the just expectations which their own conduct has superinduced.” (Railroad Co. v. Howard, 7 Wall. 392-413.)
“It must be further borne in mind, that the invalidity of contracts made in violation of statutes is subject to the equitable exception that, although a corporation in making a contract acts in disagreement with its charter, where it is a simple •question of capacity or authority to contract, arising either on a question of regularity, or organization, or of power conferred by the charter, a, party who has had the benefit of the agreement cannot be permitted in an action founded on it to question its validity.” (Township of Pine Grove v. Talcott, 19 Wall. 666-678; National Bank v. Matthews, 98 U. S. 621— 629.)
“The plea of ultra vires, as a general rule, will not prevail, whether interposed for or against a corporation, when it will not advance justice,-but, on the contrary, will accomplish a legal wrong. . . . It is now very well settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been in good faith fully performed by the other party, and the corporation has had the full benefit of the performance of the contract.” (Arms Co. v. Barlow, 63 N. Y. 63.)
“The rule seems to be well established, that where a contract has been executed and fully performed on the part either of the corporation or of the other contracting party, neither will be permitted to insist that the contract and such performance by one party were not within the corporate power of the company.” (Hays v. Coal Co., 29 Ohio St. 330.)
“As we understand the rule, ultra vires prevails in full force only where the contracts of corporations of this character remain wholly executory. . . . This rule prevails even as to public or municipal corporations, in analogous cases.” (Thompson v. Lambert, 44 Iowa, 239.)
In Ohio, in the case of The State, ex rel., v. Van Horne, 7 Ohio St. 327, the court states the doctrine very fully:
“No objection is interposed by the defendant, either to the legality of the election, or to any irregularity in form or substance of the certificate of the trustees of the township filed in the auditor’s office and recorded; nor to the subscription, the issuing of the bonds, their sale, or the receipt of the money from the purchasers of the bonds. But the defendant says that no election could be had until the line of railroad was actually established and located through the township, and that, consequently, the whole proceedings were unauthorized and void.
“ It is, perhaps, a question of some doubt whether the general assembly did not intend that the railroad should be actually established through a township before an election; but we do not consider it necessary in the case before us to decide that question, as we are of the opinion that, conceding a location would have been necessary before an election, the acts of the parties interested have been such as to preclude them from denying the authority and power of the trustees of the township to issue the township bonds. If the location of the road should have been first made, any tax-payer of the township, for himself and all others interested, could at any time before the issuing or negotiation of the bonds have intervened, and enjoined their issue as unauthorized, on account of the road not having been located. They, however, either intentionally or from neglect to assert their legal rights, without protest or interference, suffered the election to take place, their public agents, the trustees, to subscribe for stock, to issue the bonds, and receive the proceeds. . . . They now desire to retain the money of the original bondholders; refuse to pay interest; deny their obligation to pay back the principal; disaffirm the acts of their public agents who, under the forms of the law, and by their direct instigation — through the ballot-box, issued and negotiated these bonds. They had an opportunity, before innocent third persons could be injured or committed to the acts of their public agents, to enjoin their proceedings and protect themselves. They did not seek that protection; but now, when they have received all the fruits of the contracts of their agents from third persons who have acted upon their recognition of the authority of their agents, they ask the privilege of denying this recognition, and thus escape from their obligations. It is too late for them to do so as against innocent third persons. They are concluded, not simply by the acts of their public agents, but by their own.
“It is true that, when public officers exceed the powers vested in them by general laws, their acts are no longer official, but void; and this principle would be applicable to the case before us if the trustees had derived their sole authority to make the contract under consideration from the law, without any interposition, sanction or authority from the taxpayers of the township. Rut in the case before us the trustees derived their authority to subscribe for the stock of the railroad and to issue the bonds specifically from their constituency, the tax-payers of the township. The trustees, unless authorized by the tax-payers, derive no authority to act from the laws under consideration. In fact, the whole transaction under the legislation was for the purpose of consummating an agreement having all the substantial elements of a private contract between the tax-payers as principals, who by vote' made the trustees their agents to contract for them, on one side, and the railroad and the bondholders on the other. The rules of law applied to individuals, and founded upon the clearest principles of justice and sound morals, should be equally applicable to these parties. The tax-payers, as principals, who by their votes under the forms of law set their agents in motion, professed to clothe them with special authority to make a special contract with third persons for their benefit, by voting, instigated those agents to make the subscription and issue the bonds, and thus induce, on the faith of this recognition, innocent third persons to part with their money and receive in lieu thereof these bonds. If the trustees of the township and the tax-payers supposed until recently, as they probably did, that the subsequent permanent establishment and location of the railroad through the township was sufficient to authorize the issuing of the bonds, whether that location was made before or after the election, it is equally just to presume that the bondholders who parted with their money entertained the same belief. The one were certainly as much bound to know as the other; and if both were mistaken, no principle of law or justice would demand that the tax-payers should retain the fruits of the mistake, and at the same time repudiate those very acts of their own which misled the bondholders, and induced them to part with their money; in truth, blowing hot to get the bondholders’money, and blowing cold to rid themselves of the obligation to refund it.”
This case was followed and approved by the same court in the case of State v. Union Township, 8 Ohio St. 394; also by the same court in the case of Goshen Township v. Railroad Co., 12 Ohio St. 624. It was also followed and approved in the case of The State, ex rel., v. Goshen Township, 14 Ohio St. 569. The fourth point in the syllabus in the last ease is as follows:
“Acts of subsequent acquiescence and ratification will estop the township from objecting to the validity of the bonds in the hands of an assignee for value who has taken them on the faith of such acquiescence, on account of any irregularities attending their execution and issuing, short of such an absence of power or such an illegality as would render them absolutely void. And notice on the part of the assignee will not defeat the estoppel.”
See, also, the case of Comm’rs of Knox Co. v. Nichols, 14 Ohio St. 260.
In Missouri, the same doctrine has been asserted in a case between a municipality and a railroad company itself, it being the case of H. & St. J. Rld. Co. v. Marion Co., 36 Mo. 294, in which case, Judge Wagner, speaking for the court, uses the following language:
“ The rules which regulate the business transactions of life, and which enjoin good faith, honesty, and fair dealing, are alike applicable to individuals and corporations. The county of Marion, to aid a great public undertaking, which was to redound to the interest of its citizens, subscribed stock in a railroad enterprise. Like all other shareholders, it received a ■certificate of stóck, and now retains and holds the same, and continues to enjoy all the benefits derivable therefrom. Upon the strength of that subscription, large sums have been expended, and important investments made. It would be grossly immoral and unjust to allow it to involve others in onerous engagements, and then, after a lapse of 10 years of silent acquiescence, repudiate its obligation.”
This was approved and followed by the same court in the case of Steines v. Franklin Co., 48 Mo. 167; and, also, in the case of Barrett v. Schuyler Co., 44 id. 197.
In Pennsylvania, the same doctrine is asserted; and in the case much cited in the text-books, to wit, the ease of Alleghany City v. McClurken, 14 Pa. St. 83, the court uses the following language:
“ The charter or act of assembly incorporating the city of Alleghany was not produced or read on the argument; but I take it for granted that it contains no express authority to the corporation to issue such notes as those embraced in this action. But it does not follow that the corporators are therefore not answerable for them in their corporate capacity. They have received value .for them, in the various public works and improvements erected and made in the city through their instrumentality, and it hardly comports well with fair dealing that they should seek to exonerate themselves from a debt on this account contracted by and through their accredited agents, and with their silent acquiescence. It is not universally true that a corporation cannot bind the corporators beyond what is expressly authorized in the charter. There is power to contract, undoubtedly, and if a series of contracts have been made •openly and palpably within the knowledge of the corporators, the public have a right to presume that they are within the scope of the authority granted. A bank which has long been in the habit of doing business of a particular description would not be exonerated from liability because such business was not expressly authorized in its charter. The object of all law is to promote justice and honest dealing, when that can be done without violating principle. .
“Icannot perceive that any principle is violated by holding a corporation liable for the contracts of its accredited agents, even not expressly authorized, when these contracts for a series of times were entered into publicly, and in such a manner as by necessary and irresistible implication to be within the knowledge of the corporators. It was the acquiescence of the corporators, and the babit and custom of business with the corporation, which induced the public to give credit to the scrip or notes, which was evidence of contract. But when to this circumstance we add that the corporators themselves received the value of these notes or contracts, in erection of improvements in the city, and enjoyed and still enjoy the value of them, the conclusion is irresistible that the corporators ought to pay them by the assessment of taxes on tbe corporators, if it has no other available means.”
Again, in the case of Commonwealth v. Pittsburg, 43 Pa. St. 391, the court says:
“Where a subscription to the stock of a railroad company on behalf of the city is authorized by ordinance to be made on certain conditions precedent, the subsequent issue of bonds in payment of the subscription proves the conditions to have been complied with or waived by the city.”
This doctrine of equitable estoppel was strongly approved in a very strong opinion in the case of Town of Bennington v. Parks, 50 Vt. 178. In that case the railroad company that received the bonds was held to be a bona fide purchaser for value, on the ground of its right to rely upon the records made by the agents of the town.
In Illinois, the same doctrine is maintained in the cases of Prettyman v. Tazewell Co., 19 Ill. 406, and Johnson v. Stark Co., 24 id. 90. The principles announced in each of these cases were distinctly affirmed in the case of Butler v. Dunham, 27 Ill. 474, which was an action brought by tax-payers to enjoin the issuance of bonds; and the same principle finds recognition in the case of People, ex rel., v. Cline, 63 111. 394. In the case of City of East St. Louis v. Gaslight Co., 89 Ill. 415, following is the first point in the syllabus:
“Although there may be a defect in the power of the corporation to make a contract, yet, if the contract made by it is not in violation of its charter, or of any statute prohibiting it, and the corporation has by its promise induced a party relying on the promise and in execution of the contract to expend money and perform his part thereof, the corporation will be liable on the contract.”
In Wisconsin, the same doctrine has been enunciated, and in the case of Houfe v. Town of Fulton, 34 Wis. 618, the following proposition is stated in the opinion of the court:
“But of late years, much more than formerly, the doctrine of estoppel — most wholesome and just in its operation when properly applied — has been extended to these municipal corporations, so as to bind and conclude them by their own acts and acquiescence, and the acts and acquiescence of their officers, whenever an estoppel would exist in the case of natural persons. It is now well settled that, as to matters within the scope of their powers and the powers of their officers, such corporations may be estopped upon the same principles and under the same circumstances as natural persons. (Kneeland v. Gilman, 24 Wis. 39.)
“The estoppel in such cases arises from the acts of the town and its officers, performed within their apparent authority, and if they, who ought to know, were deceived and mistaken, it would be most inequitable and wrong to visit the consequences upon innocent third persons who relied upon and were justified in confiding their action.”
In Indiana, the same doctrine has received recognition. The city is estopped by the record of the common council, which declares that more than two-thirds of the resident freeholders of the city petitioned. (McCullough v. The State, 11 Ind. 424.) In the case of Muncey v. Joest, 74 Ind. 413, a party applied to enjoin the assessment of a tax levied to pay for the construction of a drain ditch, on the ground that there were irregularities in the matter which prevented the officers from rightfully constructing the ditch, such as failure to give certain notices that were required to be given, etc. And the court says:
“As the appellant made no objection until after the work had been fully completed, he is not now in a situation to complain of the insufficiency of the notice of the letting of the contract. Having received the full benefit of the work done by the contractor, he cannot now escape payment on the ground that proper notice of the letting of the contract was not given. It is a well-settled rule of equity, that if a party is guilty of laches, or unreasonable delay in the enforcement of his rights, he thereby forfeits his claim to equitable relief. The rule is more especially applicable to cases where a party, being cognizant of his rights, does not take those steps to assert them which are open to him, but lies by and suffers other parties to incur expenses and enter into engagements and contracts of a burdensome character. This doctrine has been adopted and enforced by this court” — citing a number of cases, and cases in other states.
The doctrine is also adopted by the state of New York, as will be shown by the following quotation from the case of Curnen v. City of New York, 79 N. Y. 511:
“A fact admitted by a municipal corporation through its officer, duly and properly acting within the scope of his authority, is evidence against it, and cannot be withdrawn to the prejudice of one who, in reliance upon it, has changed his position in respect to the matter affected thereby. The doctrine of estoppel applies in such case to a corporation as well as to an individual.”
In California, the same rule is announced, as will be seen by the following quotation from the case of Argenti v. City of San Francisco, 16 Cal. 256:
“As a rule, the powers of corporations must be exercised in the mode pointed out by the charter. But even a want of authority is not in all cases a sufficient test of the exemption of the corporation from liability in matters of contract. An ex-ecutory contract made without authority cannot be enforced; but where the contract has been executed, and the corporation has received the benefit of it, the law interposes an estoppel, and will not permit the validity of the contract to be questioned.”
In 1847, the legislature of the state of Massachusetts enacted the following law:
Ch. 37, Sec. 1: “ Whenever any city or town shall have voted to raise by taxation, or by pledge of its credit, or to pay over from moneys in its treasury any sum or sums of money for any other purpose or purposes than those for which it may have the legal right ánd power so to do, the supreme judicial court shall have power, upon the suit or petition of any inhabitants not less than 10 of said city or town liable to be taxed therein, briefly setting forth the cause of complaint, to finally hear and determine in equity all such cases; and any justice of said court may, as well in vacation as in term time, issue an injunction and make all such orders and decrees as may be necessary or proper to restrain or prevent any violalation or abuse of said legal right and power of such city or town, until the final determination of such causes by the supreme judicial court; and no order or decree of said court or of any justice therein shall be discharged or invalidated on account of want of jurisdiction in said court or justice.”
The case of Tash and others against Adams, treasurer, was brought under this statute; and as the case is so applicable, we will quote the entire opinion, which was delivered by Justice Bigelow. The opinion will be found in 10 Cushing, p. 252:
“The petition in this case is filed pursuant to the statute of 1847, (chapter 37, section 1,) which empowers this court to hear and determine in equity all cases relating to the raising and expenditure of money by towns for any purpose not authorized by law. The. petitioners set forth two votes of the town of Natick making appropriations of money for objects alleged to be illegal and unauthorized, and ask for a perpetual injunction against the town and its officers, restraining the payment of any money from the treasury, and prohibiting the pledge of the credit of the town under said votes and appropriations.
“It will be necessary, for a just decision of the case, to consider the two votes separately. The first was passed at a meeting of the inhabitants of the town, duly called, on the 18th of September, 1851, and appropriated the sum of $500 for the celebration of the second centennial anniversary of the settlement of said towD, and authorized a committee appointed to arrange the celebration to draw from the treasury of the town an amount not exceeding that sum to defray the expenses thereof. It appears that this committee, acting under this vote, proceeded to make contracts for and in behalf of the town, and expended money, and became liable to pay, on account thereof,, a sum amounting to $463; that the celebration took place on the 8th of October, 1851, under the sanction of the town, and that all the expenditures were made and liabilities incurred prior to that time; that the committee acted in good faith, in strict accordance with the terms of said vote, and in the belief that the town had the legal right and power by law to authorize them to expend money and make contracts in behalf of the-town for the purpose aforesaid. It further appears that the petitioners in the present case were inhabitants of said town, and fully cognizant of said vote at the time it was passed, and of the proceedings of the v committee under and by virtue thereof; that they took no measures to prevent said committee or said town from acting in pursuance of said vote; that they stood by and permitted said contracts to be made, the-credit of the town to be pledged, and said money expended as aforesaid, and after said celebration had taken place, and said committee and other persons had become personally liable to pay money under said proceedings, to wit, on the 18th day of October, 1851, the said petitioners made application to this court for an injunction, as above stated.
“Upon these facts, we think it very clear that the petitioners are not in equity entitled to the relief which they seek. So far as relates to this vote and appropriation by the town,, assuming that the purpose for which the money was appropriated was illegal, because it was one for which towns are not authorized to incur expenditures or raise money, (upon which question we express no opinion,) nevertheless the petitioners fail to make out a case entitling them to the interposition of the court.
“ It is a well-established rule in equity, that if a party is-guilty of laches, or unreasonable delay in the enforcement of his rights, he thereby forfeits his claim to equitable relief. This rule is more especially applicable to cases where a party, being cognizant of his rights, does not take those steps to assert them which are open to him, but lies by and suffers- other parties to incur expenses and enter into engagements and contracts of a burdensome character. (2 Story on Eq., §959; Dreary on Injunctions, 294.) The facts bearing on this part of the case, as presented by the petitioners, bring it very clearly within the operation of this salutary rule. The petitioners not only failed to use due and reasonable diligence in asserting their rights and seeking a remedy, but were guilty of gross laches. With a full knowledge of the vote of the town, and the proceedings of the committee, they permitted contracts to be made and expenditures to be incurred, not only by the committee but by third parties, who acted in good faith, relying on the credit of the town. They took no measures to enforce their rights until after the celebration had taken place, and innocent parties had come under liabilities which they would not have assumed if the petitioners had seasonably sought redress for the impending grievance. To issue an injunction to restrain the payment by the town of the bills thus incurred would be manifestly most inequitable. So much, therefore, of the prayer of the petition as applies to the vote and appropriation of September 18, 1851, must be denied.
“That part of the case which relates to the vote of the town passed October 17, 1851, appropriating the sum of $500 for the celebration of the anniversary of the surrender of Cornwall^, stands upon wholly different grounds. It is not contended that this appropriation was for a purpose for which a town can legally expend money or pledge its credit. It was clearly a violation of law, and without any sanction derived from the usages of towns in this commonwealth. The application for the injunction, having been made immediately after the vote was passed, and before any money was expended or liabilities were incurred in pursuance thereof, was seasonably presented. In fact, the case finds that the money actually raised and expended for the celebration was furnished by subscription, upon the condition that it should be refunded by the town, if the decision of the present case should authorize its being drawn out of the treasury. All parties, therefore, have acted at their peril, with full and timely notice that the proceedings of the town in appropriating the money were to be drawn in question before the proper tribunal. This presents a suitable case for the interposition of the court, under the powers granted by the statute, and a perpetual injunction must issue to restrain and prohibit any expenditure of money, or pledge of the credit of the town, under the vote of October 17, 1851.”
In Iowa, the same doctrine has been asserted, in the case of Lamb v. B. C. R. & N. Rld. Co., 39 Iowa, 333, which was an action brought by a tax-payer to enjoin the railroad company from receiving the fruits of its subscription, on the ground of irregularities which vitiated the contract. The court uses the following language:
“There is still a further ground upon which the action of the district court may be sustained and affirmed. It is this: The tax was voted in January, 1872; the work of constructing the railroad on the faith of the tax was completed within a year; the plaintiff remained silent until all the benefits which would accrue to him were secured, and then, 14 months after the vote, he seeks to enjoin the collection of the tax, and thereby relieve himself from the payment of that upon the faith of which he knew the work was being done. These facts work an equitable estoppel, as we have before held.”
And the case of B. C. R. & N. Rld. Co. v. Stewart, 39 id. 267, was a case in which the same proposition was determined against a tax-payer who alleged that the notices for the election were wholly insufficient, it being a suit between the railroad company and the tax-payer.
In Connecticut, the same doctrine is recognized and followed in a very strong opinion, in a case between a municipality and a railroad company, being the case of Railroad Co. v. Town of Chatham, 42 Conn. 465. The court uses the following language:
“The town of Chatham, for the purpose of aiding in the completion of a railroad that was in the course of construction through the town, and which was in an embarrassed condition, passed a vote, under authority of the legislature, to guarantee not exceeding $40,000 of certain bonds which the railroad company was authorized to issue; such guaranty to be made after the road was completed. The resolution authorizing this action of the town provided that the votes should be by ballot, and the warning of the town meeting, which was recorded upon the records of the town, stated that the vote would be so taken; that ballot-boxes would be open for the purpose, and that those in favor of the proposition would deposit ballots with ‘Yes’ upon them, and those opposed, ballots with ‘No’ upon them. The record of the meeting, by the town clerk, was that ‘Resolution was adopted; yes, 178; no, 86.’ The vote was in fact taken by a division of the house, and not by ballot; but neither the officers of the town- nor any person in its behalf ever claimed or gave notice that it was not taken by ballot until more than three years after, and until long after the railroad had, in good faith, and with knowledge of all the inhabitants of the town, issued the bonds which were to be-guaranteed, and delivered them to contractors who had performed work, furnished materials and expended money in reliance upon them; the contractors taking them with an order upon the town for its guaranty of them when the work was completed. Held, That the town was a municipal corporation, and the inhabitants of the town were estopped from claiming that the vote was not legally taken; and held, that the town was estopped from availing itself of a correction of the record of the town clerk, afterward made under an order of the superior court, upon the application of one of the taxpayers of the town, showing that the vote was taken by a division of the house, and not by ballot. It appeared that when the vote was taken the treasurer and managing director of the railroad company was present, and saw how it was done; but that he was not acting officially, and that his knowledge was-not conveyed to any of the other directors of the company. Held, That the railroad company was not affected by his knowledge.”
While there are other authorities that have been either cited at the bar, or examined by the court, on this question, we have given a sufficient number of what we regard as the most important cases to authorize us to say that the overpowering weight of modern judicial opinion is to the effect that, assuming the illegality of the petition, the other acts of the municipality, and its silence and non-action,-as heretofore recited, are amply sufficient to estop it from asserting that illegality in this action. The other acts of the municipality referred to are as different as the reported cases,, but those acts most common to all the cases are the reception and use of the benefits of the contract, the enjoyment of the-labor of others, failure to protest or to commence legal proceedings in apt time, the retention of the stock, and general acquiescence in all proceedings until the contract becomes-wholly executed. In this case, it is almost safe to aver that. every element of silence, acquiescence, enjoyment of the labor of others, neglect to protest or litigate, recognition, ratification, retention of stock, and all other acts that call for the application of the principle of estoppel, have been established as indisputable facts by this record, and have such controling force-that we are compelled to recommend the issuance of the peremptory writ.
By the Court: It is so ordered.
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The opinion of the court was delivered by
Johnston, J.:
This proceeding was brought to reverse an order of the judge of the district court of Clay county limiting the powers of a receiver who had previously been appointed. On March 1, 1887, O. R. Sweezey and wife executed a mortgage to T. W. Marshall upon a quarter-section of land iu Clay county, to secure the payment of a promissory note for $2,000, and on the same day executed a second mortgage to Caldwell, Peterson & Munford to secure the payment of a commission note for $135. Each mortgage provided that, if default was made by the mortgagors in the payment of interest or any installment of the debt, the conveyance should become absolute, and at the option of the legal holder thereof the whole of the debt should become due and payable, and the legal holder of the note should be entitled to the immediate possession of the land, “and receive the rents, issues and profits arising therefrom.” Default was made on both of the notes, and an action was begun by Caldwell & Peterson to fore close their mortgage, and on September 4, 1889, upon application of plaintiffs, the probate judge of Clay county appointed a receiver to take charge of the mortgaged real estate and of the crops then standing and growing thereon. Afterward, and on September 20, 1889, a motion was made by the defendant to set aside the appointment of the receiver, before the judge of the district court, who made the following findings of fact:
“That on the 1st day of March, 1889, defendant O. R. Sweezey, was the owner in fee-simple of the northeast quarter of section 2, in township 10 south, of range 3 east, in the county of Clay and state of Kansas; that on said date said land was and now is encumbered by two mortgages described as follows: One mortgage to T. "W. Marshall, on which there is due about $2,360, and one mortgage to plaintiffs, on which there is due about $135; that the state and county taxes, amounting to about $50, are unpaid; that said land is not worth more than $3,000, and will not probably bring more than $2,000 if sold under execution for cash; that before abandoning it they leased the same to one A. J. Daugherty, defendant herein; that said Daugherty agreed to pay and deliver to said Sweezey one-third of the corn and other grain grown on said farm, at the village of Wakefield, in said county of Clay, as rent therefor; that said Daugherty planted and cultivated on said land in the year 1889 about 60 acres of corn, which was standing thereon, but fully matured, on the 3d day of September, 1889, at the time of the appointment of the receiver herein, and one-third part thereof was and is worth, delivered at the town of Wakefield, in said county of Clay, at least $125; that after the leasing of said premises to said Daugherty by the said Sweezey, to wit, on the 15th day of April, 1889, and after default had been made in the payment of plaintiff’s mortgage, and before said rent was due, said Sweezey, for the consideration of $370, sold to said Alsop, who had notice of said mortgage and of said default before making said purchase, the one-third of the crop growing on said land for the year 1889, being the rent reserved by him from said Daugherty; that said mortgage pledged the rents and profits of said land for the payment of the debt hereby secured; that said Alsop had not collected said rent corn so due him, but the same is still in the hands of said Daugherty, and is not in condition to be harvested and delivered in said town of Wake-field.”
Upon these facts the judge of the district court modified the former order of the probate judge, and ordered that the receiver take no control over any portion of the crop nor receive the same into his possession. The plaintiffs complain of this order, but without just cause. It will be observed that the corn was fully matured and had been sold by the mortgagor before the application for a receiver was made and before the foreclosure proceedings had been commenced. The mortgagees obtained no estate in the mortgaged lands. Under our statutes their mortgage was a mere security for a debt, and the mortgagor was entitled to the possession and use of the premises and to the crops grown thereon until his right was divested by appropriate judicial proceedings. The title to the land remained in the mortgagor, and his right to control and dispose of the annual crops remained in him at least until the receiver obtained possession. The fact that the mortgage debt was due and that the mortgagor was in default did not of itself divest him of the right to control and dispose of the crops. The corn grown on the land was chattel property, which the mortgagor had a right to sell, and having sold the same prior to the appointment of the receiver, the purchaser obtained a good title.
The case of Beckman v. Sikes, 35 Kas. 120, is cited against the ruling of the district judge, but it does not apply. There the mortgagor planted a crop of corn after the foreclosure of the mortgage, and it was immature and growing when the land was sold pursuant to the decree of foreclosure, and it was held that the crop passed by the sale to the purchaser. Here no steps were taken by the mortgagees until the crop had ripened, and had in legal effect been severed through a sale by the mortgagor. If no transfer of the crop had been made, and the receiver had obtained possession of the mortgaged premises while the crop was immature and growing upon the land, as is the case in some of the authorities cited by plaintiff in error, other considerations would arise; but under the facts in this case we think the court correctly held that the receiver was not entitled to the possession of. the crop purchased by the defendant in error. (Hecht v. Dettman, 56 Iowa, 679; Woolley v. Holt, 14 Bush, 788; Hershey v. Metzgar, 90 Pa. St. 217; Backenstoss v. Stahler’s Adm’rs, 33 id. 251; Purner v. Piercy, 40 Md. 223; Mulligan v. Newton, 16. Gray, 211; Wyckoff v. Scofield, 98 N. Y. 475.)
The order will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was an action on a certain warrant of the city of Atchison issued to Thomas M. Hacket, or bearer, and sold and transferred by said Hacket to the plaintiff below, Jacob Leu. Said warrant was issued to Hacket in part payment for work done by him in curbing and guttering Eourth street from Park street to Q, street, in the city of Atchison. The petition set out the issuing of the warrant to Hacket, the assignment thereof by Hacket to the plaintiff, the levy of the assessment upon the property, its extension upon the tax-roll of Atchison county, its payment to the treasurer of said county April 5, 1884, and the presentation of said warrant by Leu to the treasurer of the city of Atchison for payment August 17, 1886, and his refusal to pay. The city filed a motion asking the court to require the plaintiff to make his petition more definite and certain. This motion was overruled. An answer was then filed setting up the statute of limitations as a bar, and also alleging that no part of the money said to have been collected by the county treasurer as-a special assessment for the work done by Hacket had ever been paid over by the county to the city treasurer. Reply was filed, denying new matter in the answer. When the case came •on for trial, the city objected to the reception of any evidence under the petition in the case, for the reason that it did not state any cause of action. This objection was overruled. Plaintiff below then introduced his evidence and rested, whereupon the city demurred to the evidence, which demurrer was •overruled. The city presented no evidence, and the court •directed a verdict for Leu. Motion for a new trial was argued, and overruled.
There is really but one question in this case. It was raised in divers ways, but it is the same question after all, whether raised by the motion to the petition, objection to the evidence under the petition, or demurrer to the evidence of the plaintiff on the trial. The question is, was the city liable in this case, without a showing on the part of the plaintiff below that the money paid to the county treasurer on the special assessment for the work done by Hacket, and for which the warrant was issued to him, was ever turned over by the county treasurer ■to the city? It is admitted that if the money collected on such assessment reached the city treasury, the city is liable, and that the plea of the statute of limitations is eliminated from the case. The admissions and evidence show that Hacket guttered and curbed Fourth street from Park to Q, street, in the city of Atchison; that the warrant sued on in this case was regularly issued to him as part payment therefor; that he transferred the same to the plaintiff below, Jacob Leu; that an assessment was made to pay for said work upon the property liable therefor, which assessment was paid to the county treasurer April ■5,1884; that on several different occasions Leu called on the said treasurer with his warrant to get the money thereon, and payment to him was refused. He then presnted his warrant fo the city treasurer and demanded payment, which was also refused.
We think these facts render the city liable. The city had the power to get the money from the county treasurer. It, in Ml likelihood, could have got the money by asking for it. If not, it could certainly have got it by proper proceedings at law. Leu could not get the money out of the county treasury. There is no process of law whereby he could have got it. He had no claim against the county, but the city had a claim against the county for the money. It was made the duty by statute for the treasurer of the county to pay such fund over to the city. And if he did not do so, it was the duty of the city to compel him to pay it over. The money having been paid to the county treasurer, and it being the duty of the city to see that such fund was paid into its treasury by the county treasurer, the city was liable to Leu on its warrant, whether it got such money from the county treasurer or not. The money was paid into the treasury of the county April 5, 1884. Leu presented his warrant to the city treasurer and demanded payment August 17, 1886. Nearly two years and a half elapsed after the money was paid into the county treasury before Leu presented his warrant to the city for payment, and payment was refused for the reason that the money to pay it was not in the treasury. If the money was not in the city treasury at that time, it should havé been. The city could not neglect for more than two years its duty to get the money out of the county treasury, and still justify its refusal to pay upon the ground that it did not have the money in the treasury to pay the warrant. In the case of City of Leavenworth v. Mills, 6 Kas. 288, it is said:
“The lot-owners are never directly or primarily liable to the contractor for grading done by him. They are liable to the city only, and the city is primarily liable to the contractor. When the city fails to provide any means for collecting the value of the grading from the lot-owners and paying the same to the contractor, it leaves the contractor without any possible means of ever obtaining compensation for his services, except by suing the city. ' The city is liable to him; and the only way by which the city can relieve itself from such liability to the contractor is by levying a legal tax.”
We think the logic of this case is, that the city shall be primarily liable to the contractor, and that it shall reimburse itself by levying and collecting a tax for the work from the property liable therefor. This case not only requires the city to collect the tax, but to pay it to the contractor. The con tractor is no better off after the city has made the assessment and the tax is paid over to the county treasurer than before this is done, if he cannot look to the city for his pay, because he has no means by which he can get the money collected to pay his claim out of the county treasury. In City of Wyandotte v. Zeitz, 21 Kas. 661, the court says:
“The provision of the statute requiring the assessment to be made against the abutting property relates to the ultimate liability therefor, for the purpose of raising a fund to reimburse said city for the amount paid for such improvements, and is a question entirely between the city and the lot-owner, and with which the contractor or his assigns have nothing to do, and in which he has no right or interest; that the city is primarily liable for the making of said improvements, {City of Leavenworth v. Mills, 6 Kas. 298,) and, having executed its contract to pay at a specified time, is bound to pay at such time without regard to the question of the collection of the taxes assessed for the purpose of meeting such demand.”
So in this case, we think the city is primarily liable, and must pay, whether or not it has recovered the money paid over to the county treasurer to reimburse said city for its payment on the warrant for said work. We do not think the case of Casey v. City of Leavenworth, 17 Kas. 189, cited by plaintiff in error, is authority in this case. In that case the contractors agreed to look to a special levy for their pay. That case is decided upon the special circumstances of that case, and is distinguished from the case of City of Leavenworth v. Mills, 6 Kas. 288. In this case it is not certain' that the city had not received the money in question from the county treasurer. The city attempted to show that it had never received it from the county, but from the evidence on that subject, showing the method of doing business between the city treasurer and the county treasurer, we do not see how the city treasurer can tell whether he ever received the particular fund collected to pay the warrant sued on or not. He received from the county treasurer large sums of money after the fund arising from the assessment to pay for the work represented in part by the warrant sued on was paid into the county treasury, and all the city treasurer knows about the character of the money so received is what the county treasurer told him. He never received any information from the city clerk,, whose duty it was to take triplicate receipts from the county treasurer for the money paid by said treasurer into the city treasury. We think the judgment of the district court should be affirmed.
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.:
On the 27th day of October, 1879, Rice; Brown & Co., a firm doing business in the state of Ohio, recovered a personal judgment against William Moore, in the county of Ottawa, in that state. There is an unpaid balance upon the judgment of $249.30. The judgment became dormant under the statutes of Ohio; but at the January term for 1889 of the court of common pleas of Ottawa county, it was revived by publication. William Moore was not personally served with any notice that the judgment would be revived, nor did he enter any appearance in the proceedings of revivor. It is not alleged in the petition that the defendant, William Moore, is a non-resident of this state, or that he has ever been out of the state, or has absconded, or concealed himself. This action was commenced-on the 1st day of May, 1889, nearly ten years after the rendition of the judgment in Ohio, and a few months after the revivor by publication, in January, 1889. A general demurrer was filed to the petition, which was sustained by the court below. Rice, Brown & Co. complain of this ruling.
The question is, whether the petition is sufficient, in view of the five-years statute of limitations prescribed by our statute. (Civil Code, §18; Burnes v. Simpson, 9 Kas. 658; Mawhinney v. Doane, 40 id. 676.) Where it is apparent from the face of the petition that the debt or claim is barred, a demurrer is properly sustained. (Zane v. Zane, 5 Kas. 134; Stanclift v. Norton, 11 id. 218.) If there had been no revivor of the judgment in Ohio, we suppose it would be conceded, even if the judgment had not become dormant under the statutes of that state, that no recovery could be had upon the judgment in this state, if Mr. Moore had been an actual resident of this state for five years (the full time of our limitation) after the rendition of the judgment. The authorities are to the effect that “ remedies are to be governed by the laws of the country where the suit is brought.” The laws of this state, where the action is brought, must govern the limitation. It was recently decided by this court, in Bauserman v. Charlott, 46 Kas. 480, that “ where an action is brought in this state upon a judgment of a court of record of a sister state, which is in full force in that state, the statute of limitations of this state, and not that of the sister state, will control.” (United States v. Donnally, 33 U. S. 372.)
It is contended, however, as the judgment was revived in Ohio in January, 1889, a few months only before this action was commenced, that the bar of the statute of limitations is not effective. A scire faeias to revive a judgment is not a new suit, but the continuation of an old one. (Freeman, Judgm., § 444; Elsasser v. Haines, 52 N. J. L. 10.) In Irwin v. Nixon, 11 Pa. St. 425, it is said to be “a common, plain and familiar principle, that a scire facias to revive a judgment ... is but a continuation of the original action, and the execution thereon is an execution on the former judgment. The judgment on the scire facias is not . . 1 a new judgment, giv ing vitality only from that time, but it is the revival of the original judgment, giving or rather continuing the vitality of the original judgment, with all its incidents, from the time of its rendition.” (1 Pet. C. C. 448.) Hence, the proceeding in Ohio in January, 1889, must be regarded as a continuation only of the former suit or judgment. This seems to be admitted in the brief of counsel for plaintiffs, for it is stated that “reviving a judgment is the act by which a judgment which has lain dormant or without any action upon it for a year and a day is, at common law, again restored to its original force.” The revivor of the Ohio judgment removes its dormant quality only, but does not affect the statute of limitations in this state, or in any way prevent its running against the judgment rendered in 1879.
We think, within the provisions of our civil code concerning limitations, the action upon the judgment ought to have been brought within five years after its rendition, if, during all of that time Moore was personally present within this state. If brought after five years it is too late. If however, it be claimed that the revivor in Ohio is not a mere order that execution issue, but a new judgment, and therefore of full force as a new judgment of the date of January, 1889, no action can be brought thereon in this state, because Moore was not personally served in the proceeding for revivor, or entered any appearance therein. (Kay v. Walter, 28 Kas. 112.) In the last case this court decided that a judgment rendered in Pennsylvania on May 26, 1864, and revived in 1867, and again in 1877, but sued on in this state in 1881, “was unquestionably barred by the five-years statute of limitations.”
In the case of Hepler v. Davis (Neb.), 49 N. W. Rep. 458, a judgment was recovered against A. in Illinois in 1879. A. removed to Nebraska soon afterward and continued to reside in that state. In 1888 the judgment was revived in Illinois without personal service upon A., or an appearance by him. In December, 1888, nine years after the judgment was rendered, an action was brought upon it in Nebraska. In that state, as in ours, the limitation of five years as to judgments exists. It was held in that case, Maxwell, J., delivering the opinion, that an action upon a judgment of a sister state must be brought in Nebraska within five years, or it will be barred, and that the alleged revivor of the judgment in Illinois, in 1888, did not remove.the bar of the statute of Nebraska. That case is very similar to this one. (See also Eaton v. Hasty, 6 Neb. 419; Tessler v. Englehardt, 18 id. 167; Marx v. Kilpatrick., 25 id. 107.)
Moore having resided in this state for five years after the original judgment against him was rendered and before the alleged revivor or the commencement of this action, our statute of limitations prevents any action upon the judgment from being maintained.
<The ruling and judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
The question presented by the record in this case is one of homestead exemption. Thomas A. Grange owned three lots adjoining each other on Lime street, in the city of Topeka. The tract contained less than one' acre. He resided on these lots with his family, in a house located upon the north subdivision. Across the rear end of the three lots he had a corral fenced off for his cow and horse. His well, cistern, coal-house and other out-buildings were all located upon the same number as his house. Upon the south lot the defendant in error had a building which he had used for several years as a carpenter shop. Having met with an accident which incapacitated him from working at his trade as a carpenter, he procured some lumber and raised the roof of the shop, and converted it into a story - and-a-half house containing four rooms, which he rented to a family for $10 per month, reserving the basement, in which he manufactured hominy during the winter season. The tenant procured water from Grange’s well and cistern, and kept his coal in a chicken house back of the latter’s residence. Grange reserved the entire ground, so that the tenant only had the right of ingress and egress to and from the rented premises. Some six months after the building had been occupied by the tenant, the plaintiff in error levied an execution upon the south lot, and it was sold and bid in by the judgment creditor. The defendant in error then commenced an action to restrain the plaintiff in error from proceeding further, and upon a final hearing the court below granted a perpetual injunction.
The only question presented is, whether or not the property levied upon was exempt as the homestead of the defendant in error. The language of the constitution is that—
“One acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of the husband and wife, when that relation exists.” (Const., art. 15, §9; Gen. Stat. of 1889, ¶ 235.)
It seems to be conceded that the three lots would have been exempt so long as the carpenter shop was used as such by the defendant in error. Did the remodeling of the building and the renting of it change the homestead right? It must be observed that under the findings of the trial court .the claimant of the homestead right reserved the land, and only leased the four rooms; he still retained all of the ground and the use of the basement. It was the same as if he had rented rooms in his house to a family, except that the building rented was detached from the house actually occupied by the debtor and his family. It has been decided by this court that the homestead character is not destroyed where a part of a building is leased to another for a purpose not inconsistent with the homestead right. We think the principle is the same where the rooms rented are in a detached building upon exempt property.
Counsel for plaintiff in error rely upon the case of Ashton v. Ingle, 20 Kas. 670, to support their claim that the property levied upon is not exempt. To this claim it is sufficient to say that in that case this court said —
“Where houses and lots are rented for a money rent, . . . with the intention that such houses and lots shall become the homes and residences of such tenants and their families, and they actually do become the homes and residences of such tenants and their families, the owner certainly cannot then claim that such houses and lots are a part of his own residence, although they may adjoin the same.”
In this case no land was leased. The defendant in error still retained the possession of all of his ground.
The supreme court of Illinois, in the case of Stevens v. Hollingsworth, 74 Ill. 202, said:
“ The intention of the legislature in enacting the homestead exemption law was not to save a mere shelter for the debtor and his family, but it was to give him full enjoyment of the whole lot of ground exempted, to be used in whatever way he might think best for the occupancy and support of his family, whether in the way of cultivating it, or by the erection of buildings upon it, either for carrying on his own business or for deriving income in the way of rent.”
This court has recently held that it makes no difference if a part of the homestead has been used for some other purpose, not inconsistent with the owner’s homestead interests, where the part claimed as not being a part of the homestead has not been totally abandoned by the debtor. (Hoffman v. Hill, 47 Kas. 611; 28 Pac. Rep. 624. See also Bebb v. Crowe, 39 Kas. 342; Rush v. Gordon, 38 id. 535; Morrissey v. Donohue, 32 id. 646; Hogan v. Manners, 23 id. 551; Lazell v. Lazell, 8 Allen, 575; Mercier v. Chace, 11 id. 194; In re Tertelling, 2 Dill. 339; Thomp., Homest. & Ex., §120; Hubbell v. Canady, 58 Ill. 435.)
We think the lot levied upon and sold is exempt, and that the confirmation was properly enjoined.
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
Johnston, J.:
The bank of Hazelton recovered in the district court of Barber county a judgment against W. C. Alfred and Mary L. Alfred, and also a.decree foreclosing a mortgage which they had given to secure the payment of the debt. In pursuance of the judgment, an order of sale was issued, directing the officer to cause the appraisal, advertisement and sale of the mortgaged property. In due time the officer returned that the property had been sold in accordance with the order, after it had been duly advertised and appraised. The Alfreds moved the court to set aside the sale, on the ground that the property had not been appraised as the law required, but their motion was denied.
The sufficiency of the appraisement is the only question presented. It appears that the sheriff called an inquest of three householders and administered to them an oath to impartially appraise the property upon actual view; but it also appears that they did not go near to or inspect the property after they were called and sworn. They had frequently passed along the street on which the property was situate, and, con-eluding that they were sufficiently familiar with its character and value, they appraised it without visiting the property or seeing the same after they were called. It was town property, and some of them were wholly unacquainted with the interior of the house, and did not know the number of rooms therein, nor anything of the style, quality or expense of the finish upon them. Alfred testified that they had no means ef knowing the actual value of the property, and had appraised it at less than its actual value.
The appraisement made does not meet the requirements of the statute. It provides that—
“The officer levying such execution shall call an inquest of three disinterested householders, who shall be resident within the county where the lands taken in execution are situate, and administer to them an oath impartially to appraise the property so levied on, upon actual view; and such householders shall forthwith return to said officer, under their hands, an estimate of the real value of said property.” (Civil Code, § 453.)
The appraisement must be made upon actual view, and the statute clearly contemplates that such view shall be made after the appraisers have -been duly qualified as such. An inspection made prior to the time when they were called and sworn, however thorough it may have been, is insufficient. The condition and value of property are subject to changes, and the estimate which the appraisers are required to place upon it is the actual value at the time the inquest is held and the appraisement is made, and not the estimate that the same persons may have placed upon the property on a view had at some past time and when they were not qualified as the statute requires. The law plainly enjoins on them the duty of making an actual view after they have been sworn, and the conduct of the appraisers in this instance was a plain violation of the requirement.
The judgment of the district court will be reversed, and the cause remanded,- with directions to grant the motion of the plaintiffs in error, and set aside the sale.
All the Justices concurring. | [
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Opinion by
Steang, C.:
Action to determine who is entitled to certain moneys in the hands of Cochrane & Farwell, as garnishees of the plaintiffs and defendants. Cochrane & Farwell, who resided at Osborne, Kas., were solicitors for certain loan companies, including the Kansas Mortgage Company, of Topeka, Kas. As such solicitors, they took the application of W. H. Mumford, of Osborne county, for a loan in the sum of $800, and forwarded it to said mortgage company. The company sent its land examiner to view the land, and, on receipt of his report, made out and forwarded to Cochrane & Farwell a note and mortgage for the amount of the loan. These papers were executed by Mumford and wife on the 4th of February, 1889, and recorded and returned to the company at Topeka on the 5th; and on the 18th Cochrane & Farwell received from the company a draft to their order for $733.95, the net proceeds of said loan. In the meantime, after the company had sent to Cochrane & Far-well the papers for execution, the latter had advanced, on their own responsibility, several small sums of money to Mumford on said loan. Mumford being in debt to several parties, Cochrane & Farwell were, on the 7th of said month, served with process of garnishment by Gillette Bros., the plaintiffs herein. On the 10th they were served with like process in behalf of the State Bank; and on the 18tb, after. they had received from the loan company the draft of $733.95, and before they had paid it out, except to repay themselves the amount advanced by them to Mumford, they were garnished by the defendants Cooper & Vanscyoc. On the trial, the court found that the plaintiffs and the State Bank had no lien by reason of their garnishments; that the defendants Cooper & Vanscyoc were entitled to the first lien on the money in the hands of Cochrane & Farwell belonging to Mumford, and that the State Bank was entitled to the balance of the money on an agreement with Mumford, who dropped out of the cáse. The question here is, how should the money in the hands of Cochrane & Farwell have been distributed, under the facts as they appear, which are undisputed?
This court said, in the case of Johnson v. Brant, 38 Kas. 754, that—
“Garnishment proceedings bind such property, money, and credits, and only such, as belong to the defendant, and are not exempt from attachment and garnishment, and are in the hands of the garnishee or owing by him to the defendant, at the time when the garnishee notice is served upon the garnishee.”
This case was referred to and approved in the case of Ives v. Addison, 39 Kas. 175. Cochrane & Farwell were in no wise indebted to Mumford until they received from the mortgage company the draft in payment of the Mumford loan. Under the facts of this case, no contractual or other relation . existed between Mumford and Cochrane & Farwell, whereby the latter were indebted to him in any sum prior to the receipt of the said draft. Up to that period any indebtedness between them was in their favor, they having advanced to him several small sums upon their own responsibility, for which they were to be reimbursed out of the proceeds of the loan when made by the company; nor did Cochrane & Farwell have in their possession any moneys or credits belonging to Mumford, prior to the receipt by them of the draft from the mortgage company.
When the company made its draft in payment of the Mumford loan it made it payable to |Cochrane & Farwell. But it was for the use of Mumford. It represented the proceeds of the loan made by him from the mortgage company. From the receipt of said draft by Cochrane & Farwell until the proceeds thereof were paid over to Mumford, they had in their possession moneys belonging to him to the amount of said draft less the advances made by them to him, which were to come out of the proceeds of said loan. Under the authorities above cited, process of garnishment served upon Cochrane & Farwell after the receipt of said draft, and before the payment by them of its proceeds to Mumford, attached to and bound the money represented by said draft in their possession. But process of garnishment served upon Cochrane & Far-well before the reception by them of the draft belonging to Mumford did not and could not attach to and bind the proceeds of said draft in their possession, for the reason that it was not yet in their possession.
The facts of the case show that the garnishee process in behalf of the plaintiffs, Gillette Bros., was served upon Cochrane & Farwell on the 7th of February, 1889, and that of the State Bank on the 10th of the same month, while Cochrane & Farwell did not come into possession of the Mumford draft until the morning of the 18th of said month. It follows, then, that the trial court was right in holding that neither the plaintiffs nor the State Bank obtained any lien on the proceeds of the said draft in the possession of Cochrane & Farwell.
Cooper & Vanscyoc were more fortunate, for the facts show that they got service of garnishee process upon Cochrane & Farwell on the 18th, after they had received the Mumford draft from the mortgage company, and while the proceeds thereof were still in their possession. This process, therefore, became a lien upon the money in the hands of the garnishees belonging to Mumford. It follows that the trial court was right in so holding. We therefore recommend that its judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This is an action by Sells against the city of Topeka to recover damages to property, occasioned by a change of a grade on Kansas avenue. Sells owns lots 75 and 77 on said street, and improved the same by the construction of two large brick store buildings. The property is situated on the west side of Kansas avenue, between Third and Fourth streets. Before he commenced the erection of these buildings, he took great precaution to have them built to conform to the grade of the street, as they were designed for business purposes. Similar precautions were also taken about the construction of a sidewalk, composed of broken stone and asphalt. These buildings and sidewalks were constructed in 1883 or 1884. On March 1, 1886, an ordinance was passed, the material parts of which are as follows:
“An Obdinanoe establishing the grades of oertain streets and avenues and repealing ordinances Nos. 198, 215, 251, 315, and 338.
“Be it ordained by the Mayor and Councilmen of the Oity of
Topeka:
“Section 1. That the grades of the several streets and parts of streets hereinafter mentioned are hereby established as specified in this ordinance.
“ Sec. 2. That the figures herein named indicate the height of grade elevations of the respective block corners, as noted by the points of orientation at the intersection of streets, in feet or tenths of feet above the city datum.
“Sec. 3. That the grade along the line of the block shall be a straight line from any given named point to the next nearest named point.”
“Sec. 8. That the grade elevations at the corners of the intersection of Third street with several cross streets shall be as follows:
“Kansas avenue, N.E., 47.0; S.E., 49.5; S. W., 50.6; N. W., 48.2.”
In due time a notice of appraisement was given, and it stated:
“The following shows the elevation of grade under the proposed ordinance, the cut or fill to be made as provided for under the proposed ordinance, and the cut or fill in the established grade as it now exists at each respective block corner within the above-described territory.
PROPOSED ORDINANCE OUT OB PILL.
Intersection on Third Street. Mevation. New. Old.
With the N. E. corner of Kansas avenue, 26.4 Fill 0.1 Cut 2.5 “ “ S. E. “ “ “ “ 28.4 “ 0.2 “ 3.2
“ “ S. W. “ “ “ “ 28.4 “ 0.1 3.3
“ “ N.W. “ “ “ “ 26.4 “ 0.0 “ 2.6
1 Intersection on Fourth Street.
With the N. E. corner of Kansas avenue, 47.0 Fill 0.1 Fill 1.3
“ “ S. E. “ “ “ “ 49.5 Cut 1.7 Cut 1.7
“ “ S.W. “ “ 11 11 50.6 Fill 0.4 Cut 0.7
“ “ N. W. “ “ “ “ 48.2 “ 0.2 Fill 0.2”
By this notice it would appear, that at the two points mentioned in the notice nearest to and in a straight line with Mr. Sells’s building there was proposed to be, at the nearest point on the south, viz., the northwest corner of Kansas avenue and Fourth street, a fill upon, or raising of, the established grade, of fa of a foot, or 2-¡- inches, and at the nearest point on the north, to wit, the southwest corner of Kansas avenue and Third street, a fill of of a foot, or 1|- inches. By the ordinance it was provided:
“Sec. 3. That the grade along the line of the block shall be a straight line from any given named point to the next nearest named point.”
It will be seen by the notice given that the grade in front of Sells’s property was not to be lowered below the established grade at the time he built, but, on the contrary, it would be raised between fa of a foot and fa of a foot along the entire line between Third and Fourth streets. The jury, in response to a question submitted to them at the request of the city, specially found that the grade was lowered in front of Sells’s premises about 18 inches. A verdict was returned and a judgment rendered in favor of Sells for $1,200. A motion for a new trial was overruled, and all exceptions saved necessary to raise the questions discussed in this court.
The law governing cities of the first class provides:
“Sec. 18. The mayor and council shall have the power to establish by' ordinance the grade of any street, alley, lane or avenue within the city; and when the grade of any street, alley, lane or avenue shall have been so established, or shall have been heretofore established and the grade thereof accepted by the council, such grade shall not be changed until declared necessary by a resolution by a three-fourths vote of all the council elected, and. not then until the damage to property-owners, which may be caused by such change of grade, shall have been assessed by three disinterested appraisers, who shall be appointed by the mayor with the consent of the council for that purpose, who shall make such appraisement and file their report under oath with the city clerk, within twenty days after receiving notice of their appointment from the city clerk; and the city clerk shall give notice to interested property-owners by publication in the official paper of the city for at least ten days prior to the assessment of damages, which notice shall specify the names of the appraisers, the time when they will meet to make such ’appraisement, and the name of the street between the points wherein such change of grade is to be made, and the amount of damages so assessed shall be deposited with the city treasurer, subject to the order of said property-owner or owners, or their agent or agents, before any such change of grade shall be made; and any person feeling himself aggrieved by such amount of damages may appeal therefrom within 10 days after confirmation of said report by the council, by serving a written notice upon the mayor, or in his absence the acting mayor, or in his absence the city clerk, of such intention to appeal to the district court, and by executing a bond to the city, conditioned to faithfully prosecute such appeal to a final determination thereof, and to pay all costs so incurred in case such appellant does not recover a judgment greater than the damages awarded by said appraisers. The taking of such appeal shall not operate in any manner to prevent the change of said grade; and the cost and expense of changing the grade of said street and grading the same shall be paid by the city.”
The principal contention of the city in this court is, that this action at law cannot be maintained; that Sells’s only remedy was an appeal from the award of the appraisers. This contention is based upon well-considered cases that hold “that if a statute gives a right to compensation for damages for which no remedy before existed, and a remedy is provided to which the party injured may resort, that remedy is exclusive.” It is said that this rule applies to this case; that the law governing cities of the first class gives a remedy where none existed before; that before the passage of this law no damages could be recovered in this state for a change of the grade of a street, and that now the only remedy is by an appeal from the award of the appraisers.
We propose first to consider the nature and extent of the liability imposed by law on cities of the first class for damages in cases of this character. Paragraph 562 of the General Statutes provides, that after a grade has been established it shall not be changed until declared necessary by resolution by a three-fourths vote of all the council elected, and not then until the damage to property-owners which may be caused by such change of grade shall have been assessed by three disinterested property-holders, etc. The statute provides for notice to be given to all property-owners of the time and place of the meeting of the appraisers, and gives a party aggrieved the right of appeal. In plain terms, the duty is cast upon the city of making a proper appraisement of damages. It seems, by the language of the section, that the proper performance of such duty is a condition precedent to the exercise of the right to change the grade. Hence, in the performance of such duty, the city must substantially conform to all the requirements of the law in this respect, because the doctrine may be considered established, that—
“Where a duty is a corporate one, that is, one which rests upon the municipality in respect of its special or local interests, and not as a public agency, and is absolute and perfect, and not discretionary or judicial in its nature, and is one owing to the plaintiff, or in the performance of which he is specially interested, that the corporation is liable in a civil action for the damages resulting to individuals by its neglect to perform its duty.” (2 Dill. Mun. Corp., 4th ed., § 980, and authorities cited.)
This statute imposes such a liability 6n the city of Topeka when it changes an established grade. If in such an attempt the city authorities fairly comply with all the obligations and requirements of the law with respect to the appraisement of damages, we agree with counsel for the city that in such an event the only remedy of the aggrieved property-owner is by an appeal from the award. Notice to the owner is of the .essence of all proceedings affecting property, and the vital complaint here is that the notice given to Sells did not inform him that the proposed change of the grade of the street in front of his property was to be lowered, but did acquaint him with the fact that it was to be slightly raised, and this was in effect a notice to him that his property would not be materially injured by such change. When the change was made, however, and the street made to conform thereto, it was found that the street in front of his buildings was lowered 18 inches. The city therefore did hot give him notice of what it intended to do, nor did the city authorities conform to the terms of the notice given. Appraisers were appointed to assess the damages, and they acted in accordance with the terms of the notice, and in their report say that on the west side of Kansas avenue south from the corner of Fourth street “the proposed grade will conform to existing improvements,” and report no damages. So that it is plain that the question of the amount of damages to the property of Sells by lowering the grade of the street in front of his buildings about 18 inches was never submitted to the appraisement required by the statute, or ever entered the minds of the appraisers, and that this was caused by the neglect of the city authorities, or by their arbitrary change after the report of the appraisers had been made. In any event, Sells had no notice or intimation that so injurious a change of grade was either contemplated or was to be made until work on the street began to indicate the extent of the alteration in the grade. The controlling question, therefore, in this case is, has there been such an omission of duty upon the part of the city, by reason of these things, as will make it liable in a common-law action, such as this, for damages to the property of Sells? There are many well-considered cases that so hold. Among them is the case of Healey v. City of New Haven, 49 Conn. 394, which says:
“A question is made whether the defendant is liable in this form of action. The statute in terms makes the city liable for the damages, ‘to be ascertained in the manner provided for ascertaining damages done by laying out or altering highways therein/ The defendant contends that when a statute creates a right and gives a remedy, that remedy alone must be resorted to'.' The principle invoked is more especially applicable to cases where the statute makes an act lawful in itself unlawful; but it is not applicable to this case, for the reason that the statute gives the plaintiff no remedy. It simply points out a method by which the city may" ascertain (the amount of damages. íuü”C¿1
“The charter (Special Laws, vol. 6, p. 486, § 28) provides that damages in cases of laying out or altering highways shall be assessed by the board of compensation or by the common council. Section 30 provides that the sum assessed shall be paid to the land-owner, or, if he refuses to receive it, shall be deposited for him in the city treasury. In all this the city must clearly take the initiative. It is its duty to move in the matter. Now, suppose it does move; and, having ascertained the damages, refuses to pay: what remedy has the plaintiff? The statutes being silent, the law supplies the remedy. There is certainly no occasion to resort to a mandamus, for nothing remains to be done but to pay the money. But suppose the city refuses to have the damages assessed, as in this case: what then is the remedy? The defendant answers, ‘a mandamus’ Not necessarily. That writ lies only when there is no other remedy. We think an action for the damages is a more direct, more complete and less expensive remedy. The proceeding by assessment is not a remedy for the plaintiff. He cannot institute it nor control it; and if instituted by the city he cannot compel its continuance. It was in no sense designed for his benefit, but is rather in the nature of a proceeding against him, or against his property in rem.
“The constitution prohibits the taking of private property for public use without compensation. It being necessary to take private lands for highways, this proceeding was designed as an expeditious and inexpensive method of ascertaining the damages to be paid. The theory is, that the damages shall be ascertained and paid before the land is taken. But the city cannot escape responsibility by omitting this proceeding and taking the land in the first instance. Should it attempt to do so, it would be no answer to a suit that the statute makes provision for ascertaining the damages. In such a case the plaintiff would hardly be required to resort to a mandamus. The statute provides the same remedy for both cases, the original taking of the land, and the subsequent damage to the adjoining land by changing the grade, not for the land-owner, but for the party taking the land or doing the damage. The cases are analogous, the only difference being that in Connecticut the damages in the latter case, in the absence of a statute to the contrary, are presumed to have been estimated and paid when the land was originally taken. The cases are so nearly alike that the same principle should apply to both.
“The city may and should resort to the statutory mode of assessing damages in all instances, and its failure to do so will be no defense. If it takes land or makes improvements, thereby causing damage where damages are provided for, without complying with the statute, its proceedings are unlawful. It cannot with good grace turn the plaintiff out of court and say to him, you ought to have resorted to a mandamus to compel us to do our duty.
“If a recovery in this section results injuriously to the city it is not through any fault of the plaintiff. But it is not certain that it need be so. There is no difficulty in estimating damages, deducting the benefits; and»we do not now see that this suit will of itself prevent the city from assessing damages and benefits in respect to other parties. Of course the city cannot be deprived of its right to resort to the statutory proceeding without its consent; but having waived that right, as it has in this case, it cannot complain of an ordinary action at law. A new trial is advised.”
In the case of City of Elgin v. Eaton, 83 Ill. 535, the court says:
“ In this case the city entered upon the improvement of the street after the adoption of our present constitution, and before the passage of our eminent-domain law. The rights of the parties were then fixed, and cannot be altered by subsequent legislation, and the right to recover damages was given by the constitution; and inasmuch as the city failed to have them assessed as they might have been under the eminent-domain law, then in force, the action will lie for their recovery. (See The People v. McRoberts, 62 Ill. 38.) Failing to pro vide compensation for the damages, the city became liable to an action. (Clayburgh v. City of Chicago, 25 Ill. 535.) The failure to have the damages ascertained, if there were any, and provide the means to pay the same, was an omission of duty which rendered the body liable to an action.”
City of Lafayette v. Wortman, 107 Ind. 404, construes a section of the Indiana statute very similar to ours, and says:
“Counsel for the city, the appellant here, makes the point that, upon the facts stated, the appellee might have enjoined the common council from proceeding with the change of grade, and the improvements complained of, until his damages were assessed and paid, but that having waived his right to so enjoin the common council, his only remaining remedy is a resort to the writ of mandamus to compel the city to have his damages assessed under the statute having relation to the government of cities, citing the cases of Trustees v. Mayor, 33 N. J. L. 13, and Macy v. City of Indianapolis, 17 Ind. 267, and that consequently the demurrer to the complaint ought to have been sustained.
“In response to the point thus made, it is argued that the complaint was in form, as well as in legal effect, only a demand for consequential damages resulting from the negligent, unskillful and unmechanical manner in which the improvements in question were made, citing the cases of City of Logansport v. Wright, 25 Ind. 512; City of Indianapolis v. Huffer, 30 id. 235; Weis v. City of Madison, 75 id. 241 (39 Am. Rep. 135); City of Evansville v. Decker, 84 Ind. 325 (43 Am. Rep. 86); Town of Princeton v. Gieske, 93 Ind. 102; City of Crawfordsville v. Bond, 96 id. 236; and other cases bearing on the same general question of the liability of cities for damages caused by negligent and unskillful street improvements.
“The non-liability of cities for injuries and inconveniences to the owners of property as a consequence of improvements made upon, and changes in the grade of, their streets and alleys, when the law providing for such improvements and changes has been fairly complied with, continues to be substantially as it was when the case of Macy v. City of Indianapolis, supra, was decided, but since that time a clause has been attached to one of the sections of the statute defining the power and duties of cities, in the following words: ‘Provided, That when the city authorities have once established the grade of any street or alley in the city, such grade shall not be changed until the damages occasioned by such change shall have been assessed and tendered to the parties injured or affected by such change, and such damages shall be collected by the city from the party or parties asking such change of grade in the manner provided for the collection of street improvements.’ (Rev. St. 1881, §3073.) The cities of the state consequently have not now, and since the enactment of this provision have not had, the lawful right to change the grade of a street or alley which has once been regularly established, without first having the damages which will result to adjacent property-holders assessed and tendered. (City of Logansport v. Pollard, 50 Ind. 151; City of Kokomo v. Mahan, 100 id. 242; Mattingly v. City of Plymouth, 100 id. 545.)
“ It follows that the change of the established grade of a street or alley by a city, without first having the prospective damages assessed and tendered, has become an unlawful act, an affirmative wrong, or misfeasance, for which damages may be recovered by any party whose property may thereby be injured.”
The case of Noyes v. Town of Mason City, 53 Iowa, 418, is a strong one in this direction. It reads:
“The remaining grounds of demurrer in various forms present the question whether this action can be maintained, there being as claimed by the appellee a statutory remedy which should have been followed. If this last proposition is true, that is, if there is a statutory remedy, it will be conceded this action cannot be maintained. Public corporations being creatures of the statute, and having no powers except such as are expressly granted or necessarily and fairly implied in, or incident to, the powers granted, (1 Dill. Mun. Corp., § 55,) it follows that it would be competent for the general assembly to provide in terms that a city or town should not have the power to establish or grade the streets. This being true, it further follows that such power, if granted, must be exercised in the manner provided by the charter. The power to establish and grade streets in the first instance is conferred in express terms, and without qualification or limitation. (Code, § 465.) If there were no other statute defining and limiting such power, it would be conceded that the defendant was not limited to the establishment of a single grade, but that it could alter or change the same, and the plaintiff would have no redress, however much he may have been damaged by the change, unless the work was done negligently, and because of such negligence the damages were sustained. But the statute or charter does not stop there. The power to alter and establish a grade is expressly granted.
“The petition states the grade was unlawfully changed. Is this true? Section 469 of the code provides: First, that the city or town may alter the .established grade; second, if any property-owner has built in accordance with such grade, and is damaged by the alteration, the city or town shall pay said damages, which shall be assessed by three appraisers, one of whom shall be selected by the city or town, and one by the property-owner, and if they disagree they shall .select a third appraiser; third, if the owner fails to appoint an appraiser in 10 days after receiving notice to do so, the city or town shall select all the appraisers; fourth, the appraisement, when completed, shall be returned to the city or town; and fifth, the city or town- authorities may confirm or annul the appraisement; if annulled, all the proceedings shall be void; if confirmed, the property-owner may appeal to the circuit court.
“Under this statute the city or town may change the established grade, and may proceed to the extent of passing the required ordinance and making the necessary surveys, but if the change will damage private property the city or town cannot excavate or fill up the streets so as to conform them to such changed grade until the damages are assessed in the manner provided. The city or town is required to serve a notice on the owner of the property affected to choose an appraiser. This was not done, nor were any appraisers appointed, nor were the damages assessed or tendered to the plaintiff in the case at bar. Without taking any of the steps required by the statute the grade was changed, and the defendant proceeded to excavate the streets, and remove earth therefrom, thus causing the damage sought to be recovered. This was an unlawful act, because the granted power was not exercised in a lawful manner.- This being so, an action lies. (Hempstead v. Des Moines, 52 Iowa, 303; Dore v. City of Milwaukee, 42 Wis. 18.) If this be not true, then the plaintiff has no remedy, although the statute in terms declares he is entitled to damages if his property has been injured by the change of grade. It is intimated he should have invoked the aid of a court of chancery and enjoined the defendant, or by mandamus compelled it to appoint appraisers. Possibly either or both of these remedies could have been adopted, but we do not think they were the only ones open to him.
“Ordinarily, at least, mandamus will not lie where there is a plain, speedy and adequate remedy in the ordinary course of law. (Code, §3376.) And this is true as to an injunction unless the injury is irreparable, and the party sought to be enjoined is insolvent. The argument that either of these remedies should have been adopted proves too much; for neither of them is contemplated by the statute which creates the right, and is said to have provided an exclusive remedy by appeal for the enforcement of such right. Suppose the appraisement was regularly made as provided by statute, and annulled by the defendant, as it had an undoubted right to do; the property-owner cannot take any appeal in such case. Suppose the defendant had done so, and afterward proceeded to excavate the streets, and the plaintiff’s property was thereby injured; no appeal would lie in such case. Is he without any remedy? If not, what is it? In our opinion he at least has the one adopted in this case. If a city or town desires to confine the property-owner to the statutory remedy of appeal, it must proceed as the statute directs. Having done so, and confirmed the appraisement, it may be that an appeal is the only remedy the owner has, if he is unwilling to accept the appraisement.”
The case of Wright v. Corporation of Georgetown, 4 Cranch, 534, holds that a party yhose property is injured by grading a street and raising the earth so as to obstruct the entrance to his dwelling-house can maintain a special action upon the case, notwithstanding the city attempted to appraise and ascertain the damages, the appraisement, however, being informal and void. The cases of Hempstead v. Des Moines, 52 Iowa, 303, and Benton v. Milwaukee, 50 Wis. 368, are directly in point. These cases are supported by a number of others, that hold that where railroad companies were authorized to lay tracks along the streets of a city, paying abutting owners damages occasioned thereby, the amount to be ascertained in a certain manner, and the railroad company omitted to perform the duty imposed on it in this respect, a common-law action can be maintained against the railroad company. Notable among these eases that we have examined are the following: Dickson v. B. & P. Rld. Co., 3 MacArthur (D. C.), 362; Mulholland v. Des Moines Rld. Co., 60 Iowa, 740; Wilson v. Des Moines Rld. Co., 67 id. 509.
Separate and apart from these adjudicated cases, it seems on principles of abstract justice that this action ought to be maintained ; that when a city is charged with the ascertaining and tendering or paying all damages to private property occasioned by the change of an established grade of a street, and a plain path of procedure is marked out for them to tread by legislative authority, and it entirely disregards the requirements of the law, and acts in such a manner that the property-owner is misled, and the city authorities themselves are mistaken in the practical effect of their proceedings, or are so bewildered by doubt that they finally resort to arbitrary action to accomplish that which they not only failed to do by their proceedings, but neglected to give notice to the property-owners to be affected thereby, that this legal remedy can be followed. If this be not so, then we will have to permit the abutting property-owners to submit, notwithstanding the fact that the declared policy of the state, as embodied in this statute, is, that they shall be allowed all damages that they may sustain by reason of the change of an established grade. The statute confers a positive right to such damages.
The power of the city to change the grade is dependent on the condition that all just damages.be first paid or tendered. It is the primary duty of the city to set on foot and pursue the mode prescribed by the statute in the ascertainment of such damages. In pursuing these steps it gives a notice that not only misleads a property-owner, but one that it itself grossly violates and departs from, and then, when the property-owner awakes to the fact that his property is injured by the change of grade, the departure of the city from the terms .of its own notice is made a pretext for a denial to the abutting owner of his right to the damages done his property. The statute was passed for the benefit of the city, the operative machinery of the law was given into the custody of the city the better to enable it to accomplish the purposes of the statute, and the city authorities cannot openly omit to do the things required of them and then be protected against all claims for damages that arise out of their own neglect of dutU We tMnk thÍS aCtÍ°D “ Properly brought and can be successfully maintained. This decides majn conf,roverSy in the case; the principal complaint being that the demurrer of the city to the petition was overruled.
The instructions of the court with reference to the measure of damages are objected to. The city did not request any instruction as to the measure of damages. The court gave these two paragraphs: “ That if, in consequence of such change, the owner suffered loss or damage to his buildings, he is entitled to recover, in an action like this, the amount of such damage; ” and “in such cases the damage the plaintiff is entitled to recover, if any, is such damage as results to the plaintiff’s property from the change of grade, if it was damaged.” The evidence produced consisted of Sells’s declarations that the buildings were worth $10,000 before the change of grade, and $5,000 after the change, and the other witnesses on behalf of the plaintiff were experts, who testified to the cost of lowering the floors and adjusting the buildings to the change of grade; and this course is approved by this court in the case of City v. Martineau, 42 Kas. 387. Each one of these witnesses made the cost of adjusting the building to the change of grade greater than the verdict of the jury by several hundred dollars. The city offered no evidence as to damage or value, so that it is doubtful whether the instruction, if erroneous, was prejudicial. In this feature this case is very similar to Douglas v. Geiler, 32 Kas. 499. The city can urge that the instruction given was a misstatement of the law.as applicable to the facts developed on the trial, but not having requested a different instruction, it cannot be allowed to claim here that the neglect or omission to give a particular instruction not requested is reversible error. The instruction was not as definite and precise as it ought to have been, but there is sufficient in the record to demonstrate that the evidence was proper, and the case tried on the right theory as to the measure of damages, and the failure of the trial court to give the precise rule in the language of the books did not prejudice the city.
Complaint is made that evidence was allowed to go to the jury relative to the cost and value of the broken stone and asphalt sidewalk. The street commissioner testified that he “cut away the old walk; we cut it down to grade.” In other words, a valuable sidewalk was entirely destroyed by the officers of the city, and Sells was compelled to construct a new one. The court gave no instructions on the question and the jury returned a lump sum. We assume that the jury considered the sidewalk item in connection with the other elements of damage, and, as sidewalks are built at the cost of the abutting property, we do not think this was error.
This covers all the questions raised or discussed by the city that are important, and we recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action to quiet title to the northwest quarter of section 15, township 13, range 22, in Johnson county, Kansas. On the trial of the case below, it was admitted that the plaintiff, Gertrude A. Woodhouse, held title to said land through a regular and unbroken chain of conveyances from the government of the United States of America to herself, and that all of said conveyances were duly recorded in the office of register of deeds of Johnson county, Kansas. It was also admitted that said Gertrude A. Woodhouse and her grantors had been in the actual, open, quiet and peaceable possession of said land for more than 15 years last past before the commencement of this action, under a claim of title thereto, and were in possession thereof when this suit was begun. The defendant claimed under a tax deed for the land in dispute, from the clerk of Johnson county, Kansas, to J. W. Sponable, dated June 28, 1866, based upon a tax-sale certificate of May, 1864, for taxes of 1863, which deed was introduced by the defendant below in support of his claim.
It was admitted in behalf of the defendant below, that Gertrude A. Woodhouse and her grantors failed to pay the taxes on the land in dispute for the years 1863, 1868, 1870, 1871, and 1874, and that said taxes were paid by J. W. Sponable, which, together with penalties, interest, and costs, amounted to $139.04, December 14,1874, and that none of said taxes were ever returned to J. W. Sponable by said Gertrude A. Wood-house, or her grantors, nor by anyone else. It was admitted in rebuttal, in behalf of the plaintiff, that at the time of the sale of the land in controversy for the taxes of 1863, on the 10th of May of that year, J. W. Sponable, defendant below, was county treasurer of Johnson county, Kansas, and continued to hold said office until 1865. The proof showed, in rebuttal, that W. M. Shean bid off the land in controversy at treasurer’s sale for taxes, May 10,1864, and obtained a tax-sale certificate; that on the 12th day of May, 1864, said Shean assigned said certificate to J. W. Sponable, the defendant below, who was at the time treasurer of the county, and also son-in-law of Shean. A number of other tax-sale certificates, issued to said Shean and others, on the 10th and 11th days of May, 1864, for other lands, were introduced by the plaintiff below, to show that they also were assigned on the 12th of May, 1864, to J. W. Sponable.
On the foregoing facts and the pleadings in the case, the cause was tried by the court, January 28, 1889, and taken under advisement until March 26, 1889, when the court found for the plaintiff, that the facts stated in her petition were true. The defendant thereupon filed a motion asking the court to ascertain the amount of taxes paid by him on the land, and require the plaintiff to pay the same to him, together with interest thereon as allowed by law, before her title to the land in controversy should be quieted. This motion was overruled. A motion for new trial was then filed, which was also overruled.
The plaintiff complains of the action of the court in overruling the motion to require Mrs. Woodhouse to compensate him for taxes and penalties paid by him on the land in dispute, together with interest thereon, before her title should be quieted. It was admitted that Mrs. Woodhouse not only held title to the land by a regular and unbroken chain of conveyances from the government of the United States to herself, but that she and her grantors had held the actual, adverse and peaceable possession of -the land for more than 15 years before and up to the commencement of this action. The tax deed of Sponable to said land was made June 28,. 1866, and filed for record the same day. This action was commenced. June 25, 1888. As 22 years had elapsed from the filing of the tax deed before th£ commencement of this cause, Sponable could not enforce his claim for taxes in any proceeding commenced by him for that purpose. But he claims that, as the action to quiet title is an equitable pro-, ceeding, Mrs. Woodhouse’s title should not have been quieted until she had done equity by paying to him the taxes he had paid on her land, together with the interest allowed by law thereon.
The reply in the (ase alleges that the tax deed and all prior proceedings upon which it is based are void. The evidence shows that the sale for taxes was on the 10th day of May, 1864; that the land was purchased by, and tax-sale certificate issued to, W. M. Shean; and also shows that the certificate was transferred by Shean to Sponable, the county treasurer who sold the land, on the 12th day of the same month, and but two days after the tax sale. The assignment does not show how much the treasurer paid therefor. It simply shows that the transfer was made in consideration of-dollars and-cents. There is nothing to show that Shean sold for a larger sum than he paid, which might indicate a purchase and sale in good faith. In his deposition, wherein he- enumerates what he had paid on the land, which was introduced by him as evidence in the case, Sponable says: “As my recollection is, I paid for the taxes named in the deed, interest and cost of deed, in the treasury of Johnson county, $22.” He does not say he paid Shean anything, but says he paid it “in the treasury of Johnson county.” That is the gist of the complaint so far as it relates to this point; that is, that he, Sponable, and not Shean, was the purchaser at the tax sale; that Shean was simply used as an instrument through whom Sponable was to procure the tax-sale certificate to the lot. To reinforce or corroborate the theory that Sponable was purchasing land at his own tax sale, other certificates were introduced to show that other pieces of land were sold to Shean and one or two other persons, the certificates for which were all assigned to Sponable on the same day. We think such certificates were properly introduced for such purpose.
The court found for the plaintiff below, that the tax-title was void, and that “J. W. Sponable has no rights, claim, lien or interest in the land in dispute.” The court below . having held the tax title void, upon the ground that it was based upon a fraudulent tax sale, what rights had Sponable left in connection with such sale? The fraudulent connection with the sale consisted in the fraudulent acts and intention of Sponable. It is agreed that such acts rendered his tax title void. Whatever he paid for such tax title, as well as what he paid in taxes subsequently, was paid by him pursuant to a voluntary act of fraud on his part. Will a court of equity aid him to recover these payments back? We think not. On the other hand, we think that whatever was so paid was forfeited by him to the public, and that he cannot recover it back. Whether, however, the money so paid by Sponable operated to cancel the lien of the county upon the land for the taxes he attempted ‘ to pay, or the county still has a lien upon the land for said taxes, we do not undertake to decide. It is sufficient that the courts will not aid Sponable in an attempt to recover from anyone money paid by him pursuant to a fraudulent purpose on his part.
The Iowa cases cited by the plaintiff in error depend for their force upon a statutory provision of that state which “ vests in the purchaser (of a tax title) all the right, title, interest and claim of the state and county thereto.” Under this action, the Iowa courts hold that, though a tax sale is void as to the owner of the land, it may be held to pass the right and title of the state and county thereto to the purchaser; and as the purchaser thus obtains the lien of the county, he may enforce it though the sale is held void. We have no such statute, and do not think the principle upon which it is based a good one, since it relieves a fraud of the natural penalty of forfeiture which follows it.
It is recommended that the judgment of the district court be affirmed.
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 in the nature of ejectment, brought in the district court of Butler county on Septem ber 24, 1888, by John Davenport against Holmes E. Sadler, for the recovery of section 24, in township 24, range 7, in said county. The case was tried on December 27, 1888, before the court without a jury, and on February 22,1889, the court rendered its decision and judgment making special findings of fact and law, and rendering judgment in favor of the defendant and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court for review. The findings of fact and law made by the court below, so far as it is necessary to state them, read as follows:
“findings of fact.
“1. The plaintiff’s title to the premises in controversy, to wit, section 24, township 24, range 7, Butler county, Kansas, consists of, as follows, viz.: (a) Patents from the United States to J. E. MeClun, dated 1868; (b) a quitclaim deed from J. E. MeClun and wife to John Nichols, dated June 6, 1868, recorded December 13, 1869; (c) a deed from John Nichols and wife to David M. Bunn, dated March 15, 1869, recorded May 12, 1870; (d) a warranty deed from David M. Bunn and wife to Joseph A. Towle, dated June 2, 1880, recorded October 28, 1881; (e) a warranty deed from Joseph A. Towle and wife to John Davenport, the plaintiff, dated May 2, 1882, recorded May 5, 1882.
“2. The defendant’s rtitle to said premises is based on conveyances and proceedings as follows: (a) A sheriff’s deed, which is in words and figures following, to wit. [Here follows the above-mentioned sheriff’s deed copied in full. It was executed by the sheriff of Butler county on April 26, 1880, conveying the property in controversy amoDg other property to Butler county, and was recorded on January 9, 1888. It seems to be sufficient in form, and the questions presented concerning it we shall mention and discuss hereafter.] (b) A contract of sale in writing, embraced in the following petition and order, to wit:
“‘To the Honorable Board of County Commissioners of Butler County, Kansas:
“‘Gentlemen — I desire to purchase section 24, township 24 south, of range 7 east of 6th principal meridian, and also southwest quarter of section 8, township 23 south, of range 8 east of 6th principal meridian, which were sold by the sheriff of Butler county to said county for delinquent taxes, and proceedings had under chapter 39 of the Laws of 1877, and I hereby offer to pay to said county for the same the sum of
$50, and the taxes for 1878 and 1879 on said section 24, township 24, range 7, amounting to $158.68, making in all the sum of $208.68.
Respectfully submitted, Holmes B. Sadleb.’
“‘Commissioners’ Journal D, April term, 1887, Butler county, Kansas.
“ ‘ State oe Kansas, County oe Butleb. County Clebk’s Oeeioe.
“‘Él Dobado, Kansas, Monday, April 11, 1887.
“‘The board of county commissioners, Butler county, Kansas, met in regular session as required by law.
“‘Present: T. R. Purcell, chairman; J. K. Skinner and A. Kuster, commissioners; E. H. Hutchings, county attorney; and James Fisher, county clerk.
“‘Fbiday Mobning, April 15, 1887.
“‘Board met. Members all present.
“‘In the matter of the application of Holmes E. Sadler, to purchase section 24, township 24, range 7 east, and the southwest quarter of section 8, township 23, range 8, Butler county, Kansas.
‘“And now comes Holmes E. Sadler and makes application to purchase section 24, township 24, range 7 east, and the southwest quarter of section 8, township 23, range 8, which were sold by the sheriff of Butler county for delinquent taxes, in proceedings had under chapter 39 in the Laws of 1877, and offers to pay to said Butler county for the same the sum of $50, and the taxes of the years 1878 and 1879 of said section 24, township 24, range 7, amounting to $158.68, making in all the sum of $208.68. The board grants said application, and orders the chairman of the board to execute and deliver to said Holmes E. Sadler a quitclaim deed to said described land, upon the payment to the county treasurer of said sum of $208.68. T. R. Puboell,
Chairman Board of County Commissioners’
“(c) A quitclaim deed from Butler county, Kansas, by the chairman of its board of county commissioners, to Holmes E. Sadler, dated April 18,1887, and recorded April 23,1887.
“3. As to the proceedings upon which the sheriff's deed set out in finding No. 2 is based, neither the petition nor the notice of the pendency of such suit which was published gave the name of any person as owner of said land or any part thereof, but all of said proceedings were otherwise regular and sufficient. At the time such proceedings were instituted, David M. Bunn appeared from the records in the office of the register of deeds in said county to be the owner of said land, but the county attorney who brought the suit had no actual knowledge or information as to the ownership thereof.
“4. In rendering the judgment on which the sheriff's deed aforesaid is based, the court made among others the following findings: ‘That all and singly the allegations contained in said petition for the sale of said lands were true, and that the owner of said land was unknown, and that the land was delinquent for the years 1870 to 1877 inclusive.'
“ 5. David M. Bunn has resided in Franklin county, Kansas, continuously since 1875.
“6. The deed from David M. Bunn and wife to Joseph A. Towle, referred to in finding No. 1, purports to be a full covenant warranty deed for a consideration of $4,000, but by a collateral agreement between the parties, all claims arising out of taxes were excepted from such covenants, and the actual consideration agreed to be paid for said deed was $125, and the said Joseph A. Towle took the title as trustee for himself and one H. H. Murray, who were equal partners in the purchase.
“7. Said H. H. Murray thereupon employed one Hamilton as attorney to perfect the title of said land, and on June 6, 1881, said attorney filed with the clerk of said county a petition in writing which has been lost, and for many years has not been seen, and which was substantially as follows: It was addressed to the board of county commissioners of Butler county, Kansas, and it stated first, that D. M. Bunn was the owner of the land, section 24, township 24, range 7 east, in Butler county, Kansas, and that it had been sold for taxes in the year 1871, for the taxes of 1870, and that certain other taxes for other years had been carried back to that tax sale, naming all the years that no taxes had been paid; and asked the right to redeem the said land from the tax sales on payment of the taxes of 1880, and was signed by said attorney, as attorney for D. M. Bunn. Upon the back of said petition was indorsed an order substantially as follows: ‘The within petition is granted, and the treasurer of Butler county, Kansas, is authorized to issue a redemption certificate for the lands described in this petition, on payment to him by D. M. Bunn of all taxes of 1880. By order of the board: A. T. Ha yens, chairman.’
“The following record of the transaction aforesaid was thereupon entered in the journal kept by the county clerk of said county, (Journal C, pages 274 and 275,) which reads as follows:
“1 Commissioners’ journal. June 6,1881. County clerk’s office, June 6, 1881. State of Kansas, Butler county, ss.
‘“The board of county commissioners met as a board of equalization as required by law. Present: A. T. Havens, chairman; M. Guinty, H. N. Pierce, L. Knowles, county attorney, and C. P. Strong, clerk.
“‘June 7,1881.— Commissioners met as per adjournment. Members all present.
“‘June 8,1881.— Commissioners met as per adjournment. Members all present. Application of D. M. Bunn for leave to redeem certain land from an old tax sale granted; but no redemption certificate to issue until taxes for the year 1880 are paid.
“‘No further business appearing, the board adjourned.
A. T. Havens, Chairman.'’
“8. The attorney aforesaid was the same person who, as county attorney, had instituted and prosecuted to judgment the suit on which the sheriff’s deed aforesaid is based, but his term of office had expired in January, 1879.
“ 9. Said attorney thereupon went to the treasurer of said county and paid the taxes for 1880 on said land, amounting to $71.60, and took a tax receipt therefor, and the said treasurer thereupon made an entry in the sales book for the year 1871, opposite the entry of the original sale of said land for taxes, as follows:
“‘On petition of D. M. Bunn, by order of the board of county commissioners, this sale order redeemed, on payment of the taxes for the year 1880.’
“And at the same time said treasurer signed a certificate which was printed on the back of an abstract of title to said land, which was presented to him by said attorney, and which was substantially in the following form :
‘“State oe Kansas, County oe Butleb, ss.
“‘I, the undersigned, treasurer in and for said county, do hereby certify that there are no unpaid taxes or assessments of any kind on the tax-rolls in this office on the real estate, section 24, township 24, range 7 east.
“‘Witness my hand, this 21st day of June, 1881.’
“10. The construction placed by said attorney upon.the action of the board aforesaid was, that upon the payment of the taxes of 1880 all back taxes, from 1870 to 1879 inclusive, were by the board to be canceled and abated.
“11. No certificate of redemption, receipts or writing relating to said transaction other than as above set forth was ever signed or issued by any officer of said county, and no other entry or notation in reference thereto was ever made on aDy records of said county, nor has any other or further sum at any time been paid into the treasury of said county on account of said land by said plaintiff, or those under whom he claims, except the plaintiff has paid the taxes thereon for the years 1881 to 1887 inclusive as the same accrued.
“12. Upon the back of the abstract aforesaid was printed a certificate in the following form, which, at the solicitation of said attorney, was signed by the clerk of the district court of said county after he had erased the words placed in brackets:
“ ‘Statement of Judgments, Mechanics’ and Other Mens.
“ ‘ State oe Kansas, County oe Butleb, ss.
“‘I, the undersigned, clerk of the district court, Butler county, Kansas, do hereby certify that there are no judgments, mechanics’ liens or foreign executions on file or of record in this office, or any attachments or any suits pending in said county, [against said within-de scribed lands nor] against any grantors or grantees herein, [nor against any other person through whom title herein is derived except] to wit: J. E. McClun, John Nichols, David M. Bunn, Joseph A. Towle.
“‘Witness my hand and seal, this 21st day of June, A. D. 1881.’
“13. The plaintiff bought said land of said Joseph A. Towle relying upon the said abstract and the certificate thereon; he, however, first wrote to said attorney asking an explanation of the erasures in the certificate of said clerk thereon, and was answered that latterly the said clerk had declined to sign such certificates upon the back of any abstract without first erasing said words.
“14. The defendant purchased said land of said county without actual knowledge or notice of any of the matters set forth in findings Nos. 3 to 13 above inclusive, and without any constructive notice thereof, except as he was charged with notice by reason of the existence of the words above set forth.
“15. And the court further finds, that there was no evidence offered on said trial as to whether or not the sheriff’s deed aforesaid which was produced by defendant was ever delivered to said Butler county, Kansas, or to any of the officers or agents of said county, and that neither the chairman of the board of county commissioners nor county treasurer or county attorney of said county for the year 1881 had any knowledge of the execution of said deed by said sheriff to said county at any time during the year 1881.”
“CONCLUSION oe law.
“ The defendant ought to recover.”
The facts, stated briefly and in chronological order, are substantially as follows: On June 6,1867, John E. McClun purchased the land in controversy from the United States. On June 8,1868, McClun and wife executed a quitclaim deed for. the land to John Nichols. On March 15, Nichols and wife executed a warranty deed for the land to David M. Bunn. On May 15, 1869, patents were issued for the land from the United States to McClun. On December 13, 1869, the deed from McClun and wife to Nichols was recorded. On May 12, 1870, the deed’from Nichols and wife to Bunn was recorded. Taxes were levied upon the land for the year 1870 and annually thereafter, and were paid only as hereafter stated. On May 1, 1877, chapter 39 of the laws of that year for the collection of delinquent taxes took effect. On April 5, 1878, the county attorney of Butler county commenced an action under that chapter to collect the taxes on the land for the years 1870 up to 1877, inclusive, none of such taxes having been paid at that time, and indeed have never been paid except as hereafter stated. On September 27, 1878, judgment was rendered in such action by default. On March 18, 1879, said chapter 39 of the Laws of 1877 was repealed by chapter 42 of the Laws of 1879, but with proper saving clauses. On October 21, 1879, an order of sale was issued on such judgment, and on December 2, 1879, the land was sold on such order of sale to Butler county, for at least two-thirds of its appraised value, amounting to $1,373.83. At the March term of the court in 1880, such sale was confirmed and a sheriff’s deed was ordered. On April 26,1880, the sheriff’s deed for the land was executed to Butler county. On June 2,1880, Bunn and wife executed a warranty deed to Joseph A. Towle. On July 8, 1881, as the record shows, but in all probability on June 8, 1881, an application was made by Hamilton, in the name of Bunn, but as an attorney and agent representing all the parties interested in the patent title, to the county board of Butler county to redeem the lands from the tax sale of 1871 and the taxes of 1870 and other years, by paying to the county treasurer the taxes for the year 1880; and the board granted the application, and such attorney paid the taxes for the year 1880, amounting to $71.60. On June 21, 1881, the county treasurer certified that there were no taxes or assessments due against the land in controversy and this certificate was given tcrsuch attorney. On October 20,1881, the (leed from Bunn and wife to Towle was recorded. On May 2, 1882, Towle and wife executed a warranty deed for the land to John Davenport, the plaintiff in this action, the aforesaid treasurer’s certificate having been shown to him. The consideration expressed in the deed was $1,650, and this seems to have been the real consideration aside from the taxes of 1881, which were then due, and amounting to $73.77, which Davenport paid. This deed was recorded on May 5, 1882. Davenport afterward paid all the taxes on the land for the years 1882 up to 1887, inclusive. On April 18, 1887, Butler county executed a quitclaim deed for the land to Holmes E. Sadler, the defendant in this action, the consideration being $50 and taxes on the land for the years 1878 and 1879, $158.68; total, $208.68. This deed was recorded on April 23, 1887. On January 9, 1888, the sheriff’s deed to Butler county was recorded. The defendant, Sadler, took possession of the land in March, 1888. On September 24, 1888, this action was commenced by Davenport against Sadler in Butler county for the recovery of the land.
We shall decide this case upon the theory that chapter 39 of the Laws of 1877 is valid, and that all the proceedings had under it in connection with the property in controversy in the district court of Butler county, including the judgment, the sale of the property, and the confirmation of such sale, were all sufficiently regular to render them valid. A sheriff’s deed was also executed as a part bf such proceedings, and we shall decide this case upon the theory that it also would have been valid if it had been delivered and recorded; but as it may never have been delivered, and as it certainly was not recorded until after all the rights of both parties to this action had accrued, we shall decide the case upon the theory that it did not convey the legal title to the property, and that the.holders of the patent title at all times held and continue to hold the legal title. (Conveyance Act, §§ 19, 20, 21.) But we shall also decide the case upon the theory that by such judicial proceedings the county of Butler obtained an equitable interest in ^ the property which it could legally ha$e transferred to other parties, whether such other parties held the patent title or any other title, or no title; and then upon these theories which party, at the present time, holds the paramount interest and estate in the property in controversy — the plaintiff, Davenport, or the defendant,.Sadler ? In our opinion Davenport does. Whatever interest the county of Butler had in the property after such judicial proceedings, and during the months of June and July, 1881, it transferred to the holders of the patent title by the order of the county board authorizing and permitting such holders to redeem the property from the tax sale of 1871, and from the taxes of 1870 and other taxes, by simply paying the (axes for the year 1880. The county could have transferred its interest in the property by executing a quitclaim deed thereto, such as it executed to Sadler.
In other words, we are of the opinion that by such order of the county board in 1881, and by the payment by the holders of the patent title of the taxes for the year 1880, and the payment by Davenport of the subsequent taxes up to and including the year 1887, he procured all the interest which the county had in the land in or prior to the year 1881, or which it ever possessed under the aforesaid judicial proceedings. This therefore left nothing in the county for it to transfer to Sadler when it executed its quitclaim deed to him on April 18, 1887; and Sadler of course obtained no title or estate in the property in controversy by such quitclaim deed. Davenport’s equities are also greater than Sadler’s. Davenport holds the original patent title and has paid for his interest in the property $1,650, and seven years’ taxes, while Sadler has no title, and for his supposed interest in the property has paid only $50, and two years’ taxes; and when Sadler purchased his supposed interest he must have known that Davenport or some one else had regularly paid the taxes on the property from the year 1880 up to the time of his purchase in 1887. Sadler, however, we would think, has a right to have the taxes paid by him refunded. The county, at the time of the transaction between it and the holders of the patent title or at any other time, had no power to transfer, in the manner in which it did transfer its interest in the property to the holders of the patent title, more than the interest which it obtained under the judicial proceedings aforesaid. It had no power, when it permitted the holders of the patent title to redeem the property from the tax sale of 1871 and the subsequent taxes, to cancel, annul or abate any of the taxes for the years 1878 and 1879, for these taxes were still valid, outstanding taxes and liens upon the land, which could not have been included in the aforesaid judicial proceedings; for the judgment in such proceedings was rendered on September 27, 1878, before either of these taxes had become due. These taxes then for the years 1878 and 1879 were still valid taxes against the land when Sadler procured his supposed title by obtaining his quitclaim deed from Butler county, and he paid these taxes because of his supposed interest in the property which he procured by such quitclaim deed, and to the extent of these taxes we think Sadler should be reimbursed. In justice and equity, the holders of the patent title should pay these taxes. They were under obligations to pay them when Sadler paid them, and he paid them because of a mistake in his legal rights and because he supposed he had procured a title to the property; and now, in analogy with many decisions of this court in actions in the nature of ejectment and in equitable actions, we shall hold that, before Davenport is put into the possession of the property or before any writ of restitution for the possession thereof shall be issued, he shall pay or tender to Sadler the amount of the taxes paid by Sadler for the years 1878 and 1879, with interest at the ordinary legal rate from the time when Sadler paid the same up to the time of the payment or tender to be made by Davenport. With the views heretofore expressed in this case, it is not necessary to decide any of the other questions presented by counsel.
The'judgment of the court below will be reversed, and the cause remanded, with the order that judgment be rendered in favor of Davenport and against Sadler, in accordance with the opinions of this court herein expressed.
All the J ustices concurring. | [
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Opinion by
Green, C.:
This was an action upon two insurance policies issued by the Capitol Insurance Company, a mutual fire insurance corporation organized under the laws of this state, and assigned to the Bank of Blue Mound. The first policy was made to Mills & Allen, for $1,000, upon a stock of drugs, and covered a period of one year from the 27th day of November, 1887. The application for insurance stated that the property was not mortgaged. The second policy was issued on the 7th day of January, 1888, to W. B. Clark, for the sum of $350, and was upon his building in Blue Mound. In the application of Clark for insurance, it was stated that there was an incumbrance on the property for $500. On the 7th day of June, 1888, Mills & Allen mortgaged the property covered by the first policy for $500; and on the 23d day of February, 1888, Clark placed a mortgage upon his building and the land described in his policy for $480.50; and on the 21st day of April, 1888, he gave another mortgage for $2,234 upon the same property.
On the 2d day of November, 1888, the property described in both policies was wholly destroyed by fire. At the time of the fire all of the mortgages mentioned were existing liens upon the property described in the respective policies. Printed upon the first page of the policies issued were the by-laws of the insurance company, one of which provided :
“Each and every policy issued by this company shall be absolutely null and void in any and every of the cases following, to wit: . . . Third, When there shall be any change in the title, ownership or possession of any buildings insured, or land upon which such building is situated, or premises containing any subject insured, or said subject or any item thereof shall become incumbered by any lien, judgment, attachment, or otherwise, or when the interest of the assured in said subject or any item thereof shall be or become other or different from that stated in the application for insurance.”
On the face of the policies the following reference is made to the by-laws and the applications of the insured:
“And it is.hereby mutually understood and agreed by and between this company and the assured, that this policy is made and accepted in reference to the by-laws of this company, a copy of which is given on the first page of this contract; to the application of the assured, a copy of which is given on the second page of this contract; and the conditions herein expressed and referred to, all of which are hereby declared to be a part of this contract, and are to be used and resorted to in order to determine the rights and obligations of the parties hereto, in all cases not otherwise specially provided for in writing.”
The Bank of Blue Mound brought a separate suit upon each . one of the policies, and they were consolidated and tried together before a jury, and resulted in a verdict and judgment against the insurance company for the amount of the respective policies.
It is claimed by the plaintiff in error that the reference upon the face of the insurance policy to the by-laws was in effect a compliance with the statute, which reads:
“Every policy shall have attached thereto a printed copy of the note and application, also a printed copy of the by-laws and regulations of the company, which shall be signed by the president and secretary of the company and the insured, and shall become a part of the contract between the insurer and the insured.” (Gen. Stat., ¶ 3437.)
It is contended by the plaintiff in error that when the insured mortgaged their property the policies became void, under the provisions of the by-laws. It is contended, on the other hand, by the defendant in error that the policies were issued by a mutual fire insurance company organized under chapter 132 of the Laws of 1885; that the company issued policies of insurance and took cash premiums instead of notes; that the by-laws were not signed by the president and secretary, nor by the insured; that the failure of the company to have the by-laws properly signed was a waiver of the right to have them considered as a part of the contract. Hence it is claimed that the two policies were issued without any stipulations as to liens or incumbrances.
The manifest purpose and object of the legislature in requiring every policy issued by a mutual fire insurance company organized under the laws of this state to have a copy of the by-laws and regulations, signed by the president and secretary as well as the assured, attached to it, was to have the attention of the assured called to all of the terms and conditions of the contract. It has been the practice among insurance companies to issue policies coupled with so many conditions and stipulations, that unless a policy-holder makes it a business to read and scrutinize his policy carefully he will very often find himself without protection against fire, for which he has paid his premium. It was doubtless the object of the legislature to remedy this existing evil, as it would naturally be presumed that a person would not ordinarily attach his signature to an instrument without first having read it. We think it would be far better if the legislature would go a step further, and adopt a form of policy which would make it obligatory upon all insurance companies doing business in the state to state all of the conditions of the policy in the body of the contract, and prohibit the making of exhibits, such as by-laws and applications, a part of the policy, unless incorporated in full on the face of the policy itself. The statute required that the by-laws should be signed by the officers of the company and the insured. This was not done. The contention of the plaintiff in error.that the signatures of the president and secretary were attached to the policy, because the by-laws were printed on the same sheet, and that they had thereby signed the by-laws, is not good. The adoption of such a rule of construction would render the law nugatory. Besides, it does not appear from the policy before us that the by-laws were signed by the insured; hence they did not become a part of the policy. It appears from the policy itself that it was issued under chapter 132 of the Laws of 1885.
It follows from the views expressed concerning the law.’of this case 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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Opinion by
Simpson, C.:
The material facts are that on the 23d day of April, 1888, one George W. Hale, then a resident of Garfield county, Nebraska, executed to one J. S. Beauchamp, to secure the payment of a promissory note for $400, a chattel mortgage, describing the mortgaged property in these words: “One dapple-gray stallion, five years old, worth $400; twelve head of Oregon mares, worth $600. The above-described chattels are now in my possession, are owned by me, and free from all incumbrances in all respects.” This mortgage was duly filed for record, according to the laws of the state of Nebraska, in the county in which the property! was situate, and the note and chattel mortgage, subsequent to ] the record, were assigned to the plaintiff in error. Early in December of 1888, the property mortgaged was removed to Wichita county, in this state. On the 3d day of December, 1888, Hale executed a chattel mortgage to one Fred. L. Harris, to secure a note for $339.34, upon property described as follows: “One black mare eight years old, worth $125, one bay horse six years old, worth $100, one sorrel horse eight years old, worth $100, five yearling mares worth $250. The above-described chattels are now in my possession, are owned by me, are free from all incumbrances in all respects.” The plaintiff in error became the owner of this mortgage. Both of these mortgages were filed February 22, 1889, in the office of the register of deeds of Wichita county, where Hale resided and kept the property. The horses and mares described in these chattel mortgages were taken possesion of by the defendant in error, as a special constable, to satisfy a judgment against Hale. The mortgagee demanded possession, and was refused, and this action in replevin was commenced on the 5th day of March, 1889. At the trial both the mortgages and notes were admitted in evidence, and proof was made that they had not been paid or discharged, and the property was identified as being that conveyed by the mortgages by the evidence of Hale, the mortgagor. Proof of demand on the special constable was also made. The defendant in error filed a demurrer to the evidence of the plaintiff in error, and this was sustained. The record fails to show at what time the special constable levied upon the mortgaged property.
Under this state of facts, we think the court erred in sustaining a demurrer to the evidence. Counsel for plaintiff in error say in their brief that the court below rested its ruling on the want of registration of the mortgages in Wichita county and the insufficiency of the description of the mortgaged property. The first reason assigned was not true as a matter of fact, and the second is not good as a matter of law. The record shows a registration of the mortgages in Wichita ■county, but even if this is not so, this court has just decided, in the case of Handley v. Harris, ante, p. 606 —
“ Where a mortgagor removes property from another state into this state, which has been incumbered by a mortgage duly recorded and valid under the laws of the former state, such removal does not invalidate the recording of such mortgage, or necessitate the recording of it again in the county in this state to which the mortgagor has removed with the property. The constructive notice imparted by the recording of such mortgage by the law of comity between the different states is not confined to the county or state where the mortgage was executed and the property then was, but covers the property wherever it is removed.”
This effectually disposes of one of the alleged grounds of the ruling. The description of the mortgaged property was sufficient, under the repeated rulings of this court; and besides this, the plaintiff in error put the mortgagor on the witness stand, who identified the property in the possession of the constable as the specific property described in the mortgages. (Mills v. Lumber Co., 26 Kas. 574; Jones, Ch. Mortg., §64.)
The silence of the record of the date of the execution levy on the mortgaged property becomes immaterial, as the plaintiff in error was entitled to the possession of the mortgaged property at any time after condition broken. 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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Opinion by
Strang, 0.:
This action was begun in the district court of Pratt county, on the 6th day of August, 1887, to recover damages for the entry upon and appropriation of land of the plaintiff by the defendant. The position of the plaintiff is, first, that he is entitled to damages because the company had appropriated a portion of his land for the right-of-way of its railway, without having given a bond to secure such judgment as might be obtained on the appeal from the award of damages; and, second, that he was entitled to damages because the company had appropriated more land than was condemned. On the trial of this case it was shown, that when the proceeding on the appeal from the award of the condemnation proceedings was called for trial, the company offered to confess judgment for the sum of $400 in favor of the plaintiff; that the offer was accepted by the plaintiff, and judgment entered accordingly; and that said judgment had been paid and satisfied in full. It further appeared that the condemnation proceedings authorized the taking of more than 100 feet of land for the right-of-way where, on account of cuts and fills, more was necessary to the proper construction of the road. The plaintiff, in his appeal from the proceedings of the right-of-way commissioners, filed a petition setting forth his claim for damages, in which he claimed damages for a strip of land taken from 100 to 200 feet wide. On the trial the court refused certain instructions asked by the plaintiff, and instructed the jury to return a verdict for the defendant. Motion for new trial was overruled, and the plaintiff brings the case here for review.
The first contention of the plaintiff in error is, that the defendant in error was a trespasser, and liable 'for damages to the plaintiff in error, for the reason that it had no right to go upon the land of the plaintiff in error at the time it did to commence its grading, because it had not executed and filed the bond to indemnify the plaintiff, as required by statute. This was probably true. But the matter was adjudicated and settled in the appeal case. In that case the plaintiff claimed damages for the land appropriated by the company for its right-of-way, and the company tendered a judgment for such damages, among others, which the plaintiff accepted, and judgment was'entered accordingly. This judgment was subsequently paid by the company and receipted by the plaintiff, and constituted a full payment for all damages for any trespass committed by entering upon said premises for purposes of grading the road-bed of said railway, as well as for the land appropriated. The bond, which it is alleged was not given until after the company had entered upon the lands of plaintiff for grading purposes, is only provided by the statute as a security for the payment of any judgment that may be obtained against the company on the appeal from the award of the commissioners, and is of no consequence after the judgment is paid. And if the company goes ahead and appropriates the right-of-way, and grades its road-bed without giving any bond at all, but subsequently actually pays whatever judgment is obtained against it, and the plaintiff in the judgment receives the same, such payment is complete satisfaction for any damages growing out of the former entry and appropriation of the land. The owner of the land need not permit the company to enter upon the premises for the purpose of grading the right-of-way until it has given the bond required on an appeal from the award of damages by the condemnation commissioners. Until such bond is given, he can enjoin the company from entering thereon.
The second contention of the plaintiff in error is, that he is entitled to damages because the company finally appropriated more than 100 feet in width of land for a portion of its right-of-way across his farm. We think the plaintiff is also concluded in this matter by the trial on the appeal. The condemnation commissioners were authorized to condemn a strip of laud more than 100 feet wide where, on account of cuts and fills, a wider strip was necessary to the proper construction of the road-bed. In the plaintiff’s petition setting forth his claim for damages, on his appeal from the commissioners’ award, he alleges that the company, which had already graded its roadbed, had appropriated a strip of land from 100 to 200 feet wide across his farm. There is no pretense in this case that the company took more than the amount the plaintiff thus alleged in his appeal case it had taken. We therefore think that, when the plaintiff accepted a judgment tendered on said petition, it covered all damages that could arise on account of an appropriation by the company of an amount of land within the scope of such petition. That being true, the court was right in its instruction to the jury to return a verdict for the defendant; and if so, it committed no error in refusing instructions asked by the plaintiff. There are several other eases mentioned in this record. We do not know just why the agreement that they are to follow the judgment in this case is incorporated into this record. Of course, they are not here in such a way as that we can act upon them, but the court below can enforce the agreement in relation thereto.
It is recommended that the judgment of the court below be affirmed.
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 action was brought by S. H. Myton and A. J. Thompson to recover from H. B. Schuler a subscription of $500 alleged to have been made by him to reimburse Myton and Thompson for money guaranteed and paid by them to secure the location of a college at Winfield. In the early part of 1885, the southwestern Kansas conference of the Methodist Episcopal church determined to locate, build and maintain a college under the auspices and protection of •that denomination, for the education of the youth- of both sexes, aud proposed to locate the college at some city in southwestern Kansas whose citizens would agree by donations of laud and money to contribute to the securing of suitable grounds for the college, and to the expense of erecting the same upon such grounds. The committee of the conference to whom was confided the duty of determining the location visited several of the cities, and determined that Winfield was a desirable place at which to locate the college, and invited the citizens to make known to the committee what assistance they would give to secure the location of the college at Win-field. Two sites were proposed — one in the western part of Winfield, and the other in the northeastern portion of the city — and a contest arose between tbe parties interested in the real estate surrounding each site to secure the location. In the northeast part of the city was a tract of land known as the Highland Park addition, which was owned by H. B. Schuler, S. H. Myton, and six other persons. These parties were anxious to secure the location upon or near their land, and proposed to contribute land and money for that purpose. Other parties purchased and platted the southeast quarter of section 22, township 32, range 4, which adjoined the Highland Park addition, and was known as the “Dr. W. R. Davis land,” and proposed to aid in locating the college. A. J. Thompson, one of the defendants in error, also owned land in that vicinity, and was interested in having the college located northeast of the city. The parties interested in this location held several meetings in order to determine the quantity of land and the amount of money which should be offered to the conference committee. The Highland Park company, of which Myton and Schuler were members, proposed to give 20 acres of land and $2,800 in money toward securing the college. A definite proposition to the committee was required, and A. J. Thompson and S. H. Myton made a written proposition, as follows:
“Winfield, Kas., May 25, 1885.
“ We, the undersigned, citizens of the city of Winfield, agree that we will pay to the college of the southwestern Kansas conference, if the same shall be located east of the city of Win-field, in Cowley county, Kangas, and on either the Highland Park addition to the city of Winfield in said county, or on the southeast quarter of section 22, township 32, range 4, in said county, the sum of $10,000 in money, and that we will procure and give to said college a good and sufficient deed of general warranty to 20 .acres of land in said Highland Park addition, in a solid form and acceptable to the committee of said college whose business it is to locate said college.
“The above proposition is made in consideration of the location of said college at the point above mentioned, and the benefit we derive thereby with this community in general.
“Witness our hands, the day and year first above written.
A. J. Thompson.
S. H. Myton.”
In order to enable Thompson and Myton to carry out their proposition, the owners of the Highland Park addition made the following written subscription:
“We, the undersigned, agree to pay S. H. Myton and A. J. Thompson the sums set opposite our respective names when the M. E. college is permanently located in the southwest quarter of the tract of land known as the Dr. W. E. Davis land.
“This subscription is made to enable said Myton and Thompson to make good their guarantee to $10)000 to-said institution; payments to be made at such times and in such proportion of each subscription as will equal the one-third thereon, as follows: One-third' when the foundation of said college building is completed, one-third when the walls of the first story of said building are completed, and one-third when said building is completed and ready for occupancy. H. D. Gans, $250; Wm. Newton, $350; H. B. Schuler, $500; W. G. Graham, $500; A. B. Graham, $350; J. E. Clark, $100; E. S. Bedillion, $50; B. P. Wood, $100.”
The conference determined to locate the college at Winfield, but upon the northwest quarter of the Davis tract of land. This location met the conditions of the proposal made by Thompson and Myton, as their subscription permitted a location on either the Highland Park -addition or upon any part of the Davis tract; but the subscription of Schuler and others, for some reason which is not fully explained, did not correspond with that of Thompson and Myton, but was made upon the express condition that the college should be located on the southwest quarter of that tract. There is considerable in the record which tends to show that the intention of all the parties interested must have been to make the subscriptions on exactly similar terms, and that the second subscription was made to reimburse Thompson and Myton for the obligation which they had assumed. The college was built in accordance with the proposition of Thompson and Myton, and they have paid the full amount of their subscription. All of the subscribers who joined with Schuler in the undertaking to reimburse Thompson and Myton have paid their subscriptions, and Schuler alone refuses. He claims that his subscription was reduced to writing, and definitely provides that the college shall be-located on a certain 40 acres of laud, and that, as it has been located elsewhere, there is no liability which can be enforced against him. Upon a trial had with a jury, a general verdict, was returned against Schuler for the amount of his subscription, and with it answers to special questions submitted were-made.
f Schuler insists that he is not liable upon his subscription, I and while we think there is a strong moral obligation resting-i upon him to contribute toward the donation, according to the \ understanding of all the parties, we are reluctantly compelled Swsustain his claim, on the record as it now stands. At the numerous preliminary meetings held, the discussion related to securing the location of the college in the northeast part of the city, and there was apparently no contention as to what particular spot in that portion of the city on which it should be built. All the parties interested appeared to be satisfied that, it should be built on any part of the Davis tract, or of the Highland Park addition. There was a small grove on the southwest quarter of the Davis tract, and most of the interested parties thought that this place was especially desirable as a location. And it was generally believed that if it was located in that part of the city it would be near this grove. This may account for the naming of the southwest 40 acres-in the subscription made by Schuler and others. After it was found that the college had been located on the northwest 40, all appeared to be content, and the Highland Park Com- - pany, of which Schuler was a member, conveyed the 20 acres i out of the Highland Park addition, as they had agreed to do. I Soon a question arose as to the terms of the subscription that had been made, and when both were procured and examined the discrepancy between them was discovered. There is testimony tending to show that Thompson then visited Schuler,, and called his attention to the fact that the location mentioned in .his subscription was confined to the southwest 40 of the Davis tract, whereas the college had been located on the northwest 40, and requested that the subscription should be changed to correspond with that of Thompson and Myton and with the understanding of the parties. According to the testimony of Thompson and Myton, Schuler said there was no need to change the written subscription, nor to make a new one; that he would pay the amount which he had subscribed, without reference to the location. It is also shown that it was more advantageous to Schuler and to the Highland Park Company to have it located where it was located than upon the southwest 40, and other testimony also shows that it would have been more advantageous to Thompson and Myton to have had it located on the southwest 40 than the site on which it was located. Schuler denies that there was any subsequent agreement to pay the subscription after the location had been made, and he testifies that he positively refused to pay the subscription from the first, because the location was not in accordance with the terms of the subscription which he had made. The jury found that there was a subsequent agreement, as claimed by Thompson and Myton, but they failed -to find that there was any consideration to support that agreement.
If Schuler’s liability is to be measured by the written subscription alone, no recovery can be had against him; but it was competent for him to modify that subscription by oral agreement, provided such oral agreement is based upon a. sufficient consideration. The want of consideration for the subsequent promise alleged to have been made by him is the turning-point in the case, and that question was raised in the district court on the pleadings, the evidence, the charge of the court, and findings of the jury. If, by reason of the promise made by Schuler, Thompson and Myton did or undertook to do anything beyond what they were already bound to-do, it would be a sufficient consideration to sustain the promise of Schuler. It is contended that the record discloses-that no liability was incurred nor any act done by Thompson and Myton on the faith of Schuler’s promise, and some of the testimony of Thompson himself tends to sustain this-claim. It is true that it appears that the $10,000 subscription which they had made was all paid to the college authori— ties after the making of the subsequent promise by Schuler, and they testify that payment would not have been made except for the promise made by Schuler and his associates. They had, however, made a definite proposition to the committee of the conference, and the acceptance of their offer constituted a binding contract and fixed their liability. They proposed to pay $10,000 in money and give to the college 20 acres of land when the college was located at any point within the Davis tract. When the permanent location was made their obligation was complete, and their liability determined. It is not clear from the record just when the location was made, nor whether the committee first made a temporary location, to enable these guarantors to obtain assistance from others who were supposed to be benefited by the location. If the first location was temporary and conditional, so that Thompson and Myton were not absolutely bound, and if their agreement was completed and carried out 6n the faith and credit of the subsequent promise of Schuler and his associates, there would be a valid consideration to support the promise of Schuler. On the other hand, if the undertaking of Thompson and Myton had become complete and binding before the ■ subsequent promise of Schuler was made, and no new liability was created, and they paid nothing more than what they had prior to that time contracted to pay, the promise would not be enforceable. It is well settled that an agreement to do or the doing of that which one is already bound to do does not constitute a consideration for a new promise. [Vanderbilt v. Schreyer, 91 N. Y. 392; Geer v. Archer, 2 Barb. 420; Crosby v. Wood, 6 N. Y. 369; Bartlett v. Wyman, 14 Johns. 260; Ayers v. Railroad Co., 52 Iowa, 478; Reynolds v. Nugent, 25 Ind. 328; Deacon v. Gridley, 15 C. B. 295; see, also, University v. Livingston, 57 Iowa, 307; Hamilton College v. Stewart, 1 N. Y. 581; Trustees v. Gilbert, 2 Pick. 578; 2 Pars. Contr. 437; Pollock, Contr. 161; 3 Am. & Eng. Encyc. of Law, 834, and cases cited.) In the present case, the jury found, as has been stated, that the subscription of Schuler was modified by a subsequent promise, whereby he orally agreed to pay the full amount of $500, but the following questions and answers show-, the consideration to be insufficient :
“What action, if any, did the plaintiffs take by reason of such subsequent promise of defendant which they would not have taken if such subsequent promise had not been made? A. Fulfilled their agreement.
“ What liability, if any, did the plaintiffs incur by reason of such subsequent promise which they had not already incurred prior to the making of such subsequent promise ? A. Plaintiffs advanced the subscription of defendant, $500.”
The fulfilling of their agreement and the payment of the money which they had already contracted to pay would not constitute a legal consideration for the promise of Schuler. Although the testimony in regard to the consideration is not clear or satisfactory, there is sufficient upon which to base these findings. Thompson himself testifies that he would have been required to pay his subscription without'reference to the subscription of Schuler or the carrying out of the subsequent promise which he had made. ■ These findings are inconsistent with the general verdict, and for this reason, and the further one that the charge of the court did not fairly present to the jury the rule of law, that the agreement to do or the doing of that which a person is under a legal obligation to do is not a sufficient consideration for a new promise, there must.be a new trial.
For this purpose the judgment of the district court will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Patrick Higgins died testate in Bourbon county, Kentucky, on March 6, 1873, leaving as his sole heirs at law his widow, Bettie Higgins, and three children — Mary Belle Higgins, now Mary Belle Perrin, John Higgin=, and Edward Higgins. His will nominated Mrs. Higgins, his wife, as his executrix. It was admitted to probate in the county court of Bourbon county, in Kentucky, on March 14, 1873. At the time the will was presented for probate, Mrs. Higgins duly qualified as executrix, as provided by the will and the laws of Kentucky. An authenticated copy of the will of Patrick Higgins, deceased, and of the journal entry of the county court of Bourbon county, showing the probate of the will and the qualifying of Mrs. Higgins as executrix, having been filed in the probate court of Nemaha county on December 6, 1875, that court, on December 17, 1875, acted upon a petition for the sale of 600 acres of land, being the real estate in controversy. The petition-and schedule attached were personally signed and verified by the executrix. Time was fixed for the hearing' thereof and notice given. The sale was ordered Janúáry 4, 1876. It was made on the same day. The court, finding that its orders in the matter and the law in such arcase had been strictly complied with, approved and confirmed the sale, and ordered a deed to be made by the executrix. On January 6, 1876, Mrs. Higgins, the executrix, made a deed to Henry Boxell, the purchaser, which she acknowledged before a notary public of Bourbon county, Kentucky, on January 13, 1876, and on January 18, 1876, the deed was approved by the probate judge of Nemaha county, and delivered to Henry Boxell. Immediately thereafter it was recorded in the office of the register of deeds of the county.
This action was in the nature of ejectment, brought by the children of Patrick Higgins, deceased, viz., John Higgins, Mary Belle Perrin, and Edward Higgins, a minor, who sues by his next friend, Achilles Perrin, against the defendants, for the possession of the 600 acres described in the deed of the executrix, and to recover $2,000 as rent and profits of the premises. The defendant Henry Boxell made full answer of his purchase of the real estate from the executrix, under the proceedings of the probate court of Nemaha county, and of the subsequent conveyance by him of several tracts thereof, but claimed to still own 220 acres. The defendants Charles H. Bell, John N. Largent, Henry J. Boxell, Mary Boxell, William R. Boxell and Samuel Henderson filed their separate answers, claiming to own parts of the 600 acres by title derived from Henry Boxell. The plaintiffs filed separate replies to each of the answers. On August 4, 1888, the parties appeared in court, when it was suggested that Henry Boxell had departed this life on July 22, 1888; that F. M. Reed had been appointed and qualified as administrator of his estate; that Elizabeth Boxell, widow of Henry Boxell, and Elizabeth Bronson, W. R. Boxell, John J. Boxell, Emma M. Reed, Henry J. Boxell and Mary Boxell were the only heirs of Henry Boxell, deceased, who' had died intestate. The action was then revived, by consent;- against the administrator and the heirs. Trial was had upon change of venue-from Nemaha county before the district court of Marshall county, a jury being waived. The court made and filed conclusions of fact, and thereon entered judgment against the plaintiffs and for the defendants for costs. The plaintiffs-excepted, and bring the case here.
It is contended by the plaintiffs that the probate court of' Nemaha county, in this state, had no jurisdiction to sell the land in controversy; therefore, that the deed to Henry Boxell from the executrix, acknowledged January 13, 1876, but approved by the probate court of Nemaha county on January 18, 1876, was and is wholly void, and conferred no title, rights, or equities. In support of this contention, it is claimed that Mrs. Higgins, the executrix, prior to the sale of the real estate, had not filed in the probate court of Nemaha county an authenticated copy of her appointment as executrix, and that she had not filed a copy of any bond executed by her in Kentucky, or given a new bond signed by residents of this state. (Gen. Stat. of 1889, ¶¶ 2929, 2930.) In further support of this contention, it is said that the petition for the sale of the real estate was insufficient, and that the sale of the real estate and the report thereof were not made as prescribed by the statute. (Gen. Stat. of 1889, ¶ 2916.)
Before proceeding to discuss the defects or irregularities in the proceedings in the probate court of Nemaha county concerning the sale of the real estate to Henry Boxell, it may be observed that there is nothing in the record tending to show any fraud on the part of Mrs. Higgins, the executrix, or that she used the proceeds of the real estate for any other purpose than the payment of the indebtedness of the estate of Patrick Higgins, deceased. Just prior to the sale of the real estate, the several tracts thereof were appraised as follows:
Northwest quarter of northwest quarter 13 — 2 —13........... $160
Northeast quarter 14 — 2 —13................•............... 640
Bast half northwest quarter 14 — 2—13...................... 320
Southwest quarter 14 — 2 —13............................... 800
Southeast quarter 14 — 2—13................................ 800
$2,720
Henry Boxell was the highest and best bidder therefor, and paid $3,000 in cash for the same. This was a fair price for the real estate at the time, January, 1876, the same being open and unbroken prairie. At the time of the death of Patrick Higgins, he was indebted in the sum of nearly $9,000. There was devised by the will to Mrs. Higgins a small farm at Shawhan station, Kentucky, but it was mort gaged for $3,480. In 1874 she sold this farm for $6,510.56, and after satisfying the mortgages thereon, she used the proceeds of the sale of the farm in the payment of the debts of the estate, and for the support of herself and children. On July 19, 1876, Mrs. Higgins was married to James C. Blair. In 1882, she removed with her family, excepting Mary Belle Higgins, now Perrin, who remained in Kentucky, to Missouri. After living there one year, she removed with her family to Harrison county, in Iowa, and lived there at the trial. She did not join with her children in this action to obtain possession of the property sold by her, as executrix, to Henry Boxell.
After fully examining and considering the alleged irregularities referred to in the proceedings in the probate court of Nemaha county attending the sale of the real estate, we are clearly of the opinion that the court had jurisdiction, and therefore that Henry Boxell obtained a good title to all of the real estate conveyed to him by Mrs. Higgins as executrix.
The statutes of Kentucky provide that the person nominated by a will as the executor or executrix shall not have power to act until he or she qualifies by taking oath and giving a bond in the court in which the will is admitted to record. The statutes further provide, that the order whereby a certificate is granted any personal representative for obtaining probate or letters of administration shall be as effectual as the probate or letters made out in due form. Mrs. Higgins duly qualified as executrix, as required by the statute of Kentucky, and under the provisions of the will she executed her bond, but was not required to have any surety thereon. A duly-authenticated copy of the will and of the journal entry of the county court of Bourbon county, Kentucky, showing that Mrs. Higgins had qualified as executrix of the will of Patrick Higgins, deceased, was filed and entered of record in the probate court of Nemaha county on December 6, 1875. The will, the probate thereof, the oath and the bond showed both the appointment and the qualification of Mrs. Higgins as ex ecutrix, and was a substantial compliance with ¶ 2929, General Statutes of 1889, of the executors’ and administrators’ act, and ¶7228, General Statutes of 1889, of the act relating to wills. The probate court of Nemaha county so treated the matter, for in the first order made in the case by that court, on December 6, 1875, it is recited that there had been filed “an instrument of writing purporting to be an authenticated copy of the last will and testament of the said Patrick Higgins, deceased, with the certificate of probate and of appointment of executrix.”
On the trial of the ease, counsel for plaintiffs offered in evidence “a certified copy of the will of Patrick Higgins, deceased, and the probate thereof, and order of appointment of the executrix, filed, approved, and ordered of record December 6, 1875,” in the probate court of Nemaha county; and also offered in evidence the bond given by the executrix, reciting that “Whereas, Bettie Higgins has been appointed and has qualified as the executrix of the last will and testament of Patrick Higgins, deceased,” etc. No surety was given upon the bond of Mrs. Higgins, on account of the direction of the will. By ¶ 2930, General Statutes of 1889, of executors’ and administrators’ act, it was the right of the probate court of Nemaha county to inquire whether or not a new or an additional bond was necessary to protect the proceeds of the sale of the real estate. If a new bond had been ordered, its condition would have been “to account for and dispose of the proceeds for the payment of the debts and legacies of the deceased, and the charges of administration, according to the laws of the state” of Kentucky. The probate court of Nemaha county considered the matter, and then decided “that no security be required of the executrix in this court, except upon the showing of some one interested of a necessity therefor.” Paragraph 2906, General Statutes of 1889, reads as follows: “The court may require of any executor or administrator, if it deem it necessary before such sale, to give an additional bond to secure the further assets arising from the sale of the real estate.” The probate court of Nemaha county considered this section as applicable, and decided not to require a bond except upon the showing of a “necessity therefor.”
But the failure of the probate court of Nemaha county, before permitting the sale of the real estate to be made, to require a new or an additional bond from the executrix, if one was necessary, with resident sureties in this state, did not render void the sale of the real estate, which was subsequently confirmed by the probate court. (Howbert v. Heyle, 47 Kas. 58; Watts v. Cook, 24 Kas. 278.) Paragraph 3231 of General Statutes of 1889, relating to guardians and wards, makes the giving of a bond before the sale or mortgage of any real estate of a minor as mandatory as ¶ 2930, General Statutes of 1889, relating to sales of real estate by foreign executors, and in Watts v. Cook, supra, it was said:
“Probate courts should cautiously observe the provisions of the section quoted, and are greatly negligent in permitting sales or mortgages by guardians without security; yet we cannot hold that the failure to give security deprives the court of jurisdiction. It is an error of a court having competent and full jurisdiction, subject to reversal or avoidance by due proceedings. The absence of the security did not render the proceedings void, but only irregular.”
The absence of 'a bond was again recently considered in Howbert v. Heyle, supra, and followed. Under the decisions of this court in Bryan v. Bauder, 23 Kas. 95, Fleming v. Bale, 23 id. 88, and Howbert v. Heyle, supra, the defects or irregularities in the petition for the sale of the real estate and the subsequent proceedings thereunder are not sufficient to deprive the probate court of Nemaha county of jurisdiction, or to defeat its jurisdiction, or to render its proceedings or the sale or deed referred to void.
The report of sale was filed in the probate court, was signed “Bettie Higgins, executrix, per Johnston Bros., her agents;” and was verified by J. H. Johnston, one of the firm of Johnston Bros. It recited the appraisement of the land by the appraisers, the offering of each piece separately at private sale, and that Henry Boxell, being the highest and best bidder, was the purchaser. Each tract was described therein as in the appraisement, but only the aggregate price of $3,000, cash in hand, was stated. The verification by J. H. Johnston before the probate court was to the effect that the matters and things set forth in the report were true, and that the executrix did not directly or indirectly purchase the real estate, or any part thereof or interest therein, and that she was not interested in the property except as stated in the report, and that affiant had transacted the business for her.
Under ¶ 2916, General Statutes of 1889, we think the return of the proceedings under the order of sale ought to have been verified by the executrix, not by her agent; but in view of what was actually done, and the subsequent proceedings, embracing the execution of the deed by the executrix, which referred to the order of sale by its date, the court issuing the order, the consideration paid, etc., and which was, on presentation to the probate court, indorsed by the judge thereof with his official approval, and the seal of the probate court attached, the omission of the verification by the executrix was only an irregularity not affecting jurisdiction. It is clearly shown by all the proceedings, as well as the affidavit of J. H. Johnston, that the executrix did not, directly or indirectly, purchase the real estate. As to Mrs. Mary B. Perrin, née Higgins, the five-years statute of limitations is clearly applicable; but it is doubtful whether it will apply to John Higgins or Edward Higgins, one of whom was a minor, and the other a minor a short time before the bringing of this action. (Civil Code, §§16, 17.)
In conclusion, we repeat what was said in Howbert v. Heyle, supra:
“It must also be remembered that the probate court in this state is a court of record; (Const., art. 3, § 8; Act relating to Probate Courts, § 1;) and, while it has jurisdiction only of particular classes of things, such as the care of the estates of deceased persons, minors, and persons of unsound mind, yet it has general jurisdiction of these things. Hence all presumptions should be in favor of the regularity of all the proceedings of probate courts within their jurisdiction of the aforesaid particular classes of things, and such proceedings should seldom be held to be void when attacked collaterally, as in this case; never, indeed, éxcept where it is shown affirmatively that the court had no jurisdiction.”
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
Nuss, J.:
This case involves a dispute over escrowed funds. ARY Jewelers, L.L.C., (ARY) contracted to buy Krigefs, Inc., which owned and operated a jeweliy business in several Midwestern states. After the sale failed, a Johnson County District Court granted summary judgment to ARY and ordered return of its $1.5 million in escrow. Scott Krigel, individually and as trustee of the Scott W. Krigel Revocable Trust which owned the company stock (collectively the Krigels), appealed not only the grant of summary judgment to ARY but also the denial of their own summary judgment motion based upon breach of contract. We transferred the case from the Court of Appeals on our own motion pursuant to K.S.A. 20-3018(c).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did the district court err in granting summary judgment to ARY because the court misinterpreted the contract? No.
2. Did the district court err in granting summary judgment because genuine issues of material fact remained on the issue of estoppel? No.
3. Did the district court err in granting summary judgment because genuine issues of material fact remained on the issue of waiver? No.
4. Did the district court err in denying the Krigels’ motion for summary judgment because the court misinterpreted the contract? No.
Consequently, the judgment of the district court is affirmed.
FACTS
Krigel’s, Inc., a family-owned Kansas corporation operating jewelry stores across several Midwestern states, began having financial problems early in 2000 and soon became insolvent. Scott Krigel (Scott), on behalf of the Scott W. Krigel Revocable Trust, began to seek a buyer for the family business. On November 21, 2000, following extended negotiations with Gohar Husain, both Scott on behalf of his trust and Husain on behalf of ARY signed a Stock Purchase Agreement (SPA), which provides the basic dispute in this case.
The SPA called for Krigel’s, Inc., to file for Chapter 11 bankruptcy. After approval of the bankruptcy court and sale closing, ARY was to purchase all of the stock of Krigel’s, Inc., with $50,000 escrowed at Assured Quality Title Company. Upon closing, ARY was also to pay 60% of the debt owed to each of Krigel’s, Inc.’s unsecured creditors and assume responsibility for or pay off all debt Krigel’s, Inc., owed to its only secured creditor, Foothill Capital Bank (Foothill Capital). ARY’s obligation to Krigel’s, Inc.’s unsecured creditors approximated $6 million. ARY’s obligation to Foothill Capital approximated $8 million at the time the parties signed the SPA.
The same day as the SPA’s execution, Husain, again on behalf of ARY, and Scott, on behalf of himself and Krigel’s, Inc., signed a Consulting and Noncompetition Agreement for Scott Krigel (consulting agreement). It required ARY to hire Scott as a consultant for up to 1 year and forbade him from competing with ARY in the area of existing Krigel’s, Inc., stores for 2 years. In exchange for these considerations, ARY was to pay Scott $1,450,000 from a second escrow account it funded at Assured Quality Title. In short, ARY’s cash obligation at closing totaled $7.5 million — the $6 million to Krigel’s, Inc., unsecured creditors and the $1.5 million for the company stock and Scott’s considerations.
The SPA provided at paragraph 9, and the consulting agreement at paragraph 19, that if ARY failed to provide proof of its ability to pay unsecured creditors prior to Krigel’s, Inc., bankruptcy filing or if it failed to pay the unsecured creditors on the effective date of the bankruptcy plan, then the Krigels would immediately be entitled to the escrowed $1.5 million.
Of great importance to this case is paragraph 4(c).of the SPA, which contains the “Foothill Capital financing condition.” It provides as follows:
“4. Representations, Warranties and Covenants of Purchaser. Purchaser hereby represents, warrants and covenants to the Seller that:
(c) Within four weeks from the date hereof [December 19] Purchaser shall provide Seller with evidence of Foothill Capital’s consent to the continued financing of Company’s obligations to Foothill Capital. In the event F oothill Capital does not consent within the foregoing time period this Stock Purchase Agreement and related agreements shall be void and of no further effect.” (Emphasis added.)
Paragraph 5(c) repeats the unfulfilled condition’s nullifying effect on the SPA but provides for the possibility of waiver. It states in relevant part:
“5. Seller’s and Purchasers Conditions to Closing
“In addition to the conditions set forth in Section 6 below, Closing shall be subject to the following conditions: '
(c) If any of these conditions have not occurred as of the Closing Date [December 19], this Agreement shall be null, void and of no further effect, unless any such unfulfilled conditions are waived by the affected party.” (Emphasis added.)
Paragraph 6(a) of the SPA repeats the waiver possibility. It states in relevant part:
“6. Conditions to Closing. The obligation of each party to proceed to closing is subject to the following conditions:
(a) The parties shall not be in breach of the conditions specified in Section 5 above, unless waived by the affected party.” (Emphasis added.)
Under paragraph 8(d), a waiver is required to be submitted to the opposing party in writing: “All notices, requests, demands, and other communications required or permitted to be given hereunder shall be in writing . . . .” Paragraph 8 continues at subsection (e) with integration language:
“Entire Agreement. This Agreement (including the Exhibits referred to herein) sets forth the entire Agreement and understanding of the parties with respect to the transactions contemplated hereby and supersede^] all prior agreements, arrangements, and understandings, whether written or oral, related to the subject matter hereof. No representation, promise, inducement or statement of intention has been made by any party hereto which is not embodied in the Agreement or in the Exhibits attached hereto or the written statements, certificates or other documents delivered pursuant hereto.” (Emphasis added.)
Following the agreements’ execution, all parties agreed Scott would lead the negotiation for continued financing with Foothill Capital because Krigel’s, Inc., had a working relationship with the bank. Four days before the December 19,2000, closing date, Thomas Morgan, Vice President of Foothill Capital, notified ARY and Scott of his company’s interest in providing ARY bankruptcy emergence financing as follows:
“December 15, 2000
“Mr. Gohar Husain
“ARY Jewelers, LLC
“Re: Emergence Financing Proposal Letter
“Dear Mr. Husain:
“In accordance with Foothill Capital’s discussions with Stuart Fetter and Scott Krigel, President of Krigel’s Jewelers it is Foothill’s understanding that ARY, LLC’s intends to purchase 100% of the stock of Krigel’s Jewelers. This is further evidenced by the execution of that certain ‘Stock Purchase Agreement’ dated November 21, 2000. It is Foothill’s understanding that Krigel’s Jewelers anticipates filing for Chapter 11 protection on or about January 15, 2001 and will exit shortly thereafter under ownership of ARY, LLC. Please let this letter serve as an expression of Foothill Capital’s interest in reviewing the opportunity to provide emergence financing for Krigel’s Jewelers under ARY, LLC’s ownership, but should not be considered a commitment to lend.” (Emphasis added.)
Morgan went on to propose loan terms significantly different than what Foothill Capital had granted Krigel’s, Inc., prior to its insolvency. After Scott reviewed a copy of the letter, he concluded it did not satisfy the requirement of Foothill Capital’s consent under SPA paragraph 4(c). Nevertheless, he forwarded it via email to ARY’s Husain with the following endorsement:
“Dear Gohar,
“I just received the correspondence that you and I have been waiting for from Foothill. I have attached a copy of Foothill’s letter to this email. As you can see from the letter, it appears that Foothill will be willing to provide Krigel’s with financing. Krigel’s accepts this letter as complying with paragraph 4(c) of the Stock Purchase Agreement. Please let me know if this meets with your approval.
“Scott Krigel”
In an affidavit submitted to the district court, Max Jevinsky, ARY’s attorney, claimed that on December 19, 2000, he notified Krigel’s, Inc., by letter that Foothill Capital had not consented to continued financing within the terms of paragraph 4(c). Nevertheless, he requested an extension of the consent period to January 18, 2001. His letter provided:
“Dear Mr. Krigel:
“I have reviewed Tom Morgan’s Emergence Financing Proposal Letter of December 15, 2000 (the ‘Proposal’).
“Paragraph 4(c) of the Stock Purchase Agreement (the ‘Agreement’) speaks in terms of ‘Foothill Capital’s consent to the continued financing of the Company’s obligations to Foothill Capital’. The Proposal, however, is merely a terms sheet and cannot reasonably be considered a ‘consent’. As such, it does not satisfy the requirement of paragraph 4(c) of the Agreement.
“That being said, ARY is satisfied that it and Foothill Capital can satisfactorily and in good faith negotiate a lending commitment shortly after Mr. Husain’s return to the United States, and that the Proposal will be considered acceptable for purposes of the Agreement. However, Mr. Husain is presently unable to discuss this matter with his principals as they are not available during the observance of Ramadan.
“It is my understanding that you and Mr. Husain spoke after our conversation on Saturday, and that you have no objection to a short extension of the time period of paragraph 4(c) of die Agreement. We realize that ARY will not have a formal commitment from Foodiill Capital by then, but we merely want to have a greater level of comfort that the Proposal will in fact result in a timely lending commitment on mutually acceptable terms.
“I recommend that the acceptance period in paragraph 4(c) of the Agreement be extended to January 18,2001. This would slighdy delay your formal notification of vendors, but that appears to me to be not particularly significant since you have already notified die majority of the holders of the largest claims, and they are apparently enthusiastic and supportive of the Company’s plan. This slight delay will not affect the schedule for filing and obtaining acceptance of the reorganization plan.
“If you are agreeable to the recommended extension I will appreciate your signing the enclosed duplicate of this letter and returning it to me. Thank you for your continued cooperation.
“Very truly yours,
“Berman, DeLeve, Kuchan & Chapman. L.C.
[signature]
Max Jevinsky”
Jevinsky claimed he received no response to his letter. ARY and Krigel’s, Inc., continued to negotiate with Foothill Capital, however, to try to salvage the transaction. One day after the expiration of Jevinsky’s proposed extension, January 19,2001, despite the continued problems experienced in obtaining Foothill Capital’s consent to financing, Scott directed counsel for Krigel’s, Inc., to file for Chapter 11 bankruptcy.
ARY admits that at least twice it attempted to intervene in the bankruptcy action to seek delays allowing it sufficient time to complete financing negotiations with Foothill Capital. In response to ARY’s second request for additional time, Krigel’s, Inc.’s attorneys moved the bankruptcy court to delay the effective date of their petition to March 30, 2001. Moreover, according to Scott, ARY’s Husain had repeatedly and consistently stated to him that (1) if favorable financing could not be negotiated, ARY would close the SPA by paying cash, and (2) ARY could pay Krigel’s, Inc., unse cured and secured debt by paying cash and that financing was not necessary. He also alleged that no ARY representative ever informed him during the negotiation of the SPA that ARY required acceptable financing to proceed with the SPA.
ARY’s negotiations with Foothill Capital continued into March 2001 without success. Finally, on March 28, ARY notified Krigel’s, Inc., that if Foothill Capital did not approve continued financing on the same terms as Krigel’s, Inc., had enjoyed prior to insolvency, ARY would consider the SPA void.
Two days later, on March 30, 2001, — the extended effective date of the bankruptcy — ARY failed to close on the SPA and failed to pay Krigel’s, Inc., unsecured creditors. Recause of ARY’s alleged failure to perform, the next day Scott made a demand on Assured Quality Title for release of the escrowed $1.5 million per the default provisions of the agreements. ARY contested the demand and claimed the entire transaction void due to Foothill Capital’s failure to agree to continued financing on the same terms as Krigel’s, Inc., had enjoyed prior to insolvency.
That same month, April 2001, ARY filed a petition for declaratory judgment in Johnson County District Court and amended the petition on June 13,2001, essentially seeking return of its escrowed funds. On August 9, 2001, Scott and his trust filed an answer and a counterclaim for breach of contract seeking possession of the funds.
After discovery closed, the parties filed motions for summary judgment on February 27,2002. The district court found the terms of the SPA were unambiguous. Considering only the “four comers” of the agreements, the court held that SPA paragraph 4(c), which contained the Foothill Capital financing condition, “affected” both parties. The court further concluded that since ARY had not submitted a written waiver, the agreements were null and void:
“Based on the uncontroverted facts set forth above, the Court concludes that paragraph 4(c) of the SPA is a representation and warranty of ARY to Krigel. Krigel waived the requirements of that paragraph by sending written notice of his waiver to Gohár Husain on December 15, 2000. However, paragraph 4(c) also affected the purchaser, ARY. Thus, pursuant to SPA ¶¶ 5(c) and 6(a), ARY would also have to waive it, or Foothills lack of consent to financing rendered the SPA and related agreements null and void.
“While it is alleged that ARY’s representative, Gohar Husain, may have orally told Scott Krigel that ARY would close the transaction even without continued financing from Foothill, neither Mr. Husain nor any other representative of ARY ever waived the requirements of SPA paragraph 4(c) in writing. The SPA requires waivers, and all other communications permitted or required under the SPA, to be in writing. Therefore, ARY did not waive paragraph 4(c), and by the express terms of paragraph 4(c), the SPA and the ancillary Consulting Agreement were null and void as of December 19, 2000.”
As a result, the district court denied the Krigels’ motion for summaiy judgment, granted ARY’s motion, and ordered Assured Quality Title to release the escrowed $1.5 million to ARY.
ANALYSIS
Issue 1: Did the district court err in granting summary judgment to ARY because the court misinterpreted the contractP
The Krigels first claim the district court misconstrued paragraph 4(c) of the SPA as a financing term which affected both parties. They argue that because the term was a representation and warranty made by ARY for the sole benefit of the Krigels, the Krigels alone could and did properly waive the provision under paragraphs 5(c) and 6(a). Since they properly waived this provision, the Krigels allege ARY had no valid reason not to perform its obligations and consequently is in breach, entitling the Krigels to the $1.5 million in escrow.
We first observe that the parties elected to have the SPA governed by Missouri law. Accordingly, we apply Missouri’s substantive law and rules of contractual construction in our de novo review. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001) (The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review.). Our interpretation of this contract is therefore governed by the principles stated in Armstrong Business Services, Inc. v. H & R Block, 96 S.W.3d 867, 874 (Mo. App. 2002):
“The cardinal rule in contract interpretation is to ascertain the intention of the parties and to give effect to that intention. Atlas Reserve Temporaries, Inc. v. Vanliner Ins. Co., 51 S.W.3d 83, 87 (Mo. App. 2001) (quoting J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 [Mo. 1973]). Unless the contract is ambiguous, the intent of the parties is determined based on the contract alone, not on extrinsic or parol evidence. [Citation omitted.] In determining whether a contract is ambiguous, words should be given their natural and ordinary meaning. [Citation omitted.] A contract is ambiguous if its terms are reasonably open to more than one meaning, or the meaning of the language used is uncertain. [Citation omitted.] A contractual provision is not ambiguous merely because the parties disagree over its meaning. [Citation omitted.]”
Against this backdrop, we consider whether the Krigels had the sole authority under paragraphs 5(c) and 6(a) to waive the unfulfilled condition contained in paragraph 4(c). In particular, we consider the possible waiver of Foothill Capital’s failure to consent within 4 weeks of the date of the SPA to the continued financing of Krigel’s, Inc., obligations to Foothill under the prebankruptcy terms. These paragraphs were previously set forth in this opinion.
The district court held that paragraph 4(c) was a representation and warranty of ARY to “Krigel,” and Scott waived the unfulfilled condition by sending written notice of waiver to Husain on December 15, 2000, per paragraphs 5(c) and 6(a). The court additionally held that ARY was required to waive the unfulfilled condition because the condition also affected ARY as a party as stated in paragraphs 5(c) and 6(a).
We agree with the district court. Without Foothill Capital’s continued financing of Krigel’s, Inc.’s secured debt of $8 million under the prebankruptcy terms, ARY would have been obligated to add this amount in cash to its $7.5 million cash outlay at closing. This makes a substantial difference to a buyer, and therefore ARY was affected by paragraph 4(c). Under paragraphs 5(c) and 6(a), ARY also was required to waive the unfulfilled condition, which it did not do.
Issue 2: Did the district court err in granting summary judgment because genuine issues of material fact remained on the issue of estoppelP
The Krigels argue that genuine issues of material fact exist to prevent summary judgment for ARY. Specifically, they claim that ARY’s representatives’ statements and acts estop ARY from relying upon paragraph 4(c)’s unfulfilled condition of Foothill Capital’s consent to continued financing, even though ARY had not waived that provision in writing as required by paragraph 8(d). ARY responds that we should not consider this argument because the Krigels did not plead estoppel in the district court.
Our first step is to determine whether the Krigels adequately raised the theory of estoppel in pleadings below. If not, the issue cannot be raised on appeal. See Dalmasso v. Dalmasso, 269 Kan. 752, 765, 9 P.3d 551 (2000) (Issues not raised before the trial court cannot be raised on appeal.).
We initially observe that the district court did not mention estoppel in its journal entry of judgment filed on May 29,2002, which suggests the issue was not adequately raised by the Krigels at that level. A careful review of the pleadings converts this suggestion into a certainty; We have examined ARY’s amended petition for •declaratoiy judgment, the Krigels’ answer and counterclaim for breach of contract, and ARY’s reply to the counterclaim. Estoppel is not mentioned except by ARY as an affirmative defense to the Krigels’ counterclaim in accordance with K.S.A. 60-208(c) (“In pleading to a preceding pleading a party shall set forth affirmatively . . . estoppel.”).
We have also carefully examined the Krigels’ motion for summaiy judgment on their counterclaim and on ARY’s amended petition, as well as ARY’s memorandum in opposition. Additionally, we have reviewed ARY’s own motion for summary judgment, the Krigels’ response, and ARY’s reply. Despite the Krigels’ opportunities to mention estoppel in two different dispositive pleadings, they did not do so. Neither did ARY.
We do acknowledge that in the Krigels’ response to ARY’s motion for summary judgment, they argued in relevant part:
“ARY Jewelers never asserted until March 28, 2001, and thereafter that it had to secure a commitment for adequate financing as a condition to its closing the SPA. To the contrary, Gohar Husain, ARY Jewelers member and representative, repeatedly stated that if negotiations for financing were unsuccessful, ARY Jewelers would proceed with the closing and pay cash. . . .
“The alleged facts set forth by ARY Jewelers misconstrue what actually occurred during the negotiation process. Additionally, ARY Jewelers’ version of the facts completely ignores the repeated representations made by ARY Jewelers’ author ized representative, Gohar Husain, which were directly contrary to the assertions now made by ARY Jewelers.
“Gohar Husain repeatedly told Krigel that ARY had a lot of money and that they could make the deal work even without obtaining suitable financing. Mr. Husain told Krigel from tire very start of the negotiations that both the secured and unsecured debt would be paid by cash if the negotiations for financing were unsuccessful. . . .
“Moreover, ARY Jewelers’ attorney in the chapter 11 bankruptcy proceedings stated during at least two hearings that he was urging ARY Jewelers to close the SPA. At the hearings where ARY Jewelers requested an extension to the effective date of the plan, ARY Jewelers’ never represented to the Court that ARY Jewelers could not close the SPA because the so-called financing contingency had failed.”
These arguments, however, appear under the Krigels’ chosen heading of “parol evidence.” While headings are not necessarily dispositive of the issue, the Krigels’ accompanying text presents Husain’s representations solely as parol evidence to rebut ARY’s claim that paragraph 4(c) was a financing contingency in ARY’s favor, i.e., ARY as an affected pariy. As evidenced by ARY’s reply to the Krigels’ pleading, it certainly did not interpret these arguments as estoppel based. Nor did the district court.
We do acknowledge that “[i]n considering a motion for summary judgment under K.S.A. 60-256, pleadings are to be liberally construed in favor of the party opposing the motion.” Oller v. Kincheloe's, Inc., 235 Kan. 440, 448, 681 P.2d 630 (1984) (quoting Voth v. Chrysler Motor Corporation, 218 Kan. 644, Syl. ¶ 1, 545 P.2d 371 [1976]). Furthermore, the Krigels cite Turon State Bank v. Bozarth, 235 Kan. 786, 684 P.2d 419 (1984), to suggest that since they alleged facts to the' district court which could support a theory of estoppel, their failure to characterize those facts as estoppel should not result in summary judgment being entered against them.
The Krigels’ reliance on these authorities is misplaced. Following a bench trial, the district court in Bozarth construed the facts to support estoppel as a defense. This court rejected plaintiff s argument that it had not been affirmatively pled and held the facts constituted notice of this defense to the plaintiff, which nullified any possible unfairness. In the instant case, however, absolutely no one understood that any of the Krigels’ numerous pleadings con tained estoppel as a theory until the Krigels’ appellate brief was filed. That is too late for our consideration. Dalmasso, 269 Kan. at 765.
The Krigels essentially ask us to impose an affirmative duty upon the district court to raise legal theories and arguments for a party during the summaiy judgment process. In effect, the Krigels invite us to require the district court to apply the review standards governing a motion to dismiss under K.S.A. 60-212(b)(6) (failure to state a claim upon which relief can be granted) to the summary judgment process under K.S.A. 60-256. We decline to do so. Indeed, in Frontier Ditch Co. v. Chief Engineer of Div. of Water Resources, 237 Kan. 857, 864, 704 P.2d 12 (1985), we held the trial court erred in raising sua sponte the affirmative defense of statute of limitations to defendant’s argument when it granted summaiy judgment to the plaintiff. See Reebles, Inc. v. Bank of America, N.A., 29 Kan. App. 2d 205, 213, 25 P.3d 871 (2001) (appellate court will not review grant of summaiy judgment against plaintiff on issue of estoppel because it did not raise estoppel as a cause of action in its pleadings for the trial court’s consideration); Midwest Iron and Metal, Inc. v. Zenor Elec. Co., 28 Kan. App. 2d 353, 355, 19 P.3d 181 (2000) (appellate court will not review grant of summary judgment against plaintiff on issue of breach of implied warranty because it did not raise the- claim in response to defendant’s motion for judgment on all issues or on its own motion to reconsider the grant of summaiy judgment).
Though somewhat alike, the processes involving motions for summary judgment and motions to dismiss contain some fundamental differences. A summaiy judgment motion typically is filed after discoveiy has been completed as in the instant case, and the parties are aware of almost all of the facts and all the legal claims. See Montoy v. State, 275 Kan. 145, 148-49, 62 P.2d 228 (2003) (Ordinarily, a summaiy disposition of a pending case before the district court should not be granted until discovery is complete.). By contrast, a motion to dismiss typically is filed much earlier in the case when many facts are undiscovered and the legal theories may be in flux. As the court stated in Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 234, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991), when it reviewed a motion to dismiss, “[t]he development of these facts and the legal theory to which they may be appended is left to the discovery and pretrial procedures. . . . As the matter develops, the precise theory may be shifted as the facts warrant.” Accordingly, the court considering a motion to dismiss must “determine whether those pleaded facts and inferences state a claim, not only on the theory which may be espoused by the plaintiffs, but on any possible theory we can divine.” 15 Kan. App. 2d at 231.
The district court did not err in granting summary judgment to ARY on the issue of estoppel.
Issue 3: Did the district court err in granting summary judgment because genuine issues of material fact remained on the issue of waiver?
The Krigels argue that genuine issues of material fact on additional grounds exist to prevent summary judgment for ARY. Specifically, they claim that through the words and actions of ARY representatives, ARY waived paragraph 4(c) (the Foothill Capital consent to continued financing provision) and paragraph 8(d) (the written notice provision) of the SPA. ARY responds that we should not consider these arguments because the Krigels did not allege waiver in the district court. In the alternative, ARY claims that even if waiver had been sufficiently raised, no waiver occurred, either in writing or by implication.
Our first step, as with issue 2, is to determine whether the theory of waiver was raised below. If not, the issue cannot be raised on appeal. See Dalmasso, 269 Kan. at 765. We initially observe that the district court did mention waiver in its journal entry of judgment filed on May 29, 2002. A careful review of the pleadings reveals the waiver issue was actually raised preemptively by ARY in its motion for summary judgment, and in ARY’s reply to the Krigels’ response. Specifically, ARY acknowledged that the Krigels had argued waiver of paragraph 4(c) in other litigation between the parties based upon Husain’s alleged representations that ARY would pay cash if acceptable financing were not obtained. ARY then presented arguments on why waiver did not apply to the in stant case. In ARY’s reply memorandum of April 2, 2002, it claimed, among other things:
“Whatever Mr. Husain purportedly said, the SPA requires waivers to be made in writing. See SPA § 8(d). Thus, Mr. Husain could have made that statement a thousand times without any legal effect under the terms of the SPA. The SPA was null and void by its terms as of December 19, 2000.”
We therefore conclude the general issue of waiver was properly raised by a party, was properly considered by the district court, and is properly before this court on appeal. Consequently, we continue our analysis by examining Missouri’s legal definition of waiver:
“The intentional relinquishment of a known right, on the question of which intention of the party charged with waiver is controlling, and if not shown by express declarations but implied by conduct, there must be a clear, unequivocal, and decisive act of the party showing, such purpose, and so consistent with intent to waive that no other reasonable explanation is possible.” Errante v. Kadean Real Estate Service, Inc., 664 S.W.2d 27, 29 (Mo. App.1984).
In the instant case, the district court found that the SPA requires waivers, and all other communications permitted or required under the SPA, to be in writing. While it was alleged that ARY’s representative, Husain, may have orally told Scott that ARY would close the transaction even without continued financing from Foothill Capital, the court found that neither Husain nor any other representative of ARY ever waived the financing requirement of paragraph 4(c) in writing. Consequently, ARY did not waive the requirement. As a result, the district court held that by the express terms of paragraph 4(c), the SPA and consulting agreement were null and void as of December 19, 2000.
We agree with the district court. There is no evidence of ARY’s written waiver.
We next consider the Krigels’ apparent argument that ARY impliedly waived the written waiver requirement of paragraph 8(d). As support they cite Keltner v. Sowell, 926 S.W.2d 528 (Mo. App. 1996), which holds that the requirement of a written notice in a contract may be waived by an oral agreement of the parties or by their conduct. In response, ARY alleges this specific argument was never raised in or addressed by the district court. We agree. The district court’s journal entry makes no mention of this issue, nor is it found in any of the numerous pleadings we have carefully reviewed.
Even if we disregard this procedural bar, our consideration of this specific argument provides no relief to the Krigels. Husain’s alleged representations about paying cash instead of refinancing that were made before November 21, the date of the SPA’s execution, are negated by the SPA’s integration provision. ARY’s conduct and representations after December 19 — Husain’s alleged .representations, ARY’s continued negotiations for refinancing, and counsel’s two attempts to extend the bankruptcy’s effective date — are of no consequence because the SPA was already null and void due to the failure of Foothill Capital’s consent to financing by the deadline. Under Missouri law, a condition subsequent cannot be waived after the failure of the condition. Baumann v. Brittingham, 759 S.W.2d 880, 881 (Mo. App. 1988) (Defendants’ continued pursuit of financing after the deadline was not an implied waiver of the contingency provision because the failure of the contingency made the contract void.); Errante v. Kadean Real Estate Service, Inc., 664 S.W. 2d at 29.
We acknowledge that ARY’s attorney, Jevinsky, allegedly did request in his December 19 letter that the December 19 deadline be extended until January 18. Even resolving the facts and inferences which may reasonably be drawn from this evidence in favor of the Krigels as we are required to do in reviewing summary judgments, however, Jevinsky was clearly only extending by 30 days the date for ARY to receive Foothill Capital’s consent to such financing. Extending the deadline for fulfilling the condition is inconsistent with an intent to waive the condition, i.e., intentionally relinquishing it as required by Missouri law. See Fleischer v. McCarver, 691 S.W.2d 930 (Mo. App. 1985) (sellers extended the financing contingency deadline in writing by one week and court held they never waived financing contingency). Accordingly, Jevinsky was neither expressly nor impliedly waiving the condition of Foothill Capital’s consent to financing or approving the replacement of the financed $8 million with equivalent amounts of ARY’s cash.
We hold ARY did not make any written waiver of the condition requiring Foothill Capital’s consent to financing, nor did it make any implied waiver of the requirement that waivers be in writing. Consequently, the district court did not err in granting summary judgment to ARY on this issue.
Issue 4: Did the district court err in denying the Krigels’ motion for summary judgment because the court misinterpreted the contractP
For the Krigels’ last argument, they claim the district court erred in denying their motion for summary judgment on their counterclaim for breach of contract and on ARY’s amended petition. They specifically argue the court erred in interpreting paragraph 4(c) of the SPA; since only the Krigels’ were required to waive the unfulfilled financing condition, there was no valid reason for ARY not to close the transaction. According to the Krigels, ARY’s failure to pay the unsecured creditors of Krigel’s, Inc., on the effective date of the bankruptcy plan therefore constituted a breach of the contract, and consequently, the Krigels are entitled to the escrowed funds.
These arguments were addressed and rejected earlier in the opinion when we considered the district court’s grant of summary judgment to ARY. For those same reasons, the district court correctly denied the Krigels’ motion for summary judgment.
Affirmed.
Abbott, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
Lisa Graham was charged with and tried on two counts of attempted first-degree murder and on one count of aggravated arson. A mistrial was declared after the juiy twice informed the trial court it was deadlocked. The trial court acquitted Graham on the aggravated arson charge. Before she was retried, four counts of aggravated assault on a law enforcement officer were added to the charges against her. Graham was convicted by a second jury on all counts. In an unpublished opinion, the Court of Appeals affirmed the convictions of attempted first-degree murder, reversed the convictions of aggravated assault on a law enforcement officer, disapproved a 60-month postrelease supervision term imposed on Graham, and remanded for resentencing. The court granted Graham’s petition for review of the Court of Appeals’ decision on the issues of prosecutorial misconduct, double jeopardy, and sufficiency of the evidence of attempted first-degree murder.
Graham raises the following issues:
1. Did the prosecutor’s comments in closing argument deprive defendant of a fair trial?
2. Did the second trial violate defendant’s right not to be subjected to double jeopardy?
3. Was there sufficient evidence to support the convictions of attempted first-degree murder?
In September, Graham was experiencing problems in the office, with her family, and with her love life, and her sales fell off. In the office, a newly-hired salesperson discounted accessories to make sales, which was not acceptable to Graham, and Graham testified that someone put up pictures of monkeys, which she believed to be depicting her. With regard to her personal life and family, her sister was the complaining witness in a prosecution of Graham for kicking down the door of her sister’s house in November 1998 to see if Graham’s boyfriend was there. The case was tried on September 28, 1999, Graham’s attorney withdrew, she was found guilty, and her family supported her sister. Graham was hurt and angry when the proceeding ended. She was supposed to go to court services to arrange for a presentence investigation. Graham testified:
“I thought [a presentence investigation] was where I’d have to admit guilt and I didn’t feel like I was any more guilty than my sister .... [W]e went into Court Service’s office and I said I wouldn’t do it and I left and went and got on the elevator and left screaming .... Just before I got on the elevator [the prosecuting attorney] told me that I would be automatically locked up for 60 days.”
Graham went straight home and went to sleep.
When she got up early the next morning, September 29, she was thinking about the police coming in her house. She stretched a wire from her refrigerator to the basement door hinge to keep the door from opening completely and to cause it to malee a noise if the door were opened. She put some charcoal lighter fluid in a bowl and set it in front of the front door with a candle between the bowl and the door. Graham testified that “if somebody came in they would knock the candle over and ignite the charcoal fluid and they’d see the — the flame go up and stay out.” Without lighting the candle, she went back to sleep.
Later in the morning, she awoke to someone knocking on her door. She assumed it was the police, did not answer, and went back to sleep. When she woke up in the afternoon, she called her friend, Georgaleen Thomas, at Cellular One to see if the police had been there looking for her. She was told the police had not been there, but, because she was expecting the police to try to arrest her, she stayed in her house.
Sometime during the morning of September 30, police officers Edward Swanson and Tom Gardner went to Graham’s house to serve the warrant that had been issued for her arrest. They knocked repeatedly, but no one answered the door.
Graham had taken a couple of days approved vacation on September 28 and 29, but she was expected back at work at noon on September 30. At approximately 11:30 that morning, she called her supervisor to say that she would not be coming in anymore and that she wanted certain of her accounts transferred to Thomas. After Thomas returned to work from lunch on September 30, she received a call from Graham. Thomas told Graham that the police were looking for her, and Graham said that she wasn’t going to turn herself in. Thomas, who had known Graham for many years, described her as “really calm” during the call. After Graham ended the conversation, Thomas went straight to their supervisor with her fear that Graham was contemplating suicide. Thomas then called the suicide hotline, reported her concern, and gave them Graham’s name and place of residence. The person she talked with on the suicide hotline told Thomas that he had to notify the police.
Brandon Tomson was the first police officer to arrive at Graham’s house. He had been told by the dispatcher that the occupant of the house was threatening suicide. He knocked on the front door, got no answer, tried the door and found it locked, then walked around the house looking for access. He found none, and the closed blinds kept him from seeing in the windows. He remained on or near the deck at the back of the house.
Officers John Krenowicz and Russ Lamer arrived next. Without getting any response, they continued to tiy the doors, they had dispatch ring the telephone in the house, and they called Graham’s cell phone. Krenowicz located one window on the southeast part of the house that was unlocked and had some screws missing from the storm window. He and Lamer removed the remaining screws and opened the window. There was a strong odor of gasoline. Krenowicz and Lamer crawled in through the window of the unoccupied room and found that the carpet was soaked with liquid. With their weapons drawn and acting as a team, the officers began to check the house for occupants. As they got into the living room, Krenowicz saw Graham standing in the doorway that led down to the basement and made eye contact with her.
Graham brought up her right arm up and lit the lighter she was holding. Underneath her left arm, Graham had what appeared to be Roman candles. She was backing down the basement stairs. Krenowicz yelled at Lamer to get out. As Krenowicz was undoing the locks on the front door, he heard popping sounds and he noticed a bowl and unlit candle on the floor.
Once outside, he yelled at newly arrived Officer Lanning to help him get fire extinguishers out of the patrol units. Krenowicz gave an extinguisher to Lamer, and the two of them stood near the front door. They could see flaming balls from the Roman candles, and the house started filling with smoke. Lamer tried to douse the flames with his extinguisher. One of the flaming balls hit Lamer in the chest and burned a small hole in his uniform.
The fire department arrived, and a fireman kicked the back door open. Lamer saw Graham through the smoke in the house, he yelled for Graham to come out, then he and Krenowicz reentered the house. Krenowicz drew his gun. Lamer dashed approximately 10 to 12 feet into the house and tackled Graham. Lamer testified that he saw Graham raise her right hand, which appeared to have something in it. A gun fired. At first, Lamer was not sure what made the noise. Lamer picked Graham up and took her out the front door. After she was handcuffed, some handgun shells were found on her. Graham had safety-pinned a note inside her jacket, dated September 30, 1999, that stated:
“To Whom it May Concern:
My funeral arrangement have been made with Roselawn Mortuary, they already have all directions. Frank Zavala . . . will be in charge of everything not Rachel Holt.
If my Kidneys only are not damaged I would like them donated to Wynola Winn, ... no other parts of my body are to be donated.
Signed,
(signature)
Lisa J. Graham”
Graham testified that she fired the Roman candles trying to set her house on fire. She further testified that, with the house filled with smoke and firemen and police officers on all sides of the house, she dropped the fireworks, and took the gun from her waistband to put it under her chin. According to Graham, the next thing she knew she was on the floor.
After the fire was out, police reentered the house and found a .38 Taurus handgun on the floor. There were five rounds in it; one was a spent shell that was under the firing pin. One spent projectile was removed from the ceiling joists. There was a gasoline can on the steps to the basement. Articles of Graham’s clothing and items collected from throughout her house tested positive for gasoline. A medium petroleum distillate, which charcoal lighter fuel frequently is made from, also was detected on some items.
We first consider whether the prosecutor’s comments in closing argument deprived Graham of a fair trial.
A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether tire prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error; that is, whether the statements are so gross and flagrant as to prejudice the juiy against the defendant and deny him or her a fair trial, thereby requiring reversal. State v. Scott, 271 Kan. 103, 113, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). The facts of each case must be scrutinized in determining whether a prosecutor’s remarks deny the defendant a fair trial. See State v. Rodriguez, 269 Kan. 633, 641, 8 P.3d 712 (2000).
Graham complained of two specific comments made by the prosecutor during closing argument and several of his comments on her lack of credibility. As to those comments, the Court of Appeals said:
“The prosecutor argued Graham lit the candle by the front door. The testimony fairly clearly established Graham did not light the candle. The prosecutor’s comment was improper, but it is highly unlikely a different verdict would have resulted absent the comment.
“The prosecutor also stated Graham made a move towards the fireworks under her arm when she first encountered Officer Krenowicz. The officer’s testimony on this point was clearly contradictory, but it was for the jury to determine what to believe. The comment was not reversibly improper.
“Graham also claims the prosecutor injected his personal beliefs into argument and implied Graham was not telling the truth. When a case turns on which of two conflicting stories is true, it may be reasonable to argue that certain testimony is not believable. State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000).
“This case rested on conflicting testimony, and it was within the prosecutor’s latitude to comment on those differing pieces of testimony. We are unable to hold the comments denied Graham a fair trial.” Slip op. at 2-3.
Officer Krenowicz testified that as he was unlocking the front door in order to get outside, he noticed a bowl and unlit candle on the floor in front of the door. Graham denied lighting the candle. She explained the already burnt wick dated from some romantic dinner in the past. In closing argument, the prosecuting attorney stated:
“When the police arrived she heard them, she heard them in the front, she heard them in the back, she knew they were around the house, they weren’t going to go away. She knew it so she poured the gasoline in the basement. Then she went upstairs and she poured the charcoal lighter fluid in the little bowl behind the door and she put that candle there and she lit it. Why did she do that? Because if they tried to come in before her plan was finished that would keep them out. So she lit that candle at that point.
MR. CHRISTIANS: Your Honor, I’m going to object; that mischaracterizes the evidence. The candle was not lit.
MR. STANTON: It had been burned, Judge.
THE COURT: Yeah, that’s a reasonable argument. Need to be careful on interrupting in closing.” (Emphasis added.)
In considering this issue, the Court of Appeals concluded that “[t]he prosecutor s comment was improper, but it is highly unlikely a different verdict would have resulted absent the comment.” Slip op. at 2.
The prosecutor’s statement contradicted the testimony, not only of the defendant, but also of the State’s witness, Krenowicz. The prosecutor’s statement was an incorrect statement of the evidence and was clearly improper.
Graham seems to argue that the prosecutor’s statement might have affected the verdict by lending support to the State’s otherwise incredible theory that the bowl of charcoal lighter fluid and candle were a booby trap for the officers. What the prosecuting attorney actually said about the purpose of the bowl of charcoal lighter fluid and candle was that, if the police officers “tried to come in before her plan was finished that would keep them out.” Graham said almost precisely the same thing about the purpose of the bowl of charcoal lighter fluid and candle: “[I]f somebody came in they would knock the candle over and ignite the charcoal fluid and they’d see the — the flame go up and stay out.”
Thus, although outside the wide latitude allowed for discussing the evidence in closing argument, the statement that Graham lit the candle, by itself, did not prejudice the jury against her so as to deny her a fair trial.
Krenowicz testified that he saw Graham standing in the doorway to the basement, and she raised her right arm and lit the lighter she was holding in her right hand. Krenowicz testified that he told Graham to drop it, but, instead, she used the lighter to light the fireworks that were underneath her left arm. Then he yelled to alert Lamer and went to the front door to get out of the house. Before the officers got the locked front door open, Krenowicz heard popping sounds, like a Roman candle going off. In cross-examination, Krenowicz admitted that he did not actually see Graham light the Roman candles because he and Lamer were trying to get out the front door. In closing argument, the prosecuting attorney stated:
“Officer Krenowicz had kneeled down in the gasoline and he comes around the corner and he’s got a gun, he is ready to protect himself and this woman lights this lighter. Now does he taire time? He says drop it one time. She doesn’t do it. She instead goes for the candlestick, the Roman candles, the candles. How do you know he thought he was about to be harmed? He did nothing else but run for drat door.”
The prosecutor s statement is not at odds with the testimony. Although Krenowicz did not actually see Graham light the fireworks, his testimony that she did so was a reasonable inference, based on his hearing the popping sounds of Roman candles before he and Lamer were able to get the front door unlocked, that Graham lit them within a very short time after Krenowicz told her to drop the lighter. We conclude the prosecutor s statement was not improper.
Graham also complains that the prosecutor took several opportunities in closing argument to comment unfavorably on her credibility. This court has repeatedly reminded prosecutors that, while they may argue the facts that a juiy should consider in assessing credibility and determining guilt, the Kansas Rules of Professional Conduct (KRPC) unequivocally state that an attorney shall not state a personal opinion about the credibility of a witness or the guilt of the accused. KRPC 3.4(e) (2003 Kan. Ct. R. Annot. 429). “The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not com mentary on the evidence of the cased State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000).
In his closing argument, the prosecutor made the following statements about catching Graham in a lie:
“Now something very interesting happened yesterday I would submit to you. The defendant is saying well, I was going to get all my stuff together, I was going to go down and talle to my buddy Frank, ’cause maybe he could talk me out of this or maybe he could give me a solution. Was she searching for solutions other than what she had already planned, ladies and gentlemen? If she was searching for solutions why did she take those Roman candles with her? I asked her. She said, 1 don’t know.’ Why did you have a gun with you? Oh, I might decide to do it along the way I guess as a paraphrase is what she answered. She going to take a gun down to talk to her buddy or was it more likely that if she .became — if she came to a situation she was confronted by police that she was ready to do something about that situation? But you know that she didn’t go because as she said as I was going out the back door the police came. Problem, big problem. She testified that she had put that wire across there 30 hours before that, 36 hours before that. She couldn’t have gone out the back door. So I asked her you were going out the back door, you couldn’t, there’s a wire there. Oh, there was enough room for me. So now I caught her by surprise. She had to come up icith that. Well when did you? Well, how do you know that? Oh, it was only about eight inches, I could squeeze through there. Well did you try? I could squeeze through there. Did you try? Yes. When? Because see we’ve gone through the scenario on times at least twice and nothing was ever said about her trying that door until I asked that question. It’s hard to make things up on the fly I would submit to you. What had she testified to, I never left the house. She wouldn’t even go to the door to see who was knocking. But now she’s saying that she opened that back door and squeezed through there to make sure she could get through.” (Emphasis added.)
For the most part, this portion of the prosecutor s closing argument points out inconsistencies within Graham’s testimony, which is the prosecutor’s job. The two italicized remarks, however, rather than being commentaries on the evidence, are expressions of the prosecuting attorney’s opinion that Graham was fabricating her testimony.
Graham testified that she poured gasoline on her vinyl carpet protectors. One ran from the kitchen door to the front door, another ran from the kitchen door to the bathroom door, and a short one ran in front of the front door. She testified that she thought, “[I]f I pour it on the mat, then if I change my mind I can clean the mats off, throw them out, it’s done with.” In closing argument, the prosecutor said: “We know that she put gasoline through part of the house because she’ll admit to that but only to the extent that well, I could change my mind.” On appeal, Graham interprets the prosecutor’s remark as stating that she would only admit to pouring gasoline “if she could later change her mind on her testimony.” Appellant misinterprets the prosecutor’s remark. Both Graham and the prosecutor referred to the possibility of her changing her mind about burning down the house and being able to remove the gasoline from the house by removing the mats. What the prosecutor seemed to be pointing out was the difference between Graham’s admission of pouring gasoline on the mats and evidence of gasoline in the southeast bedroom.
As he began to sum up his argument, the prosecuting attorney stated:
“That’s what the evidence shows, that’s what all this evidence shows. I submit to you she didn’t tell you anything that was true. She told you the things that she had to tell you because they’re undeniable. I submit that what she didn’t tell you was anything that she could deny, anything that she could keep from taking responsibility for.” (Emphasis added.)
It appears from the context that perhaps what the prosecutor intended to say was that Graham didn’t tell the jury everything, rather than anything, but the appellee’s brief contains no mention of this. The State’s argument is that much more egregious comments on defendants’ credibility have passed this court’s muster. The State cites State v. Finley, 273 Kan. 237, 42 P.3d 723 (2002), and State v. Douglas, 274 Kan. 96, 49 P.3d 446 (2002).
In Finley, the prosecutor said that two of the defendant’s witnesses, Tom and Denise, “ Testified pretty consistently with each other, but their stories are incredible and they’re virtually impossible to believe.’ ” 273 Kan. at 245. About Tom, she said: “ ‘He’s said various things at various times, and the reason why people do that is because they can’t keep all the lies straight.’ ” 273 Kan. at 246. The court did not view the prosecutor’s comments as being improper because they were based “on an inference drawn from the nature of the defendant’s conflicting stories, not on the prosecutor’s knowledge of the defendant’s veracity,” and “[fjurthermore, the phrase ‘they can’t keep all the lies straight’ does not come close to the egregious manner in which the prosecutor in Pabst called the defendant a liar. See 268 Kan. at 505-06.” 273 Kan. at 246. The court did find error to the extent that the prosecutor expressed her belief as to credibility in the following: “ ‘And I’m sorry, but I just can’t buy this story that Tom and Denise come up with that Tom was somewhat of a hero risking his life to go in and save these people in the house. It seems to me there was no remorse for LaDonna’s injuries or her death. Only emotion that we saw from him or Denise came when they were testifying about his own injuries. Doesn’t seem like a martyr to me.’ ” 273 Kan. at 247. With overwhelming evidence of guilt, the court found that the error had little likelihood of changing the trial’s outcome. 273 Kan. at 247.
In Douglas, the prosecutor, at various times during closing argument, made the following statements:
“ ‘[I]f you believe every word that came out of Mr. Douglas’ mouth, then you’re pretty naive, because what he said doesn’t malee any sense. . . .
“... So, without me spending any more time on his story, which is quite frankly unbelievable .... It’s the State’s position that you should not believe anything he says.’
“ ‘Defendant’s story is unbelievable. It is absolutely totally and completely unbelievable.
“ ‘ . . . [I]t is up to you to decide the weight and credit to give any particular witness or any piece of testimony, so you can judge what Mr. Douglas has decided to tell you and judge it for what it is worth. And I will call it what it is. It’s unbelievable. It is unbelievable. . . .’
“‘ . . . I submit to you that you shouldn’t believe a word out of his mouth.’” 274 Kan. at 106-07.
The court concluded that the prosecutor’s remarks did not rise to the level of the conduct that warranted reversal in Pabst. 274 Kan. at 107-08. Nor do the prosecutor’s remarks in the present case rise above the level of the conduct that did not warrant reversal in Douglas. Although here the prosecutor’s comments are outside the wide latitude allowed in discussing the evidence, they were not so gross and flagrant as to prejudice the jury against the defendant and deny her a fair trial.
We next consider whether the second trial violated Graham’s right under the Fifth Amendment to the United States Constitution not to be subjected to double jeopardy?
K.S.A. 22-3423(l)(d) provides that the “trial court may terminate the trial and order a mistrial at any time that he finds termination is. necessary because . . . [t]he jury is unable to agree upon a verdict.” Declaration of a mistrial is a matter entrusted to the trial court’s discretion, and the decision will not be set aside on appeal unless abuse of discretion is clearly shown. State v. McClanahan, 259 Kan. 86, 92, 910 P.2d 193 (1996).
In this case, the jury began deliberations at 1 p.m. At 4:50 p.m., with the jury in the courtroom, the following dialogue occurred:
“THE COURT: Members of the jury, have you selected a presiding juror? . . : [Y]ou sent out a note saying no decision. Is that on either count?
“PRESIDING JUROR: Yes.
“THE COURT: I’m — at this point I’m going to ask for a judgment call on your part. And do you feel that the jury has exhausted any possibility of reaching a decision or do you think further deliberations may result in resolving the decision?
“PRESIDING JUROR: I feel it’s exhausted but there might be others that might not feel the same.
“THE COURT: I don’t want to know — obviously don’t want to know what your voting numbers are or anything like that. Does [presiding juror] speak for the jury as a whole? . .
“THE JURY: Yes.
“THE COURT: So I’m taking it you feel that you have all given it your conscientious effort and that further deliberations would not be fruitful? I know it’s been a long day but I’m going to ask you to give it one more shot, okay? We’ve all — you all-have quite obviously a lot of time and effort invested in this and you’re giving it your- conscientious decision making and that’s all we can ask of you but obviously if you read the instructions there you know where we’re coming from on that also so let’s give it one more shot. We won’t keep you here, you know, beyond dinner time. Let’s give it one more shot, see if you can come to a common conclusion so that we can determine the case.
“PRESIDING JUROR: Good enough.”
At 5:25 p.m., the jury reentered the courtroom. The trial judge addressed the presiding juror, “You’ve sent a note out advising that the jury in your opinion is at a deadlock.” The presiding juror responded, “Deadlock.” The trial judge discharged the jury and declared a mistrial.
As the Court of Appeals noted, the trial court did not consult defendant before discharging the jury and declaring a mistrial. Nor did defense counsel object.
At the State’s suggestion, the Court of Appeals required the State to demonstrate a manifest necessity for the trial court’s declaring a mistrial without defendant’s consent. The Court of Appeals found that a manifest necessity was shown by the jury twice informing the trial court that it was deadlocked.
Although Graham’s right under the Double Jeopardy Clause was not violated, it was not for the reason stated by the Court of Appeals. Here, the district court sua sponte declared a mistrial, and Graham did not object. In State v. Wittsell, 275 Kan. 442, 446, 66 P.3d 831 (2003), this court stated: “The long-established test applied where the first trial was terminated over objection of the defendant is the ‘manifest necessity’ standard. [Citation omitted.] Retrial is constitutionally permissible only where a high degree of necessity supports the mistrial.” (Emphasis added.) Since Graham did not object to the granting of a mistrial, the “manifest necessity” standard is not applicable. The correct standard, where the defendant does not object, is the same standard as if Graham had consented to the mistrial. “Where a criminal defendant consents to a mistrial, double jeopardy is not implicated unless the prosecutorial conduct giving rise to the mistrial was intended to ‘goad’ the defendant to move for a mistrial. Retrial is constitutionally permissible where the governmental conduct was not intended to provoke the defendant into seeking a mistrial.” Wittsell, 275 Kan. 442, Syl. ¶ 3. Although the trial court’s reasoning was improper, it will not be reversed if it is right, albeit for the wrong reason. State v. Bryant, 272 Kan. 1204, Syl.f 6, 38 P.3d 661 (2002).
In her petition for review, Graham relies on United States v. Horn, 583 F.2d 1124 (10th Cir. 1978), for the proposition that the defendant is deprived of her right to have her trial completed by a particular tribunal if the jury is discharged when further deliberations may produce a fair verdict. In Horn, after the jury had deliberated approximately 3 hours, it sent out a note saying it was deadlocked. The trial court excused the jurors for the evening. The next morning, the trial court told the jurors that they had not deliberated long enough to have fully considered the evidence, he reminded them of their duty to reach agreement if possible, and told them to re-examine their views and not hesitate to change their minds. In addition, the trial judge gave a formal Allen charge and returned the jury to its deliberations. After slightly more than an hour passed, the trial judge, without hearing from the juiy or consulting the parties, had the juiy brought into the courtroom and declared a mistrial. 583 F.2d at 1125. Noting that a trial court is justified in declaring a mistrial when a jury is unable to agree upon a verdict, the federal Court of Appeals identified the problem in Horn as being that there was no basis for concluding that the jury could not reach agreement because the trial judge did not inquire of the jury whether it was able to agree. 583 F.2d at 1126. In that peculiar circumstance, the trial judge had no basis for declaring a mistrial.
In contrast, in the present case, the trial judge returned the jury to its deliberations after it first advised of its inability to agree. After the juiy advised the trial judge a second time that it was deadlocked, he declared a mistrial. This is not a Horn situation. Defendant cites no other authority for her position on this issue. We find no merit in Graham’s argument.
Finally, was there sufficient evidence to support the convictions of attempted first-degree murder?
Graham argues that the prosecutor’s theoiy that she coaxed police officers into her gasoline-soaked house in order to murder them and end her own life is not supported by the evidence. She contends that the evidence, instead, supports her testimony that she was contemplating suicide and trying to avoid the police. For each bit of evidence that would support her conviction of attempted first-degree murder, Graham suggests a nonincriminating interpretation.
Because the evidence in this case could be interpreted as fitting either the prosecutor’s theoiy or the defendant’s, the standard of review decides the matter. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). Viewed in the fight most favorable to the State, the evidence supports the jury’s verdict.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Beier and Nuss, JJ., not participating.
Brazil, S.J., and LARSON, S.J., assigned. | [
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On October 31,2003, this court suspended the respondent, Robert H. Royer, Jr., for a period of 3 months. See In re Royer, 276 Kan. 643, 78 P.3d 449 (2003). 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 recommendation of the office of the Disciplinary Administrator, finds that the respondent, Robert H. Royer, Jr., should be reinstated to the practice of law in the state of Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas as of the date of this order.
It Is Therefore Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to respondent.
Dated this 2nd day of February, 2004. | [
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The opinion of the court was delivered by
Davis, J.:
The question we must answer is whether K.S.A. 2003 Supp. 22-3428 requires a trial court to commit a defendant who has been acquitted of a criminal charge by reason of a mental disease or defect to the state security hospital for an evaluation for up to 90 days, or whether such a defendant is entitled to an immediate hearing to determine whether he or she is a harm to himself, herself, or others. Our answer is that the Kansas Legislature mandates that the defendant be sent to the state security hospital under the provisions of K.S.A. 2003 Supp. 22-3428(l)(a). We therefore affirm the trial court.
Background
Germaine R. Van Hoet was charged with one count of domestic battery and one count of assault arising out of an incident that occurred on August 31, 2001. The defendant was appointed counsel and pled not guilty to both counts in the amended complaint.
The defendant filed a notice of intent to rely upon the defense of insanity, a request for a psychiátric evaluation, and a motion to determine competency to stand trial. On October 23, 2001, the district court found reason to believe the defendant was incompetent to stand trial and referred her to the Johnson County Mental Health Center for evaluation. Upon its recommendation for fur ther evaluation, the district court committed the defendant to the Osawatomie State Hospital (OSH) for a competency evaluation pursuant to K.S.A. 22-3302.
While at OSH, the defendant was diagnosed as suffering from schizoaffective disorder, bipolar type; personality disorder, not otherwise specified with narcissistic and antisocial features; and hypothiyroidism and hypercholesterolemia. OSH staff psychiatrist Pia A. Sharp concluded that although the defendant suffered from schizoaffective disorder, bipolar type, her capacity to understand the proceedings against her and to assist in her defense were not substantially impaired.
On January 4, 2002, the defendant appeared before the trial court, was found competent to stand trial, and was released on bond. On February 22, 2002, the defendant filed a request for the appointment of a licensed psychologist to conduct an examination to determine whether she was sane at the time the offenses were committed.
On March 4, 2002, the defendant was evaluated by licensed psychologist Janies Ryabik. In his report dated April 3, 2002, Dr. Ryabik indicated that the defendant had deteriorated to a psychotic state when she did not take her medication. He opined that the defendant’s failure to take her medication on the date of the incident exacerbated her schizoaffective disorder. Thus, the report indicated that the defendant was not likely to have willfully caused bodily harm to another or willfully and purposely placed one in apprehension of bodily harm. Dr. Ryabik also noted that the defendant should be in psychotherapy and monitored by a responsible professional as she was capable of being out of touch with reality if not on an efficient treatment regimen. Moreover, Dr. Ryabik concluded that the defendant needed help with “self-concept, self-image, and her paranoid ideation.”
The defendant waived her right to a juiy trial, and the State stipulated that the defendant was insane at the time of the offense. Upon her October 4, 2002, arraignment, the defendant admitted the actions supporting the charges but denied by reason of her mental condition the ability to form the requisite intent to support the charges. The trial court found the defendant not guilty by rea son of mental disease or defect. The parties were given the opportunity to file briefs, and the matter of appropriate disposition was set for November 21, 2002.
Upon hearing, the defendant argued she was entitled to a precommitment hearing under K.S.A. 2003 Supp. 22-3428(l)(a) to determine whether she was a mentally ill person as defined by K.S.A. 2003 Supp. 22-3428(7)(b). On her behalf, counsel argued that if a full hearing was granted, the court would have a difficult time finding the defendant mentally ill because she had sought out treatment for her mental illness after being released on bond in January 2002, because she had attended regular counseling sessions at Wyandot Mental Health Center, and because she had taken her prescribed medications. However, no proffer of any such evidence was made to tire trial court on November 21, 2002, or at any time before the trial court entered its order on December 10, 2002, committing the defendant to the Lamed State Security Hospital (Larned) under the provisions of K.S.A. 2003 Supp. 22-3428.
After consideration of this court’s decisions in In re Jones, 228 Kan. 90, 612 P.2d 1211 (1980), and State v. Becker, 264 Kan. 804, 958 P.2d 627 (1998), the trial court ordered the defendant committed under the provisions of K.S.A. 2003 Supp. 22-3428, reasoning as follows:
“The Becker case did not send — in that case the facts were the defendant was not sent to Lamed State Hospital. And they said that she did not have to go to Lamed State Hospital because the person has been fully evaluated by state psychiatrists from Lamed. But it’s a narrow exception. Becker supports the clear language of the statute and supports, as well, State v. Jones. Even though the standard for the not guilty is changed, the Jones ruling and holding is good law.
“Here’s what Becker says, ‘As a result, in 1993, the procedure was changed to the present one, which provides that while a defendant, upon being acquitted by reason of mental disease or defect, must be mandatorily committed to the state security hospital, such commitment is only for such a time as to allow the state security hospital to evaluate the defendant’s current mental state. Such an evaluation must be made and a report issued to the court within ninety days’ — and we’ve been through that. ‘If the court finds that the defendant is not currently mentally ill, he or she must be released. If the court finds that the defendant is still mentally ill, he or she may be committed or conditionally released.’
“And those are the same conditions, Mr. Barker, that you talked about. . . .
“Frankly, after having heard all the arguments and after reading the cases and after having the matter researched and reading the language of the statute, I’m satisfied that it’s mandatory upon finding of not guilty by mental defect, which we have in this case, I must commit the defendant to the state security hospital for an evaluation with a report to be brought back to the court within ninety days and a hearing within thirty days thereafter.’’
On December 24, 2002, the trial court filed a journal entry finding the defendant not guilty by lack of mental state pursuant to K.S.A. 2003 Supp. 22-3428. See K.S.A. 22-3220. The court ordered the defendant committed to the state security hospital for safekeeping and treatment pursuant to K.S.A. 2003 Supp. 22-3428(1). The court ordered the chief medical officer to submit a written evaluation within 90 days of the defendant’s admission, and the court stated it would then set a hearing to determine whether the defendant was currently mentally ill within 30 days of receipt of the report. The defendant’s appeal of this order was transferred to this court pursuant to K.S.A. 20-3018(c).
Legislative History and Case Law Relating to K. S.A. 2003 Supp. 22-3428
On appeal, tire defendant argues that K.S.A. 2003 Supp. 22-3428(l)(a) grants her a right to an immediate hearing after her acquittal by reason of mental disease or defect on the issue of whether she is a harm to herself or others. According to her argument, if the provisions of K.S.A. 2003 Supp. 22-3428(a) are interpreted otherwise, the statute is unconstitutional on its face in that it denies her and all persons similarly situated due process of law and equal protection. The defendant also contends that if K.S.A. 2003 Supp. 22-3428(l)(a) is interpreted to deny her an immediate hearing, its provisions are unconstitutional as applied to her.
While the defendant limits her arguments to the first subsection of 22-3428 viz., subsection (l)(a), we believe it is necessary to consider the entire statute, including all subsections. A familiar maxim of statutory interpretation provides: “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. [Citation omitted.]” State v. Brown, 272 Kan. 843, 847, 35 P.3d 910 (2001). However, before examining the entire statute, it is helpful to consider earlier provisions of K.S.A. 22-3428(1), its evolution over time, and supporting Kansas case law interpreting the statute as discussed by this court in Becker.
K.S.A. 1979 Supp. 22-3428(1) provided in relevant part:
“(1) When a person is acquitted on the ground that such person was insane at the time of the commission of the alleged crime the verdict shall be ‘not guilty because of insanity/ and the person so acquitted shall be committed to the state security hospital for safekeeping and treatment.”
As indicated in Becker, this 1979 version of the statute may have raised due process concerns. See 264 Kan. at 810-13. K.S.A. 1979 Supp. 22-3428 mandated commitment of a defendant acquitted by reason of insanity for a period of indefinite duration. Such an acquitted defendant had the right to request a hearing annually, at which time he or she had the right to attempt to show by a preponderance of the evidence that he or she was not a danger to himself, herself, or others. Thus, a defendant committed under this provision could be held in the state security hospital for a full year without a hearing. See K.S.A. 1979 Supp. 22-3428a. However, the statute did provide for another means of discharge in a case where the chief medical officer of the state security hospital felt that such a discharge was warranted and the defendant could prove to the court that he or she was not a danger to himself, herself, or others. See K.S.A. 1979 Supp. 22-3428(2); K.S.A. 1979 Supp. 22-3428a(3).
In 1980, the Kansas Legislature acknowledged its concern with the indefinite commitment provisions of K.S.A. 1979 Supp. 22-3428(1) by amending the statute to include the following language:
“A finding of not guilty because of insanity shall be prima facie evidence that the acquitted person is presently dangerous to the person’s self or others or property of others.” L. 1980, ch. 105, sec. 1.
Viewing this amendment in conjunction with its legislative history, we recognized in Becker that the amendment arguably created a right to a precommitment hearing at which time the defendant could attempt to show that he or she was not presently likely to cause harm to himself, herself, or others. See Becker, 264 Kan. at 810-12 (discussing legislative history of the 1980 amendment).
In Jones, decided before the effective date of the 1980 amendment, this court held that a mandatory commitment of indefinite duration under K.S.A. 1979 Supp. 22-3428(1) did not deny the insanity acquittee due process of law or equal protection of the law. 228 Kan. at 109-10.
The Jones court noted that although it was deciding the case upon the existing law, the 1980 amendments to K.S.A. 22-3428 were “demonstrative of legislative intent and the result reached herein is not inconsistent therewith.” 228 Kan. at 110. However, Justice Holmes in a dissent asked the following question concerning the 1980 amendment:
“As ‘prima facie evidence’ merely creates a presumption which may be overcome by evidence from the other party (in this statute, the insanity acquittee), does not the new amendment imply or contemplate a prior hearing to allow the ‘prima facie evidence’ to be rebutted or contradicted?” 228 Kan. at 114.
It appears that the Kansas Legislature by its above 1980 amendment to K.S.A. 22-3428(1) did contemplate a due process hearing prior to commitment. See Memorandum to 1979 Special Committee on Judiciary regarding Proposal No. 28, p. 4 (recommending changes to the bill after noting the recent trend in federal and state courts of requiring a due process hearing prior to commitment). However, no Kansas case arose testing the 1980 amendment prior to the United States Supreme Court’s 1992 decision in Foucha v. Louisiana, 504 U.S. 71, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992), and the Kansas Legislature’s subsequent adoption of a complete revision of K.S.A. 22-3428 in 1993. See L. 1993, ch. 247.
In Foucha, the Court found that a Louisiana statute which allowed an insanity acquittee to be committed to a mental institution indefinitely until he was able to demonstrate that he was not dangerous to himself and others even though he did not suffer from any mental illness, violated the Due Process Clause of the United States Constitution. 504 U.S. at 83. The problem with the Louisiana law was that it allowed an insanity acquittee to be detained even after the acquittee had regained his or her sanity. The Court found that a State may commit an insanity acquittee without satisfying the civil commitment procedures, but the committed acquittee is entitled to release when he or she has regained sanity or is no longer dangerous. 504 U.S. at 76-77.
The Court reasoned that a verdict of not guilty by reason of insanity establishes two facts: “ ‘(i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness/ ” 504 U.S. at 76 (quoting Jones v. United States, 463 U.S. 354, 363, 77 L. Ed. 2d 694, 103 S. Ct. 3049 [1983]). From these two facts, it could be inferred that at the time of the verdict the defendant was still mentally ill and dangerous and could be committed. 504 U.S. at 76. In a concurring opinion, Justice O’Connor further noted:
“It might therefore be permissible for Louisiana to confine an insanity acquittee who has regained sanity if, unlike the situation in this case, [where Louisiana determined that the inference of dangerousness drawn from a verdict of not guilty by reason of insanity continues even after a clinical finding of sanity] the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee’s continuing dangerousness. [Citations omitted.]
“Today’s holding follows directly from our precedents and leaves the States appropriate latitude to care for insanity acquittees in a way consistent with public welfare.” 504 U.S. at 87-90.
In response to Foucha, the Kansas Legislature modified the en: tire procedure under K.S.A. 22-3428 in its 1993 amendment. In 1995, the Kansas Legislature amended the statute to abolish the defense of insanity and replace it with a mental disease or defect defense. The statute now provides:
“(l)(a) When a defendant is acquitted and the jury answers in the affirmative to the special question asked pursuant to K.S.A. 22-3221 and amendments thereto, the defendant shall be committed to the state security hospital for safekeeping and treatment. A finding of not guilty and the jury answering in the affirmative to the special question asked pursuant to K. S .A. 22-3221 and amendments thereto, shall be prima facie evidence that the acquitted defendant is presently likely to cause harm to self or others.
“(b) Within 90 days of the defendant’s admission, the chief medical officer of the state security hospital shall send to the court a written evaluation report. Upon receipt of the report, the court shall set a hearing to determine whether or not the defendant is currently a mentally ill person. The hearing shall be held within 30 days after the receipt by the court of tire chief medical officer’s report.
“(c) The court shall give notice of the hearing to the chief medical officer of the state security hospital, the district or county attorney, the defendant and the defendant’s attorney. The court shall inform the defendant that such defendant is entitled to counsel and that counsel will be appointed to represent the defendant if the defendant is not financially able to employ an attorney as provided in K.S.A. 22-4503 et seq. and amendments thereto. The defendant shall remain at the state security hospital pending the hearing.
“(d) At the hearing, the defendant shall have the right to present evidence and cross-examine witnesses. At the conclusion of the hearing, if the court finds by clear and convincing evidence that the defendant is not currently a mentally ill person, the court shall dismiss the criminal proceeding and discharge the defendant, otherwise the court may commit the defendant to the state security hospital for treatment or may place the defendant on conditional release pursuant to subsection (4).” K.S.A. 2003 Supp. 22-3428.
“In any case in which the defense has offered substantial evidence of a mental disease or defect excluding the mental state required as an element of the offense charged, and the jury returns a verdict of ‘not guilty,’ the jury shall also answer a special question in the following form: ‘Do you find the defendant not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required criminal intent?’ The provisions of this section shall be in force and take effect on and after January 1, 1996.” K.S.A. 22-3221.
In Becker, this court discussed the reasoning behind the 1993 comprehensive procedural amendment:
“In 1993, the legislature modified the entire procedure under 22-3428. S.B. 10 sought to correct what was perceived as a constitutional deficiency by allowing for a hearing to be held after the verdict to determine the defendant’s present mental state. See Minutes of the Senate Committee on Judiciary, January 26, 1993. According to the legislative history, there was grave concern that the system then in effect, with its automatic commitment and presumption of mental illness, was unconstitutional in light of the United States Supreme Court’s decision in Foucha v. Louisiana, 504 U.S. 71. See Testimony of Brenda West Hagerman, Legal Services, Lamed State Hospital, before the Senate Judiciary Committee, January 26, 1993.
“As a result, in 1993, the procedure was changed to the present one, which provides that while a defendant, upon being acquitted by reason of a mental disease or defect, must be mandatorily committed to the state security hospital, such commitment is only for such a time as to allow the state security hospital to evaluate the defendant’s current mental state. Such an evaluation must be made and a report issued to the court within 90 days of the defendant’s admission. Thereafter, a hearing must be held within 30 days of die receipt of the report, at which time the defendant may present evidence that he or she is not currently mentally ill. If the court finds that the defendant is not currently mentally ill, he or she must be released. If the court finds that the defendant is still mentally ill, he or she may be committed or conditionally released. See K.S.A. 1997 Supp. 22-3428(l)(b), (c), (d). Thus, 22-3428 provides for a precommitment hearing following a limited commitment for evaluation purposes.” 264 Kan. at 811.
In Becker, we were faced with many of the arguments raised by the defendant in this case regarding K.S.A. 1997 Supp. 22-3428. Becker was taken to Lamed by police immediately after the incident giving rise to an aggravated battery charge. He was involuntarily committed to Larned, evaluated, and treated, which included a change in his medication to fit his condition. Prior to his commitment, Becker s mental condition was aggravated by his taking prescribed medication inconsistent with his mental condition. At fhe end of his extended commitment he was discharged based upon the chief medical officer’s determination that he was no longer a danger to himself or others. Within a short time, Becker was tried and acquitted of the charged aggravated battery based upon his plea of insanity. The district court converted die sentencing proceeding to a hearing on the defendant’s mental state under 22-3428(l)(b) and (d), and he was placed on conditional release.
On appeal, the State sought a declaration from this court that 22-3428(l)(a) mandates that a criminal defendant who has been acquitted on the basis of a mental defect or disease under K.S.A. 22-3221 be committed to the state security hospital for safekeeping and treatment. This court reviewed the legislative history of the statute and the relevant case law and concluded that the purpose of the 1993 amendment was “to provide a uniform procedure to deal with a defendant who has been acquitted by reason of insanity, [now mental disease or defect] including the defendant’s right to due process within such procedure.” 264 Kan. at 811-12. Of relevance to this case, the court went on to note:
“Arguably, the language of the 1980 amendment which remains today provides a defendant a remedy in addition to the specific procedure set forth in the 1993 amendment to 22-3428. If the legislature intended, by the 1993 amendment, to provide a procedure whereby the defendant is mandatorily committed for eval uation purposes without a hearing, it is puzzling that it left die language intact in die 1980 amendment.” 264 Kan. at 812.
However, tire court concluded that it was not necessary to resolve this issue because it was clear that the district court recognized that 22-3428(l)(a) required a defendant to be committed, but this was a unique case in that the purpose to be served by the mandatory commitment, i.e., allowing the state security hospital to evaluate and the chief medical officer to render an opinion on the defendant’s present mental state, had already been completed. Recognizing that relief in mandamus is discretionary, Becker denied the State’s application for a writ of mandamus under the unique facts of that case. 264 Kan. at 812-13.
Statutory Interpretation
The interpretation of a statute is a question of law, and the appellate court’s review is unlimited. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001).
“The fundamental rule to which all other rules are subordinate is that the intent of die legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, die court must give effect to the intention of the legislature as expressed ratiier than determine what die law should or should not be. [Citation omitted.] Where the face of the statute leaves its construction uncertain, die court may look to the historical background of die enactment, the circumstances attending its passage, die purpose to be accomplished, and the effect the statute may have under die various constructions suggested. [Citation omitted.] The legislative intent is to be determined from a general consideration of the entire act, and effect must be given, if possible, to the entire act and every part thereof, and it is die duty of die court, as far as practicable, to reconcile die different provisions so as to malee them consistent, harmonious, and sensible. [Citation omitted.]” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
When the legislature revises an existing law, it is presumed that the legislature intended to change the law from how it existed prior to the amendment, and it is presumed that the legislature does not intend to enact useless or meaningless legislation. See Davey v. Hedden, 260 Kan. 413, 419-20, 920 P.2d 420 (1996); Galindo v. City of Coffeyville, 256 Kan. 455, 464-65, 885 P.2d 1246 (1994). The court should avoid interpreting a statute in such a way that part of it becomes surplusage. See State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
The defendant argues that the district court ignored these rules of statutory construction by not construing K.S.A. 2003 Supp. 22-3428(l)(a) to require an immediate hearing to determine whether the acquitted defendant is presently “likely to cause harm to self or others.” Specifically, the defendant contends that the district court ignored the second sentence of K.S.A. 2003 Supp. 22-3428(l)(a), which provides that an acquittal by reason of mental disease or defect “shall be prima facie evidence that the acquittee is presently likely to cause harm to self or others.” The defendant further argues that Justice Holmes’ dissent in In re Jones, 228 Kan. 90, 114, 612 P.2d 1211 (1980), supports her interpretation by suggesting that such language contemplates a prior hearing to allow the defendant to rebut the prima facie evidence. Finally, the defendant argues that reliance on Jones is misplaced because it was decided under the prior version of 22-3428 when Kansas recognized an insanity, rather than a mental disease or defect, defense.
The defendant’s argument is narrowly based upon K.S.A. 2003 Supp. 22-3428(l)(a) without consideration of die statute as a whole. While a persuasive argument may have been made in 1980 that the language stating that an acquittal by reason of insanity shall be prima facie evidence that the acquitted defendant is presently likely to cause harm to himself, herself, or others suggests an immediate hearing after conviction so the defendant might rebut the prima facie evidence, the same argument lacks merit in light of the complete revision of the law in 1993 and subsequent amendments in 1995 and 1996.
As previously noted when construing a statute, the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. In this case, the intent of the legislature regarding K.S.A. 2003 Supp. 22-3428 as a whole seems clear. The legislature decided to set up a uniform process whereby a defendant acquitted by reason of a mental disease or defect would be committed for evaluation for a short time of limited duration followed by a court hearing on the defendant’s present mental state. To accomplish this purpose, K.S.A. 2003 Supp. 22-3428(l)(a) provides that one found not guilty by reason of mental disease or defect shall be committed to the state security hospital for safekeeping and treatment. Within 90 days of admission, the chief medical officer of the state security hospital shall send to the court a written evaluation report. Upon receipt of the report, the court shall set a hearing to determine whether the defendant is currently a mentally ill person. The hearing shall be held within 30 days after the court’s receipt of the evaluation report. K.S.A. 2003 Supp. 22-3428(l)(b).
K.S.A. 2003 Supp. 22-3428(l)(c) requires the court to notify all interested parties, including the chief medical officer, and appoint an attorney if the defendant is not financially able to employ an attorney. K.S.A. 2003 Supp. 22-3428(l)(d) mandates that the hearing shall be consistent with due process by providing that the defendant shall have the right to present evidence and cross-examine witnesses. At the conclusion of the hearing, if the court finds by clear and convincing evidence that the defendant is not currently a mentally ill person, the court shall dismiss the criminal proceeding and discharge the defendant; otherwise the court may commit the defendant to the state security hospital for treatment or may place the defendant on conditional release. K.S.A. 2003 Supp. 22-3428(1) (d).
Although the legislature retained the language in K.S.A. 2003 Supp. 22-3428(l)(a) regarding prima facie evidence, such language when considered with the entire statute serves to justify the initial commitment of a defendant acquitted by reason of mental disease or defect to the state security hospital for evaluation before disposition. The second sentence of 22-3428(l)(a) thus serves to justify the mandatory language of the first sentence providing that such a “defendant shall be committed to the state security hospital for safekeeping and treatment.” K.S.A. 2003 Supp. 22-3428(1)(a). Subsection (l)(a) contains no express provision for a hearing, but subsections (l)(b), (c), and (d) set forth a comprehensive procedure calling for a timely evaluation of the defendant, notice to all interested parties, appointment of counsel for the defendant if financially unable to employ one, and a full hearing consistent with due process requiring dismissal of all charges and discharge if the defendant is “not currently a mentally ill person.” K.S.A. 2003 Supp. 22-3428(l)(b), (c), and (d).
The question asked by Justice Holmes in his dissent in Jones as to whether the prima facie evidence language contemplates a hearing prior to commitment has been answered not by judicial interpretation of the statute in effect at that time but by the legislature’s comprehensive revision of the uniform procedures relating to the due process determination of whether a “defendant is not currently a mentally ill person.” K.S.A. 2003 Supp. 22-3428(l)(d). The trial court’s determination that the provisions of K.S.A. 2003 Supp. 22-3428 required the commitment of the defendant to the state security hospital is consistent with the express provisions of the statute and consistent with the above interpretation of the statute as a whole. Thus, on this point we affirm the trial court.
Constitutionality of K.S.A. 2003 Supp. 22-3428 on its Face
The defendant argues that the mandatory commitment procedure under K.S.A. 2003 Supp. 22-3428(1)(a) violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and the Kansas Constitution on its face and as applied. The determination of whether a statute violates the Constitution is a question of law over which we have unlimited de novo review. Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 197, 62 P.3d 236 (2003).
“A statute is presumed constitutional and all doubts must be resolved in favor of its validity. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” State v. Martinez, 268 Kan. 21, 23, 988 P.2d 735 (1999).
The defendant acknowledges that this court upheld the constitutionality of K.S.A. 1979 Supp. 22-3428 in Jones, 228 Kan. at 90, but she contends this court should reject Jones’ precedential value because it was decided when Kansas recognized the M’Naghten defense of insanity rather than the mens rea approach effective January 1, 1996. The defendant further contends that automatic commitment will violate her right to due process of law because it will not require a determination of her present mental condition. “Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed.” Foucha v. Louisiana, 504 U.S. 71, 79, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992).
As previously discussed, this court upheld the constitutionality of the mandatory commitment provision of K.S.A. 1979 Supp. 22-3428. At the time Jones was decided, Kansas still had in place the defense of insanity as represented by the M’Naghten rule, which provides in relevant part:
“ ‘[T]he defendant is laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he is doing, or if he did know it, that he did not know that he was doing was wrong because of his mental inability to distinguish between right and wrong, and if these facts exist, then tire law does not hold him responsible for his act.’ ” 228 Kan. at 98-99 (quoting State v. Andrews, 187 Kan. 458, 465, 357 P.2d 739 [1960], cert. denied 368 U.S. 868 [1961]).
The Jones court discussed the significance of the M’Naghten test:
“The M’Naghten test has often been criticized by those who believe it is too strict and unenlightened in view of advances in modem psychiatry. . . . The M’Naghten rule is the law of this state. If degrees of insanity were placed on a scale of one to ten in ascending order of severity, those failing the M’Naghten test are all ‘tens.’ To fail the M’Naghten test one must not have understood the nature of his acts or that such acts were wrong — the so-called right and wrong test. Generally speaking, evidence that a defendant attempted to conceal the crime or his identity as the perpetrator thereof goes a long way to defeat an insanity defense. Again, speaking in generalities, an insanity defense is more likely to be successful when the crime is senseless, heinous and shocking. In such situations a jury can more easily conclude that the defendant must not have understood the nature of his acts or that the same were wrong.” 228 Kan. at 99-100.
In reviewing cases from other jurisdictions, the Jones court noted:
“One of tire difficulties in comparing the decisions of courts of other jurisdictions is that each has its own statutory scheme and case law relative to the insanity defense. Even the test of insanity varies. Insanity acquittees in M’Naghten rule states have ‘failed’ a far more rigid test than have insanity acquittees in an A.L.I. rule state. These differences are important relative to reasonableness of the mandatory commitment provision, as well as to its comparison with involuntary commitment procedures in considering equal protection arguments.” 228 Kan. at 107.
The defendant argues that when operating under the M’N(lighten rule, a court could safely infer that the acquitted defendant’s degree of mental illness, if placed on a scale of 1 to 10 in ascending order, would have been a 10, and no real chance existed that the mandatory commitment provision of 22-3428 could violate an acquitted defendant’s constitutional rights. However, the defendant contends, since the adoption of the mens rea approach to mental defenses, the court can no longer safely draw such an inference, as the factfinder merely has to find that she had been suffering from a mental disease or defect that rendered her incapable of possessing the required mental state. See K.S.A. 22-3220. Thus, the defendant contends a distinct possibility exists that her due process rights will be violated.
However, this argument is without merit. Marc Rosen compared the mens rea approach with the former insanity defense in his article, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J.L. & Pub. Pol’y 253-54 (1999), and concluded:
“Kansas’s new ‘mens rea’ approach is too narrow. Proclaimed as a balance between the rights of mentally ill defendants and the public’s outcry for reform, the new mens rea approach is unfair when compared to the former insanity defense. This is evidenced by the fact that some of the most debilitating mental illnesses would fail to meet the strict requirements of the new approach.” (Emphasis added.)
In fact, the adoption of the mens rea approach arguably makes the nature of the commitment bear even more of a relation to the purpose for which a defendant is committed since the defendant is only able to introduce evidence of a mental disease or defect as it specifically relates to the requisite mens rea of the offense. Under the former insanity defense, die defense could introduce evidence as to the existence of a mental disease or defect to litigate a defendant’s mental condition in general. See State v. Jorrick, 269 Kan. 72, 82, 4 P.3d 610 (2000) (quoting Rosen, 8 Kan. J.L. & Pub. Pol’y at 254-55).
The defendant cites Foucha in arguing that if K.S.A. 2003 Supp. 22-3428(1)(a) does not allow a specially acquitted defendant the right to a precommitment hearing, then, like the Louisiana statute in Foucha, it violates that defendant’s right to due process because he or she can be committed to the state security hospital even if he or she is not presently suffering from any mental illness or is not a danger to himself, herself, or others.
However, the defendant’s argument overlooks the fact that the limited commitment is simply to conduct an evaluation in order to provide the defendant with a precommitment due process hearing. Although the amended version of K.S.A. 22-3428 provides for a mandatory commitment in subsection (l)(a), when the provisions of K.S.A. 2003 Supp. 22-3428 are read as a whole, it becomes apparent that the legislature, concerned about due process rights of the acquittee, provided in subsections (l)(b), (c), and (d) for a timely hearing on the issue of whether the defendant is currently a mentally ill person.
Within 90 days of a defendant’s admission to the state security hospital, the chief medical officer shall send to the court a written evaluation report on this issue, and a hearing shall be held within 30 days after the receipt of that report. K.S.A. 2003 Supp. 22-3428(l)(b). Subsection (l)(c) provides that the court shall give notice of the hearing to interested parties, including the defendant and the defendant’s attorney. If the defendant is financially unable to employ an attorney, one shall be appointed for the defendant by the court. Subsection (l)(d) provides for a full evidentiary hearing where the defendant shall have the right to present evidence and cross-examine witnesses. “[I]f the court finds by clear and convincing evidence that the defendant is not currently a mentally ill person, the court shall dismiss the criminal proceeding and discharge the defendant.” K.S.A. 2003 Supp. 22-3428(l)(d).
The above subsections provide a limited and reasonable period of time after a defendant has been acquitted by reason of mental disease or defect for an evaluation of the defendant’s present mental state. Without such an evaluation, the court would be forced to prematurely determine the potential danger such an acquittee poses to himself, herself, or others. See State v. Phillips, 968 S.W.2d 874 (Tenn. Crim. App. 1996), cert. denied 525 U.S. 847 (1998) (citing People v. De Anda, 114 Cal. App. 3d 480, 489, 170 Cal. Rptr. 830 [1980], cert. denied 451 U.S. 990 [1981]).
In Phillips, the Tennessee appellate court considered both Jones v. United States, 463 U.S. 354, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983), and Foucha, 504 U.S. 71, in concluding that immediate mandatory hospitalization of the insanity acquittee for 60 days for the purpose of diagnosis and evaluation did not violate his equal protection and due process rights, reasoning in part:
“Automatic commitment of an insanity acquittee provides the state with an in-depth opportunity to assess the defendant’s current mental status and to determine whether he poses a potential danger upon his release. We agree that the fact that the trial court found a reasonable doubt as to the defendant’s sanity at the time of the offense provides sufficient reason for further examination. Moreover, the sixty-to-ninety-day period between the defendant’s acquittal and the healing to appraise his then existing mental condition is necessaiy to provide the medical experts with a reasonable opportunity to observe him. Without an evaluation, a trial court would be forced prematurely to evaluate the potential danger an insanity acquittee poses to himself or others.
“The United States Supreme Court has recognized that in light of the uncertainty of diagnosis in [the mental health] field and the tentativeness of professional judgment,’ the ‘courts should pay particular deference to reasonable legislative judgments.’ Jones, 463 U.S. at 364 n.13, 103 S. Ct. at 3050 n.13. The Tennessee legislature has provided mentally ill defendants with the right to an absolute insanity defense and, thus, has the prerogative to impose conditions on those who successfully rely upon such a defense. We do not think that the legislature acted unreasonably in allowing a definite period of sixty to ninety days for examination and diagnosis. . . .
“Significantly, the defendant in the present case admitted that he committed the acts that would otherwise constitute criminal offenses, but that he did so while mentally ill. In this respect, the defendant placed himself in a different position than other criminal defendants or civil commitment defendants by choosing to claim that he was not mentally responsible for his acts. Moreover, we also conclude that the record on appeal does not support the trial court’s ‘findings’ that the defendant was no longer a danger to society at the time of trial ....
“Thus, we cannot say, even as a matter of evidentiary fact, that the defendant was shown to be in no need of evaluation and treatment relative to his mental health. In other words, although he may avoid the ordinary criminal penalty by successfully relying on the defense of insanity, it is not unreasonable for the legislature to provide for a means by which the state can determine that he no longer suffers from the same mental abnormality that caused the ‘criminal’ acts. In this fashion, the commitment of an insanity acquittee bears a rational relationship to legitimate state purposes so as to comply with equal protection of the law.” 968 S.W.2d at 880-82.
In this case, the legislative history clearly indicates that the legislature was aware of Foucha and sought to correct any constitutional deficiencies by enacting the 1993 amendments, which provide for a precommitment hearing after a limited commitment for evaluation purposes. As noted in Phillips, this procedure provides the State with an in-depth and uniform opportunity to assess a defendant’s current mental status and to determine whether he or she poses a potential danger upon his or her release. It is not unreasonable for the legislature to provide a means by which the State can determine that the defendant no longer suffers from the same mental abnormality that prevented him or her from being found guilty of the criminal acts.
We believe that the Kansas Legislature, in its 1993 amendment of K.S.A. 22-3428, consistent with due process, struck a reasonable balance between the citizens’ right to be secure and protected against the potential dangers posed by a defendant acquitted by reason of insanity (now, mental disease or defect) and that defendant’s right to be free at such time as he or she is no longer a danger to himself, herself, or society. This conclusion is further supported by Justice Lockett’s dissent in State v. Becker, 264 Kan. 804, 813, 958 P.2d 627 (1998):
“Unlike the statute held unconstitutional in Foucha, 22-3428 is narrowly tailored. It provides that a criminal defendant found to have committed the act charged, but who is not legally responsible for doing so because the defendant was incapable of forming criminal intent, be committed to the state security hospital. It is the jury’s acquittal of tire defendant that provides ‘prima facie evidence that the. acquitted, defendant is presently likely to cause harm to self or others’ to commit the person found mentally ill to the state security hospital. The defendant is entitled to a hearing within 120 days of the guilty verdict to determine his or her present sanity. The legislature passed this narrowly tailored statute to protect its citizens from someone who has committed criminal acts and has done so because he or she was insane.” 264 Kan. at 819.
The defendant also attempts to raise an equal protection argument by citing K.S.A. 22-3222 and K.S.A. 22-3429, which provide:
“In any case in which the defendant is found not guilty of a charged crime, and the special question under K.S.A. 22-3221 is answered in the affirmative and the defendant is also found guilty of a lesser included or otherwise charged offense, the court shall proceed in the manner authorized by K.S.A. 22-3429 et seq., and amendments thereto. The provisions of this section shall be in force and take effect on and after Januaiy 1, 1996.” K.S.A. 22-3222.
“After conviction and prior to sentence and as part of the presentence investigation authorized by K.S.A. 21-4604 and amendments thereto or for crimes committed on or after July 1,1993, a presentence investigation report as provided in K.S.A. 21-4714 and amendments thereto, the trial judge may order the defendant committed for mental examination, evaluation and report. If the defendant is convicted of a felony, the commitment shall be to the state security hospital or any suitable local mental health facility. If the defendant is convicted of a misdemeanor, the commitment shall be to a state hospital or any suitable local mental health facility. If adequate private facilities are available and if the defendant is willing to assume the expense thereof, commitment may be to a private hospital. A report of the examination and evaluation shall be furnished to the judge and shall be made available to the prosecuting attorney and counsel for the defendant. A defendant may not be detained for more than 120 days under a commitment made under this section.” (Emphasis added.) K.S.A. 22-3429.
“ ‘Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.' ” Jones, 228 Kan. at 97 (quoting Baxstrom v. Herold, 383 U.S. 107, 111, 15 L. Ed. 2d 620, 86 S. Ct. 760 [1966]). In the absence of a suspect classification or an intrusion upon a fundamental constitutional right, the challenged classification must bear some rational relationship to legitimate state purposes. Phillips, 968 S.W.2d at 882.
The defendant argues that the difference in classification between a defendant specially acquitted under K.S.A. 22-3221 (mandatory commitment under K.S.A. 2003 Supp. 22-3428) and a defendant specially acquitted of one charge but convicted of another charge under K.S.A. 22-3222 (discretionary commitment with the court) could not be related to any legitimate State interest. However, these two classes of defendants are clearly different as the latter has been convicted of a crime and was able in some part to form the requisite intent despite his or her mental disease or defect. In the latter case, the legislature has made a determination that the presentence investigation performed as a result of the conviction adequately protects the public and that it was appropriate to grant the district court more discretion in determining whether to commit the defendant for further evaluation. The defendant’s equal protection argument fails.
Constitutionality of K.S.A. 2003 Supp. 22-3428 as Applied
The defendant finally argues that the mandatory commitment procedure required by K.S.A. 2003 Supp. 22-3428 is unconstitutional as applied to her situation and results in cruel and unusual punishment. She argues that she has already received extensive treatment at OSH, she is currently under the care of Dr. Pikalov of the Wyandot Center for Community Behavioral Healthcare, Inc., she has been out on bond since January 2002 without incident, and she has served 108 days in custody for relatively minor crimes. Although this may have potentially been the defendant’s strongest argument, her argument fails for several reasons, in large part because of her failure to provide a sufficient record on appeal. ■
The defendant was evaluated at OSH nearly a year before her acquittal to determine whether she was competent to stand trial. She was not evaluated at Lamed to determine whether she was currently in need of treatment and likely to cause harm to herself or others at the time she was acquitted by reason of a mental disease or defect. This- is important in light of Dr. Ryabik’s evaluation 6 months before the defendant entered the plea that she deteriorates to the point of becoming psychotic when not on her medication, that her medication should be monitored on a daily basis, that she should be in psychotherapy, and that she is capable of being out of touch with reality when not on an efficient treatment regime. The State has a legitimate interest in determining whether a defendant acquitted by reason of mental disease or defect is safe to be back in the community.
The defendant argues she has been successfully under the care of Dr. Pikalov since released on bond, but she provides no evidence in the record of Dr. Pikalov’s assessment of her mental status at the time she was adjudged not guilty by reason of mental disease or defect. Although the defendant alleges in her brief that she filed documentation with the trial court in support of her position, which was not made part of the record on appeal, the defendant failed to proffer this evidence in order to permit a meaningful review on appeal. “Failure to make a proffer of excluded evidence precludes appellate review because there is no basis to consider whether the trial court abused its discretion.” State v. Evans, 275 Kan. 95, 100, 62 P.3d 220 (2003). Without this evidence, this court is unable to determine whether the defendant was being committed to Larned when she was neither dangerous nor mentally ill. See Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998) (An appellant has the burden to designate a record sufficient to establish the claimed error.).
Although the defendant served several days in custody related to misdemeanor offenses, much of this time is attributable to the defendant in determining whether she was competent to stand trial. See State v. Davis, 277 Kan. 309, 333, 85 P.3d 1164 (2004) (Kansas authority charges any delay in the proceedings reasonably associated with a challenge to competency to the defendant.). Likewise, the additional time required to be spent in Larned for the precommitment evaluation is also charged to the defendant as a result of her decision to raise the insanity defense. See 277 Kan. at 333. As this time would be charged to the defendant for speedy trial purposes, it is difficult to conclude that the consequences of the defendant’s choice to raise this defense, i.e. 90 days’ evaluation at Lamed, could constitute cmel and unusual punishment.
Moreover, even if all information relied upon by the defendant was made in the form of a proffer, the State would be entitled to a period of time not only to evaluate the evidence proffered but would also be entitled to have an examination of the defendant on the issue of mental illness, which in all likelihood would result in a request by the State to have such an evaluation and examination performed at the state security hospital. The present form of the statute contemplates a procedure whereby the court in a full evidentiary hearing receives information which allows it to make a reasoned response on the issue of whether such a defendant is presently mentally ill. Thus, we hold that the procedures and system set forth in die provisions of K.S.A. 2003 Supp. 22-3428 are constitutional as applied to the defendant in this case, and we affirm the order of commitment entered by the trial court.
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The opinion of the court was delivered by
ÁLLEGRUCCI, J.:
Jeremy Norton was convicted by a jury of one count of possession of methamphetamine with intent to sell, one count of possession of methamphetamine, and one count of possession of marijuana. He was sentenced to a controlling term of 42 months’ imprisonment. Norton appealed his convictions and sentences. In an unpublished opinion filed August 29,2003, the Court of Appeals affirmed. This court granted Norton’s petition for review.
Norton raises two issues on appeal:
1. DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR NEW TRIAL BASED ON THE NEWLY DISCOVERED EVIDENCE OF THE INFORMANT’S ARREST FOR DRUG ACTIVITY?
2. DID THE TRIAL COURT VIOLATE DEFENDANT’S CONSTITUTIONAL RIGHTS AS ENUNCIATED IN ÁPPRENDI WHEN IT USED A PRIOR JUVENILE PERSON FELONY IN CALCULATING DEFENDANT’S SENTENCE?
Alfredo Gomez started working as a confidential informant in the mid-1990’s after he was arrested for manufacture of crack cocaine. Following his arrest by the Liberal police,'he agreed to work for Officer John Schnoor as a paid informant. His job was to get people to sell him drugs so they could be charged with drug offenses. Gomez acted as a confidential informant continually from when he began working for Officer Schnoor until the time of Norton’s trial on January 24-25,2002. He estimated that he had worked with authorities on 25 to 30 cases.
Norton and Gomez had been friends since grade school. Gomez testified that in June 2001, Norton, while visiting in Liberal, asked him if methamphetamine would sell there. Gomez told him it would. Norton asked Gomez about the local price and if Gomez could sell some methamphetamine if Norton were to bring it to Liberal. Gomez said he could. Later, they had several telephone conversations.
On July 7,2001, Norton checked into a motel in Seward County. His vehicle had a Nebraska license plate. Norton testified that he was in Liberal on that date to visit his brother, niece, and nephews.
Gomez testified that when Norton telephoned him to say he was in town, Gomez went to the motel room and talked with Norton. According to Gomez, Norton said that he brought methamphetamine with him to sell, and Gomez told Norton to give him some time to get the money and he would buy an ounce.
Gomez testified that when he was unable to reach his KBI handler, he called John Schnoor. Schnoor was a sheriff s deputy with primaiy duties in narcotics investigation. While working as a narcotics detective for the Liberal police, he had arrested Gomez and “rolled him over to work ... as an informant.” Gomez told Schnoor that Norton was in a motel in Liberal holding 2 ounces of methamphetamine for distribution. Schnoor told Gomez to purchase one ounce at $1,000 at the motel room and to set up a later controlled purchase away from the motel room to facilitate the arrest of Norton.
Before Gomez went to Norton’s motel room, Schnoor searched him and his vehicle. Even though informants were required to wear recording devices in 95-99% of cases, Schnoor did not put a recording device on Gomez due to Gomez’ concern that Norton would at least pat him down in the motel room. Schnoor photocopied the currency before giving it to Gomez and followed him to the motel. Schnoor watched from across the street. After a short time, Gomez came out of the room, got into his vehicle, and drove back to the meeting place with Schnoor. Gomez handed Schnoor “a bag containing rocks.” Back at his office, Schnoor field tested the rocks, which were positive for methamphetamine. Schnoor searched Gomez and his vehicle. Gomez told Schnoor what had taken place in the room, and Schnoor asked questions about the contents of the room in preparation for applying for a search warrant. Gomez said that Norton had a pit bull dog and a travel bag with him in the room.
Schnoor further testified that on the evening of July 7 he received a cell phone call from Gomez advising that he had arranged by telephone with Norton to have him bring the other ounce of methamphetamine to a car wash. No recording was made of Gomez’ telephone conversation with Norton. Schnoor notified other sheriffs deputies to stop Norton’s vehicle. Norton was stopped and a white rock in a plastic bag was found in his right front pocket, and he was arrested. The rock material tested positive for methamphetamine.
Schnoor got a search warrant for Norton’s motel room. Animal Control removed the dog, and the sheriffs deputies searched the room. They found more methamphetamine, some marijuana, and $1,700. One thousand dollars of the money was money Schnoor had photocopied. They also found a knife, some plastic bags, and ledger notes with names and numbers that Schnoor believed to be an account of drug transactions.
Gomez testified that when he went to Norton’s motel room to buy the first ounce of methamphetamine, he told Norton that there were a couple of other men who were driving to Liberal for the other ounce and that they would arrive in an hour or two. Gomez told Norton that he was going over to a friend’s house for a barbeque and that he would meet Norton at the car wash later. After going to the barbeque, Gomez talked to Schnoor and then called Norton to tell him to come to the car wash. Norton agreed. He was arrested between the motel and the car wash.
Norton’s theory of defense was that Gomez framed him by first bringing drugs and then money into his motel room and finally getting Norton to deliver some of the drugs to Gomez at another location. Norton testified that Gomez contacted him before he went to Liberal and asked him to bring some drugs with him. He saw Gomez before he checked into the motel. Norton was driving, and he saw Gomez standing on a friend’s porch. Norton stopped and they talked about hanging out together. Norton testified that he had with him about $700, which he had earned painting a house. He denied taking any drugs into the motel room with him.
Norton testified that Gomez brought baggies of what Norton thought might be cocaine or methamphetamine when he came to the motel room. Gomez asked if he could leave it in Norton’s room, and Norton said he could. Gomez put it in the drawer in the desk. Then they drove to Gomez’ house, where he got a scale and some marijuana. He gave the marijuana to Norton. They went back to the motel room, and Gomez weighed one of the rocks from the drawer. It weighed 3 ounces, and he took it with him when he left. Gomez said he would be back in a little bit. When he returned approximately 30 minutes later, Gomez had some money in his hand. Norton counted the money, as Gomez told him to do. It was $1,000. Gomez asked if he could leave it there, and Norton laid it on the desk. Gomez took the other baggie and left, saying he would telephone in about an hour. Later Gomez called and said to bring the “toy” (the methamphetamine) to the car wash. Norton was stopped by police as he was driving to the car wash. He had the methamphetamine that he was taking to Gomez in his right pocket.
Norton was charged with sale of methamphetamine, possession of methamphetamine with intent to sell, possession of methamphetamine, and possession of marijuana. The jury found Norton not guilty of sale of methamphetamine.
We first consider whether the trial court abused its discretion in denying defendant’s motion for new trial based on the newly discovered evidence of Gomez’ arrest for drug activity.
Appellate review of a trial court’s order under K.S.A. 22-3501(1) on a motion for new trial based on newly discovered evidence is whether the trial court abused its discretion. State v. Thomas, 257 Kan. 228, 229, 891 P.2d 417 (1995). K.S.A. 22-3501(1) also provides that a trial “court on motion of a defendant may grant a new trial to him if required in the interest of justice.”
The new evidence on which Norton based his motion for new trial was that Gomez, the confidential informant who testified that he and Norton engaged in one drug sale and intended to transact another, was arrested for crimes involving methamphetamine with intent to sell. The trial court found that Gomez came under investigation on February 5, 2002, less than 2 weeks after Norton’s trial was completed on January 25, 2002. Gomez was arrested on February 9, 2002.
The evidence at the hearing on the motion for new trial showed that law enforcement officers had reason to suspect that Gomez was involved in drug trafficking at least by January 28, 2002. KBI Agent Kevin Campbell testified that when he was in Liberal on January 28 testifying in a preliminary hearing, an unidentified “cooperating- individual” told Campbell that he could buy narcotics from Gomez. On February 5,2002, when Campbell and other KBI agents were again in Liberal, the “cooperating individual” made a controlled telephone call to Gomez about purchasing narcotics.
Campbell was surprised that Gomez was selling drugs because Gomez was supposed to be working for him at that time. Campbell testified that around Christmastime 2000, a suspect, who Campbell — working as an undercover agent — wanted to buy marijuana from, went to Gomez’ house to get the marijuana to sell to Camp bell. Campbell learned from Schnoor that it was Gomez’ house. When Schnoor and Campbell talked to Gomez, he “admitted that he was given an X amount of drugs to give to this guy later on.” Gomez turned over to Schnoor and Campbell the remaining quarter pound of marijuana that he had at his house. After this incident, Gomez became a KBI informant in order “to work those charges off.” Approximately 2 months later, in February or March 2001, Campbell actually signed up Gomez as a confidential informant.
The test for determining whether a new trial is warranted on the ground of newly discovered evidence has two parts. Thomas, 257 Kan. at 231. The first is whether the defendant has met the burden of establishing that the newly proffered evidence could not with reasonable diligence have been produced at trial. The second is whether the evidence is of such materiality that it would be likely to produce a different result upon retrial.
In this case, there is no doubt that the newly discovered evidence could not have been produced at trial. Evidence of Gomez’ arrest could not have been produced at trial because neither the investigation nor arrest of Gomez occurred until after Norton’s conviction.
Without citing authority, the Court of Appeals took its analysis a step further than the accepted test and stated that the evidence of Gomez’ illegal activity was not “newly discovered evidence” because it occurred after Norton’s trial was completed and, thus, was not evidence that could have been used at trial. The State suggests no legal basis for limiting newly discovered evidence to preverdict occurrences. In the absence of some statutory or case law support for adding a condition to the well-recognized test, Norton’s complaint about the Court of Appeals.’ redefining “newly discovered evidence” appears to be valid.
In this case, the second part of the test, whether the new evidence is of such materiality that it would likely produce a different outcome, is the pivotal issue. In this regard, the Court of Appeals stated:
“Even if this court were to consider such evidence as being newly discovered evidence, its only relevance would be to impeach or discredit Gomez’ testimony. See State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984) (“A new trial is not granted on the basis of newly discovered evidence which merely tends to impeach or discredit the testimony of a witness.”). Evidence of Gomez’ subsequent drug activity would not produce a different result upon retrial because the jury was already fully aware that Gomez was working as a confidential informant because of his arrest for drug activity.
“. . . Even if the jury had known Gomez was dealing drugs, it would not have changed the evidence that Norton sold Gomez drugs and Norton was prepared to make another sale when the police stopped him. Thus, even if this evidence had been presented to the jury, any evidence of Gomez’ drug dealing for his own profit was not of such materiality that there is a reasonable probability it would produce a different result upon retrial.” Slip op. at 1-2.
Norton disagrees with the Court of Appeals’ view of the impact that evidence of Gomez’ arrest for methamphetamine offenses would have on a juiy. He contends that not only would the evidence discredit Gomez’ testimony, but there is a reasonable probability that the new evidence would produce a different result because the State presented so little direct evidence of Norton’s guilt.
The parties have cited no cases involving the question whether the subsequent misconduct of an informant is enough to require a new trial. A search for Kansas cases involving that question revealed only one case in which a motion for new trial was based on the conduct of an informant, State v. Deffenbaugh, 216 Kan. 593, 533 P.2d 1328 (1975). Dejfenbaugh, however, is not a case in which the informant subsequently engaged in illegal activity. Deffe'nbaugh sought a new trial when he discovered that the informant, in a proceeding in another county, had testified that he was a confidential police informant. The motion was denied because the informant’s testimony in Deffenbaugh’s trial “clearly showed that he was the confidential informant.” 216 Kan. at 601. Dejfenbaugh offers no particular guidance for the present case.
A search for federal cases on this question produced several in which the post-trial misconduct of an informant was the basis for a motion for new trial. In United States v. Leon-Lopez, 891 F. Supp. 138 (S.D.N.Y. 1995), the federal district court overruled motions for new trial which were based on evidence of one informant’s conviction of theft of government property ($700,000) and another agent’s being reduced to limited duty as a result of his sexual re lationship with a drag trafficker. Several factors were weighed by the court. First, the evidence was unrelated to the undercover investigation and irrelevant to the case before the court. 891F. Supp. at 149. In this regard, the court remarked that allowing “cross-examination into this post-trial conduct . . . would open the door to new trial motions whenever a government witness committed a bad act or was convicted of criminal conduct occurring subsequent to trial, no matter how remote in time, place and subject matter to the original action.” 891 F. Supp. at 149. Second, the evidence of post-trial conduct would be inadmissible under Federal Rule of Evidence 608(b), which provides that “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, . . . may not be proved by extrinsic evidence.” 891 F. Supp. at 149. Third, even if the evidence of the agents’ misconduct were admissible, a new trial was not required because “the new evidence would only be used to impeach the agents’ credibility in general, and could not be used to impeach their credibility as to any specific statement or issue of fact. Thus, the defendants offer no evidence to contradict the agents’ version of the facts in this case.” 891 F. Supp. at 149. The trial court concluded its discussion by stating: “Moreover, the agents’ testimony was extensively corroborated by other evidence at trial,” 891 F. Supp. at 149, and setting out the corroborating evidence. 891 F. Supp. at 149-50.
In United States v. Orellana-Osorio, 1998 WL 799164 (S.D.N.Y. 1998), the court overruled defendant’s motion for new trial, which was based on the informant’s posttrial arrest for drag possession. The court likened the motion before it to the motion in Leon-Lopez. Orellana argued that the conviction of Sanchez, the informant who testified against him, “would tend to show the existence of on-going criminal acts by Sanchez which in turn proves that he lied at Orellana’s trial.” Slip op. at 2. Because there was no evidence that Sanchez committed perjury during Orellana’s trial and Sanchez’s subsequent conviction was unrelated to his original testimony, evidence of the conviction would not serve to contradict Sanchez’s testimony. The court stated that use of the new evidence for impeachment purposes only was not a valid reason for a new trial. The court concluded its discussion by stating: “Furthermore, Sanchez’s testimony was extensively corroborated by other evidence at trial.” Slip op. at 3. In consequence, the court found “that the newly discovered evidence possibly impeaching Sanchez would not have materially altered the outcome of the trial.” Slip op. at 3.
In United States v. Sposato, 446 F.2d 779, 780 (2d Cir. 1971), tire Court of Appeals affirmed the trial court’s denial of defendant’s motion for new trial, which was based on posttrial charges being filed against Peden, the Internal Revenue Agent who posed as a would-be bettor and then was chief witness against Sposato. Noting that evidence of charges against Peden would be inadmissible, the court stated that, even if admissible, the evidence was “most unlikely” to produce an acquittal. 446 F.2d at 782. Use of the new evidence to impeach or discredit Peden was held not to warrant a new trial. 446 F.2d at 781. The court stated: “Nothing is offered to contradict Peden’s version of the facts; which was, moreover, corroborated at trial by another witness.” 446 F.2d at 782.
In United States v. Spencer, 4 F.3d 115 (2d Cir. 1993), the Court of Appeals affirmed the trial court’s denial of the motion for new trial of one of the defendants, Bloomer. He was convicted of manufacturing methamphetamine over a number of years in the chemistiy laboratory in his home and distributing it through a certain network of individuals. His federal sentence calculation took into account the methamphetamine produced, which was based in part on the testimony of McMahon, a Vermont State Police forensic chemist, who testified he found traces of methamphetamine on lab equipment located in Bloomer’s home. 4 F.3d at 118. After his conviction, Bloomer learned that McMahon “was relieved of duty because of the discovery that he had taken and used regulated drugs from the state police crime laboratory.” 4 F.3d at 118. The discovery was the basis for a motion for new trial, which the district court denied on the ground that it was not probable that the impeachment of McMahon’s credibility would lead to acquittal. The district court also noted that “[p]ersuasive independent evidence . . . supported [the] defendant’s conviction.” 4 F.3d at 118. The Court of Appeals agreed:
“The district court correctly found that ‘[p]ersuasive independent evidence . . . supported the defendant’s conviction.’There was overwhelming testimony from six buyers of Bloomer’s narcotic that established Bloomer’s manufacture of methamphetamine. Furthermore, Fasanello’s expert opinion indicated that the presence of certain chemicals, laboratory equipment, and Bloomer’s notations could lead only to the conclusion that Bloomer was manufacturing methamphetamine. Because this evidence corroborated McMahon’s testimony that Bloomer’s home contained traces of the narcotic, the newly discovered evidence possibly impeaching McMahon would not have materially altered the outcome of the trial. Moreover, although the evidence may have impeached McMahon’s credibility, it did not serve to contradict any of McMahon’s conclusions or statements of fact.” 4 F.3d at 119.
The common thread in these federal cases is the courts’ consideration of the presence or absence of corroborating evidence as a factor in determining whether the newly discovered evidence is of such materiality that it is likely to produce a different result upon retrial. In Leon-Lopez and Orellana-Osorio, the court described the informants’ testimony as “extensively corroborated.” Leon-Lopez, 891 F. Supp. at 149; Orellana-Osorio, 1998 WL 799164, Slip op. at p. 3. In Sposato, the court noted that the agent’s testimony was corroborated by that of another witness, 446 F.2d at 782; and, in Spencer, the Court of Appeals quoted the trial court’s observation that the conviction was supported by persuasive independent evidence. 4 F.3d at 118.
The present case stands in contrast with the federal cases in its complete lack of corroborating evidence. The State’s case against Norton on the methamphetamine sale and intent-to-sell charges was based on Gomez’ testimony that Norton brought the methamphetamine with him to Liberal. Norton’s defense was that all the methamphetamine was placed in his motel room by Gomez when Gomez visited him before informing Deputy Schnoor that Norton was in town in possession of methamphetamine. Although Schnoor patted Gomez down and searched his vehicle before and after Gomez visited Norton’s motel room the second time in order to be able to show that the methamphetamine in the motel room was there when Gomez went in, Schnoor’s efforts were nullified as corroborating evidence by Gomez’ testimony that he went to the motel room before contacting Schnoor. A recording device on Gomez when he went to Norton’s room might have provided corroborating evidence, but Schnoor allowed Gomez to go without one. Likewise, a recording device was not used for telephone conversations between Gomez and Norton. The State, as a result, was unable to report their communications, was unable to corroborate Gomez’ testimony that Norton was the supplier of the methamphetamine, and unable to demonstrate control over the “controlled” buy. An informant making a controlled buy without wearing a recording device does not necessarily seriously weaken the State’s case, but, in the circumstances of this case, it eliminated potential corroborating evidence.
In the present case, as the Court of Appeals said, evidence of Gomez’ arrest on drug trafficking charges might impeach or discredit Gomez’ testimony but would not directly contradict Gomez’ testimony. Also, as the Court of Appeals stated, the jury was aware that Gomez was working as an informant because he had been arrested several years earlier for drug activity. Slip op. at 1. The jury was not aware, however, that Gomez was involved in drug trafficking at or near the time of the transaction with Norton, or at Christmastime 2000. In the present case, unlike Leon-Lopez where tire agents’ subsequent misconduct was unrelated and irrelevant to the movants’ convictions, Gomez’ current drug trafficking lends support to his having access to quantities of controlled substances, which was a key element in Norton’s defense that Gomez was the source of the methamphetamine and marijuana Norton was charged with selling and possessing. The factfinder could reasonably conclude that Gomez has been actively and continually involved in drug trafficking from 6 months prior to the transaction with Norton up to the time of Norton’s trial.
In this case, unlike the federal cases we have reviewed, there was no independent evidence to corroborate Gomez’ testimony. In the peculiar circumstances of this case, although evidence of Gomez’ arrest would not contradict his testimony, it seems likely that it would produce a different result. For that reason, Norton’s motion for new trial should have been granted, at least in part.
Although the State does not contend that a new trial, if one were granted, should be limited, it appears that a new trial should not be granted for the simple possession convictions. The simple possession convictions may stand because neither depends on Gomez’ testimony. The evidence supporting Norton’s conviction of possession of marijuana was that marijuana was found in the search of his motel room. Norton’s testimony that Gomez gave it to him supports rather than undermines a determination that Norton possessed marijuana. The evidence supporting Norton’s conviction of possession of methamphetamine was that it was found in the search of his motel room. Given the broad definition of possession of a controlled substance, see PIK Crim. 3d 67.13-D, Norton’s testimony that he gave Gomez permission to store methamphetamine in the motel room would satisfy the elements of the offense and would not be affected by Gomez’ testimony or evidence of his subsequent misconduct. Thus, die only conviction subject to new trial would be possession with intent to sell, which arose out of Norton’s transporting methamphetamine from the motel room to the car wash. The only evidence that Norton intended to sell the methamphetamine was Gomez’ testimony. The trial court erred in failing to grant Norton’s motion for a new trial as to the possession of methamphetamine with intent to sell.
The second issue raised by Norton is whether in calculating his sentence the trial court violated Apprendi v. New Jersey, 530 U.S. 466, 17 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
On this issue, the Court of Appeals stated:
“Norton had a criminal history of C based in part on one juvenile person felony. Although he acknowledges this issue was decided in State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), he argues the inclusion of the juvenile felony was unconstitutional under Apprendi. The Hitt court specifically held: ‘Juvenile adjudications need not be charged in an indictment or proven to a jury beyond a reasonable doubt before they can be used in calculating a defendant’s criminal history score under the Kansas Sentencing Guidelines Act.’ 273 Kan. 224, Syl. ¶ 2. Thus, the trial court did not violate Apprendi when it included Norton’s juvenile felony, increasing his sentence.” Slip op. at 2.
Norton concedes that Hitt governs this issue. He asks that Hitt be overruled. We decline to do so.
The judgment of the Court of Appeals and the district court is affirmed in part, reversed in part, and the case is remanded to the district court for a new trial on the possession of methamphetamine with intent to sell count.
Beier, J., not participating.
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The opinion of the court was delivered by
Davis, J:
This case comes before this court on the defendant’s petition for review of the Court of Appeals’ decision affirming his convictions and sentence for one count of aggravated kidnapping and one count of attempted rape in State v. Davis, No. 87,192, unpublished opinion filed September 19, 2003. Contrary to the Court of Appeals’ decision, we conclude that defense counsel’s inadequate representation of the defendant denied him a fair trial. We, therefore, reverse the defendant’s convictions and remand for further proceedings.
The defendant was convicted in a bench trial on November 9, 2000. He appealed, and based upon his motion, the Court of Appeals remanded the case to the trial court for a determination of his allegations regarding his claim of inadequacy of representation. Upon conclusion of a hearing pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), the trial judge rejected the defendant’s claims of inadequacy of representation, and the case resumed before the Court of Appeals. Ultimately, the Court of Appeals affirmed his convictions of aggravated kidnapping and attempted rape and his sentence of 554 months of imprisonment. We granted the defendant’s petition for review.
In his petition for review of the Court of Appeals’ decision, the defendant advances the same claims he raised before the district court. He claims that appointed defense counsel provided ineffective assistance of counsel based upon the following deficiencies:
1. Counsel’s failure to seek a pretrial competency evaluation.
2. Counsel’s failure to understand and apply the law regarding the defense of mental disease or defect.
3. Counsel’s failure to argue that the abolition of the insanity defense violates due process.
4. Counsel’s failure to inquire into a speedy-trial violation.
5. Counsel’s failure to make a specific objection to criminal history.
The defendant also raises as separate errors of the trial court the above issues 3, 4, and 5.
At the time of trial, defendant Larry Davis was a 49-year-old man who suffered from schizophrenia, had a history of assaultive behavior, and had been committed to psychiatric hospitals on 31 occasions since the age of 13.
The defendant was released from his most recent hospitalization in June 1999, 2 months before the event giving rise to the present charges. The defendant had been assigned a case manager to ensure that he was taking his medication, but by mid-August the case manager was unable to find him. On August 20, 1999, the defendant received a week’s worth of medication; at trial he testified he had stopped taking the medication because it made him impotent.
During the early morning hours of August 24, 1999, the defendant invited the victim, M.R., and Dallas Keller to his apartment to have a beer. M.R. was not acquainted with the defendant, but Keller knew him so she accompanied Keller into the apartment.
Keller and the defendant went into the kitchen for a private conversation. The defendant told Keller that M.R. was his girlfriend, that “he was going to get some,” and that he wanted Keller to leave for a little while. Keller obliged, walking out the door; M.R. attempted to follow Keller, but the defendant immediately closed and locked the door. The defendant took her wrist, pulled her into the kitchen, grabbed a knife, and held it to her neck. He told her he was going to rape her. M.R. screamed, “Oh, God, no,” and tried to pull away to the front door.
Keller was seated outside the door of the apartment and heard M.R.’s screams. He pounded on the door and demanded that the defendant open the door, but the defendant told him, “Get the hell away from my door.” Keller left to find help but returned by himself, knocked on the door, and said he was a police officer. The defendant still refused to open the door, so Keller called 911 and waited for the police.
M.R. continued screaming as the defendant pulled her toward the bathroom and cut open her shirt. Both of them ended up on the floor. The defendant straddled M.R, pinned her arms beneath his knees, and repeatedly punched M.R. in the face. At that time, two police officers knocked on the door and identified themselves. They heard a female inside who sounded like she was choking or gagging. The defendant told M.R. to go to the bathroom and warned her to be quiet. The defendant opened the door and told the officers that everything was okay and that he was just having an argument with his girlfriend. Noting that the defendant was only wearing jeans and sweating heavily, the officers asked the defendant to step outside his apartment and speak with them.
One of the officers observed M.R. standing inside the bathroom, holding a bra and shirt to cover her breasts. She was crying, had a swollen lip, and had red marks on her upper body. She told the officer, “He was trying to rape me.” The defendant told the officer that M.R. had tried to rob him. The defendant was taken into custody and charged with aggravated kidnapping and attempted rape.
The defendant was initially found incompetent to stand trial and was transported to Lamed State Security Hospital (Lamed). Six months later, the defendant was deemed competent and trial proceedings resumed in May 2000. In August 2000, new counsel, Douglas L. Adams, Jr., was appointed to represent the defendant. In spite of mounting evidence of the defendant’s incompetence, Adams did not request another competency evaluation prior to the November 9, 2000, bench trial. Moreover, Adams tendered an insanity defense that failed to apply K.S.A. 22-3220, which focuses upon a defendant’s ability to form the necessaiy element of intent in the crimes charged. The defendant was convicted on both charges and sentenced to a controlling term of 554 months’ imprisonment.
Upon appeal to the Kansas Court of Appeals, the defendant requested a hearing before the district court pursuant to Van Cleave, 239 Kan. 117, based upon his argument that his trial de fense counsel had provided ineffective representation. The Court of Appeals granted his motion, stayed the appeal, and remanded the case to the district court for a Van Cleave hearing.
The Van Cleave hearing was presided over by the same judge who conducted the defendant’s trial. The defendant presented evidence that he was incompetent to stand trial at the time of his bench trial and that he was suffering from a mental disease or defect at the time of the charged offenses which rendered him incapable of possessing the required criminal intent to engage in the charged offenses of aggravated kidnapping and attempted rape. The district court rejected the defendant’s contentions, concluding that he was not denied effective assistance of counsel. The district court also concluded that the abolition of the insanity defense was not unconstitutional, that defendant’s speedy trial rights were not violated, and that tire defendant’s sentence was legal.
Upon the continuation of his appeal, a majority of tire Court of Appeals affirmed the district court’s determination that the defendant was not denied effective assistance of counsel, and a unanimous Court of Appeals rejected the other arguments advanced by the defendant. Judge Lewis dissented on the issue of ineffective representation but agreed with the majority on the other issues raised by the defendant. We granted the defendant’s petition for review.
Based upon the following analysis, we conclude that the defendant was substantially prejudiced by defense counsel’s inadequacy of representation in (1) failing to seek a pretrial competency evaluation and (2) failing to understand and apply the correct law regarding the defense of mental disease or defect.
Standard of Review
“Before counsel’s assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel’s performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficientperformance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial.”
“Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel must be highly deferential, and a fair assessment of attorney performance requires that every 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.”
“With regard to the required showing of prejudice to the defendant in a claim of ineffective assistance of counsel, 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.”
“Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry remain mixed questions of law and fact on appeal. Where the trial court has made findings of fact and conclusions of law, 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.” State v. Orr, 262 Kan. 312, Syl. ¶¶ 1, 2, 3, 4, 940 P.2d 42 (1997).
(1) Counsel’s failure to seek a pretrial competency evaluation
The defendant has a long history of multiple hospitalizations and treatment for psychosis and disorganized/aggressive behavior. He was first treated at age 13 after threatening an individual with a pistol and was diagnosed with "borderline schizophrenic reaction.” Throughout the following years, he has been hospitalized on over 30 occasions, some of them brief stays, others lasting for months, and one lasting for 7 years. His past diagnoses include schizophrenia, bipolar disorder, schizoaffective disorder, antisocial personality disorder, and borderline intellectual functioning.
Public Defender Terry Beall originally represented the defendant after he was arrested and charged on August 25,1999. Shortly thereafter, the defense filed a notice to rely on an insanity defense and the related defense of diminished capacity and a motion to determine competency. On September 24,1999, the court ordered the staff at Sedgwick County Mental Health (COMCARE) to determine whether the defendant was competent to stand trial; however, this evaluation was not conducted until November 1, 1999.
In the meantime, Beall engaged Dr. William Logan, a psychiatrist, to conduct a competency evaluation of the defendant in the Sedgwick County Jail on October 15, 1999. This evaluation included a 1-hour interview, review of the defendant’s prior psychiatric records, the complaint, affidavits, and police reports relevant to this case. In addition to competency, Dr. Logan’s report related to the defendant’s ability to form the intent required in tire offenses charged. Regarding his competency to stand trial, Dr. Logan concluded:
“Currently, he can work with his attorneys in the preparation of a defense and has an accurate understanding of the charges against him. Caution must be exercised, however, as Mr. Davis’ illness is not well controlled on medication, and his paranoia, and psychotic thinking could easily escalate during the course of a trial. Based on his current ongoing symptoms and his history of decompensation under stress, it is unlikely he will be able to maintain his current level of capacity to stand trial through the stress of court proceedings.”
On November 1, 1999, Dr. Margaret M. Weilert, a clinical psychologist at COMCARE, conducted a 2-hour interview with the defendant at the Sedgwick County Jail. Lauree Lusk, ARNP, advised Dr. Weilert that the defendant had been inconsistent in taking his prescribed medications, which are commonly used in the treatment of psychotic patients.
During the assessment of his competency to stand trial, the defendant was able to define competency and correctly name the charges and sources of the allegations against him. However, his first answer was closely followed by tangential accounts of the “ ‘animals’ ” in the detention system. When asked about evidence, he became more tangential and incoherent. When asked about possible consequences if he was found incompetent, he replied, “ ‘[D]on’t compute, don’t compensate.’ ” He had extreme difficulty naming plea bargaining options, and his assessment of events leading up to his arrest were presented in a tangential, disorganized manner precluding comprehension.
The defendant correctly named and identified his attorney and gave adequate accounts of the roles and responsibilities of major courtroom personnel. However, he evidenced paranoia and distrust of the legal system, and when asked to describe the functions of witnesses, he responded, “ ‘Clowns that come to the courtroom and want citizenship and citizen’s arrest.’ ”
Dr. Weilert concluded that the defendant was incompetent to understand the nature and purpose of the proceedings against him and to assist in making his defense. While the defendant demonstrated some comprehension of the legal proceedings, “his unpredictable psychotic thought distortions, along with a pervasive paranoid delusional system, could seriously impede his ability to assist in making his defense.”
After a November 10,1999, hearing, the district court found the defendant was incompetent to stand trial and committed the defendant to Lamed in an order filed on November 22, 1999. He was not transported to Lamed until February 2, 2000.
While at Lamed, Dr. Jean-Daniel Policard, a psychiatrist, (along with a social worker and psychologist) evaluated the defendant and submitted a forensic evaluation report dated April 24, 2000, which found the defendant competent to stand trial. Dr. Policard noted that the defendant had refused to comply with his medication regimen while in the county jail, but he had since reluctantly complied with his medication regimen, showing gradual but only modest improvement. The defendant had displayed episodes of verbal and physical hostility, threatened to strike staff members, and struck a social worker on the face several times when his request for money and cigarettes was not granted.
During the psychiatric evaluation, the defendant admitted to having a mental illness which he described as “schizophrenia with auditory hallucinations,” and he acknowledged the need for medication. The defendant was diagnosed with schizoaffective disorder, bipolar type, antisocial personality disorder, and borderline intellectual function.
The defendant was aware of the nature and seriousness of the charges brought against him, as well as the respective roles of the major participants in the courtroom. He stated the judge “[s]entences, makes plans and disposition,” the district attorney “prosecutes and tries to find me guilty,” and the defense attorney “defends me.” He defined plea bargain as “you confess to something and you get less time or parole,” and he understood that he should “communicate with my lawyer” who would speak on his behalf. The evaluating team concluded that the defendant had a fair understanding of the legal proceedings against him and would be able to assist his attorney in presenting a legal defense. The defendant was returned to the Sedgwick County Jail on April 27, 2000.
After a May 10,2000, hearing, District Judge Rebecca L. Pilshaw filed an order on May 18, 2000, finding the defendant competent to stand trial and ordering the proceedings against the defendant to be resumed. On August 29, 2000, the district court appointed Richard Ney’s law office to represent the defendant. Douglas Adams took over the case and obtained the records of the case from former counsel which included the defendant’s mental health history.
Prior to trial in November 2000, the defendant wrote Adams four letters, which were partially incoherent. Adams described the following letter, dated September 15, 2000, as “very close to incomprehensible” :
“Now on this day Completivil Larry Davis Lawyer Appointed by the Sedggwiclc County Court: I makeing a motion For a maisstrial and a number of Post Phometrist and Detainners and Continunesse With Detainnerses that this Cass Distrc county court Falones casse From 29th 1999 29-2,000 HAS not reach the true Court with tire proper Attorney Lawyer Criminel Not no Assessntis Deffend. If this is’nt over Ate then what it’s sayin in the Gennenreal Entree is tru About judgv Owen thougt up a plan for me a Ohpretion Doc or Releass I would like to be Realses I was told 2 time this was in the Computer Gennarail Entree
“Come and see me Are if not Im sooner with whate it said in the Genarail Etree.”
Some of the letters demonstrated confusion about his defense. On October 1, 2000, the defendant wrote: “I would like to be acquitil couse of resoion of insanity mentily ill and that I may(?) not rsponsabel for myself . . . .’’On October 26, 2000, the defendant wrote: “I’m not crazy like the D.A. and you trying to make me. I know this case is bullshit! Any lawer right out of school, could win this case.” On November 3, 2000, the defendant wrote: “I like for you to use me being acquittle with defamation of capacity and be civiley cometeded like to Ohwsawaterme Stat Hospital leis tiran 90 days and then back to condioneal releases.”
Following the defendant’s trial and the remand from the Court of Appeals, Adams testified at the Van Cleave hearing that he had no training in psychiatry, psychology, or in conducting mental health or competency evaluations. He admitted that he had reason to doubt the defendant’s competency prior to trial based on the reports and the fact that the defendant had been found incompetent at least 6 or 7 months prior to going to court. Adams said that he would have sought another evaluation if he knew that the defendant was not complying with his medication regimen in jail, but he did not check with the jail to make this determination.
Adams indicated that the defendant was able to assist in the preparation of his defense and that he was better at certain times than others. The defendant communicated with Adams on several occasions and seemed to understand the roles of the major courtroom personnel. Adams admitted that he had no idea what level of doubt was necessary for him to seek a competency evaluation. Adams described the defendant before trial as “somebody that was on the cutting edge,” and seemed to him that “at any time he could be a person that could go through a competency evaluation.” Adams opined that he “just maybe missed the signs” and, after hearing Dr. Grinage’s testimony, the defendant “should have probably had another evaluation.”
The bench trial was held on November 9, 2000, before District Judge Joseph Bribiesca. At trial, the defendant again evidenced some confusion about his defense:
“Q. [By Prosecutor] Isn’t it true what you want us to believe is that you didn’t commit this crime because of your mental illness—
“A. No. No. No. No. No. My mental—
“Q. —is that right?
“A. My mental illness has nothing to do with this. Like I say, two — three'—• two— three wrongs don’t make a right.”
“Q. [By Prosecutor] So you knew what you were doing that night, correct?
“A. Well—
“Q. Yes or no?
“A. No. No, I don’t think I really did. I don’t think I really did. Some — sometimes, like I say, I’m schizophrenia. Like I say, I was land of — •
“Q. So you didn’t know what you were doing that night?
“A. I don’t — like I said, I don’t know. Like I said, what some of ’em probably say could be right. But, like I say, some ways I was — I was going and coming when the police got there especially.”
After the Court of Appeals remanded for a Van Cleave hearing, appellate counsel engaged Dr. Bradley Grinage, the director of forensic psychiatiy at the University of Kansas School of Medicine in Wichita, to evaluate the defendant’s competency at the time of trial. On May 3, 2002, Dr. Grinage conducted a nearly 3 hour clinical interview and mental status examination of the defendant.
Dr. Grinage noted that the defendant had been found competent to stand trial after 2 months of medication in a highly structured inpatient psychiatric ward at Larned, but after the defendant was returned to the Sedgwick County Jail in April 2000, he was described as being noncompliant with medications and was experiencing ongoing auditory hallucinations that worsened in August 2000. This was important because virtually every time the defendant had been noncompliant with his medication in the past, he decompensated, became violent and aggressive in his psychotic state, and was not able to care for himself.
Dr. Grinage opined that the mood and nature of the letters the defendant sent to Adams before trial “reflected a lability of mood consistent with mania, which is associated with schizo-affective disorder.” The jail records also noted that the defendant had a very low, normal Valproic level in his blood when he was returned to jail prior to trial. When he had been given medication to increase his Valproic level while at Lamed, his mental state had improved.
Before allowing Dr. Grinage to express his opinion on the defendant’s competency to stand trial, the court noted the doctor’s comment that it was unusual to evaluate a defendant’s competency for a time period in the past. The court instructed counsel to lay a foundation of whether it was a generally accepted psychiatric method to evaluate a person’s competency for a specific time in the past and also questioned the doctor. Dr. Grinage’s competency evaluation report concluded:
“At the time of his trial, it appears that the defendant had sufficient understanding of the nature and purpose of the proceedings against him. However, based on the information obtained in the course of this evaluation, it is the opinion of the examiner that, at the time of the trial, the defendant was suffering from a mental illness or defect such that his capacity to consult with his lawyer with a reasonable degree of rational understanding was significantly compromised. The opinion that the defendant lacked the capacity to make or assist in making his defense is based on a lengthy history of treatment resistant paranoia, documented medical noncompliance associated with increased psychotic symptoms in the jail, trial transcripts depicting the defendant’s paranoid thought process and difficulty tracking conversation, and persistent psychotic symptoms noted after the trial.”
The State did not present an expert to contradict this evidence at the Van Cleave hearing.
The defense argued that Adams was ineffective by failing to seek another competency evaluation based largely on the testimony of Dr. Grinage, but the district court rejected this argument, reasoning:
“Dr. Grinage is of the opinion that Mr. Davis was not competent to stand trial at the time of trial, nor was he able to form the requisite criminal intent at that time of the crime on account of suffering from a mental disease or defect, namely, schizo-affective disorder, bipolar type. The Court finds that based on Dr. Grin-age’s testimony, he himself stated that he basically agrees with Dr. Logan’s examination findings with the exception of the two critical issues before the Court: namely, competency and ability to form criminal intent. In the Court’s opinion, a difference of opinion between two experts under the present circumstances is insufficient to meet the defendant’s burden under Chamberlain [v. State, 236 Kan. 650, 694 P.2d 468 (1985)]. In the Court’s opinion, Dr. Grinage’s opinion is not controlling, nor is it entitled to any more weight than Dr. Logan’s or Dr. Policard.”
The defendant argues on appeal that counsel was ineffective in fading to seek another competency evaluation prior to trial. The Court of Appeals’ majority opinion specifically noted the change in the defendant’s previous competency evaluations and the letters the defendant wrote to defense counsel prior to trial which indicated his confusion about his mental state. It also pointed to defense counsel’s own testimony that although he doubted the defendant’s competency and probably should have requested another evaluation prior to trial, he failed to investigate the issue any further by checking with a mental health professional or by inquiring into whether the defendant had been taking his medication. The court concluded that it was clear from the record that defense counsel should have requested another competency evaluation prior to trial. However, the court did not find the required prejudice:
“We begin by noting that the trial at issue here was to the bench. It is clear that the trial judge was aware of the proper standard for the diminished capacity defense under K.S.A. 22-3220. The same judge that presided over the trial also heard the expert evidence at the Van Cleave hearing. The question is, if Adams had presented evidence that the defendant was not competent to stand trial, is there a reasonable probability the defendant would be found incompetent and if Adams had presented the defense using the correct standard under K.S.A. 22-3220, is there a reasonable probability the defendant would have been found not guilty?
“Because the trial judge also heard Dr. Grinage’s opinion that the defendant was not competent at the time of trial, and did not find ineffective assistance of counsel, we conclude there is little or no probability this judge would have ruled differently had Dr. Grinage’s opinion been presented just before or at trial.”
Judge Lewis dissented from the majority opinion, concluding that the defendant was so prejudiced, he was denied effective assistance of counsel.
“A criminal defendant is incompetent to stand trial when, because of a mental illness or defect, the defendant is unable to understand the nature and purpose of the proceedings against him or her or where he or she is unable to make or assist in making a defense.” State v. Kleypas, 272 Kan. 894, Syl. ¶ 32, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002); K.S.A. 22-3301(l)(a) and (b).
K.S.A. 22-3302(1) provides:
“At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant’s counsel or the prosecuting attorney may request a determination of the defendant’s competency to stand trial. If, upon the request of either party or upon the judge’s own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine tire competency of the defendant.”
Although the statute uses permissive rather than mandatory language regarding defense counsel’s obligation to seek a competency evaluation, the “ ‘failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent . . . deprives him of his due process right to a fair trial.’ ” Kleypas, 272 Kan. at 990 (quoting Drope v. Missouri, 420 U.S. 162, 172, 43 L. Ed. 2d 103, 95 S. Ct. 896 [1975]). See State v. White, 263 Kan. 283, 314-16, 950 P.2d 1316 (1997).
It is clear in this case that Adams should have sought another competency hearing prior to trial. The defendant had an extensive history of mental illness and frequent commitments. Between October 1999 and April 2000, he vacillated between competency and incompetency to stand trial. Upon his first evaluation in October 1999, Dr. Logan opined that it was unlikely that the defendant could remain competent throughout the stress of a trial.
Only 2 weeks later, the defendant was found incompetent to stand trial, and he was only found competent after a highly structured stay at Lamed 6 months before trial. He was then returned to the Sedgwick County Jail, where he was noncompliant with his medication and reported an increase in hallucinations a few months before trial. The defendant’s letters to Adams prior to trial were at times incoherent and demonstrated confusion regarding his defense. Adams testified that if he had known the defendant was not taking his medication, he would have moved for another competency hearing. Counsel made no inquiry at the jail to determine whether the defendant was compliant with medication orders and no inquiry of health care professionals.
Adams admitted that he should have sought another competency hearing prior to trial. This admission is not based upon hindsight but is based upon Dr. Logan’s report, the records available to counsel at the county jail, his own communications with the defendant around the time of trial, and the four letters the defendant sent to counsel. This evidence, together with a wealth of information concerning the defendant in tire medical records counsel possessed, supports the Court of Appeals’ conclusion that counsel’s performance was deficient in failing to seek another competency hearing.
However, the court’s ultimate conclusion that the deficiency did not prejudice the defense is not supported by the record. The Court of Appeals reasoned that because the same judge who pre sided over the trial heard Dr. Grinage’s opinion at the Van Cleave hearing that the defendant was not competent to stand trial and did not find ineffective assistance of counsel, little probability existed that the judge would have ruled differently had this opinion been presented just before trial.
Our review of the record reveals that when the trial court was presented with uncontroverted evidence regarding the defendant’s competency to stand trial, in November 1999 and May 2000, the court followed the opinions of the examining doctors. At the Van Cleave hearing, the same district judge weighed Dr. Grinage’s assessment of incompetency to stand trial nearly 2 years after trial and displayed some concern about whether such posttrial evaluations were generally accepted psychiatric methods. The conclusion by the Court of Appeals that there “is little or no probability this judge would have ruled differently had Dr. Grinage’s opinion been presented just before or at trial” amounts to speculation and a conclusion not supported by the evidence. Assuming that Dr. Grin-age’s testimony was given at the time of the defendant’s trial and that the State would have presented no expert testimony refuting Dr. Grinage’s opinion as it did in the Van Cleave hearing, it is difficult to conclude that Dr. Grinage’s testimony would have had litde or no effect on the judge. The judge questioned the value of 2-year-old testimony.
When such assumptions are coupled with the available evidence regarding the defendant’s competency such as jail records of the defendant’s failure to take his medication; evidence of recent hallucinations;- the four letters sent to counsel before trial; and the reports of Dr. Logan, Dr. Weilert, and Dr. Policard, all to the effect that with medication the defendant might remain competent, the likelihood that Dr. Grinage’s testimony of incompetence at trial would have carried the day is very real. At the veiy least, there is a reasonable probability that but for counsel’s error in not requesting a competency hearing the result would have been different. The defendant’s convictions must be reversed and the case remanded for a new trial before a different judge. While this conclusion may render the defendant’s argument that he was incompetent at the time of trial moot, we elect to address this further allegation. (2) Counsel’s failure to understand and apply the law regarding the defense of mental disease or defect
Kansas legislatively abolished the insanity or diminished capacity defense with its enactment of K.S.A. 22-3220, which provides:
“It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense. The provisions of this section shall be in force and take effect on and after January 1,1996.”
During opening statements, Adams told the court that the defense theory was “not guilty by reason of insanity.” Adams told the court that Dr. William Logan would testify about the defendant’s history of mental illness and that Dr. Logan would opine “that [the defendant] was not able to understand the nature and quality of his acts at the time these acts were committed, and therefore, was legally insane at the time of the crime.”
The only defense witnesses at trial were Dr. Logan and the defendant. After a preliminary examination, Adams asked Dr. Logan if he was able to “give a professional opinion as to whether based on all the other information you had in the case whether he might have had a diminished capacity or might have been legally insane at the time of his offense.” The State objected on the grounds that “that’s not the standard in the state of Kansas,” and the court sustained the objection.
Adams then asked, “[W]ere you able to determine whether he had the state of mind required to commit the crime in this case?” The State’s objection on foundation grounds was sustained. Adams asked if “the Court could give us some guidance with respect to the foundation that we’re required to come up with in this situation,” and the judge replied, “You want me to tell you what to do?” Adams told the court that he was looking at the insanity statute and PIK Crim. 3d 54.10 for crimes committed after January 1, 1996, and the court told him that he had not established whether the doctor was aware of what the law states.
Adams asked Dr. Logan if he was aware of the state law with respect to a person’s mental capacity to commit a crime and his opinion with respect to that issue related to the defendant. Dr. Logan articulated the proper standard, recognized that the defendant suffered from schizophrenia, but testified that he did not see a relationship between the defendant’s mental illness and the crime. He concluded that the defendant did have the mental state required to form an intent to commit the crime.
Shortly thereafter, Adams again asked Dr. Logan if he understood the “law of diminished capacity.” The State objected again, arguing that “that’s not the law in Kansas any longer,” and the trial court sustained the objection.
In arguing for a judgment of acquittal, Adams tried to salvage the mental disease or defect defense by arguing, “[Ejven if Dr. Logan doesn’t come to the conclusion, I think the Court certainly can, that he did not have the state of mind required to commit the crime.”
At the Van Cleave hearing, Adams described his performance as follows:
“I did a very poor job during the course of the testimony of Dr. Logan in bringing out what I was trying to get him to say. I recognized that when I looked at the transcript. It’s horrific when I consider what I should have done. But eventually in cross examination ... he goes on there about what if you assume what Larry Davis says is true, then perhaps there is a possibility he could have been incapable of forming the intent. That’s where I was trying to go with it.”
Adams explained that even though he started with the wrong legal standard, he eventually attempted to apply the correct standard.
In his competency evaluation report, Dr. Grinage opined that the defendant, as a result of mental disease or defect, specifically schizoaffective disorder, bipolar type, was incapable of possessing the required criminal intent to engage in aggravated kidnapping or attempted rape. He based this opinion on the defendant’s long history of treatment-resistant paranoia, documented noncompliance with medication prior to the alleged offense, significant alcohol and cocaine use prior to the alleged offense, and noted paranoid delusions and problems with thought processing after his arrest.
The defendant argues that he was deprived of effective assistance of counsel when Adams failed to show an understanding or present a solid defense of not guilty by reason of mental disease or defect. The Court of Appeals concluded:
“Adams clearly did not adequately prepare for trial because he was unaware of the proper legal standard for a defense of mental disease or defect, which clearly falls below a level of reasonableness. The defendant’s only expert aided the State in his opinion that the defendant had the required state of mind to commit the crimes. This testimony was uncontroverted by any other expert. Adams failed to adequately research and prepare for trial and did not seek another expert opinion. Consequently, it is clear that Adams’ performance clearly fell below the level of competence required by the Sixth Amendment.”
However, a majority of the court concluded that the defendant had not satisfied the prejudice prong:
“Similarly, the judge also heard evidence at trial and at the Van Cleave hearing concerning whether or not the defendant possessed the requisite mental state required as an element of the crime charged, i.e., whether he could form the mens rea to commit the crime. See State v. Henry, 273 Kan. 608, 44 P.3d 466 (2002) (if the mental defect or disease was such that it negated the mens rea element of the crime). Given the record, we are convinced it is improbable that the trial judge, being fully aware of the standard involved for K.S.A. 22-3220, would have found the defendant not guilty based on his mental disease or defect.”
Judge Lewis dissented from the majority, reasoning that he had “never seen a more incompetent performance by an attorney in a case like this.” He cited to Adams’ unawareness of the correct standard of the mental disease or defect defense, his eliciting testimony from his own expert damaging to the defense, his admission that he was confused about the correct standard, his admission that his questioning of Dr. Logan was “horrific,” and his failure to have the defendant reexamined prior to trial.
Adams did not adequately prepare for trial because, by his own admission, he was unaware of the proper legal standard for a defense of mental disease or defect. In this regard, his performance was deficient. However, the majority opinion’s conclusion that this deficiency did not meet the prejudice prong of the ineffective assistance inquiry is incorrect.
It is important to note that Adams elected to call Dr. Logan as his only expert defense witness. Not only was Adams unaware of the correct standard to be applied, but Dr. Logan’s competency evaluation report available to Adams before trial clearly indicated that if he were asked the question concerning the defendant’s mental state and competency, he would testify consistent with the conclusion in his report dated December 20, 1999: “In conclusion, Mr. Davis had a major mental illness, Schizophrenia, at the time of the offense, which would have compromised his ability to exercise some control of his behavior, but otherwise did not appear to impair his ability to deliberate or form intent.” (Emphasis added.)
Had counsel'understood the correct legal standard to be applied, counsel would have attempted to secure an expert witness whose testimony would not destroy the veiy defense he was attempting to establish. He would have at the very least tried to find another expert witness to testify that the defendant was incapable of forming the intent to commit the charged crimes, such as Dr. Grinage. It is beyond question that counsel would not have called Dr. Logan as a witness for the defendant.
While the district court had the opportunity to consider Dr. Grinage’s testimony during the Van Cleave hearing, the court questioned whether such evidence expressing an opinion concerning events that occurred almost 2 years after the trial had any value. Had Dr. Grinage’s opinion been presented at trial it would have had the potential of changing the result of the trial. This would even be more likely had defense counsel not called Dr. Logan at trial. The Court of Appeals’ conclusion that it was “improbable that the trial judge [hearing the evidence at trial and at the Van Cleave hearing], being fully aware of tire standard involved for K.S.A. 22-3220, would have found the defendant not guilty based on his mental disease or defect” is in itself improbable. On those occasions where the trial court was presented with uncontroverted evidence regarding the defendant’s competency, the trial court relied upon the expert testimony. Had the trial court had available Dr. Grin-age’s opinion or an opinion similar to his at the time of trial with no evidence presented by the State, it is probable that the trial court would have relied upon such an opinion and testimony notwithstanding Dr. Logan’s report which had been rendered almost a year before the trial.
Under the totality of the evidence in the record, the defendant was denied effective assistance of counsel, was prejudiced by the ineffective assistance of counsel, and as a result was deprived of a fair trial. See State v. Washington, 275 Kan. 644, 679-80, 68 P.3d 134 (2003) (defense counsel who was not aware of statutoiy provisions relating to hard 50 sentence and failed to present any response was ineffective, even though trial court was “on board throughout the process and therefore considered all the evidence”). While the findings of fact and conclusions of law of the district court were made, the decision reached and affirmed by the Court of Appeals on this issue does not follow as a matter of law .from the facts stated as its basis. The decision of the Court of Appeals must be reversed and the case remanded to a new district court judge for further proceedings.
(3) Counsel’s failure to argue that the abolition of the insanity defense violates due process
The defendant argues that he was denied due process by the abolition of the insanity defense and counsel was ineffective in failing to raise this issue before the district court. The defendant acknowledges that his claims were rejected by this court in State v. Bethel, 275 Kan. 456, 66 P.3d 840 (2003), cert. denied 157 L. Ed. 2d 412 (2003), but he asks this court to reconsider Bethel without providing any further argument.
In Bethel, this court recently addressed the defendant’s argument and discussed Finger v. State, 117 Nev. 548, 27 P.3d 66 (2001), cert. denied 534 U.S. 1127 (2002); State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990); State v. Korell, 213 Mont. 316, 690 P.2d 992 (1984); and State v. Herrera, 895 P.2d 359 (1995), at length. The court declined to follow the reasoning in Finger and found the reasoning of the other cases more persuasive. The court concluded that K.S.A. 22-3220 does not violate the Due Process Clauses of the United States or Kansas Constitutions. Bethel, 275 Kan. at 473. It concluded that as long as the prosecutor was required to prove beyond a reasonable doubt eveiy element of the offense charged, due process is not violated. K.S.A. 22-3220 simply allows a defendant to present evidence tending to show that he or she lacked the mental state required for the offense charged. 275 Kan. at 474.
The defendant provides no additional authority as to why Bethel should be reconsidered. Consistent with Bethel, we conclude that the defendant’s due process rights were not violated by the abolition of the insanity defense. It follows that counsel was not ineffective by failing to raise this issue before the district court.
(4) Counsel’s failure to inquire into speedy-trial violation
Because of the defendant’s extensive record of psychiatric commitments, a major concern before trial was his competency to stand trial. We conclude that most of the delay in bringing the defendant to trial related to his mental condition. For this reason and for the reasons set forth below, we conclude that the defendant was not denied his statutory or constitutional right to a speedy trial. It necessarily follows that his defense counsel was not ineffective for failing to raise this issue before the district court.
The facts are notin dispute, and “[t]he question of whether there is a violation of statutory and constitutional rights to a speedy trial is a matter of law over which this court has unlimited review.” State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003).
The following chronology of events is relevant to this issue:
August 24, 1999 Arrest.
August 25, 1999 Complaint.
September 8, 1999 Arraignment.
September 13, 1999 Notice of Intent to Rely on Insanity Defense.
September 22, 1999 Defendant’s Motion to Determine Competency.
September 24, 1999 Order for Competency Exam.
November 22, 1999 Order of Incompetency to Stand Trial Pursuant to K.S.A. 22-3303(1) (Hearing was on November TO, 1999.)
February 2, 2000 Defendant transported to Larned State Hospital.
March 2, 2000 Defendant’s pro se Motion for Appointment of Counsel.
April 27, 2000 Notification from Lamed State Hospital of Defendant’s change in status — defendant is transported back to jail.
May 18, 2000 Order of Competency — Defendant attempts to raise speedy trial pro se (Hearing was on May 10, 2000.)
June 5, 2000 Juiy trial waiver — -Defense agrees to set trial on June 28, 2000.
June 28, 2000 Continuance at Defendant’s request.
August 30, 2000 Continuance at Defendant’s request.
September 27, 2000 Continuance at Defendant’s request.
October 4, 2000 Continuance at Defendant’s request.
November 9, 2000 Bench trial.
Statutory Right to Speedy Trial
The statutory time period for a speedy trial starts on the date of arraignment. The State is obligated to ensure the accused is provided with a speedy trial, and the defendant is not required to take any affirmative action to see this right is observed. White, 275 Kan. at 598.
K.S.A. 22-3402 provides in relevant part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
(a) The defendant is incompetent to stand trial;
(b) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section.”
K.S.A. 22-3303(1) provides in relevant part:
“A defendant who is charged with a felony and is found to be incompetent to stand trial shall be committed for evaluation and treatment to the state security hospital or any appropriate county or private institution. . . . Any such commitment shall be for a period of not to exceed 90 days. Within 90 days after the defendant’s commitment to such institution, the chief medical officer of such institution shall certify to the court whether the defendant has a substantial probability of attaining competency to stand trial in the foreseeable future. If such probability does exist, the court shall order the defendant to remain in an appropriate state, county or private institution until the defendant attains competency to stand trial or for a period of six months from the date of the original commitment, whichever occurs first.”
The disputed time period in this case ranges from February 20, 2000 (90 days after the November 22, 1999, court order finding the defendant incompetent to stand trial and committing him to Lamed) and June 5, 2000 (when the defendant waived a jury trial and agreed to a bench trial on June 28, 2000). The defendant contends that once 90 days had passed after the order of incompetency (November 22,1999) and his commitment to Lamed (February 2, 2000), the speedy-trial clock resumed running against the State (on or about February 20, 2000). The defendant reasons that the district court’s failure to issue any order validating his continued commitment beyond the 90-day statutory time limit as required by K.S.A. 22-3303(1) prohibits continued classification of the defendant as incompetent for purposes of applying the speedy-trial exception for incompetency.
The order of incompetency to stand trial filed on November 22, 1999, ordered that the defendant “is hereby committed to the Larned State Security Hospital, Larned, Kansas, for a period of not more than ninety (90) days from the defendant’s admission to the hospital pursuant to the appropriate provisions of K.S.A. 22-3303.” (Emphasis added.)
The interpretation of K.S.A. 22-3303(1) advanced by the defendant ignores the fact that the time clock on his statutory right to a speedy trial would be mnning at a time when the defendant had been declared incompetent to stand trial. Moreover, such an interpretation ignores the fact that the 90 days’ commitment to Lamed had not expired. Such an interpretation is contrary to the intent of the legislature.
The purpose of K.S.A. 22-3303(1) is to allow ample time, 90 days, to address the defendant’s competency to stand trial. Thus, the time period of 90 days does not begin until the defendant is actually admitted into the hospital. Consistent with legislative intent, the full 90 days is available to determine whether the defendant is reasonably likely to be able to stand trial. If we were to accept the defendant’s interpretation that the 90 days runs from the date of the commitment order, the state security hospital or any appropriate county or private institution would have less than the 90 days set forth in K.S.A. 22-3303(1) to evaluate a defendant on the veiy important issue of competency. Also in this case, time assessed against the State would not include a period of time when the defendant was incompetent to stand trial and could not be tried until he was declared competent to stand trial.
The 90-day time frame for evaluation and treatment of the defendant in this case did not begin running until the defendant was admitted to Lamed on February 2, 2000, making the 90-day period expire on May 2, 2000. The defendant was deemed competent to stand trial by Dr. Policard at Lamed on April 24, 2000, and on April 27,2000, the defendant was returned to the Sedgwick County Jail. Thus, the defendant was not committed beyond the 90-day statutory limit at Lamed, and this time would be properly charged against the defendant. See K.S.A. 22-3402(3).
While the time charged against the defendant in this case includes the time between the order of commitment and defendant’s commitment as well as other delays, all the delays relate to the defendant’s incompetency to stand trial. The defendant has provided no authority, nor has research revealed any Kansas authority, that the failure to enter an order pursuant to K.S.A. 22-3303 affects speedy-trial issues when competency is at issue.
To the contrary, Kansas authority charges any delay in the proceedings reasonably associated with a challenge to competency to the defendant:
“[T]he tíme between filing and the decision on a competency hearing motion is chargeable to the defendant when die decision is made within a reasonable time period. The filing of a notice of intent to rely on the insanity defense also operates as a waiver of the requirements of K.S.A. 22-3402 if trial delay was reasonably occasioned by the assertion of the insanity defense. [Citation omitted.] The time between the filing of a motion for a psychiatric examination and the date on which the psychiatrist’s report is received is chargeable against the defendant. [Citation omitted.]” State v. Bafford, 255 Kan. 888, 892, 879 P.2d 613 (1994).
Thus, under Bafford and K.S.A. 22-3402(3), the defendant was charged with the time between the November 22, 1999, declaration of incompetency and the April 28, 2000, receipt of the Lamed evaluation report which advised that the defendant’s competency had been restored. We conclude that the defendant was not denied his statutory right to a speedy trial.
Constitutional Right to Speedy Trial
The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and § 10 of the Kansas Constitution Bill of Rights guarantee an accused the right to a speedy trial. The Kansas Legislature adopted K.S.A. 22-3402 to define and implement these constitutional guarantees. Where the statutory right to speedy trial does not apply, an accused is still guaranteed die right to a speedy trial under both the United States and Kansas Constitutions. State v. Mann, 274 Kan. 670, 700-01, 56 P.3d 212 (2002).
The United States Supreme Court set forth a balancing test for determining whether an accused has been denied his or her constitutional right to a speedy trial in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). Kansas adopted this test in State v. Otero, 210 Kan. 530, 532-36, 502 P.2d 763 (1972). The following factors for making the determination were set forth in Barker. (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) prejudice to the defendant. 407 U.S. at 530; Mann, 274 Kan. at 701.
The length of the delay between arrest and trial is key to the analysis. Until the delay rises to the level of being presumptively prejudicial, it is not necessary to inquire into the other Barker factors. Mann, 274 Kan. at 701.
In this case, the Court of Appeals concluded that the 15-month delay between the time of the defendant’s arrest and the date of trial was not presumptively prejudicial, citing this court’s opinion in State v. Goss, 245 Kan. 189, 777 P.2d 781 (1989). Goss determined that “a little over a year” between arrest and trial is not presumptively prejudicial under a constitutional speedy-trial analysis. 245 Kan. at 193. Here, the Court Appeals concluded that the time between the defendant’s arrest and trial was not presumptively prejudicial when the competency issues needed to be addressed.
However, in State v. Weaver, 276 Kan. 504, 78 P.3d 397 (2003), the Court of Appeals held that a nearly 15-month delay between arrest and trial in a possession of cocaine with intent to sell case qualified as “a little over a year” under Goss, thereby negating further analysis of the Barker factors.
On petition for review, this court found that the Court of Appeals mistakenly treated Goss as establishing a set period of time that would never constitute a presumptively prejudicial delay. Weaver found that the mere passage of time is not determinative of whether the length of delay was presumptively prejudicial, but the peculiar circumstances of each case must be considered as well. 276 Kan. 504, Syl. ¶ 3. The Weaver court used the following circumstances in concluding that the 15-month delay was presumptively prejudicial and that consideration of the three remaining Barker factors was warranted:
“Weaver’s crime was one count of possession of cocaine with intent to sell. The State’s case against him was simple and straightforward — police found on Weaver crack cocaine packaged in individual units and $265 cash, including 12 $20 bills. The State’s evidence against him was presented in 64 transcript pages of testimony. The tolerable delay for an ordinary crime is less than for a complex one. [Barker,] 407 U.S. at 531. Further, Weaver was not arraigned until 123 days after his arrest, and another 176 days passed before Weaver’s counsel asked for and was granted a continuance of the trial date. Two hundred and ninety-nine days passed in which no attempt was made to try the defendant.” 276 Kan. at 510-11.
In this case, the defendant was charged with aggravated kidnapping and attempted rape. The State’s evidence against the defendant was straightforward, involving the testimony of two police officers, the victim, and Keller, and the entire trial lasted only 1 day. However, the defendant’s challenge to his own competency made this case more complex and naturally required more time to resolve.
The defendant was arraigned approximately 2 weeks after arrest, and he filed his notice to rely on the insanity/diminished capacity defense 5 days later on September 13, 1999. The defendant was initially found incompetent to stand trial in November 1999, and K.S.A. 22-3303(1) contemplates that the defendant may be committed from 90 days to 6 months in order to regain competency. The defendant was found competent to stand trial in May 2000. However, the time period from June 5,2000, to November 9,2000, is all attributable to the defense based on its request for a June 28, 2000, trial date and then for multiple continuances. As such, the Court of Appeals properly concluded that a period of 15 months between the defendant’s arrest and trial in this case was not presumptively prejudicial when the competency issues needed to be addressed.
Even if we were to conclude that a delay of 15 months and 8 days is presumptively prejudicial, a consideration of the Barker factors would yield the same result. Under the second Barker factor, the defendant argues the reasons for the delay were attributable to the committing institution’s failure to issue the requisite 90-day certification and the district court’s failure to make any orders authorizing the defendant’s continued commitment. We have rejected this contention in our determination that the defendant’s statutoiy speedy trial was not violated. The bulk of the delay, other than for competency evaluations, was the nearly 5 months requested by the defense between June 5, 2000, and November 9, 2000. Thus, this second factor weighs against the defendant.
Under the third Barker factor, the defendant contends he asserted his right to a speedy trial at his May 10, 2000, competency hearing when the district court was scheduling a jury trial. At that time, the defendant stated,
“Jury trial? No, Judge, I want — I am tired of diese people. In other words, hold me back on the bench trial. I ask for a bench trial, ask for a speedy trial, another attorney for a speedy trial and taire care of all of diese things. And also what I’m saying is I asked for a speedy trial; I am entided to a speedy trial. A bench trial is what I asked for.”
However, in this exchange, it does not appear that the defendant was asserting that his speedy trial rights had been violated. Rather, he was trying to convince the judge not to order a jury trial because he thought that a bench trial would be faster. This third factor also weighs against the defendant.
Under tire fourth Barker factor, tire defendant argues he was prejudiced by being subjected to the discomfort and opprobrium of a prolonged and unauthorized commitment. See State v. Fitch, 249 Kan. 562, 566, 819 P.2d 1225 (1991) (impairment of defendant’s capacity to conduct a defense only one form of prejudice which may flow from long delay in bringing charges to trial; “burden of anxiety” may be form of prejudice). The defendant also argues that the delay contributed to faded memories at trial, pointing to the victim’s inability to remember whether the defendant was wearing clothes during the attempted rape, what she reported to the police, and how many times she went to the defendant’s apartment that night.
It is noted that the defense obviously was not worried about this possible prejudice from June 2000 until November 2000 because it requested several continuances. While the defendant may have suffered some discomfort and anxiety during the time he spent at Lamed after Februaiy 2, 2000, he actually benefitted from the highly structured environment and showed modest improvement in his mental well-being. Likewise, it is difficult to see how the victim’s inability to remember certain details of the event would prejudice the defendant, who was seeking to attack her credibility. We conclude that the defendant’s constitutional right to a speedy trial was not violated.
The criminal history error raised by the defendant need not be addressed based upon our decision to reverse and remand.
The decision of the Court of Appeals affirming the trial court is affirmed in part and reversed in part, and the case is remanded to a new trial judge for further proceedings; the decision of the trial court is affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Davis, J.:
Michael Shelby appeals his jury conviction of first-degree premeditated murder in violation of K.S.A. 21-3401(a) and his sentence to life imprisonment with the possibility of parole after 25 years. He contends that the trial court committed reversible error by granting the prosecutor s motion for late endorsement of a critical witness and by admitting gruesome and shocking photographs of the victim at trial. We affirm.
The defendant was introduced to Stephanie Ward by Lamanzo Searcy, a friend of the defendant. The defendant and Searcy had been friends since childhood and remained friends until the incident giving rise to this case. Searcy was a drug user. Approximately 4 months prior to Ward’s death, Ward agreed to allow the defendant to use her house to sell drugs in exchange for furnishing her drugs. Searcy was also provided with free drugs by the defendant for finding a home the defendant could use to sell drugs. Others also sold drugs out of Ward’s home.
Because of the increased traffic, neighbors’ complaints, and intense police surveillance of Ward’s residence, a search warrant was issued for her Topeka residence. Officers discovered crack cocaine, powdered cocaine, marijuana, plastic baggies, and a set of scales. Ward and Eric Mims were arrested, but they bonded out of jail. Ward let it be known to Searcy that she was not going to taire the rap for the drug bust, and if anything went down, she was going to tell everything. Searcy told the defendant later that day what Ward had said.
After the drug raid of Ward’s home, the defendant asked Searcy to rent a motel room for him. Searcy went to a motel at 37th and Topeka Boulevard with Robert Chitwood, who paid for the room. Although he could not remember specific dates, Chitwood recalled renting the motel room for the defendant sometime before Ward’s murder.
When Searcy and Chitwood returned to the defendant’s house, the defendant was having a telephone conversation with Ward. Searcy heard the defendant tell Ward not to worry and that if she went to jail he would get her out. The defendant hung up and told Searcy that it had been Ward on the telephone and that she did get raided. Chitwood gave the defendant the keys to the motel room, the defendant gave Searcy drugs, and Searcy went home. Searcy lived with Janice Brooks (Searcy — now his wife) and her three children. Janice’s son, Monta Brooks, lived at a group home but occasionally was allowed a pass for home visitations.
Key testimony at trial was provided by Searcy, who agreed to testify against the defendant in exchange for the State’s dismissal of his pending charges of felony possession of a firearm and aiding a felon after tire fact. The agreement provided that Searcy would not be given immunity if he perjured himself or if he was involved in any homicide or murder.
Ward’s friend Janice Shinn visited her at Ward’s home between 9:30 and 10 p.m. on Friday, May 25, 2001. Shinn tried to call a few times later that evening beginning around 11 p.m., but Ward did not answer.
Searcy testified that later that Friday night, around 10 or 10:30, the defendant came to his house and asked if he could get a ride to the motel room. Janice Brooks initially did not want them to take her car but relented when the defendant gave her $20. Searcy could smell the odor of a “wet” from the defendant, which is a marijuana cigarette laced with another drug.
When they got into the car, Searcy saw that the defendant was holding a gun and the defendant said, “I had to do that bitch.” Sometime later, the defendant said he “domed the bitch in the head.” Searcy explained that "domed” meant shot or killed. Searcy later said the defendant’s second statement was “I had to dome the bitch.”
Searcy took the defendant to the same motel room that they had rented earlier. The defendant asked Searcy to clean his pistol while the defendant was in the shower, and the defendant put his clothes in a bag. The defendant jumped in and out of the shower to see what Searcy was doing, and Searcy felt as if he could not leave. However, the defendant then told Searcy to leave, dismantle and bum the gun, and bum the bag of clothes. Searcy went home, showed Brooks (his wife) the clothes and the gun, and they drove to a secluded spot to dump the clothes. Searcy kept one of the gloves that the defendant had been wearing to hold the gun and not get his fingerprints on it. They hid the gun in a safe before selling it to a person named Cain. Concerned that he was being blamed for the murder, Searcy and his family went to Colorado where he was subsequently apprehended and returned to Kansas.
Brooks corroborated much of Searcy’s testimony at trial: that the defendant came to their home around 11 p.m. on Friday asking for a ride, that Searcy returned with a bag of clothes and a gun, that she recognized a shoe in the bag as belonging to the defendant, that they dumped the clothes, and that they put the gun in the safe. She said that Searcy had told her that the defendant had killed someone.
After the discoveiy of Ward’s body by her mother, Officer Jason Cooper responded to the call from Ward’s house around 10 a.m. on Tuesday, May 29, 2001. Officer Cooper testified at trial that the photograph of Ward and the bedroom accurately depicted the crime scene he observed. The defense’s objection to the admission of this photograph on the grounds that there was no question that Ward was killed in her home was overruled.
Officer Robert Youse, the officer in charge of the initial drug raid, testified that Ward’s home was in the same condition as it was after the raid, with a lot of clothing on the floor, a bed mattress standing up on one end, and numerous drawers left open which had been searched. Officer Carl Larsen observed no sign of forced entiy to either of the two entrances to the home. Although a shell casing is normally ejected when firing a 9 mm. gun, only one spent 9 mm. shell casing was found at the scene. A spiral notebook was found which contained the defendant’s nickname, “Money Mike,” and a telephone number.
Crime scene technician and latent fingerprint examiner John Sanders testified that the defendant’s fingerprints were not found at the crime scene. On May 29, 2001, Brooks turned over a glove to the police which she claimed fell out of the bag into her trunk. Sanders indicated that if a person was wearing that particular glove no fingerprints would be left behind.
Brooks led a detective to the location where they had dumped the clothes, and the clothes were recovered. Kansas Bureau of Investigation (KBI) forensic scientists testified that a bloodstain was discovered on a shirt from this clothing; however, the DNA testing was inconclusive.
Police officers executed a search warrant at the defendant’s home and recovered a 9 mm. magazine clip made by the same manufacturer as the gun that was used to Mil Ward, and it was made to fit the same particular model of tire gun. The live rounds in the clip were the same caliber and brand as the spent casing found at the scene. The gun had been recovered by the police and was identified as the defendant’s gun.
The defendant was arrested on May 30, 2001, at the motel on Topeka Boulevard. Scott Tibbits testified that while he was in jail with the defendant, the defendant told him “[tjhat he turned her house into a crack house, and she got busted, and they — she said she was going to snitch on him, so he had to lay her down.”
At trial, coroner and forensic pathologist Erik Mitchell testified that Ward was shot at relatively close range in the middle of the back of her head and on the left side of her head and that she died from these wounds. Mitchell opined that the level of decomposition at the May 29, 2001, autopsy was consistent with Ward having been shot on Friday, May 25, 2001. During his testimony, Mitchell utilized several photographs of the victim in explaining his testimony.
Late Endorsement of Witness
The State and the defense had a report from Detective Kennedy which indicated, through a Kansas Children’s Service League (KCSL) caseworker, Jan Weese, that Monta Brooks was on a 48-hour home pass from his group home from Thursday, May 24, 2001, to Saturday, May 26, 2001. This information, although later disproved, would have put Monta in Searcy’s home the night of the Mlling. As such, both the prosecution and the defense extensively examined Searcy about when Monta was visiting, and the defense used this report to impeach Searcy’s testimony. However, the prosecutor found out the day of trial that Weese no longer worked for the KCSL, and he issued a subpoena duces tecum for Monta’s current caseworker, Marcy Scott. On a break after Searcy’s testimony, the prosecutor discovered that Scott had provided a document which showed that Monta was actually given a 6-hour pass on May 26, 2001, from the group home, and he passed on this information to the defense at the noon break. This information established that Monta was not at Searcy’s home the night of the killing.
After recess, Shinn and Janice Brooks testified. Brooks indicated that the defendant had come to their house needing a ride on the night of Friday, May 25. Brooks testified that her son Monta was not in the home at the time because they picked him up from the group home the next day (Saturday) on a 1-day pass. At the conclusion of Brooks’ testimony, the prosecutor moved for the court to endorse Marcy Scott of the KCSL.
The defendant objected because he had based his cross-examination of Searcy on the initial information that Monta was home the night of the killing. The defense argued that this information affected the manner in which it cross-examined Searcy on this issue earlier that morning. The district court responded that the defense could recall Searcy and granted the motion reasoning that the testimony was critical and relevant and was not prejudicial to the defendant.
Scott testified that she had been Monta’s caseworker since February 15, 2002, the date that Weese left her employment with KCSL. She testified that Monta had a pass to visit his mother in Topeka from 1 to 7 p.m. on Saturday, May 26,2001, and the district court admitted the record from the group home which reflected this information. On cross-examination, tire defense pointed out that Weese had told Detective Kennedy that Monta had a pass from May 24 to May 26, but Scott indicated that she was unaware where Weese would have gotten that information because it was not in the file.
K.S.A. 2003 Supp. 22-3201(g) provides:
“Except as otherwise provided, the prosecuting attorney shall endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing it. Except as otherwise provided, the prosecuting attorney may endorse on it the names of other witnesses that may afterward become known to the prosecuting attorney, at times that the court may by rule or otherwise prescribe. If any witness is to testify and the prosecuting attorney believes the witness who has provided information is in danger of intimidation or retaliation, the prosecuting attorney may delay identifying such informant witness until such informant witness actually testifies but in no event shall identification of a witness be delayed beyond arraignment without further order of die court after hearing and an opportunity of the defendant to be heard.”
The above statute confers broad discretionary power on the trial court in allowing a late endorsement of a witness. State v. Martens, 274 Kan. 459, 471, 54 P.3d 960 (2002). “An appellate court will generally uphold a late endorsement unless the defendant was surprised and the testimony was critical or, in other words, of ‘a climactic and highly damaging nature.’ [Citation omitted.]” State v. Allen, 21 Kan. App. 2d 811, 816, 908 P.2d 1324 (1995), rev. denied 259 Kan. 928 (1996). “Further, to sustain a claim of reversible error, a defendant must have objected to the late endorsement and must have been denied a request for a continuance of the trial. State v. Beebe, 244 Kan. 48, 52, 766 P.2d 158 (1988).” State v. Bell, 273 Kan. 49, 54, 41 P.3d 783 (2002).
However, this court has said that it will not condone surprise caused by the intentional withholding of the name of a witness as a part of the prosecution’s trial strategy. State v. Stafford, 213 Kan. 152, 164, 515 P.2d 769 (1973), modified 213 Kan. 585, 518 P.2d 136 (1974). The purpose of the endorsement requirement is to prevent surprise to the defendant and to give die defendant an opportunity to interview and examine the witnesses for the prosecution in advance of trial. 213 Kan. at 164. “The trial court commits reversible error by allowing a late endorsement when such endorsement results in surprise or material prejudice to defendant, preventing ‘a fair preparation of his defense.’ State v. Wilson & Wentworth, 221 Kan. 359, 364-65, 559 P.2d 374 (1977).” State v. Green, 252 Kan. 548, 553-54, 847 P.2d 1208 (1993).
The State concedes and there is no question that the defendant was surprised by the late indorsement of Scott and her testimony from records of the KCSL. However, the nature of the evidence presented is another matter. The defendant argues that without Scott’s testimony, the only information the jury would have was that the defendant came to the Searcy household on a night when Monta was definitely not at home. The evidence that defense counsel had before trial not only called into question the credibility of the State’s key witness, who testified contrary to the evidence in the police report, but it went to the heart of the defense that the defendant did not commit the crime by showing he was not there at the time alleged by Searcy and his wife.
The State argues that Scott’s new information regarding the date of the pass was not climactic or highly damaging but, rather, went to the issue of Searcy’s recollection of the collateral matter of which children were home the night the defendant came to the house wanting a ride to the motel. This information did not change the prosecution’s theory of the case but merely bolstered it by corroborating Searcy’s recollection that Monta was not home on a pass that night.
While the evidence was damaging to the defense, it did not rise to the level of being highly damaging or climactic for several reasons. See, e.g., Bell, 273 Kan. at 54; (endorsement on second day of trial of witness who had conversation with and saw defendant burn bloody shirt not abuse of discretion when defense did not request continuance, had copy of witness’ statement, and did not require change of trial strategy); State v. Dupree, No. 88,186, an unpublished Court of Appeals’ opinion filed November 26, 2003, rev. denied 277 Kan. 926 (2004) (late endorsement of police officer who laid foundation for admission of victim’s stolen jewelry found on defendant not climactic and highly damaging).
First, Searcy was not the only witness to testify about Monta’s presence on the Friday night in question. Scott’s testimony was cumulative in that it corroborated Brooks’ testimony that Monta was not at their home on Friday evening when the defendant came to the house and they had picked up Monta for a 1-day pass on Saturday.
Second, although the defense argued it would have changed its trial strategy in cross-examining Searcy, it is likely that it would still have tried to impeach him. Searcy’s initial testimony was that he recalled taking Monta back to the group home on Friday, which was contrary to both the initial evidence that Monta had a pass from Thursday through Saturday and the new evidence that he had only a 6-hour pass on Saturday. Although the defense was seeking to use Monta’s presence in the home to pinpoint the exact date the defendant came to the Searcy home, it is important to note that neither Searcy nor his wife ever wavered in stating that the defendant came to their home on Friday night. The only question in Searcy’s mind was whether his stepson was at their home as well.
Third, the defense was given the opportunity to thoroughly cross-examine both Scott and Weese and it was able to highlight the inconsistencies between the dates Weese told Detective Kennedy the pass was issued and the new date presented through Scott’s testimony and records at trial. This cross-examination permitted the defense to cast doubt on the reliability of the new information presented at trial, as well as Searcy’s recollection of the events.
Fourth, it is unlikely that the defendant was materially prejudiced by the introduction of this evidence at trial in light of the overwhelming amount of circumstantial evidence presented in support of his guilt. Aside from Searcy’s damaging testimony which was corroborated by Brooks, the defendant secured a motel room shortly before the incident, multiple witnesses indicated that Ward was planning on providing the police with information following the raid, she was last seen or heard from on Friday night, the bullets recovered from her head were fired from the gun Searcy sold after the shooting, a magazine clip which fit that gun was found in the defendant’s home, and the defendant admitted to a cellmate that he “had to lay her down” because she was going to snitch.
Finally, the defendant failed to comply with our courts’ traditional requirement that the defendant request ánd be denied a continuance in order to establish reversible error. See Bell, 273 Kan. at 54. For all of these reasons, the district court did not abuse its discretion in endorsing the late witness.
Photographs
The defendant argues the district court abused its discretion by admitting seven gruesome and shocking photographs of Ward’s body, which graphically showed the impact of the gunshot wounds to her head. He argues that these photographs were repetitious, had no probative value, and did not prove any contested elements of the offense.
The admission of photographs as evidence in a homicide case rests within the trial court’s discretion, and that court’s ruling will not be disturbed on appeal absent a showing of abuse of discretion. Judicial discretion is abused when judicial action is arbitraiy, fanciful, or unreasonable or, in other words, when no reasonable person would have taken the position that was taken by the trial court. State v. Hebert, 277 Kan. 61, Syl. ¶¶ 9, 10, 82 P.3d 470 (2004).
The defendant cites State v. Gholston, 272 Kan. 601, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002), in arguing that “[t]he real question regarding the admissibility of photographs should be whether the photographs prove an element of the offense that is contested and must be proved by the prosecutor beyond a reasonable doubt.”
In Gholston, the trial court admitted photographs of a child victim in the hospital connected to life support with a blood-soaked bandage on her forehead and an autopsy photograph depicting the child’s gunshot wound to the head. At trial, the defendant did not challenge the fact that the victim’s death was caused by a gunshot wound and the sole issue raised was the identity of the shooter. The defense argued that the photographs were irrelevant and inflammatory because there was no disputed fact that the photographs tended to prove.
On appeal, this court recognized:
“It is well established that photographs which serve to illustrate the nature or extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death. State v. Coyote, 268 Kan. 726, 737-38, 1 P.3d 836 (2000).
“Even where the defendant concedes the cause of death, the prosecutor has the burden to prove all the elements of the crime charged and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. State v. Clark, 261 Kan. 460, 477, 931 P.2d 664 (1997).” (Emphasis added.) 272 Kan. at 613.
As the photographs illustrated the nature and extent of the wounds inflicted and the medical attention required after the victim was shot, corroborated the police officer’s and the mother’s testimony about the extent of the injuries, and corroborated the testimony of the officers who attended the autopsy, the district court did not abuse its discretion in admitting the photographs. 272 Kan. at 613-14.
Applying Gholston to this case, all the photographs were admissible to corroborate the testimony of the officer as to Ward’s condition when found and the testimony of the coroner that the victim was shot twice in the head at close range. Further, the photographs were relevant to proving the identity of the shooter, as the defendant told Searcy that he “domed the bitch in the head.” This was an execution-style killing because Ward was going to inform the police of the defendant’s drug activities.
The defendant further contends the only thing the State had to prove in this case in order to convict him was that he was the person who had committed the offense, and he argues that the admission of grisly photographs of the victim’s body is error where “the cause of death of the victim was really not in dispute.” State v. Boyd, 216 Kan. 373, 378, 532 P.2d 1064 (1975).
In Boyd, the defendant challenged the admission of 14 photographs of the deceased victim taken at the autopsy, arguing that they were repulsive, inflammatory, without probative value, and highly prejudicial. On appeal, this court concluded that one photograph which showed the body of the victim “cut open from chin to groin and laid out like a disemboweled beef in a packing plant” and “[a] flap of chest skin partially cover[ed] the deceased’s face and the chest and abdominal organs of the deceased [were] presented in full view” was admitted for the sole purpose of inflaming the minds of the members of the jury. 216 Kan. at 377-78.
In reaching this decision, the court noted that the cause of death of the victim was not in dispute but some of the photographs were necessary to support the medical witness’ testimony about the angle of the stab wounds. The court concluded that the trial court unnecessarily admitted repetitious exhibits to prove this same point, noting especially the photograph described above. 216 Kan. at 378.
The photographs in this case simply showed the position in which the body was found, the two separate gunshot wounds, and the stippling pattern on Ward’s shoulder and clothing from being shot at close range. No more than two photographs of each were shown to the jury. The coroner had not altered the body in any material way except for shaving Ward’s hair around the entiy wound to the back of the head, and no internal organs were depicted. Moreover, Boyd specifically noted that even though the cause of death was not in dispute, some of the photographs were relevant to corroborate and explain the medical witness’ testimony. As previously discussed, the photographs in this case were necessary to corroborate the testimony of the officer and the coroner that Ward was shot twice in the head at close range. The district court did not abuse its discretion in admitting these photographs.
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The opinion of the court was delivered by
Davis, J.:
Jeffery F. Hebert was convicted of capital murder in violation of K.S.A. 21-3439, aggravated battery against a law enforcement officer in violation of K.S.A. 21-3415, criminal use of weapons in violation of K.S.A. 1999 Supp. 21-4201, and inflicting death to a police dog in violation of K.S.A. 1999 Supp. 21-4318. The jury was unable to reach a unanimous decision on a death sentence, and the court sentenced the defendant to consecutive sentences of life in prison without the possibility of parole for 50 years for capital murder, 46 months for aggravated battery against a law enforcement officer, 7 months for criminal use of weapons, and 12 months for inflicting death to a police dog. He appeals, raising numerous issues. We conclude that no reversible error occurred and affirm.
Facts
Jeffery F. Hebert, while hiding from police in the attic of his residence, shot and tolled Sheriff Deputy Jim Kenney, head of the Clay County K-9 unit, as Deputy Kenney climbed the attic stairs with his police dog named Copper, searching for the defendant. The defendant then shot the police dog two times with a .12-gauge shotgun, tolling the dog. Deputy Kenney fell backwards down the stairs causing Sheriff Gary Caldwell to fall and injure his hand which required “three or four” stitches. In addition to the . 12-gauge shotgun, the defendant possessed two other weapons, one of which was illegal to possess: a sawed-off .20-gauge shotgun. The defendant surrendered to the police after tear gas was shot into the attic.
The events leading to the death of Deputy Kenney began on November 12, 1999, when the defendant was arrested in Morgan-ville on a probation violation from Cloud County. The defendant was transported from Morganville, in Clay County, to the Cloud County jail later that day. Three days later, on November 15,1999, the defendant and two other inmates escaped from jail by subduing two deputy sheriff officers. Before trial, die defendant pled guilty to two counts of battery against a corrections officer and one count of aggravated escape from custody in connection with the escape. On the defendant’s motion in limine, diese convictions were excluded at trial based upon their prejudicial value outweighing the probative value of such convictions.
The defendant testified diat after he escaped he originally intended to hide out and live in the woods. Soon after the escape, the defendant became separated from the other escapees and the plan began to fall apart. After many miles of walking and hitchhiking, the defendant returned to his house in Morganville during the early morning hours of November 16, 1999. He drank a couple of beers, packed a duffel bag full of clothes, and gathered his .12-gauge shotgun, his .22 caliber rifle, and his .20 gauge sawed-off shotgun. The defendant testified that he intended to use the guns to hunt animals in the woods for food. He explained that he always kept his guns loaded with the safeties off because he was the only one who handled them.
Around 7 a.m. the defendant called a friend, Buddy Butler, intending to ask for a ride, but changed his mind because he did not want to get Butler involved. Soon after calling Butler, the defendant fell asleep on his couch.
While the defendant was sleeping, Detective Kelly Kemp of the Clay County Sheriff s Department was gathering information from people who knew the defendant. Detective Kemp discovered the defendant’s location when speaking with Butler, and he relayed this information to Sheriff Caldwell. Sheriff Caldwell instructed Detective Kemp to obtain a search warrant for the defendant’s residence. While waiting for the search warrant, Sheriff Caldwell called the defendant’s home telephone number three times and knocked on the defendant’s door, but heard no response. Sheriff Caldwell called Deputy Kenney and asked him to come to the defendant’s house with his police dog. Deputy Kenney and Copper arrived at the house around 2:30 p.m.
Meanwhile, inside the house, the defendant had just woken up. He finished packing his duffel bag and, according to the defendant, he was about to head outside to go live in the woods when he looked out the window and saw Sheriff Caldwell’s vehicle parked outside. For reasons he is not able to explain, the defendant decided to take a shower. After getting out of the shower, the defendant again looked out the window, hoping one of the officers would move from their position long enough for him to escape.
At approximately 3:45 p.m., Detective Kemp arrived with the search warrant and a copy of the arrest warrant from Cloud County. Sheriff Caldwell positioned his officers in preparation for entering the house. Sheriff Caldwell knocked on the door and announced his presence. After waiting a couple of minutes and receiving no response, Detective Kemp forced open the back door. Sheriff Caldwell, Undersheriff Chuck Dunn, Detective Kemp, Deputy Kenney, and Copper entered the house.
When the defendant heard Sheriff Caldwell knocking, he gathered his three guns and went upstairs to the attic. The defendant still hoped to escape but saw a highway patrol officer was stationed outside near the window he planned to use in his escape. The defendant sat in the corner of the darkened attic and laid his guns down on the floor.
When Sheriff Caldwell and his team finished conducting a sweep of the first floor, Deputy Kenney and Copper, followed by Sheriff Caldwell, headed up the stairs to the attic. Deputy Kenney stopped four or five steps from the top of the stairs and released Copper’s leash, allowing him to search the attic.
The defendant saw Copper come into the attic and he grabbed his .12-gauge shotgun. Copper briefly walked around the attic but did not notice the defendant in the corner. Copper walked back to Deputy Kenney, who was hidden from the defendant’s view. Deputy Kenney grabbed Copper and told him to He down in a voice audible to the defendant. The defendant testified that he then saw one hand come into view to pet the top of the dog’s head. When the defendant saw the bill of a cap and the end of what he thought was a gun come out from behind the comer, he raised his gun and fired. After the shot was fired, the dog began mnning toward the defendant. The defendant shot the dog once with his shotgun, but the dog continued to run toward him, so he shot him a second time and killed him.
The bullet fired at Deputy Kenney passed through a light switch and the plywood wall. The bullet and various smaller projectiles from the light switch and wall hit Deputy Kenney on the right side of his head, causing loss of consciousness immediately. The shot threw Deputy Kenney backwards into Sheriff Caldwell, causing both of them to fall down the stairs. The fall caused Sheriff Caldwell to suffer cuts to his nose and his hand, the latter requiring three to four stitches. Sheriff Caldwell dragged Deputy Kenney out to the back porch, where a first responder,. Arnold Knoettgen, soon arrived and began treating him.
Sheriff Caldwell returned to the house and instructed Detective Kemp to shoot teargas rounds through the upstairs windows to force the defendant out. Four rounds of teargas were fired into the attic. Sheriff Caldwell and the other officers began yelling to the defendant, telling him that if he came down they would guarantee his safety. After a few minutes, the defendant walked down the steps and was arrested.
Deputy Kenney was still alive at this point but had shallow breathing and a weak pulse. Pam Kemp, Director of Emergency Medical Services at the Clay Center Hospital, soon arrived on the scene. Deputy Kenney was rushed to the emergency room where unsuccessful attempts were made to save his life. Dr. Timothy Penner pronounced Deputy Kenney dead at 4:50 p.m. The official cause of death was a shotgun injury to the head which caused “interruption of the brain” and loss of blood.
(1) ADMISSION OF THE DEFENDANT’S STATEMENTS
On the evening of November 16, 1999, Special Agent Brad Cordts of the Kansas Bureau of Investigation (KBI) was sent to the Clay County Sheriffs Department in connection with the investigation of the murder of Officer Kenney. Agent Cordts arrived at the jail around 7:15 p.m. and his supervisor instructed him to transport the defendant to the Geary County Sheriff s Office to conduct an interview at the Junction City Police Department.
Agent Cordts met the defendant around 8:55 p.m. and the defendant declined to receive medical attention for his various scratches and abrasions. While driving to Junction City, the defendant asked if the officer had died and Agent Cordts replied that he was unsure. Around 9:45 p.m., the defendant was taken into an interview room with Agent Cordts and they sat down at a table. The interview was videotaped, and it began with the following relevant exchange:
“S.A. Cordts: Talk to you a little-bit and get both sides of the story. I’ve only heard one side of the story and, obviously, there’s always two sides of a story here and I’d like in your words, your input and tell me what happened and explain in your words and coming from you. Would you like the opportunity to tell me your side of the story?
“Hebert: The officer and the dog came up the stairs and he stuck his head out there and I shot him.
“S.A. Cordts: Okay.
“Hebert: The dog came at me and I shot the dog.
“S.A. Cordts: Okay. Well, as you know, you’ve probably already seen it on T.V. a hundred times but, I need to read you your Miranda rights, which is your right to have that done and then I’ll be glad to listen to anything you have to say and have you tell me in your own words what happened.”
Agent Cordts asked the jailer to come in to remove the defendant’s handcuffs and Agent Cordts read the defendant his Miranda rights and had him sign a waiver. Approximately 5 minutes after the defendant’s first statement, Agent Cordts continued the interview by stating, “Now go ahead and tell me what you’re talking about occurred at your house this afternoon.” The defendant responded, “The dog came up the steps and went to the north end of the house. The officer stepped up there and I seen his gun and I fired. The dog came at me and I fired twice more. . . .” The defendant went on to make several incriminating statements throughout the 1 hour and 49 minute interview.
The defendant argues the district court erred by failing to suppress the videotape of his pre-and post-Miranda statements. On appeal, the defendant contends that his first confession was inadmissible because it was obtained during a custodial interrogation without a Miranda warning. He contends that his second post-Miranda statement made shortly thereafter was tainted by his earlier confession in the course of one continuous interview.
Pre-Miranda Statements
The Fifth Amendment to the United States Constitution states that no person shall be compelled in any criminal case to be a witness against himself or herself, nor be deprived of life, liberty, or property, without due process of law. State v. Lewis, 258 Kan. 24, Syl. ¶ 1, 899 P.2d 1027 (1994). Miranda v. Arizona, 384. U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), holds that the State . may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant’s privilege against self-incrimination. State v. Ewing, 258 Kan. 398, Syl. ¶ 1,904 P.2d 962 (1995).
Miranda warnings come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. State v. Dudley, 264 Kan. 640, Syl. ¶ 1, 957 P.2d 445 (1998). An objective standard is used to judge whether an interrogation was custodial. The proper analysis is how a reasonable person in the suspect’s position would have understood the situation. State v. Valdez, 266 Kan. 774, 791, 977 P.2d 242 (1999).
The defendant argues his pr e-Miranda statement should have been suppressed because it was elicited by the functional equivalent of a custodial interrogation. There is no doubt in this case that the defendant was in custody when he was being interviewed by Agent Cordts in a private room at the jail. The defendant had been arrested, handcuffed, and chained, and was being transported from one jail to another at the time of the interview. Thus, the defendant’s argument revolves around whether the initial pr e-Miranda question constituted an interrogation.
“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.” Dudley, 264 Kan. at 643 (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 100 S. Ct. 1682 [1980]).
■The district court found the initial question was one in which a reasonable person would respond to in a yes or no fashion, and the question was not designed to elicit a confession but simply to make a determination of whether the officer and the defendant were going to have any further conversation.
The defendant takes issue with thé district court’s finding, arguing that other jurisdictions have held that the invitation to a suspect to tell his side of the stoiy has been held to constitute an interrogation. However, most of the cases cited by the defendant are distinguishable from this case because they involved situations in which police officers initiated conversations with the defendants after they invoked their right to have counsel present. See State v. Monroe, 103 Idaho 129, 645 P.2d 363 (1982); State v. Williams, 6 Ohio St. 3d 281, 452 N.E.2d 1323 (1983); State v. Crawford, 73 Or. App. 53, 698 P.2d 40 (1985); State v. Barmon, 67 Or. App. 369, 679 P.2d 888 (1984). In the present case, the defendant never invoked his right to remain silent.
State, City of St. Paul v. Lynch, 477 N.W.2d 743 (Minn. App. 1991), is the most persuasive case cited by the defendant. In Lynch, the defendant was pulled over for a traffic violation by one officer but was recognized by another officer as the man she had seen earlier the same evening trying to pick up a prostitute. Upon seeing a known prostitute in the car with the defendant, and without giving a Miranda warning, the second officer said, “I thought you were going home,” and then asked him, “what is your side of the story?” 477 N.W.2d at 745. The defendant confessed to engaging in prostitution and possessing marijuana. The Minnesota Court of Appeals held that the district court properly suppressed the defendant’s confession because the defendant was in custody and the direct inquiry, which was not germane to the initial traffic stop, constituted an interrogation. 477 N.W.2d at 746.
In this case, Agent Cordts testified that he was shocked that the defendant responded with an incriminating statement. This court, however, is not concerned with the agent’s subjective feelings, but whether he or she should have known his or her words were reasonably likely to elicit an incriminating response. Dudley, 264 Kan. at 643. A careful review of the agent’s entire opening statement reveals that it was reasonable that the defendant would respond in the manner that he did.
Before asking, “Would you like the opportunity to tell me your side of the story,” Agent Cordts told the defendant that he would like to hear his side of the story in his own words. This is exactly what the defendant did. The officer should have known that the defendant, who had made no previous statement, who knew he had shot the officer, and who had been in custody for several hours, might be anxious to take him up on this request to hear his side of the story. This question was not a routine booking question; rather, it was designed to gain information from the defendant about the shooting. The brief question as to whether the defendant wanted to tell his side of the story, preceeded by several requests by Agent Cordts that he wanted to hear the defendant’s side of the story, elicited the defendant’s confession while he was in custody. The interrogation should have begun with the administration of a Miranda warning.
The officer’s failure to administer a Miranda warning to the defendant prior to his custodial interrogation creates the presumption of compulsion as to the defendant’s initial confession. Consequently, the defendant’s pre-Miranda statement should have been suppressed. State v. Dang, 267 Kan. 198, 205, 978 P.2d 277 (1999) However, the question remains as to whether the erroneous admission of the defendant’s initial confession was harmless beyond a reasonable doubt. The answer to this question depends upon whether the defendant’s nearly identical post-Miranda confession was admissible. See State v. Lucas, 243 Kan. 462, 476, 759 P.2d 90 (1988).
Post-Miranda Statements
The defendant argues that his post-Miranda statements should also have been suppressed because they were tainted by his preMiranda confession made in the course of the same interview.
Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985), is the beginning point of our analysis of this issue. In that case, the defendant made an unwarned, incriminating statement while being arrested in his home. Approximately an hour later, the defendant was advised of his Miranda rights and provided a full written confession at the sheriffs headquarters. He subsequently sought to suppress his oral statement and signed confession, arguing that the initial statement “let the cat out of the bag” had tainted the subsequent confession as fruit of the poisonous tree under Wong Sun v. U.S., 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). On appeal, the United States Supreme Court concluded:
“We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.” 470 U.S. at 314.
Elstad thus applies in cases where there is no coercion or an attempt to undermine a suspect’s ability to exercise free will. State v. McCorkendale, 267 Kan. 263, 270, 979 P.2d 1279 (1999). In this case, the district court found that Agent Cordts’ demeanor was not hostile, demeaning, offensive, or threatening, and review of the videotaped interview and the record supports this finding. Moreover, the defendant makes no claim on appeal that Agent Cordts’ questioning was coercive, and a procedural violation of Miranda is only presumptively coercive rather than actually coercive.' See Dang, 267 Kan. at 206 (quoting U.S. v. Singleton, 922 F. Supp. 1522, 1530-31 [D. Kan. 1996]). Absent coercion or improper tactics by the officers in obtaining the initial statements, there is no presumption of compulsion as to the subsequent post-Miranda statements. 267 Kan. at 205.
The defendant would have us distinguish Distad, because his post-Miranda confession occurred in one continuous transaction that included his pre-Miranda confession, with no hour-long gap between the two as existed in Distad. The defendant argues this case is more analogous to three cases cited below where the warned statement was suppressed because it was made in the course of one continuous transaction that included the unwarned statement.
In Lewis, the officers failed to give Miranda warnings and used deliberately coercive tactics during the first interrogation in an attempt to obtain incriminating statements from Lewis. Ten hours later, the officers continued to use improper tactics in a second interrogation until Lewis confessed. At that point, he was given a Miranda warning and confessed. This court reversed the district court’s admission of the pre-and post-Miranda statements because the State failed to overcome the presumption of compulsion and because the police deliberately used coercive and improper tactics to obtain the incriminating statements. 258 Kan. at 37-38.
In Miranda v. Arizona, 384 U.S. at 494-96, local police officers interrogated defendant Westover over a 14-hour period without a warning of his rights. At the conclusion of the interrogation, Federal Bureau of Investigation (FBI) agents immediately began their own interrogation, administered a proper warning, and obtained written confessions within a few hours. The statements were admitted at trial.
The United States Supreme Court concluded that an intelligent waiver of the defendant’s constitutional rights could not be assumed because the warning came at the end of the interrogation process in the defendant’s point of view. The Court explained that the FBI interrogation was conducted immediately following the state interrogation, in the same police station, and in the same compelling surroundings. Thus, the federal authorities were the beneficiaries of the pressure applied by the state interrogation. The court suggested that “[a] different case would be presented if án ■ accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them.” 384 U.S. at 496.
In U.S. v. Carter, 884 F.2d 368 (8th Cir. 1989), postal inspectors interviewed a bank employee in connection with the disappearance of various pieces of mail. Prior to receiving his Miranda warning, the defendant made incriminating statements and allowed the inspectors to search his wallet. The inspectors then administered his Miranda, rights 55 minutes into the interview and the defendant provided a written confession. The district court suppressed the pre-Miranda statements and all evidence obtained. On appeal, the Eighth Circuit distinguished its case from Elstad, concluding that the second, warned confession was inadmissible:
“[T]here was no passage of time to speak of between the unwarned confession and the subsequent warnings and confession, all of which occurred as part and parcel of a'continuous process. Thus, the second confession came almost directly on the heels of the first. Although Elstad precludes the formulation of a ‘rigid rule’ in determining the admissibility of the second confession, [citation omitted] our review of ‘the surrounding circumstances and the entire course of police conduct with respect to the suspect,’ [citation omitted] convinces us that the second confession cannot be allowed into evidence.” 884 F.2d at 373.
Lewis, Miranda, and Carter present markedly different facts from the case we now review, as the statements admitted in each .were obtained after a long period of unwarned interrogation in ' which the investigators were deliberately trying to obtain incriminating statements prior to giving the warnings. The circumstances in each of the three cases suggested corrosive police tactics. In the present case, the pre-Miranda statement was made in response to the Agent’s first question. Moreover, Miranda was decided prior to the Supreme Court’s decision in Elstad. The three cases relied on by the defendant are dissimilar and not persuasive in resolving the question presented in this case.
The defendant is correct that the second confession in this case came shortly after the first unwarned confession. However, several cases have upheld the admission of the warned statement when it was made in the course of the same interrogation as the unwarned statement.
In Dang, 267 Kan. 198, officers interrogated the defendant for 35 minutes, determined that he was lying, administered the Miranda warning, and continued the interview. The district court suppressed tire defendant’s post-Miranda statements because they were the direct result of his pre-Miranda statements. On appeal, this court distinguished the case from its earlier decision in Lewis where the officers had used deliberatively coercive and improper tactics to obtain the initial statement. We reversed the district court, concluding that because the defendant’s pre-and post-Miranda statements were not coerced or involuntary, his post-Miranda statements should have been admitted.
In U. S. v. Esquilin, 208 F.3d 315 (1st Cir. 2000), the defendant made several pre-Miranda and post-Miranda incriminating statements to officers while he was being arrested in his hotel room. As in this case, the defendant argued on appeal that his case was distinguishable from Elstad because his case involved only one interrogation. In analyzing Elstad, the First Circuit concluded: “[Although the elapsed time between interrogations is one factor that may dissipate the taint of a coerced confession, the lesser taint of a Miranda violation may be dissipated by subsequent warnings even if the unwarned and warned statements are obtained during the same interrogation.” 208 F.3d at 319.
In U. S. v. Bermudez, 2000 WL 1871676 (6th Cir. 2000) (unpublished opinion), the defendant made several incriminating preMiranda and post-Miranda statements during a 30-minute interview at the police station, broken up only by the officer leaving the room to speak with his supervisor. In addressing the district court’s concern that the reaffirmation of the earlier unwarned statements followed closely on the heels of the original statements, the Sixth Circuit adopted the reasoning of a Seventh Circuit case:
“[N]othing in the rationale of Elstad implies that the temporal proximity (or similarity) of the pre and post-Miranda-waming statements makes the latter any the less valid. Quite the contrary, we should think. A suspects willingness to make exactly the same statement a second time, following an advice of rights and a written waiver that drives home the seriousness of the steps about to be taken, demonstrates that the suspect is set on his course, and thus that the statement cannot be attributed to ‘compulsion’ in violation of the Constitution. United States v. Gupta, 183 F.3d 615, 618-19 (7th Cir. 1999).”
Finally, in Davis v. U.S., 724 A.2d 1163, 1169 (D.C. 1998), the defendant cited Carter in arguing that he was subjected to one continuous period of custodial interrogation during which he was not informed of his rights until he had confessed to the crime. The defendant made a pr e-Miranda statement, the officers left him alone for 15 minutes before giving the warnings, and his videotaped statement was made 11 minutes later. On appeal, the District of Columbia Court of Appeals declined to hold that what occurred was one continuous interrogation, thus requiring suppression of the post-Miranda statement, noting Elstad’s admonition that in circumstances involving the admissibility of a properly warned confession which follows an unwarned but clearly voluntary admission, a break between the two is not essential.
Dang, Esquilin, Bermudez, and Davis are analogous to this case. In these cases, the pr e-Miranda statements were not obtained as the result of extensive interrogation, nor were they obtained in a coercive manner. Although these cases illustrate that a break in time between the first and second statement is not necessary, it is relevant to note that a brief break did occur between the statements in this case so that the defendant could have his handcuffs removed. Although the time between the first and second statement was admittedly brief (5 minutes), the defendant’s decision to confess in response to the agent’s very first question, and his subsequent post-Miranda confession shortly thereafter, clearly demonstrate his intent and desire to stay on course with his admission.
The weight of authority supports the application of Elstad in this case. We conclude that the district court, confirmed by the videotape of the entire interrogation, established that the defendant’s statements were accompanied by no coercive police tactics. As such, the issue of admission of the post-Miranda statements rests solely upon whether they were knowingly and voluntarily made. See McCorkendale, 267 Kan. 263 at 270.
Voluntariness of a confession is determined from the totality of the circumstances, and where the district court conducts a full prehearing on the admissibility of extrajudicial statements by the accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts accept that determination if supported by substantial competent evidence and do not attempt to reweigh the evidence. 267 Kan. at 270-71.
Factors to be considered in determining whether a confession is voluntary include: (1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused’s age, intellect, and background; and (5) the fairness of the officers in conducting the investigation. 267 Kan. at 270.
There is no indication that the accused’s mental condition was impaired when he made the post-Miranda statement. Although he complained of being hit on the head when he was arrested, he said he was not confused or injured and did not need to see a doctor. The agent acted in a professional, calm, and nonthreatening manner throughout the interview. The defendant’s handcuffs were removed during the interview, and the entire interview lasted under 2 hours. Although he was informed of his right to have a lawyer present, the defendant never asked to communicate with his lawyer or anyone else during the interview. The defendant was 22 years old at the time of the interview, of normal intelligence, and had a criminal history. Nothing in the manner of questioning revealed an intent by the agent to trick or deceive the defendant into making a statement.
Nothing in these factors suggests that the defendant’s post-Miranda statements were involuntary. As such, substantial competent evidence supports the district court’s admission of the post-Miranda statements at trial. See State v. Makthepharak, 276 Kan. 563, 78 P.3d 412 (2003). Our conclusion also renders the admission of the defendant’s pre-Miranda statements harmless.
(2) ADMISSION OF OFFICERS’ CHANGED TESTIMONY
The defendant claims that he was prejudiced by the change in testimony by Sheriff Caldwell and Detective Kemp regarding whether or not Deputy Kenney had his gun drawn. The defendant’s theory of defense was based on showing that the shooting was neither premeditated nor intentional but, rather, due to the panic of seeing Deputy Kenney’s gun.
A. Standard of review
Appellate courts review the trial court’s admission of evidence for abuse of discretion. State v. Sims, 262 Kan. 165, 170, 936 P.2d 779 (1997). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable or, in other words, when no reasonable person would have taken the position that was taken by the trial court. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804, 897 P.2d 123 (1995).
B. The trial court did not err in allowing the State to recall Sheriff Caldwell.
At the preliminary hearing, the following exchange between defense counsel and Sheriff Caldwell took place regarding the location of Deputy Kenney’s gun at the time he ascended the stairs into the defendant’s attic:
“Q. Jim had his gun out at the time?
“A. I can’t answer that. I don’t know.
“Q. Was he carrying a weapon himself?
“A. He was carrying a gun. I can’t tell you if he had it drawn or not. He had the dog so he may not have had it out. I can’t answer you, I don’t know.”
The question of whether Deputy Kenney had his gun drawn did not come up during Sheriff Caldwell’s direct examination at trial on January 12, 2001, and the defendant now claims that he did not cross-examine Sheriff Caldwell at trial because nothing in his direct examination contradicted the testimony from his preliminary hear ing. Five days after he testified, Sheriff Caldwell approached the prosecutors and told them that he now remembered that Deputy Kenney had not drawn his weapon. Because the prosecutors did not know that Sheriff Caldwell would change his testimony, and because the State had not yet rested its case, the trial court on the State’s motion allowed Sheriff Caldwell to testify that he remembered that Deputy Kenney had a flashlight, not a gun, in his hand.
The change in testimony opened the door for the defendant to attack the credibility of Sheriff Caldwell, but the defendant did not challenge the new testimony on cross-examination. On appeal, the defendant claims that this was done for strategic reasons. However, a party that invites error may not then complain of that error on appeal. State v. Plunkett, 261 Kan. 1024, 1033, 934 P.2d 113 (1997).
The defendant admits that at the time of Sheriff Caldwell’s testimony, he was already “beginning to present [his] penalty phase defense as well.” The defendant claims that Sheriff Caldwell was expected to testify during the penalty phase of the trial that a life sentence would “serve the interests of justice,” and that, therefore, he was not in a position to attack Sheriff Caldwell’s credibility. The State prosecutor told the defendant in chambers that he did not think that Sheriff Caldwell was going to testify the way the defendant expected. The issue became moot as the defendant did not question Sheriff Caldwell during the penalty phase.
Because a trial is a search for the truth, a court has discretion to allow a witness, who has had time to reflect, the opportunity to change or correct his or her testimony if done in good conscience. State v. Gonzales, 253 Kan. 22, 27, 853 P.2d 644 (1993). In Gonzales, this court held that there was no error in allowing the State to recall a detective three times to clear up inaccurate testimony and to testify about new information he remembered regarding the chain of custody of a murder weapon. The court commented on the fact that on each occasion, the defendant was given the opportunity to cross-examine the witness. 253 Kan. at 27. The defendant, in this case, was also given the opportunity to cross-examine Sheriff Caldwell. In the end, “the ultimate conclusion as to any witness’ veracity rests solely with the jury.” State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000).
(C) Detective Kemp’s contradictory testimony.
The defendant also argued that the trial court erred by allowing Detective Kemp to testify contrary to his police report. The defendant called Detective Kemp to testify during his case, and Detective Kemp acknowledged that he had written in his police report that he “observed Kenney draw his weapon and start up the stairs.” On cross-examination by the State, Detective Kemp testified that his report was not accurate, and that upon further reflection, and after looking at the evidence custody receipt, he remembered that Deputy Kenney had not taken the gun off his belt. The defendant did not object to this testimony or question Detective Kemp about it but he did offer the police report into evidence.
Even if the alleged misconduct was not objected to at trial, the issue will be addressed if it rises to the level of a denial of due process. Pabst, 268 Kan. at 504. “Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial.” 268 P.2d at 504.
For support, the defendant cites State v. Lewis, 238 Kan 94, 708 P.2d 196 (1985). In Lewis, this court reversed aggravated battery and aggravated robbery convictions when a KBI forensic examiner, who had written a report stating that a knife in the possession of one of the defendants did not have blood on it, unexpectedly testified at trial that the knife did in fact have blood on it. 238 Kan. at 95-96. The forensic examiner told the county attorney before testifying that her initial report had been wrong, but the county attorney failed to tell either the judge or defense counsel. 238 Kan. at 96. The court held:
“Prosecutorial misconduct occurs when the county attorney fails to disclose to both the trial judge and the defense counsel that he intends to introduce into evidence a report which he failed to inform the defense counsel had been corrected. If the corrected statement changes the theory of defense as presented to the jury in opening statement, then neither admonition nor instructions by the trial judge can cure the resulting prejudice.” 238 Kan. at 99.
This case can be distinguished from Lewis. The court in Lewis stressed that the prosecutor s breach of duty was not his failure to disclose incriminating evidence. 238 Kan. at 98. Rather, the prosecutor s breach of duty was his failure to satisfy his statutory obligation under K.S.A. 22-3212(l)(b) (Ensley 1981), now K.S.A. 2002 Supp. 22-3212(a)(2), to allow the defendant “to inspect and copy the results of the scientific test or experiments made in connection with the particular case which are known, or by the exercise of due diligence may become known, to the prosecuting attorney.” 238 Kan. at 98.
In this case, the State reached an agreement with the defendant to allow discovery of Detective Kemp’s police report on May 26, 2000, well before trial. Had Detective Kemp revised his report, the State would have been required to deliver that report to the defendant under K.S.A. 22-3213(2), which states in part: “After a witness called by the state has testified on direct examination [at the preliminary hearing], the court shall, on motion of the defendant, order the prosecution to produce any statement (as hereinafter defined) of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified.” Because Detective Kemp had never formally changed his report or told the State about his new recollection, there was nothing for the State to disclose.
The defendant concedes “there is no evidence that the State knowingly presented perjured testimony.” Instead, he contends that the State knew the testimony was false after it was allowed to go uncorrected in violation of the Fourteenth Amendment to the United States Constitution. The defendant cites Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959), in support of his argument.
In Napue, the defendant was charged with the murder of a police officer. George Hamer, who was Napue’s accomplice in the murder, was the principal witness for the State. Hamer testified falsely that he had not received any consideration for his testimony, and the Assistant State’s Attorney, who knew this was not true, did nothing to correct the perjured testimony. At a hearing held after Napue’s trial, the Assistant State’s Attorney admitted to offering consideration to Hamer. 360 U.S. at 265-67.
There is no evidence in this case suggesting that the State knew that Detective Kemp’s testimony was false. In fact, there is evidence supporting Kemp’s contention that Kenney did not have his gun drawn. The evidence custody receipt which listed the items found on Deputy Kenney’s person at the time of his death, included his Beretta .40-caliber handgun. Sheriff Caldwell also testified that as a former police dog handler, he knew that it was common procedure for a dog handler who has backup to leave his or her weapon in the holster.
The defendant’s claim that the testimonies of Sheriff Caldwell and Detective Kemp were not rehable is not supported by the record. He points out that Sheriff Caldwell was released from his sequestration order and was allowed to watch the trial prior to being recalled by the State. The defendant, however, made no objection to Sheriff Caldwell’s release from his sequestration order at trial. The defendant also claims that Sheriff Caldwell’s testimony was not reliable because a flashlight was never listed as being recovered at the scene. The defendant claims that Detective Kemp’s testimony is “disturbing” because he testified that his report was inaccurate after watching Sheriff Caldwell, his superior, change his testimony. With the exception of the flashlight, none of these contentions by the defendant are supported in the record, and they are based upon speculation and conjecture. Several officers were at the scene and the victim’s flashlight could have been picked up or lost during the investigation at the scene. While there is some evidence that the flashlight’s presence would have been noted, the defendant is merely speculating that because it is missing this establishes that the victim had his gun drawn.
All these contentions could have been brought up on cross-ex-' animation or closing argument, but are not appropriate considerations in this appeal. On appellate review, “conflicting evidence will not be weighed, and all questions of credibility are resolved in favor of the State.” State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000). “[T]he ultimate conclusion as to any witness’ veracity rests solely with the jury.” Pabst, 268 Kan. at 507.
(3) STATE’S COMMENTS IN CLOSING ARGUMENT
The defendant argued that his convictions should be reversed because the prosecutor committed misconduct in his closing arguments.
A. Standard of review
“ Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial.’ ” State v. Whitesell, 270 Kan. 259, 284, 13 P.3d 887 (2000) (quoting Pabst, 268 Kan. at 504). An analysis of allegedly improper remarks by a prosecutor is a two-step process. First, a determination must be made as to whether the remarks are outside the considerable latitude granted a prosecutor in discussing the evidence. State v. Lumley, 266 Kan. 939, 959, 976 P.2d 486 (1999). Second, a determination must be made as to whether, based on the particular facts of the case and in light of the record as a whole, the remarks constitute harmless or prejudicial error. State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994). Prejudicial error occurs when the remarks are so gross and flagrant as to deny an accused the right to a fair trial. Lumley, 266 Kan. at 959.
B. The district court erred in failing to sustain an objection to the prosecutor’s closing remark that premeditation “doesn’t take any amount of time.” However, the error was harmless beyond a reasonable doubt.
During the State’s closing argument, the defendant objected to the following statement by the prosecutor: “He has to have thought over the matter beforehand and that doesn’t take a long time, that doesn’t take any amount of time.” The defendant contends that the argument suggested that premeditation can occur in an instant. The State argues that the phrase “doesn’t take any amount of time” is consistent with the phrase “no particular amount of time” that has been approved by this court. State v. White, 263 Kan. 283, 294, 950 P.2d 1316 (1997). This court has also approved the language “[tjhere is no specific time element required to establish premeditation.” State v. Kingsley, 252 Kan. 761, 771-72, 851 P.2d 370 (1993); State v. Patterson, 243 Kan. 262, 268, 755 P.2d 551 (1988).
In State v. Holmes, 272 Kan. 491, 497, 33 P.3d 856 (2001), a lengthy discussion was held among the court and counsel concerning the definition of premeditation. It was apparent that the prosecutor understood Kansas law regarding the definition, as reflected in the discussion of Kansas case law and the district court’s comments. Nevertheless, the prosecutor argued in closing that “premeditation can occur in an instant. That’s the law in the State of Kansas.” 272 Kan. at 497. Even though defendant failed to object, we concluded that the prosecutor “deliberately misstated the law to the juiy, and the trial court’s failure to act to correct the misstatement deprived Holmes of his right to a fair trial.” 272 Kan. at 499-500. We reached this conclusion because it was clear from the discussion outside the presence of the jury that the prosecutor’s remarks were a deliberate misstatement of the law and because the record contained little if any evidence of premeditation before Holmes shot the victim in a struggle over a gun. 272 Kan. at 492; see State v. Doyle, 272 Kan. 1157, 1165, 38 P.3d 650 (2002) (discussing State v. Holmes).
However, in State v. Jamison, 269 Kan. 564, 572, 7 P.3d 1204 (2000), we held that it was harmless error when the prosecutor stated in closing argument that “premeditation can occur in an instant.” We noted that there is “a very real distinction between the argument of a prosecutor and the instruction of a trial court,” "emphasizing the fact that the jury had been given a proper instruction on premeditation and was told that arguments of counsel were not evidence. 269 Kan. at 573. We also pointed out that sufficient evidence was presented for the jury to have found premeditation. 269 Kan. at 573.
In Doyle, 272 Kan. at 1163, the prosecutor stated that “[sjomething can be premeditated as soon as it happens.” We held that this was a misstatement of the law, but it was harmless because there was no indication that the misstatement was purposeful, the jury received a proper instruction on premeditation, and there was evidence of premeditation. 272 Kan. at 1165-66.
In State v. Pabst, 273 Kan. 658, 661, 44 P.3d 1230 (2002) (Pabst II), the prosecutor, when discussing premeditation, argued that “there’s no amount of time that’s required [for premeditation],” similar to the prosecutor s comment in this case we now consider tlrat premeditation “doesn’t take any amount of time.” In Pabst II, we warned prosecutors to avoid any phrases that were synonymous with in “an instant” and found the State’s explanation to be a “dubious distinction,” but did not find reversible error in the “no amount of time” remark. 273 Kan. at 661-63. We again pointed out that the juiy had received the proper PIK instruction on premeditation, the jury had been told that arguments of counsel were not evidence, and there was evidence of premeditation. 273 Kan. at 663.
The prosecutor’s remark in this case, as in Pabst II, falls veiy close to the disapproved “in an instant” language. Likewise, the prosecutor’s remark on premeditation falls outside the considerable latitude given to prosecutors in closing argument. Yet, unlike Holmes, there is no evidence that the prosecutor’s remark was a deliberate misstatement of the law. Also, unlike Holmes, there is overwhelming evidence of premeditation in this case.
Premeditation is a state of mind relating to a person’s reasons and motives for acting as he or she did. State v. Cravatt, 267 Kan. 314, 328, 979 P.2d 679 (1999). Premeditation maybe inferred from various circumstances, including: “(1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant’s conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless.” White, 263 Kan. at 294.
Examination of the circumstances in this case demonstrates that the defendant used the most powerful gun he owned, a .12 gauge shotgun loaded with the most powerful ammunition he owned, a slug round. No provocation was involved in this case, as Deputy Kenney was a law enforcement officer performing his legal duty to arrest the defendant. The defendant’s actions before and after the killing also provide evidence of premeditation. He admitted to grabbing the guns on his way upstairs after seeing the officers outside his house and then seeing them come-into his residence. All three guns were found loaded and ready to fire. The defendant admitted that he did not want to go back to jail and that he knew the officers were coming to arrest him. After shooting Deputy Kenney, the defendant shot the police dog twice, and he did not give himself up until after tear gas rounds were fired into the attic. No threats or declarations were made by the defendant before or during the killing that would either support or refute any evidence of premeditation. Finally, no lethal blows were dealt after the victim’s death, as he was killed with the one shot.
Appellate courts will not find reversible error when an objection to a prosecutor’s statement has been sustained unless the statement was so prejudicial as to be incurable. State v. Moncla, 262 Kan. 58, 70, 963 P.2d 727 (1997) (citing State v. Pioletti, 246 Kan. 49, 67, 785 P.2d 963 [1990], and State v. Pursley, 238 Kan. 253, 265, 710 P.2d 1231 [1985]).
The misstatement in this case was not as prejudicial as in Holmes or Jamison. The jury was told that arguments of counsel were not evidence, and was given the proper PIK instruction, PIK Crim. 3d 56.04(b), curing any prejudice caused by the misstatement. There is no evidence that the prosecutor purposefully misstated the law. Finally, as in Pabst II, Jamison, and Doyle, there was sufficient evidence from which the jury could have found premeditation beyond a reasonable doubt. Under these circumstances, we conclude that the prosecutor’s remark during closing argument was not so gross and flagrant as to deny the defendant his right to a fair trial. We further conclude that the error was harmless beyond a reasonable doubt because it had little, if any, likelihood of changing the result at trial. See Lumley, 266 Kan. at 959.
C. The trial court did not err in overruling the defendant’s objection to the State’s closing argument that compared a decision to shoot with premeditation.
The defendant next argued that the prosecutor confused intent with premeditation by arguing that the defendant’s decision to pull the trigger could act as a basis for premeditation. The following argument by the prosecutor was objected to at trial: “Premeditation is defined for us. The instruction says it means to have thought the matter over beforehand. That doesn’t require any particular interval of time between the thought and the murder. It merely requires a decision to act, and in this case, a decision to pull the trigger.”
(Emphasis added.)
Shortly thereafter, the prosecutor added: “And in this case the defendant thought that over and made that decision. He told us he did. Special Agent Brad Cordts asked him, so your decision to shoot was made as soon as you saw the gun, correct? And the defendant said yes.’ ” (Emphasis added.) No objection was raised to this statement. When the defendant’s claimed error implicates his right to a fair trial and Fourteenth Amendment due process rights, the appellate standard of review is the same as if the remark was objected to. State v. McCorkendale, 267 Kan. 263, 278, 979 P.2d 1239 (1999).
The State contends that these statements, when read in the entirety of the closing argument, merely refer to the act of premeditation and not the physical act of murdering someone.
Although this court has never specifically approved of referring to the act of premeditation as a “decision,” it has never held the use of such a phrase to be reversible error. In State v. Wimbley, 271 Kan. 843, 849, 26 P.3d 657 (2001), the prosecutor stated in closing argument: “Premeditation can occur in an instant. ... I can decide to kill anybody in this room and that would be premeditation. That’s what the law is.” (Emphasis added.) Although in Wimbley we focused on the phrase “in an instant” and found it to be harmless error, we did not comment on the prosecutor’s equating the formation of a decision to kill with premeditation. 271 Kan. at 850.
In this case, the prosecutor repeated the proper PIK definition several times and correctly stated the law on premeditation:
“When you determine whether the defendant premeditated this murder, we have to look at all of the circumstances, what attorneys like to call the totality of the circumstances. We look at what the defendant did both before and after the murder. We look at the victim’s conduct. We look at the statements that the defendant made both before and after the murder, and we look at the weapon that the defendant used.”
Considering the prosecutor’s entire argument, especially the prosecutor’s numerous references to the PIK definition of premeditation, we conclude that the phrase “[i]t merely requires a decision to act, and in this case, a decision to pull the trigger” was not outside of the considerable latitude given to the prosecutor. See Lumley, 266 Kan. at 959.
(4) PROPOSED PREMEDITATION INSTRUCTION
A. Standard of review
The defendant requested an additional jury instruction and objected to its omission; therefore, the standard of review is “whether the instruction given properly and fairly stated the law as applied to the facts of the case and whether the instruction reasonably could have misled the jury.” Pabst II, 273 Kan. at 666. “Jury instructions are to be considered together and read as a whole without isolating any one instruction.” State v. Walker, 252 Kan. 279, 295, 845 P.2d 1 (1993).
Trial courts are not required to use PIK instructions, but it is strongly recommended because the instructions were developed in order to bring accuracy, clarity, and uniformity to jury instructions. Modifications or additions should only be made if the particular facts of a case require it. Moncla, 262 Kan. at 71.
B. The PIK definition of premeditation has changed since this case was tried.
The trial court’s jury instruction No. 6 on premeditation followed PIK Crim. 3d 56.04(b) (1994 Supp.) stating: “Premeditation means to have thought the matter over beforehand.” The court denied the defendant’s 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 defendant’s proposed language originally comes from State v. McGaffin, 36 Kan. 315, 13 Pac. 560 (1887). The 1994 Supplement of PIK Crim. 3d 56.04(b), which was in effect at the time of the defendant’s trial, cited McGaffin as authority but did not include the language in the actual definition.
The majority in State v. Saleem, 267 Kan. 100, 105, 977 P.2d 921 (1999), approved the 1994 PIK definition of premeditation and found that the “language in McGajfin is only of historical interest.” Justice Allegrucci concurred with the holding of Saleem, but disagreed with the majority on the PIK definition of premeditation. 267 Kan. at 115 (Allegrucci, J., concurring). Justice Allegrucci believed that by defining premeditation as “to have thought the matter over beforehand,” the majority had “converted second-degree murder to first-degree murder.” 267 Kan. at 115 (Allegrucci, J., concurring).
In State v. Jamison, 269 Kan. 564, 7 P.3d 1204 (2000), this court again approved the 1994 version of PIK Crim. 3d 56.04(b), stating that it “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.” 269 Kan. at 573 (citing McGaffin, 36 Kan. at 319).
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 die 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.).
C. The trial court did not err in rejecting the defendant’s proposed jury instruction.
The claimed error pertaining to the jury instruction in this case is very similar to the error claimed in Pabst II. In Pabst II, the court held that the district court did not err in refusing to include an additional instruction stating: “ ‘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.’ ” 273 Kan. at 659. This court again found that PIK Crim. 3d 56.04(b) (1994 Supp.) “ ‘adequately conveys the concept that “premeditation” means something more than the instantaneous, intentional act of taking another’s life.’ ” 273 Kan. at 660 (quoting Jamison, 269 Kan. at 573). However, Justice Lockett joined Justice Allegrucci in his disapproval of any jury instruction based on the 1994 PIK definition of premeditation. 273 Kan. at 667. (Allegrucci and Lockett, JJ., concurring.)
This proposed instruction requested by the defendant in this case is also very similar to the one requested by the defendant in Wirribley, 271 Kan. at 849. In Wimbley, the trial court instructed the jury identically to the instruction in the present case, stating that “ premeditation’ means to have thought over the matter beforehand,” but the defendant wanted to add the following: “ ‘Premeditation means that there was a design or intent before the act; that is, that the accused planned, contrived and schemed beforehand.’ ” 271 Kan. at 849. This court ruled that the trial court’s instruction was a correct statement of Kansas law. 271 Kan. at 850.
This court has approved PIK Crim. 3d 56.04(b) (1994 Supp.) multiple times, most recently in Jamison, Pabst II, and Wimbley. 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.
D. PIK Crim. 3d 56.04(b) (1994 Supp.) does not render the first-degree murder statute or the capital murder statute unconstitutionally vague.
The defendant also claims that PIK Crim. 3d 56.04(b) (1994 Supp.) renders the capital murder statute, K.S.A. 21-3439, and the first-degree murder statute, K.S.A. 21-3401(a), unconstitutionally vague in violation of the Fourteenth Amendment. The defendant cites State v. Bryan, 259 Kan. 143, 910 P.2d 212 (1996), as setting forth the proper standard of review:
“ ‘ “ ‘The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.’ ” ’ ” Bryan, 259 Kan. at 145 (quoting Moody v. Board of Shawnee County Comm’rs, 237 Kan. 67, 74, 697 P.2d 1310 [1985]).
Bryan involved a direct challenge to the constitutionality of the Kansas stalking law, K.S.A. 21-3438, on grounds of vagueness. 259 Kan. at 144. In the present case, however, the defendant does not challenge the capital murder or first-degree murder statutes as being vague. Rather, he contends that they are rendered unconstitutionally vague when the PIK Crim. 3d 56.04(b) (1994 Supp.) instruction on premeditation is given. The defendant’s argument implicitly assumes that had his requested expanded instruction been given, K.S.A. 21-3439 and K.S.A. 21-3401(a) would be constitutional.
This court has previously addressed a claim that a jury instruction on premeditation rendered K.S.A. 21-3401(a) unconstitutionally vague, in State v. Groschang, 272 Kan. 652, 36 P.3d 231 (2001). The jury instruction in Groschang added on to the PIK Crim. 3d 56.04(b) (1994 Supp.) instruction, stating: “Premeditation means to have thought over the matter beforehand for any length of time sufficient to form an intent to act.” 272 Kan. at 668. (Emphasis added.)
The defendant in Groschang did not argue that the additional language caused the statute to be vague. Rather, he argued that the definition required even more language in order to prevent the statute from being vague. Groschang contended that the following language, essentially the same requested by the defendant in the present case, should have been added: “Premeditation means that there was a design or intent before the act, that is that the accused planned, contrived, or schemed [beforehand to kill].” 272 Kan. at 669.
We held in Groschang that the jury instruction did not render 21-3401(a) unconstitutionally vague under the facts of that case, as all of the evidence pointed to premeditation and there was no evidence of second-degree intentional murder. We noted that the jury had also found that “Groschang had the necessary mental ca pacity to form criminal intent to kill the victim,” thus satisfying the requisite elements of 21-3401(a). 272 Kan. at 670.
In the present case, more than enough evidence was presented for the jury to find the defendant guilty of premeditated first-degree murder beyond a reasonable doubt. The defendant does not claim to have lacked the requisite mental capacity to form the necessary criminal intent. Having concluded in the numerous cases cited above that an instruction similar to the one given in this case was an appropriate statement of the law in Kansas, and for all of the reasons set forth above, we are able to conclude that the instruction given was not unconstitutionally vague.
E. The PIK instruction provides a principled means to distinguish death penalty from nondeath penalty cases and does not thwart the capital defendant’s right to have a jury consider lesser included offenses.
Finally, the defendant argues that the PIK instruction fails to provide “a principled means ... to distinguish those that received the death penalty and those that did not,” citing Maynard v. Cartwright, 486 U.S. 356, 362, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988). He also argues that the PIK instruction thwarts the capital defendant’s right to have the jury consider lesser included offenses, citing Beck v. Alabama, 447 U.S. 625, 627, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980). As this court has held that PIK Crim. 3d 56.04(b) (1994 Supp.) is an accurate statement of the law and the jury considered the lesser included offense of second-degree intentional murder, the defendant’s arguments fail.
(5) PRIOR CRIMES EVIDENCE
Before trial, the State filed notice of its intent to introduce evidence of some of the defendant’s prior crimes. Specifically, the State sought to introduce evidence that the defendant was arrested for violating his probation and then committed the crimes of aggravated escape from custody and battery of two corrections officers. The State argued that these crimes were admissible under K.S.A. 60-455 to prove motive, opportunity, plan, intent, and knowledge, and that they were also admissible independent of K.S.A. 60-455 as part of the res gestae of the crime.
The defendant filed a response to the State’s motion, objecting to the introduction of the prior crimes under either theory. At a pretrial hearing, the court stated:
“Okay. My review of the pleadings filed in reference to this, and the cases cited, and review of the latest cases indicated that prior crimes, evidence of prior crimes and their admissibility have three requirements that must be met in order to introduce evidence under 60-455. Those are, as counsel is aware, evidence as relevant to prove one of the facts specified in the statute; or 2, the fact is a disputed material fact; and 3, that the probative value of the evidence outweighs its potential prejudice.
“I have carefully gone back over and looked at this, and the Court is of the opinion that the jury is entitled to know why the various law enforcement authorities were at Mr. Hebert’s house. To not allow that would probably create a lot of speculation on die part of the jurors, and so I think that they are entided to know that the Sheriff s Department was there to execute a valid arrest warrant which was issued out of Cloud County. I am not going to, however, allow the State to offer testimony as to why Mr. Hebert was in the Cloud County Jail and any details of die escape. It is the Court’s opinion that even if such evidence were admissible under 445 or 448, to show motive, intent, or plan, that the potential prejudicial effect of such evidence far outweighs any probative value.
“As die Court recalls from arguments and pleadings, one of the arguments was tiiat the State would want to show this, that Mr. Hebert’s intent was to never return to jail, and therefore it was the motive for die murder. That is plausible, I suppose. The argument of the res gestae, the motive not to go back to jail, again, possible.”
The court explained that the evidence of the batteiy of the corrections officers and the aggravated escape from Cloud County jail was not relevant in proving intent and would be more prejudicial than probative to proving preparation or plan. The court summed up its ruling, stating: “I will allow [the officers] to say that they had a valid arrest warrant issued out of Cloud County for his escape from the Cloud County Jail.”
Defense counsel admitted to the jury during opening arguments that on November 11, 1999, the defendant had been arrested on a probation violation and it was not the first time the defendant had been arrested. Defense counsel did not, however, state what the specific crimes were that led to the defendant’s probation, or what the defendant had been arrested for prior to that.
At trial, the defendant objected to the introduction of the defendant’s videotaped confession on the grounds that the tape had not been redacted to omit mention of defendant’s prior crimes. During the confession, the defendant mentioned being arrested by Sheriff Caldwell on an aggravated battery charge, violating his parole, and escaping from jail. The court ruled:
“We all knew he was in Cloud County and that he escaped from the Cloud County Jail. If that’s all it is, that it simply mentions the fact that he’d been arrested by Sheriff Caldwell and mentions the possibility of a crime for which he was arrested but does not talk about a conviction of that or necessarily a conviction about any other crime other than his PV in Cloud County, then I’m going to allow that to go forward. . . .
“It strikes me is it goes to the veracity of his reason why he knew Sheriff Caldwell. I don’t know how I can redact that out of there without completely taking out of context how he knew Sheriff Caldwell, and although it might have some prejudicial effect to the defendant, that, in my opinion, is not outweighed by the probative value which the statement has, especially in light of the fact that the jury is aware that Mr. Hebert has some prior criminal record or he would not have been in the Cloud County Jail. So based on the totality of the circumstances I’m going to go ahead and allow that over the objection of the defendant.”
The videotape was then played for the jury. The defendant’s specific complaint is in regards to the following portion of the confession:
"Q. How do you know Sheriff Caldwell? How do you know him by sight?
“A. He’s the sheriff. Who doesn’t know him?
“Q. Okay. So you’ve . . .
“A. Had contact with him before, yeah.
“Q. You’ve seen him and had previous contact several times?
“A. Mm-hmm.
“Q. And has he ever arrested you before?
“A. Shit, I’m sure he has for something.
“Q. You just can’t think of a particular incident — possibly arrested you before?
“A. Yes. He and Kelly Kemp came and got me one day for something, but I don’t know what it was for.
“Q. He and Kelly Kemp?
“A. Yeah.
“Q. Kelly Kemp is a sheriff s officer?
“A. Yeah, a cop of some land — I don’t know what he is.
“Q. Okay. And what were you arrested before on, Jeff? Why did they arrest you?
“A. I don’t know what it was for that time. Shit I don’t know. I think it was felony ag battery at that time.
“Q. Felony ag battery?
“A. Yeah, I think so.
“Q. You . . . The way you’re saying this, Jeff, you say This time,’ and so forth. It sounds Mice you’ve been arrested quite a bit in the past. I don’t know this.
“A. Yeah, I’ve got a record.
“Q. You’ve got a record? You’ve been arrested quite a bit in the past? Ag battery was something you’ve been arrested for?
“A. The only time.
“Q. That was the only time — Okay. What other things have you been arrested for?
“A. DUI, DUI, minor in consumption, breaking a city park curfew — ah, shit, I don’t know. Minor in possession, minor in consumption, I don’t know shit. I don’t know.
“Q. Okay, minor as far as drinking violations?
“A. Yes.
“Q. Okay.”
Seven different prior crimes of the defendant were thus introduced into evidence: (1) aggravated batteiy, (2) DUI, (3) DUI, (4) possession of alcohol by a minor, (5) consumption of alcohol by a-minor, (6) consumption of alcohol by a minor, and (7) breaking a city park curfew. Not all of the crimes the defendant admitted to are listed in his PSI report. Defense counsel stated that the aggravated batteiy charge was diverted but the details of the minor in possession and city park curfew violations are not known.
A. Standard of review
The admission and exclusion of evidence lie within the sound discretion of the trial court. State v. Lumley, 266 Kan. 939, 953, 976 P.2d 486 (1999). Appellate courts review the trial court’s admission of evidence for abuse of discretion. State v. Sims, 262 Kan. 165, 170, 936 P.2d 779 (1997). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, or in other words, when no reasonable person would have taken the position that was taken by the trial court. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804, 897 P.2d 123 (1995).
B. Admissibility of the defendant’s prior arrest for aggravated batten
K.S.A. 60-407(f) states that “all relevant evidence is admissible.” Relevant evidence is defined in K.S.A. 60-401(b) as “evidence having any tendency in reason to prove any material fact.” A material fact is one that is “significant under the substantive law of the case and properly at issue.” State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976). Courts must also balance the probative value versus the prejudicial effect of the evidence. State v. Saenz, 271 Kan. 339, Syl. ¶ 5, 22 P.3d 151 (2001).
Review of the record indicates that the trial court was not admitting the evidence of the aggravated battery into evidence pursuant to K.S.A. 60-455. The trial court stated that the evidence went “to the veracity of his reason why he knew Sheriff Caldwell.” The court then determined that the probative value outweighed the prejudicial effect, and stated that it was allowing the evidence in “based on the totality of the circumstances.”
According to the defendant’s own testimony, he first became aware of the law enforcement officers’ presence at his house when he looked out his window and saw Sheriff Caldwell’s Chevy Blazer. During his confession, the defendant stated that he saw Sheriff Caldwell outside of his house and immediately recognized him. Sheriff Caldwell also testified that he announced his presence by knocking on the door and yelling, “Clay County Sheriffs Department. We have a search warrant. Open the door.” Although the defendant claimed that he did not hear Sheriff Caldwell yelling, he admitted to hearing the knocking, knowing that Sheriff Caldwell and the officers were coming into his house, and knowing that they were there to arrest him and take him back to jad. Therefore, the defendant’s personal knowledge of Sheriff Caldwell tended to prove that the defendant knew when he pulled the trigger that he was shooting a law enforcement officer.
However, before the videotape was introduced, Sheriff Caldwell had already given a partial explanation of how he knew the defendant before the shooting:
“Q. Did you know [the defendant] before November 16th of 1999?
“A. Yes, I did.
“Q. Did he know you?
“A. Yes.
“Q. Now, what are you basing that answer on?
“A. Well, I’ve talked to Teff a lot of times. I knew him when he was in high school.
“Q. Okay.
“A. We would see each other, we would visit, he would call me by name.
“Q. So he knew you fairly well?
“A. Well, yes.
“Q. I mean, he knew who you were?
“A. Yes.”
This testimony offered a sufficient explanation of how the defendant knew that Sheriff Caldwell was one of the officers who was at his house to arrest him. The additional evidence of the prior arrest for aggravated battery, although relevant to the same issue, thus had little probative value and should have been excluded.
As the admission of the prior arrest for aggravated battery was erroneous, we must now determine whether the error was harmless.
“The admission or exclusion of relevant evidence in a criminal case is governed by two rules, the harmless error rule and die federal constitutional error rule. K.S.A. 60-261 sets out the harmless error rule. Error in the admission or exclusion of evidence by the court is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. At every stage of the proceeding, the court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. When reviewing the erroneous admission or exclusion of evidence, the error is harmless if no substantial right of the defendant is involved.
“Error in the admission or exclusion of evidence in violation of a constitutional or statutory right of a party is governed by the federal constitutional error rule. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error is harmless. Before an appellate court may declare such an error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of die trial. Where die evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless.” State v. Sanders, 258 Kan. 409, 418-19, 904 P.2d 951 (1995).
K.S.A. 60-261 also encompasses the federal harmless error rule under Rule 52(a) of the Federal Rules of Criminal Procedure, which states: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Holmes, 272 Kan. at 498.
Applying the dual test, it is clear that the admission of the prior arrest for aggravated battery was not inconsistent with substantial justice, did not affect the substantial rights of the defendant, and had little, if any, likelihood of changing the results at trial. The evidence of guilt in this case was overwhelming. The defendant admitted to eveiy element of all four crimes except for premeditation. As more than enough evidence was presented for this court to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result at trial, the error was harmless.
C. The defendant’s January 11, 1999, arrest for driving under the influence was admissible independent of K.S.A. 60-455, both as relevant evidence tending to prove premeditation and as part of the res gestae of the crime.
The videotaped interview also revealed the defendant’s two prior crimes of DUI. For purposes of this section, the relevant DUI is the one that the defendant was convicted of on January 11, 1999. The defendant was convicted of both DUI and possession of marijuana on January 11,1999, in Cloud County and was subsequently placed on probation. It is not clear from the record how the defendant violated the terms of his probation, but he was arrested for a probation violation on November 12, 1999, while in Clay County. The arrest for the probation violation is an integral part of the chain of events leading to the shooting on November 16,1999. 1. The DUI charge was independently admissible as relevant evidence to prove premeditation.
The defendant admitted that he hid from police because he did not want to go back to jail. The defendant’s prior arrest for DUI was relevant in showing his state of mind on the day of the murder. The defendant testified about how some jailers can “make things really rough” and complained that there was not much one could do to pass the time while in jail. The defendant would have gotten at most a year in jail for his probation violation, but after only 3 days in custody, the defendant’s dislike for confinement led him to escape. The defendant’s arrest for DUI was relevant to show why he was determined not to return to jail, which tends to prove a premeditated intent to shoot any officer trying to arrest him and return him to jail. Therefore, it was not error to admit it into evidence.
2. Evidence of the defendant’s prior crimes of driving under the influence was admissible as part of the res gestae of tire crime.
“Res gestae deals with the admissibility of evidence of acts done as well as declarations made before, during, or after the occurrence of the principal event. These acts or declarations are admissible as part of the res gestae where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence. [Citation omitted.] Res gestae includes those circumstances or acts which are automatic and undesigned incidents of the particular litigated act and which may be separated from the particular act by lapse of time but are illustrative of that act. It is the whole of the transaction under investigation or being litigated. [Citation omitted.] These acts or declarations may be admissible as part of the res gestae to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. [Citation omitted.]
“Acts done or declarations made as part of the res gestae are not admitted into evidence without limitation but are governed by the procedural rules and rules of evidence set out in Article 4, chapter 60, of the Kansas Statutes Annotated. State v. Clark, 261 Kan. 460, 471, 931 P.2d 664 (1997).” State v. Edwards, 264 Kan. 177, 200, 955 P.2d 1276 (1998).
In State v. McCowan, 226 Kan. 752, 602 P.2d 1363, (1979) cert. denied 449 U.S. 844, the defendant shot and killed a police officer when the officer was attempting to arrest him for a parole violation on an unlawful possession of a firearm violation. The defendant’s probation officer testified at trial about the defendant’s previous conviction on the firearm charge. This court held that the probation officer’s testimony was “relevant to show the circumstances surrounding the attempted arrest of the defendant for probation violation which led to the victim’s death.” 226 Kan. at 767.
In the present case, the DUI arrest is one step further removed but relevant to show the circumstances leading to the aggravated assault of Sheriff Caldwell and the murder of Deputy Kenney. Although the videotape did not make clear that the defendant’s probation was based in part on the DUI charge, defense counsel later elicited this information from the defendant during his direct examination:
“Q. Before I start talking about your time there, the charges that you were arrested on, what were they?
“A. A DUI and a misdemeanor possession of marijuana.
“Q. So at the time that you are being held in Cloud County you were on misdemeanors?
“A. Yes.”
The defendant’s convictions on January 11, 1999, of driving under the influence and possession of marijuana, was the first in a chain of events that led to the shooting on November 16, 1999. The conviction led to the defendant being placed on probation. The probation terms were violated, causing the defendant to be arrested. The defendant escaped from jail while being held due to the probation violation charge. Sheriff Caldwell and Deputy Kenney would not have been at the defendant’s house were it not for his escape from jail. These facts show that the prior arrest that led to the probation violation was relevant as part of the res gestae to show why the police were at the defendant’s house and to show the defendant’s motive for the shooting.
D. The defendant’s other prior crimes were admissible as relevant evidence, but had little probative value and thus should not have been admitted. However, the error was harmless.
The defendant’s second DUI conviction, his two consumption of alcohol by a minor convictions, and his minor in possession and breaking a city park curfew arrests were also relevant in proving the defendant’s state of mind regarding his desire not to be arrested and returned to jail. However, there was little additional probative value in admitting offenses compared with the DUI that led to the probation violation. There was a risk that the jury would view these offenses merely as an indication of the defendant’s propensity to commit crimes, however forbidden by K.S.A. 60-455. Therefore, the trial court erred in admitting these offenses.
However, in applying the dual test for harmless error, the admission of the evidence of these prior crimes and arrests was not inconsistent with substantial justice, did not affect the substantial rights of the defendant, and had little, if any, likelihood of changing the results at trial. Their admission was, therefore, harmless error.
(6) ADMISSION OF PRE-DEATH PHOTOGRAPH
The defendant claims that the 8 X 10 black and white photograph of Deputy Kenney in his uniform admitted into evidence was irrelevant and inflammatory.
A. Standard of review
“The admission of photographs as evidence in a homicide case rests within the trial court’s discretion, and that court’s ruling will not be disturbed on appeal absent a showing of abuse of discretion.” State v. Walker, 252 Kan. 279, 287, 845 P.2d 1 (1992).
B. Admission of the photograph was not error.
The defendant filed a pretrial motion to bar any pre-death photographs of Deputy Kenney and offered to stipulate as to Deputy Kenney’s identity. The State did not accept the stipulation because it had not yet decided whether to offer a pre-death photograph into evidence. The trial court advised the State to inform the court if it decided to agree to a stipulation and that the court would rule on the defendant’s motion at that time. After the jury was selected, but before any,witnesses were called, the State moved to admit a professional 8X10 black and white photograph of Deputy Kenney in his uniform, stating:
“We would admit it for several purposes: First of all for identification, it shows who he is and shows that that is the person on whom the autopsy was performed. We would be asking the Sheriff to identify this and we would then be asking Dr. Mitchell about it. It also shows him — you know, it is additional evidence that he was a law enforcement officer; that’s also an element that we have to prove.”
The trial court admitted the photograph into evidence. During Sheriff Caldwell’s direct examination, the State had Sheriff Caldwell look at the photograph. Sheriff Caldwell identified the man in the photograph as Deputy Kenney, and the State then offered the exhibit into evidence. The defendant did not object and the photograph was admitted into evidence.
The defendant now contends that the photograph was irrelevant because Deputy Kenney s identity was not in issue due to the pretrial offer to stipulate. With few exceptions, “[i]t is an established rule of law that an admission by a defendant does not prevent the state from presenting separate and independent proof of the fact admitted.” State v. Johnson, 216 Kan. 445, 448, 532 P.2d 1325 (1975).
In State v. Gholston, 272 Kan. 601, 613, 35 P.3d 868 (2001), this court held that “[e]ven where the defendant concedes the cause of death, the prosecutor has the burden to prove all the elements of the crime charged and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible.” In this case, the State had the burden of proving Deputy Kenney’s identity and that he was a law enforcement officer. The pre-death photograph of Deputy Kenney in his uniform was relevant for these purposes.
In Walker, this court found no error in allowing into evidence a pre-death transparency photograph of the victim along with crime scene photographs, which were displayed during trial and closing argument. We reasoned that “[t]he photographs showed what the victim’s killers did to her. The victim was stomped to death with resultant massive injuries, especially to the head and neck areas. The studio photograph taken in life shows how the victim appeared before the attack rendered her virtually unrecognizable.” Walker, 252 Kan. at 287. As in Walker, the picture was relevant in this case because, the “studio photograph taken in life shows how the victim appeared before the attack.” 252 Kan. at 287.
The defendant cites three Kansas cases for support: State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998); State v. Henry, 273 Kan. 608, 44 P.3d 466 (2002); State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000). All three can be distinguished from the present case.
Donesay, like the present case, involved the murder of a police officer in which premeditation was the main issue. However, Donesay involved the admission of irrelevant and prejudicial testimony from the victim’s widow relating to how “happy,” “inspira tional,” and “well-respected” her husband was, even going as far as to discuss their last Mss. 265 Kan. at 83-84. We held that the testimony was “irrelevant, prejudicial and inflammatory” because it was “not relevant to any material fact charged.” 265 Kan. at 84-85.
In Henry, a murder victim’s mother testified about her daughter’s good character and relationship with her family. Because the only issue in dispute was whether the defendant’s mental defect prevented him from forming the requisite intent for intentional murder, this court held that having the mother testify about irrelevant details of the victim’s life constituted both reversible error and prosecutorial misconduct.
Carter involved the admission of irrelevant and inflammatory testimony, this time from the murder victim’s father. This court reversed the defendant’s conviction on other grounds but noted error in the admission of the testimony so that it would not be repeated on retrial. The State had conceded that other testimony established the victim’s identity and death. Referring to the Donesay decision, we held that the father’s testimony only served to “inflame the jury against the defendant.” 270 Kan. at 442.
The admission of the photograph of Deputy Kenney was not inflammatory or irrelevant such as the testimony given in Henry, Donesay, and Carter. A big difference exists between admitting a professional black and white photograph and allowing family members to testify about personal details regarding a murder victim. The photograph admitted in this case was not commented on by any witnesses other than Sheriff Caldwell and he identified Deputy Kenney, described his professional background, and testified about how they came to work with each other in the Sheriffs Department.
The defendant also cites three cases from other jurisdictions that have held the admission of pre-death photographs to be in error. These cases are not persuasive.
In People v. Dansa, 172 App. Div. 1011, 1012, 569 N.Y.S.2d 535 (1991), the admission of a pre-death photograph of a murder victim “offered only as an accurate representation of the appearance of the victim at some undetermined time prior to the crime” was held to be error, but it was harmless error due to the overwhelming evidence against the defendant.
In both White v. State, 674 P.2d 31, 36 (Okla. Crim. 1983), and Binsz v. State, 675 P.2d 448, 451, (Okla. Crim. 1984), the court reversed murder convictions on other grounds but noted error in the admission of pre-death photographs so that they would not be admitted on retrial.
However, the Oklahoma Court of Criminal Appeals took a stricter view against the admission of pre-death photographs in Ritchie v. State, 632 P.2d 1244, 1246 (Okla. Crim. 1981), in which pre-death photographs of a murdered child were displayed, in which the court stated that “[t]he jury should not have been concerned with what the child looked like prior to the offense committed against her.” This is far different than this court’s holding in Walker that the jury had a right to know “how the victim appeared before the attack rendered her virtually unrecognizable.” 252 Kan. at 287. However, even with a stricter view, the Oklahoma Court of Criminal Appeals has held that if the evidence against the defendant is overwhelming, the erroneous admission of a pre-death photograph may be harmless error. Boutwell v. State, 659 P.2d 322, 326 (Okla. Crim. 1983); Valdez v. State, 900 P.2d 363, 381, (Okla. Crim. 1995).
The photograph of Deputy Kenney in his uniform was relevant to prove identity and that he was a law enforcement officer, both of which were elements that the prosecution had to prove beyond a reasonable doubt. The photograph was displayed one time early in the trial and was not accompanied by inflammatory personal details about Deputy Kenney. Therefore, it was not error to admit the photograph into evidence.
(7) JURY INSTRUCTION ON CERTAIN LESSER INCLUDED OFFENSES
The defendant argues that the trial court erred by failing to instruct the jury on certain lesser included offenses. The defense requested instructions on second-degree unintentional murder (K.S.A. 1999 Supp. 21-3402(b); PIK Crim. 3d 56.03-A), involuntary manslaughter (K.S.A. 1999 Supp. 21-3404; PIK Crim. 3d 56.06), and reckless aggravated battery against a law enforcement officer (K.S.A. 21-3415(b)(2); K.S.A. 21-3414(a)(2)(B); PIK Crim. 3d 56.19). Although these requests were denied, the court did instruct the jury on the lesser included offenses of second-degree intentional murder (K.S.A. 1999 Supp. 21-3402(a); PIK Crim. 3d 56.03) and battery against a law enforcement officer (K.S.A. 1999 Supp. 21-3413; PIK Crim. 3d 56.17).
A. Standard of review
The trial court has a duty to instruct the jury on lesser included offenses. State v. Kleypas, 272 Kan. 894, 942, 40 P.3d 139 (2001).
The duty to instruct arises only where the record shows evidence upon which the accused might reasonably be convicted of the lesser offense. State v. Pierce, 260 Kan. 859, 865, 927 P.2d 929 (1996). In State v. Harris, 259 Kan. 689, 702, 915 P.2d 758 (1996), this court set forth the evidentiary standard to be followed in determining whether the trial court was. required to instruct on a lesser included offense.
“We have held that a criminal defendant has a right to an instruction on all lesser included offenses supported by the evidencé at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with , the defendants theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense.”
Whether a crime is a lesser included offense is a question of law over which this court has unlimited review. State v. Belcher, 269 Kan. 2, 4, 4 P.3d 1137 (2000).
B. The trial court did not err in failing to instruct on second-degree unintentional murder.
This court has held that the legislature intended second-degree unintentional murder, also known as depraved heart murder, to be a lesser included offense of first-degree murder. Pierce, 260 Kan. at 864-65. Second-degree unintentional murder is defined in K.S.A. 1999 Supp. 21-3402(b) as “the killing of a human being committed . . . unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.”
“Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant.” State v. Dixon, 248 Kan. 776, 781, 811 P.2d 1153 (1991). During his confession, the defendant did tell Agent Cordts: “I didn’t mean to kill him . . . I just wanted to get him the hell away from me.” However, during trial, on redirect examination the following exchange took place:
“Q. Did you admit to intentionally killing the police officer back in November of 1999?
“A. I said I shot the gun, yes.
“Q. Are you here to take responsibility for what you did do?
“A. Yes.
“Q. For intentionally killing a police officer?
“A. Yes.”
Later, in redirect, the following admission was also made by the defendant:
“Q. Did you malee a choice to pick up the gun and fire?”
“A. Yes.”
The evidence, when viewed in the light most favorable to the defendant, does not justify a verdict of second-degree unintentional murder. The defendant’s own admission at trial that he intentionally shot Deputy Kenney excludes any theory of guilt that the murder was unintentional but reckless. The trial court did not err in rejecting the defendant’s proposed instruction of second-degree unintentional murder.
C. The trial court did not commit error in rejecting the defendant’s proposed instructions on involuntary manslaughter and reckless aggravated battery.
Involuntary manslaughter is the “unintentional killing of a human being committed . . . [r]ecklessly.” K.S.A. 1999 Supp. 21-3404(a). The evidence, even when viewed in the light most favorable to the defendant, does not justify a verdict of involuntary manslaughter. The defendant’s own admission at trial that he intentionally shot Deputy Kenney excludes any theory of guilt that the murder was unintentional but reckless. The trial court did not err in rejecting the defendant’s proposed instruction on involuntary manslaughter.
Reckless aggravated battery of a law enforcement officer is “recklessly causing bodily harm to [a law enforcement officer] with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21-3414(a)(2)(B); K.S.A. 21-3415(b)(2). “Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” K.S.A. 21-3201(c).
The defendant knew that there was more than one officer in his house and that one was Sheriff Caldwell. The defendant knew the officers would have to come up the stairs to get into the attic and any officer that he hit could fall down the stairs onto the other officers. For these reasons, and because the trial court properly instructed the jury on the lesser included offense of battery of a law enforcement officer, it was not error to refuse to instruct the jury on reckless aggravated battery of a law enforcement officer.
(8) CUMULATIVE ERROR
A. Standard of review
“Cumulative trial errors may require reversal of a defendant’s conviction if the totality of the circumstances substantially prejudiced the defendant and denied him a fair trial.” State v. Whitesell, 270 Kan. 259, 292, 13 P.3d 887 (2000). “No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.” 270 Kan. at 292. The three errors relating to admission of his pre-Miranda confession, the trial court’s failure to sustain defendant’s objection to the prosecutor’s comments concerning premeditation, and the admission of defendant’s previous arrests for aggravated battery and other minor offenses were determined to be harmless beyond a reasonable doubt. Moreover, the evidence against the defendant was overwhelming. The record before us provides no basis for the claim of cumulative error.
(9) HARD 50 SENTENCING
After the defendant was found guilty on all counts, he waived his right to contest a sentence below the statutory maximum and stipulated to the aggravating factors for the purposes of a hard 50 sentence. The jury was unable to reach a unanimous decision in the sentencing phase of the trial. The trial court found that the defendant “knowingly created a great risk of death to more than one person” and that the defendant “committed the crime in order to avoid or prevent a lawful arrest.” See K.S.A. 1999 Supp. 21-4636(b), (e). Based on these aggravating circumstances, the trial court sentenced the defendant to life in prison without the possibility of parole for 50 years on the capital murder charge.
A. Standard of review
The defendant did not raise the issue of the constitutionality of the Kansas hard 50 statute, K.S.A. 21-4635 et seq., at trial but urges this court to consider his claim under Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), in which this court held that it would review constitutional claims not raised at trial if (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case, (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights, and (3) the district court is right for the wrong reason.
B. The Kansas hard 50 sentencing procedure is constitutional.
The defendant claims that K.S.A. 21-4635 et seq. is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). In Apprendi, the United States Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penally for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The defendant contends that the aggravating factors that increased his sentence from life without the possibility of parole for 25 years to life without the possibility of parole for 50 years are facts that should have been found by a jury beyond a reasonable doubt.
In State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), this court upheld the Kansas hard 40 sentencing procedure. The court found that it was consistent with McMillan v. Pennsylvania, 477 U.S. 79, 83, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986), which held that a sentencing factor which established a 5-year minimum sentence for felons who visibly possessed a firearm during the commission of the offense was constitutional because it “neither provides for an increase in the maximum sentence for such felony nor authorizes a separate sentence.”
In State v. Douglas, 274 Kan. 96, 111 (2002), cert. denied 537 U.S. 1198 (2003), this court relied on its decision in Conley holding that the Kansas hard 50 sentencing scheme is constitutional. We reached the same result in State v. Boldridge, 274 Kan. 795, 57 P.3d 8, cert. denied 538 U.S. 950 (2003) (noting that defendant cited to Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 [2002]). The defendant recognizes that the court has spoken on this issue, but asks the court to reconsider its opinion. It is clear, however, that the unanimous decisions in Conley, Douglas, and Boldridge were correctly decided and are controlling on this issue.
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The opinion of the court was delivered by
Gernon, J.:
The State of Kansas appeals the Court of Appeals’ decision dismissing Joseph Richard Rivera’s charges for aggravated robbery, conspiracy to commit aggravated robbery, and aggravated assault.
FACTS
Rivera was arrested on May 14, 1997, after fleeing from an officer who was executing a search warrant. On May 16, 1997, the sheriff served Rivera with a warrant charging him with one count each of aggravated robbery, conspiracy to commit aggravated robbery, aggravated assault, and theft. Rivera had his first appearance the same day and was appointed counsel. Although Rivera’s preliminary hearing was initially set for May 26,1997, the district court did not conduct his preliminary hearing until January 15, 1998. Rivera remained in custody during the time between his arrest and his preliminaiy hearing except for a 10-day period in August 1997 when he escaped from custody.
Three days before his preliminary hearing, Rivera filed a pro se motion to dismiss, claiming that he was prejudiced by the delay between his arrest and his preliminary hearing. Neither Rivera nor his counsel set a hearing date for Rivera’s motion to dismiss, and the motion was not addressed at the preliminaiy hearing.
At his arraignment on March 20, 1998, Rivera pled not guilty, and the court set the matter for jury trial on June 2, 1998. Rivera escaped from custody again in May 1998 and was not returned to Kansas until April 1999.
The court appointed new counsel for Rivera after he was returned to Kansas. Rivera waived his right to a juiy trial and proceeded to a bench trial on June 23, 1999. The trial court found Rivera guilty, convicting him of aggravated robbery, conspiracy to commit aggravated robbery, and aggravated assault.
Rivera appealed his convictions to the Court of Appeals, which reversed Rivera’s convictions and dismissed the charges against him because of the delay in conducting Rivera’s preliminary hearing. State v. Rivera, No. 86,420, unpublished opinion filed February 28, 2003 (hereinafter referred to as Rivera I). In contrast, however, another panel of the Court of Appeals affirmed Rivera’s convictions on other charges stemming from his August 1997 escape, finding that a delay of approximately 23 months between his arrest and his preliminary hearing was substantial but did not prejudice Rivera’s rights. State v. Rivera, No. 86,421, unpublished opinion filed April 5, 2002 (hereinafter referred to as Rivera II). We granted the State’s petition for review to address the apparent disparity between the Court of Appeals’ opinions in Rivera I and Rivera 11.
ANALYSIS
The State claims that Rivera’s constitutional right to a speedy trial was not violated. It argues that the Court of Appeals improperly applied K.S.A. 2002 Supp. 22-2902(2) without fully analyzing the relevant circumstances surrounding the delay between Rivera’s arrest and his preliminary hearing.
K.S.A. 2002 Supp. 22-2902(1) provides that every person arrested for felony has a right to a preliminary hearing unless a warrant was issued based on an indictment. Pursuant to K.S.A. 2002 Supp. 22-2902(2), the preliminary hearing shall be held within 10 days after a defendant is arrested or personally appears unless a continuance is granted for good cause. Unlike K.S.A. 22-3402, which establishes dismissal of the charges as a penalty for failing to bring a defendant to trial within the time frame specified, K.S.A. 2002 Supp. 22-2902(2) does not establish a penalty. As a result, K.S.A. 2002 Supp. 22-2902(2) has been interpreted to be directory rather than mandatory. See State v. Fink, 217 Kan. 671, 676, 538 P.2d 1390 (1975).
Instead of dismissing the charges when the 10-day period in K.S.A. 2002 Supp. 22-2902(2) is not technically met, the court must consider the totality of the circumstances to determine whether the defendant’s constitutional right to a speedy trial has been violated. If the court concludes that the defendant’s constitutional right to a speedy trial has been violated, it must dismiss the charges against him or her. Fink, 217 Kan. at 676.
“The constitutional protection of a speedy trial attaches when one becomes accused and the criminal prosecution begins, usually by either an indictment, an information, or an arrest, whichever first occurs.” State v. Taylor, 3 Kan. App. 2d 316, 321, 594 P.2d 262 (1979); see State v. Crouch & Reeder, 230 Kan. 783, 787, 641 P.2d 394 (1982); Fink, 217 Kan. at 676-77. Thus, Rivera’s constitutional right to a speedy trial attached when he was arrested and served with a warrant in May 1997.
The Court of Appeals does not articulate a standard of review for its decision in Rivera I but appears to apply a de novo standard based on the decision requiring interpretation of a statute, specifically K.S.A. 2002 Supp. 22-2902(2). Rivera I, No. 86,420, unpublished opinion filed February 28, 2003. In Rivera II, however, the Court of Appeals applied an abuse of discretion standard. Rivera II, No. 86,421, unpublished opinion filed April 5, 2002. We conclude that neither of these standards of review is the proper approach.
Because K.S.A. 2002 Supp. 22-2902(2) is merely directory, its interpretation is not controlling. Instead, the question is whether Rivera’s constitutional right to a speedy trial has been violated, and that is a question of law subject to unlimited review. See State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003).
To evaluate whether a defendant’s Sixth Amendment right to speedy trial has been violated, Kansas applies the following four factors set out by the United States Supreme Court in Barker v.Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972): (1) length of delay, (2) reason for the delay, (3) defendant’s assertion of his or her right, and (4) prejudice to the defendant. None of these four factors, standing alone, is sufficient for finding a violation. Instead, the court must consider them together along with any other relevant circumstances. See Fink, 217 Kan. at 673. “ ‘The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.’ ” State v. Fitch, 249 Kan. 562, 563, 819 P.2d 1225 (1991) (quoting Barker, 407 U.S. at 530).
Length of Delay
Kansas appellate courts have considered delays of the defendant’s preliminary hearing ranging from 254 days, see Fink, 217 Kan. at 673, to 2 years, see State v. Buff, 266 Kan. 27, 30-31, 967 P.2d 742 (1998); see also, e.g., Fitch, 249 Kan. at 564-68 (finding a delay of 402 days to be presumptively prejudicial); State v. Smith & Miller, 224 Kan. 662, 670-72, 585 P.2d 1006 (1978), rehearing denied, opinion modified 225 Kan. 199, 588 P.2d 953, cert. denied 441 U.S. 964 (1979) (considering a delay of 7 months until the defendant’s arraignment). In each of these cases, the court evaluated all of the Barker factors before determining whether the charges should be dismissed.
Police arrested Rivera on May 14,1997. The Ford County sheriff served him with a warrant on May 16, 1997, notifying him of the charges against him. The trial court conducted Rivera’s preliminary hearing on Januaiy 15,1998,244 days after Rivera had been served with the warrant.
We agree with the Court of Appeals’ conclusion in Rivera I that this delay is presumptively prejudicial. However, we cannot agree with the Rivera I court’s analysis, which ends at that point without considering the other Barker factors. Before we can determine whether Rivera’s charges must be dismissed because his right to a speedy trial was violated, we must consider the remaining Barker factors.
Reason for the Delay
The court should assign different weights for different reasons for the delay. For example, a deliberate attempt by the State to thwart the defense would weigh heavily against the State. However, a more neutral reason, like negligence or a crowded court docket, would weigh less heavily against the State. Fitch, 249 Kan. at 565; Fink, 217 Kan. at 678-79.
The Fink court attributed part of the 254-day delay between the defendant’s arrest and his preliminary hearing to the defendant’s motion to determine mental competency, with the remainder being attributed to the State. Although the State failed to provide an adequate explanation for its portion of the delay, the court determined that the defendant, who was free on bond, failed to demonstrate any prejudice resulting from the delay and concluded that the defendant’s right to a speedy trial had not been violated. 217 Kan. at 677-80.
The Fitch court, however, reached an opposite result, finding that the trial court properly dismissed the defendant’s charges because of a 402-day delay between the defendant’s arrest and preliminary hearing. 249 Kan. at 564-68. The Fitch court concluded that Fitch’s defense was not prejudiced and the State did not deliberately delay the preliminary hearing to thwart Fitch’s defense. 249 Kan. at 565-68. The Fitch court further determined that Fitch, who was free on bond, had failed to assert his right until after the prehminary hearing had been rescheduled multiple times. 249 Kan. at 564-65. Nevertheless, the Fitch court upheld the dismissal of the charges against Fitch, relying on the State’s failure to justify the delay and the defendant’s inconvenience in appearing in court three times ready to proceed only to find out that the State had postponed the proceedings. 249 Kan. at 568. The Fitch court also relied on the prosecutor’s failure to introduce any evidence regarding the reason for the delay. Although the prosecutor made vague statements regarding negotiations over a proposed diversion agreement, the prosecutor did not take the stand to admit evidence in support of the allegation, despite the trial court’s instruction that such evidence was necessary.
In Smith & Miller, 224 Kan. at 670-72, this court upheld the defendants’ convictions, concluding that the 7-month delay between the defendants’ arrests and their arraignments did not violate their right to a speedy trial. During that time, the defendants were held in Oklahoma, where they were tried in federal court. The Smith hr Miller court concluded that the delay was not due to a deliberate attempt to thwart the defendants’ defenses and the defendants were not subject to the psychological stress and anxiety contemplated by State v. Otero, 210 Kan. 530, 531, 535-36, 502 P.2d 763 (1972) (considering a delay of 7 years). 224 Kan. at 672.
To evaluate the reason for the delay, we must consider what occurred during the 244 days between Rivera’s arrest and his prehminaiy hearing. Rivera’s preliminary hearing was originally scheduled for May 26,1997, but was later continued because the original setting fell on Memorial Day. On June 9, 1997, Rivera sent a letter to the court requesting another attorney. The court appointed Rivera’s second attorney on June 11, 1997. On June 10, 1997, the State filed a motion and proposed order continuing the preliminary hearing until August 4, 1997, which the court granted.
Rivera escaped from custody on August 4, 1997, and was returned to custody 10 days later. Rivera’s escape, however, did not cause the August 4 preliminary hearing to be continued. Prior to August 4, the State arranged with Rivera’s counsel and the court to continue the matter so the prosecutor could prepare for another trial. The State’s motion and order of continuance was filed on August 7, 1997, setting a new preliminary hearing date of August 20, 1997.
On August 26, 1997, the State filed another motion and proposed order requesting that the preliminary hearing be continued due to the possibility of joining the new charges stemming from Rivera’s escape with the previous charges in this case. The State did not request a new preliminary hearing date, and on December 4, 1997, Rivera’s preliminary hearing was set for January 15,1998. It is important to note that each of the State’s motions to continue were approved by Rivera’s counsel.
Like the prosecutor in Fitch, the prosecutor in this case failed to introduce any evidence to justify the delay. Although the prosecutor in this case raised arguments regarding the difficulty in scheduling matters on the court’s calendar, the prosecutor did not testify regarding the scheduling difficulties and did not present any evidence to support his arguments. The prosecutor proffered a letter written to the chief judge outlining scheduling concerns within the district court but never asked to have the letter admitted into evidence.
The Fink court also noted the State’s failure to introduce evidence to justify the delay, but did not weigh that factor as heavily as the Fitch court. Instead, the Fink court focused on the absence of any evidence in the record to show that the State had deliberately delayed the preliminary hearing to hamper the defendant or to accomplish some other questionable purpose. Fink, 217 Kan. at 679. The same analysis applies in this case. Although we do not condone the State’s failure to admit any evidence to support its claim of scheduling problems, we believe the less punitive approach of the Fink court’s analysis is more appropriate. Because Rivera fails to establish that'the State deliberately delayed the preliminary hearing to hamper his defense or to accomplish some other questionable purpose, we decline to weigh the State’s failure to admit evidence to justify the delay heavily against the State.
Rivera appears to argue that the continuances should be weighed heavily against the State because he did not approve them even though his attorneys approved them. This argument overlooks the principle that defense counsel’s actions are attributable to the defendant in computing speedy trial violations. See State v. Bafford, 255 Kan. 888, 892, 895, 879 P.2d 613 (1994). Criminal de fendants are charged with making three decisions regarding their cases: “ ‘(1) what plea to enter; (2) whether to waive juiy trial; and (3) whether to testify in his own behalf.’ ” 255 Kan. at 895 (quoting Winter v. State, 210 Kan. 597, Syl. ¶ 1, 502 P.2d 733 [1972]). Strategical and tactical decisions like preparation, scheduling, and the type of defense, however, lie with the defense counsel, who is not required to specifically consult with the defendant before filing a motion for a continuance. 255 Kan. at 895.
Rivera also fails to accept responsibility for the delay caused by his escape from custody and his request for new counsel. Although Rivera was not gone for an extended period of time, his escape caused the State to file new charges. It appears from the record that the State contemplated joining the new charges from Rivera’s escape with the charges in this case. As a result, the new charges from Rivera’s escape caused part of the delay. Furthermore, part of the delay may be attributed to the appointment of new counsel, who required time to prepare.
Rivera’s responsibility for some of the delay, his counsels’ approval of the State’s request for continuances, and the absence of any improper motive by the State balance the State’s failure to justify the delay. Consequently, the reasons for the delay weigh equally for both Rivera and the State.
Defendant’s Assertion of the Right
The State has the duty of bringing the defendant to trial. State v. Fink, 217 Kan. at 673-74. However, this court can weigh Rivera’s efforts to assert his right to a speedy trial. “ ‘[Fjailure to assert the right will make it difficult for the defendant to prove that he was denied a speedy trial.’ ” State v. Fitch, 249 Kan. at 565 (quoting Barker v. Wingo, 407 U.S. at 532).
Rivera filed a pro se motion to dismiss for failure to conduct a timely preliminary hearing on Januaiy 12, 1998, 3 days before his preliminary hearing was scheduled. Neither Rivera nor his counsel set the matter for hearing, and the motion was not addressed at the preliminary hearing on January 15,1998. Rivera reasserted his. motion to dismiss through his counsel in June 1999, approximately 3 weeks before his trial. The trial court heard Rivera’s motion to dismiss 5 days before Rivera’s trial and denied the motion, finding that Rivera failed to prove any prejudice.
The State argues that Rivera waived his right to a speedy trial, citing to the pretrial conference. This assertion is faulty for two reasons. First, Rivera only agreed to waive his right to a speedy trial as it relates to the interstate agreement on detainers. Second, although the State attempted to have Rivera’s motions dismissed due to waiver, Rivera did not agree to waive all of his unresolved motions, including his pro se motion to dismiss. Instead, Rivera agreed to review his outstanding motions and renew any motions he still wanted to be considered. As a result, we must consider whether Rivera’s assertion of his speedy trial right weighs in his favor.
The Fink court concluded that the defendant’s assertion of his right to a speedy trial was not entitled to any weight and consideration, noting that the defendant only objected to the timeliness of the preliminary hearings when they were held. Fink, 217 Kan. at 680. The same analysis applies in this case. Rivera’s minimal attempts to assert his rights are counterbalanced by his two escapes from custody, the timing of his motion only 3 days before the preliminary hearing occurred, and his failure to set his motion with the court in a timely manner. Accordingly, this factor does not weigh in Rivera’s favor.
Prejudice to the Defendant
The three factors that may demonstrate prejudice to the defendant are an oppressive pretrial incarceration; the defendant’s anxiety and concern; and, most importantly, the impairment of his or her defense. State v. Smallwood, 264 Kan. 69, 76, 955 P.2d 1209 (1998).
Although he remained in custody for the majority of the time between his arrest and his preliminary hearing, Rivera cannot complain that he was subjected to an oppressive pretrial incarceration. He was being held for a parole violation in Cahfomia in addition to the charges in this case. Thus, Rivera was not eligible for bond and his freedom was not an issue.
Rivera argues that he was subjected to anxiety and concern over the charges. However, Rivera’s repeated escapes from custody, his California parole violations, and his criminal history score of C establish that Rivera has had repeated involvement with the criminal justice system. Rivera’s repeated involvement with the criminal justice system and his repeated escapes from custody demonstrate his general disrespect for the criminal justice system, which overshadows any claim he has about being concerned and anxious over the charges in this case.
Finally, Rivera claims that his defense was impaired because some of the witnesses could not remember the events. This claim must be balanced by Rivera’s contribution to the delay in his trial. Rivera escaped from custody again in May 1998, after his preliminary hearing. He was not returned to Kansas until April 1999. His 11-month absence caused a significant delay in the proceedings. In addition, Rivera’s lengthy absence required the court to assign new counsel when he returned, causing further delay to allow his new counsel adequate time to prepare. Comparing the impact of Rivera’s second escape with the impact from the State’s delay in scheduling the preliminary hearing, the balance must weigh in favor of the State. We conclude that there was no prejudice to Rivera as a result of the 244-day delay between his arrest and his preliminary hearing.
The power to dismiss a criminal complaint with prejudice must be exercised with great caution and only in cases where no other remedy would protect against the State’s abuse. State v. Crouch & Reeder, 230 Kan. 783, 788, 641 P.2d 394 (1982). In Crouch & Reeder, this court concluded that the State’s 11-day delay in bringing the defendants before a magistrate for a first appearance pursuant to K.S.A. 22-2901 did not warrant dismissal of the charges. The Crouch & Reeder court stated:
“We have concluded that the dismissal of a criminal complaint with prejudice because of a violation of K.S.A. 22-2901 is a sanction which should be imposed only under extremely compelling circumstances. We recognize, however, that, in a proper case, a district court in this state has the power to dismiss a criminal complaint with prejudice, if the interests of justice require such action. Such power should be exercised, however, with great caution and only in cases where no other remedy would protect against abuse. ... In determining the appropriate remedy, a trial court should consider the four factors identified in Barker v. Wingo [, 407 U.S. 514, 33 L. Ed 2d 101, 92 S. Ct. 2182 (1972)] .... We want to emphasize that the purpose of K.S.A. 22-2901 and similar statutes is not to penalize the police or the public but to protect the rights of the accused.” 230 Kan. at 788.
The appropriate analysis for the .State’s failure to comply with K.S.A. 2002 Supp. 22-2902(2) is to determine whether the defendant’s constitutional right to a speedy trial has been violated by evaluating all of the relevant circumstances in light of the Barker factors. See State v. Fink, 217 Kan. 671, 676, 538 P.2d 1390 (1975). An evaluation of all of the Barker factors in this case reveals that the State did not violate Rivera’s constitutional right to a speedy trial. Accordingly, the Court of Appeals erred when it dismissed Rivera’s charges for failure to hold a timely preliminary hearing.
The opinion of the Court of Appeals is reversed, and the matter is remanded to the Court of Appeals to decide the remaining issues raised by Rivera’s appeal. The judgment of the district court on the speedy trial issue is affirmed.
Beier, J., not participating.
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The opinion of the court was delivered by
Beier, J.:
Donald C. Young appeals his first-degree murder and aggravated battery convictions. He challenges the district court’s instruction on felony murder, its admission of State witness Rodney Hickman’s preliminary hearing testimony because of his unavailability at trial, its refusal to instruct on simple battery and failure to instruct on attempted aggravated battery, and its declaration that Young’s father was a hostile witness.
The charges against Young arose out of a drug deal. Kevin Horn, the eventual murder victim, and Daina Frencher drove to pick Hickman up at his home. When Hickman came outside, he spoke to Russell Waters on the sidewalk, and Waters handed Hickman crack cocaine. Hickman then got into the back seat of Horn’s car without paying for the drugs, and Waters and Hickman began to argue.
Another man, later identified as Young, then approached the driver’s side of the car to secure payment for the crack, and he and Horn argued. Young threatened Horn not to start the car, punched Horn in the face, and, when he saw Horn reach to turn the key in the ignition, said, “You better not drive off, I’ll lóll you.”
Horn started the car despite the threat, and Young fired a shot into the car as Horn accelerated. Frencher jumped out while Young continued to fire four more times into the car. The car crashed into a house with Horn and Hickman still inside. Horn died. Hickman testified during Young’s preliminary hearing that he was grazed by a bullet, but an officer testified at trial that Hickman was not injured by the gunfire.
Hickman identified Young as the shooter when interviewed at the scene and later picked Young out of a photo lineup. Frencher also identified Young as the shooter immediately after the murder but testified at trial that she was not able to see the shooter’s face. She admitted at trial, however, that she had seen Young in the area before stopping to pick up Hickman, and she gave an accurate description of Young’s clothing on the night of shooting. Young’s defense was mistaken identity.
Hickman disappeared during Young’s trial, although he was under subpoena to testify. The investigator who had served the subpoena on Hickman also gave him and his father a ride to the court house and directed them to the room in which they were to wait for Hickman’s turn on the stand. Later that day, it was discovered that Hickman had left the room to go to the restroom and never returned. The investigator attempted to find him, both by driving to the neighborhood where he believed Hickman’s girlfriend was living and by calling her residence, but was unsuccessful.
The next morning, the investigator called Hickman’s father, who reported that his son had arrived home late the previous evening. By this time, the investigator knew a warrant had been issued for Hickman’s arrest because of his failure to report to a probation hearing. The investigator drove to Hickman’s house, woke Hickman up, and told him he had to go to court. After Hickman dressed, he and the investigator were walking to the investigator’s car, when Hickman ran away again. The investigator tried but failed to apprehend him.
Based on the investigator’s account of these efforts to get Hickman to court, the district judge declared Hickman unavailable and allowed a tape of his testimony at Young’s preliminary hearing to be played to the jury in Young’s trial.
Before trial, Young’s father had told police officers that his son admitted his involvement in Horn’s death and that he had seen his son in the company of Waters on the night of crime. During trial, when an officer was asked if Young’s father was “lucid” while answering questions, the officer said no; however, when asked if Young’s father was “clear and able to understand everything,” the officer said yes. For his part at trial, Young’s father denied that Young had admitted involvement in tire murder, denied that he had seen his son with Waters, and asserted for the first time that his son was at home during the time of the shooting. In regard to his earlier statements to police, Young’s father testified he had been medicated and scared when interviewed. The district court declared Young’s father a hostile witness.
The district court instructed the jury sua sponte on felony murder, although the information had charged Young only with premeditated first-degree murder of Horn and aggravated battery of Hickman. Young did not object to the felony-murder instruction, which stated: “If you do not agree the defendant is guilty in count one of murder in the first degree-premeditated, you should then consider the lesser offense of murder in the first degree-felony murder.”
The instruction on aggravated battery stated: “To establish this charge, each of the following claims must be proved: That the defendant intentionally caused bodily harm to another person, to wit: Rodney Hickman, in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The judge refused a defense request for a lesser included offense instruction on simple battery, saying:
“[W]hile it appears that the young man who was struck by the bullet only received a slight wound, this was clearly done with a firearm. He was shot at and I believe the instruction given here is appropriate as to if the jury believes that the defendant committed the act and the jury believes that this man was struck by the bullet, it was done in a manner whereby great bodily harm, disfigurement or death can be inflicted. . . . [Fjiring a gun at short range at an individual in a car is clearly that particular crime and I don’t think given the fact the defendant denied doing it is any basis for giving a lesser included of simple battery in this case.”
Instruction on Felony Murder
Young’s failure to object to the felony-murder instruction means his appellate challenge is governed by K.S.A. 2003 Supp. 22-3414(3): “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the juiy retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” Instructions are clearly erroneous “only if the reviewing court is firmly convinced that there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citations omitted.] ” State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).
The felony-murder instruction given in Young’s case was not a correct statement of Kansas law, because felony murder is not a “lesser offense” of premeditated first-degree murder. In fact, felony murder and premeditated murder define the same crime — first-degree murder — committed by alternative means. See State v. Morton, 277 Kan. 575, 86 P.3d 535 (2004); State v. Hoge, 276 Kan. 801, 809-10, 80 P.3d 52 (2003). The felonious conduct proved in a felony-murder prosecution stands in for the deliberation and intent ordinarily required to be proved in a premeditated murder case. See, e.g., Morton, 277 Kan. 575, Syl. ¶ 1.
The district court’s misstatement was literally but not legally “clearly erroneous” because the remainder of the instruction’s content and its inclusion in the case were proper. It was not error to have the juiy consider a felony-murder theory in the alternative to a premeditation theory, even though felony murder had not been described in the information. See State v. Foy, 224 Kan. 558, 565-66, 582 P.2d 281 (1978); see also State v. Hall, 246 Kan. 728, 747-49, 793 P.2d 737 (1990), overruled on other grounds Ferguson v. State, 276 Kan. 428, 442-45, 78 P.3d 40 (2003) (unnecessary to charge defendant with underlying felony, recite elements of underlying felony in felony-murder charge; under Foy, State need not charge felony murder, underlying felony as long as defendant charged with premeditated murder); State v. Murdock, 236 Kan. 146, 154, 689 P.2d 814 (1984) (charge limited to premeditated murder adequate to support felony-murder instruction where evidence of the underlying felonies clear).
In Foy, the defendant shot and killed his wife at her mother’s home after a long history of marital strife. He was charged with premeditated murder but not with aggravated burglary of the home. After putting on its evidence, the State announced that it would not seek a felony-murder instruction. At the close of the defense case, however, the State requested and received a felony-murder instruction over the defendant’s objection. The jury convicted the defendant on the felony-murder theory.
This court rejected the defendant’s argument that the jury could not be instructed on felony murder because the charge against him had been limited to a premeditation theory:
“[A]n information in the ordinary form charging that a killing was done with malice aforethought, deliberation, and premeditation is sufficient to sustain a conviction of murder in the first degree committed in perpetration of a robbery or burglary. [Citation omitted.] Therefore, the fact that felony murder was not charged in tire information does not preclude an instruction where evidence supports the instruction. [Citation omitted.]” Foy, 224 Kan. at 566.
But this court reversed the defendant’s conviction because the State’s sandbagging had prejudiced him in the presentation of his case. 224 Kan. at 567, 570.
Neither Young nor the State has cited Foy. Young urges us to rely instead on State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978), and State v. Thompkins, 263 Kan. 602, 952 P.2d 1332 (1998), claiming those cases required the State to charge him in the alternative with felony and premeditated murder to avoid a due process violation.
In Jackson, the defendant was charged and convicted of both felony murder and premeditated murder for a single homicide. On appeal, he argued that the district court’s instructions on premeditated and felony murder were faulty and that the double conviction could not stand. This court affirmed. Although the instruction allowing the jury to convict on both felony and premeditated murder for one killing should have been phrased in the alternative, there was no prejudicial error. The defendant got only one sentence. Jackson, 223 Kan. at 557. This result in Jackson is consistent with more recent case law from this court, see State v. Wakefield, 267 Kan. 116, 136-41, 977 P.2d (1999) (where appellate court cannot tell from verdict form whether defendant convicted on premeditation theoiy or felony-murder theory, only sentence for felony murder appropriate); State v. Vontress, 266 Kan. 248, 262-64, 970 P.2d 42 (1998) (only defendant whose jury agrees unanimously on premeditation theoiy may be sentenced to harsher penalty reserved for that theoiy), but it does not support Young’s argument here. In effect, Young’s juiy received exactly the alternative jury instruction Jackson recommended, despite the absence ofJacksons dual charge.
Thompkins is more helpful to Young in result but not in analysis. In that case, the defendant was charged in the alternative with felony murder and premeditated murder. The premeditation theory was rejected after preliminary hearing, and the court rejected the State’s later motion to proceed on án amended information that reinserted it. The State then suggested that it could present its premeditation evidence at trial anyway, and the court could instruct on it if the evidence supported such an instruction at that time. The defendant did not object to this procedure, and the district judge permitted the State to pursue that approach. At the close of the evidence, the judge concluded that a premeditation instruction could be given after all. Again, the defense did not object.
Despite the passivity exhibited by the defense, the Thompkins court voted 4-3 to reverse the defendant’s conviction on appeal. 265 Kan. at 625, 628. The majority opinion, written by Justice Lockett, did not explain why the procedure employed by the district court prejudiced the rights of the defendant. There could have been no surprise; the State’s agenda could not have been more clear. Justice Lockett noted only that the State had not appealed the district court’s initial rejection of the premeditation theory and that the inclusion of the premeditation instruction came too late for the defendant to challenge the theory by means of K.S.A. 22-3208(3), which deals with defects in the initiation of criminal proceedings. 263 Kan. at 620-21.
Justice Six, writing for himself, Chief Justice McFarland, and Justice Davis in dissent, was more analytical and persuasive. He emphasized the lack of an objection from the defense, the State’s evidence of premeditation, and the absence of surprise. Thompkins, 263 Kan. at 628.
Neither the Thompkins majority nor the dissent mentioned or cited Foy — either its general rule that a charge of premeditated murder will support a conviction of felony murder or its particular exception for particularly misleading behavior by the prosecution. The omission of any citation to or discussion of Foy in Thompkins undercuts its authority and precedential value, and we limit it strictly to its facts.
Here, the evidence presented at trial was plainly sufficient to support Young’s felony-murder conviction. At die time of the murder, Young was involved in the sale of cocaine, which is listed as an inherently dangerous felony. See K.S.A. 2003 Supp. 21-3436(14). Young was carrying a gun; he threatened to shoot Horn if Horn turned the key in the car’s ignition; and he shot into the car five times when the drug deal soured.
Just as important, we detect no misleading conduct by the prosecution counseling against application of Foy’s general rule. Although Young stated otherwise, it is evident from the record that both sides in the case as well as the district court anticipated the State’s reliance on a felony-murder theory. During voir dire, the prosecutor mentioned the possibility of conviction on that theory. There was no defense objection to this statement. After voir dire but before the prosecution’s opening statement, the court referenced the theory again when discussing plea negotiations. Finally, the defense did not object during the instructions conference and did not react during closing argument when the prosecutor urged the jury to find Horn’s murder occurred during Young’s commission of the crime of selling drugs. These instances demonstrate that Young had notice of the State’s use of the felony-murder theory and never took issue with it.
We therefore hold that the information charging Young with premeditated murder of Horn was sufficient to support instruction on felony murder. There was no due process violation, and no reversible error despite the district court’s misstatement of the relationship between the two possible theories supporting commission of first-degree murder. We are firmly convinced there was no reasonable possibility that the jury would have rendered a different verdict if the district court had not made the mistake of calling felony murder a “lesser offense” of premeditated murder.
Admission of Preliminary Flearing Testimony
The appellate standard of review when a district court has determined that a witness is unavailable to testify is abuse of discretion. State v. Rodriguez-Garcia, 27 Kan. App. 2d 439, 442, 8 P.3d 3 (1999), rev. denied 269 Kan. 939 (2000). “A trial court abuses its discretion only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial court’s view.” State v. McCray, 267 Kan. 339, 354, 979 P.2d 134 (1999).
K.S.A. 60-459(g) defines “unavailable as a witness” as including “situations where the witness is . . . (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.”
The Court of Appeals has stated: “Before a witness may be declared unavailable and before the State may use the prior testimony of an absent witness, the State must show that the witness cannot be produced at trial by the exercise of due diligence and good faith. [Citation omitted.]” Rodriguez-Garcia, 27 Kan. App. 2d at 442. The State must present “actual evidence of its efforts.” 27 Kan. App. 2d at 442.
“The right of a defendant to confront and cross-examine the witnesses against him or her is a valuable and constitutionally protected right. We do not believe that a defendant can be deprived of that right absent ‘full and convincing’ evidence that the authorities have made a reasonable effort to locate an unavailable witness.” State v. Mitchell, 18 Kan. App. 2d 530, 535, 855 P.2d 989 (1993).
Moreover, “ ‘ “each case turns on its own particular facts and circumstances.” ’ [Citation omitted.]” 18 Kan. App. 2d at 534.
Here, the investigator s extensive testimony regarding his attempts to get Hickman to the witness stand fulfilled the State’s obligation to present evidence. There was no abuse of discretion in the district court’s conclusions that the State had been reasonably diligent and that Hickman was unavailable. A reasonable person easily could take the view adopted by the district court.
“[Once a] judge finds that the declarant is unavailable as a witness at a hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action may be used, except such testimony may not be used in criminal actions if it denies to the accused the right to meet the witness face-to-face.” State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842, cert. denied, 483 U.S. 1024 (1987).
See K.S.A. 2003 Supp. 60-460(c)(2). “The Sixth Amendment right of confrontation is satisfied if the accused confronted the witnesses against him at any stage of the proceedings in the same case and has had an opportunity of cross-examination.” McCray, 267 Kan. at 353 (citing Ruebke, 240 Kan. at 517); see also Crawford v. Washington, 124 S. Ct. 1354 (March 8, 2004) (Confrontation Clause of Sixth Amendment commands reliability assessment in particular manner: by testing in crucible of cross-examination).
In Ruebke, the court found that a witness was unavailable. Because the witness had previously given testimony at the preliminary hearing where
“ ‘the defendant at that time was represented by an attorney who availed himself of the opportunity to cross-examine the witness!,] . . . [t]he right of the accused to be confronted by his accusers was honored. The witness’ prior testimony bore sufficient indicia of reliability and afforded the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’ ” Ruebke, 240 Kan. at 518 (quoting State v. Mick, 229 Kan. 157, 161, 621 P.2d 1006 [1981]).
Young was represented by counsel at his preliminary hearing and had an opportunity to cross-examine Hickman. Although Young claims that Hickman’s statements at the preliminary hearing were inconsistent with statements Hickman made at the crime scene, any inconsistency could have been addressed on cross-examination during the preliminary hearing. Young’s counsel need not have waited until trial. Young’s inability to cross-examine Hickman a second time does not equate to a Confrontation Clause violation. See McCray, 267 Kan. 339, Syl. ¶ 6. Young is not entitled to reversal on this issue.
Lesser Included Battery Instructions
On appeal, Young argues that the district court should have instructed on the lesser included offenses of simple battery and attempted aggravated battery. At trial, Young requested an instruction on a “lesser included offense of battery,” and the district court responded that the evidence did not support an instruction on simple battery. Young did not request or object to the absence of an attempted aggravated battery instruction. Thus different standards of review must be applied to each of Young’s lesser included instruction arguments on appeal.
Regarding the district court’s denial of the requested simple battery instruction, the standard of review for a claim of failing to instruct on a lesser included crime is whether the evidence, when viewed in the light most favorable to the defendant, supported the instruction. The instruction need not be given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense. State v. Bolton, 274 Kan. 1, 7, 49 P.3d 468 (2002). Stated another way, a criminal defendant has a right to an instruction on all lesser included offenses as long as “(1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with the defendant’s theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense.” State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999).
Simple battery is “(1) Intentionally or recklessly causing bodily harm to another person; or (2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.” K.S.A. 2003 Supp. 21-3412(a). As mentioned, Young’s jury was told that he committed aggravated battery if he “intentionally caused bodily harm” to Hickman “in any manner whereby great bodily harm, disfigurement or death can be inflicted.” See K.S.A. 21-3414(a)(l)(B).
Young’s defen§e was mistaken identity. There was no dispute that the assailant fired his gun five times into the car, beginning when the car was within feet, if not inches, of the weapon. This uncontroverted evidence would not have permitted a rational fact-finder to conclude that the assailant committed merely a simple battery. The district court did not err in refusing to instruct on that crime. See State v. Perry, 266 Kan. 224, 231, 968 P.2d 674 (1998); State v. Little, 26 Kan. App. 2d 713, 718, 994 P.2d 645 (1999), rev. denied 269 Kan. 938 (2000).
Young’s second lesser included argument is that the district court should have instructed oh attempted aggravated batteiy because the evidence on whether the assailant succeeded in shooting Hickman was conflicting. Given Young’s failure to request this instruction or object to its absence at trial, we will not review this claim unless we detect clear error. See K.S.A. 2003 Supp. 22-3414(3); State v. Lowe, 276 Kan. 957, 963-64, 80 P.3d 1156 (2003); State v. Hermosillo, 272 Kan. 589, 595, 35 P.3d 833 (2001).
Young is correct that the evidence at trial was conflicting on whether Hickman was wounded by gunfire. Although Hickman had testified at the preliminary hearing that he was grazed by a bullet, a police officer who spoke to Hickman at the crime scene said Hickman had not been shot.
The jury could reasonably have found Young attempted to shoot Hickman, i.e., attempted to commit an aggravated battery but failed “in the perpetration thereof.” See K.S.A. 21-3301(a) (defining attempt). The district court therefore had a duty to instruct on the lesser included offense of attempted aggravated battery. Its failure to do so was clear error necessitating reversal of Young’s aggravated battery conviction. We are convinced that there was a possibility on the evidence in this record that the outcome on the aggravated battery count would have been different if the jury had been correctly instructed.
Hostile Witness Declaration
The determination of whether 'a witness is hostile is entrusted to the discretion of the district court. It should be “based upon the demeanor of the witness, the witness’ situation and relationship to and with the parties, the witness’ interest in the case, and the inducements he or she may have for withholding the truth.” State v. Manning, 270 Kan. 674, 681-82, 19 P.3d 84 (2001). Once a witness is declared hostile, the witness may on direct examination be subjected to leading questions, see K.S.A. 60-243(b), and be examined regarding prior inconsistent statements, see K.S.A. 60-422. In this case, the district court’s declaration that Young’s father was a hostile witness enabled the State to question him about the statements he had made to police that had incriminated his son. Young asserts that the district court’s ruling violated his right to confrontation.
Kansas law draws a distinction between a witness who merely fails to testify as — expected and one who gives testimony that is “affirmative, contradictory, and adverse to the party calling the witness.” Manning, 270 Kan. at 686. Only the latter witness is hostile. Moreover, a witness who does not recall making the earlier statement or statements or who simply refuses to testify is not considered available for cross-examination at trial, a factor important in Sixth Amendment Confrontation Clause analysis. See State v. Lomax & Williams, 227 Kan. 651, 656-62, 608 P.2d 959 (1980).
“[Ejvidence of prior hearsay statements cannot be used to impeach a witness who simply refuses to testify or testifies that he cannot remember anything. . . .
“[W]here a prosecution witness refuses to take an oath or refuses to give testimony of any sort or responds with answer such as, T don’t recall’ or ‘I don’t know,’ his prior hearsay statements are not admissible under the constitutional confrontation rule. . . .
“[The Witness’] testimony was not affirmative, contradictory, or adverse to the party calling her . . . [citation omitted]. She simply refused to testify, claiming that she couldn’t remember. . . . The prior testimony of [tire witness] was not admissible for the reason that, although present at the hearing, she was not available for cross-examination.” 227 Kan. at 660-62.
We see no abuse of discretion in the district court’s decision in this case. Young’s father’s testimony at trial was certainly contradictory to his prior statements to the police officer; suddenly he was providing an alibi for his son and claiming that he had not seen Waters with his son on the evening of the murder. He also denied that his son ever confessed to him. He was not unavailable for cross-examination because of memory loss or a refusal to testify. To the extent memory was in issue, it appeared selective. See Manning, 270 Kan. at 690.
The district court was in the best position to weigh the witness’ demeanor. His relationship to the defendant and the inducements that relationship might provide for withholding the truth are equally obvious to this court. Defense counsel had ample opportunity to rehabilitate Young’s father on his earlier statements and the circumstances at the time he made them. The jury was properly left to decide which of his stories was more credible. There was no abuse of discretion by the district court.
Affirmed in part, reversed in part, and remanded. | [
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Opinion by
Simpson, C.:
Action by Ross against the insurance company to recover for a loss occasioned by a fire. The fire occurred on the 18th day of July, 1887, and a dwelling-house and all the household furniture were totally destroyed. The petition alleges loss, and further avers “that he promptly notified the said defendant company of his loss, and proffered proof of loss by the fire aforesaid.” This is all the allegation with reference to proof of loss, the petition containing no general averment that the terms and conditions of the policy had been performed and complied with. The third defense of the insurance company alleges “that no proof of any loss sustained by said plaintiff was ever made to this defendant, as required by the policy set forth in the petition.” The plaintiff, replying to the third defense, says, “that after the fire, and before the bringing of this suit, the said defendant denied all liability for loss under said policy.” At the trial the plaintiff testified as follows:
“Ques. Now, Mr. Ross, what did you do in regard to the insurance on this policy? After the fire — what did you do then ? Ans. I notified the company.
“Q. Notified the company ? A. Yes, sir.
“ Q. How did you notify the company ? A; By letter.
“Q,. Did you receive an answer? A. Yes, sir.
“ Q. I will ask you if that is the answer you received from the company? [Letter handed witness, and marked ‘Exhibit A’ by the court.] A. Yes, sir; that is their reply.
“ Q,. After receiving this letter, what oocurred with regard to the payment or adjustment of the loss? A. Well, some time afterward they sent their adjuster there.
“ Q,. What occurred ? A. He came there and looked over the loss a little.
“Q,. Who is the adjuster? A. Mr. Eggleston, from Topeka.
“Q,. Do you know where Mr. Eggleston is? A. Yes, sir.
“Q. Is this the gentleman sitting there? A. Yes, sir. [Witness identifies a gentleman named Eggleston.]
“Q,. Now, what did he do? A. He looked at the house a little, and asked a few questions about it.
“Q. What about? A. How it got afire.
“Q. What did you tell him? A. I told him it was from the flue, so far as I knew.
“Q,, From the flue of the house? A. Yes, sir; from the flue of the house.
“Q. What else occurred? A. Then he asked me about some indebtedness upon the place.
“Q,. Well, what else? A. He wanted to know how much indebtedness there was on the place at the time?
“Q,. What did you tell him? A. I told him there was $1,300.
“Q,. Did he offer to adjust the loss? A. No, sir.
“Q,. What did he say? A. He said he wanted receipts of all moneys I had paid on the notes.
“Q,. On this mortgage? A. Yes, sir.
“Q. Did you furnish them to him? A. I did, but not at that time.
“Q,. When did you? A. In the course of a few days; I can’t say how long, exactly.
“Q,. Did you furnish him any receipts at that time? A. Yes, sir; I showed them to him; they were not all there; some of them had been destroyed by fire.
“Q,. Now, I will ask you if he said anything about the amount of insurance on the place at the time the insurance was taken? A. He did not.
“Q. Did he make any objections to paying the loss at that time? A. Didn’t; didn’t say whether he would pay it or not.
“Q,.' What next occurred? A. We asked for blanks.
“ Q,. Who did you ask for blanks? A. I sent and asked for them.
“Q,. You may go ahead; what did you do next? A. Why, I asked for blanks.
“Q,. How? A. By letter.
“Q. Did you receive any reply? A. No, sir, not about the blanks; they never mentioned it.
“Q,. What was the next thing done? A. I think I asked them for blanks three or four times, in different letters; they did n’t say whether they would send them or whether they would not.
“Q,. Now, when was the next communication you received from the company or their agents? A. The next was, I believe, when they asked about the notes.
“Q,. About the note? A. Yes, sir.
“Q. Have you that communication? A. No, sir.
“Q. Why haven’t you got that? A. They wanted an answer on the back part of the letter they wrote me, and I wrote it on it and sent it in.
“Q,. You returned it to them? A. Yes, sir.
“Q,. Well, what was done next? A. I believe that was all that was written until the last letter came, when they said they would not pay the loss.
“Q. I will ask you, Mr. Ross, if you received this letter from the company? . A. Yes, sir.
“ Q,. I will ask you, Mr. Ross, if you received any communication from Mr. Eggleston? A. Yes, sir. [Letter offered in evidence.]
“Q,. I will ask you, Mr. Ross, if that letter was received in this envelope, and in reply to the letter you forwarded? A. Yes, sir; it was.
“Q,, Where did you receive it? A. At Abilene.
“Q,. Whereabouts at Abilene? A. Post office, Abilene. [Letter marked ‘ Exhibit B ’ by the court, and offered in evidence.]
“Q,. I understand you to say, Mr. Ross, you received this letter through the mail? A. Yes, sir.
“Q. Mr. Ross, did you receive that letter in that envelope? A. I did — yes, sir.
“ Q. Do you know why it was written ?
“ Q,. Did you write a letter prior to that time to the company? A. Yes, sir.
“Q,. Is that a letter in answer to your letter?
“Q. I will ask you, Mr. Ross, to state what this is? A. Well, we wrote to the general adjuster; he seemed to be a good while in coming. It is a card from the adjuster.
“Q,. How did you receive it? A. Through the post office.
“Q,. By mail? No, sir.
“Q,. I will ask you what that card is? Where did you receive it? A. At Abilene; through the mail.
“Q,. Is it a communication received by yourself in reply to any letter you addressed to anyone? A. Yes, sir; it is about the note.
“ Q. Do you know, Mr. Ross, whether Mr. Eggleston is adjuster of the company in this state, or was at that time? A. Yes, sir; I do.
“Q,. How do you know it? A. He told me so when he was out here.
“Q,. Did you have any communication, the first letter introduced here, as September 17, to which this letter is a reply, and in which the president of the company says, our Mr. Eggleston? Where did Mr. Eggleston reside at that time? A. Topeka.
“Q,. Did you have any communication with him before he came to your place? A. Yes, sir.
“Q,. Are these the letters in reply to those you wrote? A. They are.”
The plaintiff called Eggleston as a witness, who testified as follows:
“Ques. What is your occupation? Ans. I am an insurance adjuster.
“Q,. Where do you reside? A. In September, 1887, 1 had no particular residence. My property is in Topeka; my child is in Burlington; and my wife is an invalid, at the sea-shore.
“Q. Where was your residence as an adjuster? A. In the field.
“Q,. Where did your company generally address your letters? A. At different points.
“Q. Did you adjust for the state of Kansas for the Burlington Insurance Company for the year 1887? A. Yes, sir.
“Q,. Was this matter referred to you? A. Yes, sir; the ■papers were sent to me for investigation.
“Q. Did you write those two cards? [Exhibits C and D.l A. Yes, sir.”
Cross-examination:
“Q. You say you are the adjuster of the company? A. Yes, sir.
“Q,. What were your duties as adjuster? A. To investigate losses.
“Q. What was your authority as adjuster of the company? A. My authority was to investigate losses.
“Q. What else? A. Why, sometimes to make out proofs, if, in my opinion, I deemed the company liable. If not, to do nothing to waive any of the conditions of the policy; to so state to the party, and refer him to the conditions of his policy; not to either admit or deny the liability, as I have no such authority.
“Q,. Did you have any authority to waive the conditions in this policy? A. No, sir; I have strict orders to refer the man to his policy — the conditions in it.”
Redirect examination:
“Q. Your duty was to make out proofs of loss for the policy-holder? A. Yes, sir; if in my opinion the company was liable.
“Q. Doing that all the time? A. Now all of the time.
“ Q. Most of the time ? A. I think most of the time; at least the greater portion of my time.”
Exhibits A, B, C and D are as follows:
“exhibit a.
“Loss Department, Home Office Burlington Insurance Co. Organized
1860. John G. Miller, President and General Manager. Jacob Alter,
Secretary. (Claim No. 302.)
“Burlington, Iowa, July 2i, 1887.
“Daniel M. Boss, Esq., Abilene, Kas.: Dear Sir — Your favor of the 19th, reporting loss by fire, is received. We have referred the matter to our general adjuster, at Topeka," who will give it attention as soon as he can so arrange.
Yours truly, John G. Miller, President.”
“EXHIBIT B.
“Office of Burlington Insurance Co. Organized 1860. Cash capital, $200,000. John G. Miller, President and General Manager. Jacob Alter, Secretary. (Stenographic letter.) [Copy.]
“Burlington, Iowa, September 17, 1887.
“Daniel M. Ross, Esq., Abilene, Kas.: Dear Sir — Replying to your letters addressed to our Mr. Eggleston, would say that, after a careful consideration of the matter, we must decline to entertain any claim, because of false warranties in obtaining the insurance. It is our wish to pay all honest claims in full, but where a person misrepresents matters, as you have done, we shall rely on our legal rights under the contract. Without waiving any of our rights under the contract, we remain, Yours truly,
[Signed] John G. Miller, President.”
“ exhibit o.
“Topeka, Kas., August 1, 1887.
“Daniel M. Ross, Abilene, Kas.: Dear Sir — I am very busy, but I hope to adjust your loss most any day within the next 10 days. Do n’t fret. I will get to you as soon as I can.
Yours, Seth Eggleston.”
“exhibit d.
“Marion, Kas., August 30, 1887.
“Daniel M. Ross, Abilene, Kas.: Dear Sir — When you give me answers to the questions on the book of the letter I wrote to you, I can act understanding all the circumstances. Until you do, without waiving any of my company’s rights under this policy, I remain, Yours truly,
Seth Eggleston, Topeka, Kas.”
By any fair construction of the pleadings, it is not alleged .that proofs of loss were made or waived within the time required by the policy that they should be furnished. The allegation in the reply, that “after the fire and before the commencement of this action the defendant denied all liability for loss under said policy,” is not definite enough. To be effectual, they must have alleged denial of liability before the time in which proofs of loss are to be furnished by the terms of the policy had expired. At the trial the defendant in error failed to prove, either that he made proofs of loss within the time so required, or that the same was waived by denial of liability or otherwise. The evidence established that the first denial of liability was made by letter from the president of the company, of date September 17, 1887, and the fire occurred on the 18th of July of the same year. The denial was made after the 60 days had expired within which proofs could be made. The plaintiff in error, the insurance company, demurred to the evidence because no cause of action was proved, and this demurrer was overruled and judgment rendered for the amount of the loss. The overruling of the demurrer was error, for which the cause must be reversed. There was no evidence offered at the trial that proved, or tended to prove, that proofs of loss had been made, or that they had been waived. There was a total failure of proof on a necessary and vital fact, material to the recovery. If there was any evidence in this record which, by the most liberal construction, could be held to be a waiver by the company of that condition of the policy that required proofs of loss to be made within a specified time, we have failed to fiud it. It may be that the company played with the assured, yet he ought to have performed this condition while it was in his power to do so. Yet we cannot say from the record presented that he was misled by anything the company by its agents said or did; because, if we could, we would hold that the company had waived the condition as to proofs of loss.
It is idle to cite authorities to the proposition that in actions of this character it is necessary to a recovery that the terms and conditions of the policy with regard to proofs of loss must be shown to have been substantially complied with, or that such condition had been waived in some manner recognized by the law as sufficient for that purpose. "Without commenting on the pleadings, we say again that at the trial there was a total failure of proof on a fact material for the recovery, and because of this the demurrer to the evidence ought to have been sustained, and the action dismissed.
We recommend that the judgment be reversed, and the cause remanded, with instructions to proceed in accordance with this opinion.
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 is a proceeding in the nature of quo ■warranto, brought by D. K. Horton, D. E. Parsons, and W. U. Frost, contesting the right of the defendants, E. Wilder, J. F. Scott, and D. L. Lakin, to the positions of directors in the San Diego Land & Town Company. In their petition the plaintiffs substantially allege that the San Diego Land & Town Company is a Kansas corporation, under the by-laws of which 11 directors are to be chosen annually by the stockholders, and that the annual meeting of the corporation was duly called and held in the city of Topeka, Kas., on April 25, 1891. It is alleged that the meeting was called to order by the president, and upon examination it was found -that 84,966 shares of stock were represented out of a total capital stock of 89,998 shares. At the opening of the meeting the president made the following statement:
“Before proceeding to a ballot in accordance with the vote, it seems to me proper to state the law as I understand it governing the election of directors in a case such as the present. This, as all matters pertaining to our corporation, is controlled in the first instance by the laws of Kansas, and also by the by-law of the corporation, adopted in accordance with the said statute law. The by-laws of this company, clearly within the authority and purview of the statutes of the commonwealth, establish the number of directors of the San Diego Land & Town Company at 11. We are also subject to the provisions of ¶ 1190 of the General Statutes of Kansas, 1889, which provides that ‘ Every corporation created by or existing under the laws of this state shall have at least three of its directors citizens and residents of this state.5 This provision is mandatory, and cannot be contravened or controlled by the will of the corporation, whether expressed in by-laws or otherwise. This election is also conducted under the provisions of ¶ 1185 of the General Statutes of Kansas, which provides for the cumulative method of voting for directors and trustees of corporations.55
The president proceeded:
“I think it my duty, therefore, for the information of all stockholders, and in order that there may be no misapprehension on this point, to call attention to these provisions of law requiring that at least three of our directors shall be citizens and residents of the state of Kansas. And this should be kept in mind in any action which the stockholders may choose to take under ¶ 1185, providing for accumulative voting. It is perhaps unnecessary to say that if the stockholders will specify in their ballots the residences of the persons .for whom they cast their votes, such information will be of assistance to the officers of the meeting in the discharge of their duties.”
The vote was taken by the cumulative method, and from the proceedings it is seen that the stockholders were divided into two parties, each seeking to control the election of officers and the management of the company. One party appears to have divided its cumulative vote among six directors, and the other to have cast the cumulative vote of that interest for five directors, each party casting a few votes for three residents and citizens of Kansas. The following is the result of the ballot:
Benj. Kimball........... 103,850
J.C. Soley.............. 103,850
B. P. Cheney............ 84,000
Warren Sawyer.......... 82,928
F. E. Peabody.......... 81,858
Dwight Braman......... 79,926
S. W. Richardson........ 79,924
H. S. Maffitt............. 79,924
D. K. Horton............ 79,923
D. E. Parsons........... 79,923
W. L. Erost............. 78,493
E. Wilder............... 16
J. E. Scott.............. 6
D. L. Lakin............. 6
The president then stated that the law required three members of the board to be residents and citizens of the state of Kansas, and as the only three Kansas gentlemen voted for were Messrs. E. Wilder, J. F. Scott, and D. L. Lakin, he declared them to be duly elected as directors of the corporation; and that, of the other gentlemen voted for, the eight who received the highest number of votes cast were Benj. Kimball, J. C. Soley, B. P. Cheney, Warren Sawyer, F. E. Peabody, Dwight Braman, S. W. Richardson, and PI. S. Maffitt, and he declared that they were duly elected directors of the corporation. The stockholders voting for the plaintiffs protested against the declaration of the election, and immediately thereafter the directors so declared elected duly qualified by taking the oath of office. The plaintiffs bring this action, asking that Wilder, Scott and Lakin be adjudged to have no right to the offices of directors, that they be ousted therefrom, and that judgment be entered awarding the offices to plaintiffs, who claim that they were legally elected to the same.
The validity of the election of the eight persons who re-' ceived the highest number of votes is not assailed in this proceeding. The theory of the action is, that not only were those eight persons elected, but that the plaintiffs also were elected at the same time, there being eleven directors to be chosen.. The plaintiffs were eligible to be elected, and each of them received a large majority of the votes cast, and almost as many as the eight directors whose election is not contested. If it were not for the statute requiring that a certain number of directors of every corporation created and existing under the laws of the state shall be residents and citizens of the state, no question could arise as to the election of plaintiffs or to their right to the offices; but a judgment awarding them the places they seek, if given at all, must be entered in violation of a positive statutory enactment. The provision referred to was enacted in 1874, and the portion which relates directly to this subject is as follows:
“Every corporation created by or existing under the laws of this state shall have and keep a general office for the transaction of business, and shall keep such office within this state, and shall have at least three of its directors citizens and residents of this state,” etc. (Gen. Stat. of 1889, ¶ 1190.)
The pleadings of the plaintiffs disclose that only 11 directors are to be chosen, that eight of those chosen and installed are neither residents nor citizens of Kansas, and that the plaintiffs themselves are non-residents of the state. In the face of the statute quoted, the plaintiffs invoke the action of this court to install them as directors of the corporation, and thus make up the entire directorate of the corporation of persons who do not- reside in Kansas, and are not citizens of the state. The statute is positive and mandatory, and its requirements cannot be overlooked. It forms a part of the law relating to the qualification and election of directors in private corporations, which stockholders must observe and the authorities should enforce. The legislature has declared in plain terms that Kansas corporations must keep their general offices, including their records and books, within the limits of the state, and that at least three directors of each corporation must be citizens and residents of the state which created it, and by. virtue of whose laws it exists. The obvious purpose of the statute is, that the records and transactions of the corporation shall be accessible to the public for all proper purposes, and that some of its principal officers shall be within the jurisdiction and subject to the visitorial authorities of the state. The policy of the statute is salutary, and its validity is not attacked. The courts and their process should not and cannot be used to aid in defeating that policy, or to violate its requirements.
It has been said that “ If, from a plaintiff’s own statement or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of the state, there the court says he has no right to be assisted.” (Gerlach v. Skinner, 34 Kas. 89.) In Weston v. Lane, 40 Kas. 479, the plaintiff, who had received a majority of the votes cast for the office of clerk of a school district, qualified, as the law requires, and demanded the office, but the incumbent refused to surrender the same, upon the ground that the plaintiff was under a contract with the district to erect a school-building, and was engaged in its performance, and that the statute forbids a member of a school board from entering into or carrying out any contract with the district over which the board has supervision or control. He brought a proceeding in quo warranto, and asked the court to • aid him in obtaining the office. It was there held that, although the plaintiff was not ineligible for election, and although he received a majority of the votes east, a performance of the duties of the office would be a transgression of the law which would subject him 'to removal and to punishment. It was remarked that “the court is vested with some discretion in granting this extraordinary remedy, and it would exercise its discretion unwisely to assist the plaintiff in violating the law as he proposes.”
This authority applies to the case presented by the plaintiffs, and the fact that the opposite faction of stockholders was equally at fault in voting for non-residents does not aid the plaintiffs nor give them any better standing in this proceeding. Neither the resident nor the non-resident directors declared to have been elected are here asking affirmative relief, as are the plaintiffs. The right of the non-resident directors to their offices is not before us for consideration. The plaintiffs, as has been stated, do not attempt to impeach their right, nor do they ask to set aside that election. If that question was before us, it is the opinion of the writer that the conduct of the election by both parties was such as to defeat its validity. The attention of all the stockholders present was called to the provision of statute which required the election of at least three Kansas directors; but in the struggle for supremacy between the factions this requirement of the statute was practically ignored. As the validity of the election, however, is not directly involved in this proceeding, the court does not decide as to the rights of parties other than the plaintiffs.
It is said that the advantage of cumulative voting will be greatly restricted by the election of two classes of directors, resident and non-resident. Cumulative voting is authorized by statute, and this provision, as well as that requiring a'portion of the directors to be citizens and residents, must be construed together and effect given to both. There will be no difficulty except where non-resident directors are to be chosen ;■ but where both resident and non-resident directors are to be voted for, that method of cumulative voting must be employed by which at least three residents and citizens shall be elected.
We think the plaintiffs are not entitled to the relief which they ask, and therefore the demurrer interposed to their petition will be sustained.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action brought in the district court of Jackson county by the plaintiff in error against the defendants in error, upon two promissory notes, each for the sum of $1,088.20, and to foreclose the mortgage given to secure the payment of the same. The indebtedness was created in the exchange of certain real estate owned by one of the defendants in error in Kansas City, Mo., and Butler and Chautauqua counties, Kansas, for certain real estate and a stock of goods situated in Netawaka, in Jackson county, Kansas, and owned by O. J. Fleming, a son of the plaintiff in error. It was agreed that an inventory should be taken of the stock of merchandise upon the basis of the actual cost price, and if the inventory showed a less amount of goods than $5,250, Fleming was to furnish other merchandise sufficient to make good the difference; and should the inventory show an excess over such amount, A. W. Greene should pay the difference to Fleming. An inventory was taken, which amounted to $7,426.40, and the notes sued on were given for the differ «ence between this sum and $5,250. These notes were sold 4o A. A. Fleming, the plaintiff, before maturity, and were not ¡paid when due. The defendants answered, and alleged, among «other things, that O. J. Fleming and A. A. Fleming hired one Grant Guthrie to make false entries upon the inventory, for the purpose of cheating and defrauding the defendants, and that false and fraudulent entries and invoices were made for the purpose of deceiving the defendants; that O. J. Fleming represented to A. W. Greene that the invoices were true and correct, and that he relied upon them.
The case was referred to Hon. Case Broderick, as a referee, to report upon the issues of fact as well as conclusions of law. The referee found that within four or five days after the stock of goods had been turned over to A. W. Greene, Ihe discovered errors in the inventory; that there were overcharges, charges for goods not in stock, aud for worthless goods, but that it did not appear in all instances what amount was overcharged, so that it was impossible to correct all of the errors; that there had been no offer made by the defendant at any time to rescind the contract; that O. J. Fleming and Grant Guthrie, by an understanding between them, and for the purpose of cheating and defrauding the defendants, inventoried goods not in stock, goods wholly worthless, «charged for some goods twice and overcharged on others; that A. A. Fleming had sufficient information to charge him with knowledge of the fraud, so that he was not an innocent pur«chaser of the notes sued on in this action.
As conclusions of law, the referee found that there had been a failure of consideration for the notes signed by the defendants to the extent of $658.19; that A. A. Fleming was not an innocent purchaser, but held the notes subject to the equities «of the defendant; that A. W. Greene was chargeable with $130, the value of certain improvements which were to have Ibeen placed by him upon the Kansas City property; that «there was due the plaintiff from the defendants the sum of $1,648.21 and interest, for which judgment should be rendered.
The district court confirmed the report of the referee as to the findings of fact, and overruled the same as to the conclusions of law, for the reason that upon the facts found the promissory notes mentioned were null and void, by reason of the provisions of ¶ 2228 of the General Statutes of 1889, and rendered judgment against the plaintiff for costs. The plaintiff made a motion for a new trial, which was overruled, and brings the case here, assigning as error the overruling of the referee’s conclusions of law.
The question presented by the record in this case is, whether or not the frauds found by the referee rendered the notes sued upon in this action void. Section 94 of the crimes act, upon which the district court based its conclusion of law, reads as follows:
“Every person, who, with the intent to cheat or defraud another, shall designedly, by means of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or any other valuable thing or effects whatsoever, upon conviction thereof shall be punished in the same manner and to the same extent as for feloniously stealing the money, property, or other thing so obtained.”
It is contended by the plaintiff in error that the findings of the referee do not bring this case within the provisions of this section of the crimes act; that the signatures to the notes sued on were not obtained by means of the inventory which the referee found contained false and fraudulent entries.
Let us see whether this position be correct. The consideration moving to the execution of the notes was that the goods should inventory more than $5,250; otherwise no notes were to be given. How was the result brought about? Its order to obtain the notes the invoice must be swelled to ats amount beyond the sum named. This was done by fraud. It must have been done designedly, because the referee finds that O. J. Fleming and Grant Guthrie, by an understanding between them, and for the purpose of cheating and defraud ing the defendants, inventoried goods not in stock, goods wholly worthless, charged for some goods twice and overcharged on others. By this finding we have the false writing, that its purpose and object was fraudulent, and that the writing was known to be false. The fourth finding established the fact that the notes and mortgage sued on were executed and delivered by the defendants for the difference between the apparent value of the goods as shown by the inventory and the sum of $5,250. The defendants executed the notes because the inventory exceeded the last-named amount. It would not be fair to say that Greene had an opportunity to and did examine the goods, and therefore relied upon his own judgment rather than the inventory. An inspection of the goods would not establish the correctness of the inventory, which was not delivered until the notes and mortgage had been signed. Both parties must have been governed by this inventory; they acted upon it. The notes were made for the surplus as shown by this inventory. It was the means by which the notes and mortgage were procured.
If we are correct in this conclusion, it necessarily follows that the transaction was illegal. There was no other consideration for the notes sued on. If the goods did not invoice more than $5,250 the defendants had nothing to pay. It is obvious, from the findings of the referee, that the contract was an entirety, and is not susceptible of divisibility. The fraudulent transaction, as found by the referee, was a plain violation of the statutory law, and cannot form the basis of a valid contract. (Gerlach v. Skinner, 34 Kas. 86; Hinnen v. Newman, 35 id. 709.) The rule has been tersely stated in the case of Widoe v. Webb, 20 Ohio, 435:
“ Whenever the unlawful part of the contract can be separated from the rest, it will be rejected, and the remainder established. But this cannot be done when one of two or more considerations is unlawful, whether the promise be to do one lawful act, or two or more acts, part of which are unlawful; because the whole consideration is the basis of the whole promise. The parts are inseparable. (Metcalf, Contr. 246; Addison, Contr. 905; Chitty, Contr. 730; 1 Parsons, Contr. 456; 1 Parsons, N. & B. 217; Story, Prom. Notes, §190; Byles, Bills, 111; Chitty, Bills, 94.) Whilst a partial want or failure of consideration avoids a bill or note only pro tanto, illegality in respect to a part of the consideration avoids it in toto. The reason of this distinction is said to be founded, partly at least, on grounds of public policy, and partly on the technical notion that the security is entire and cannot be apportioned ; and it has been said with much force that where parties have woven a web of fraud or wrong, it is no part of the duty of courts of justice to unravel the threads and separate the sound from the unsound; and in general it makes no difference as to the effect, whether the illegality be at common law or by statute.”
This court has said upon the same subject, in the case of Gerlach v. Skinner, 34 Kas. 89:
“Where a part of a consideration of an entire contract is illegal, the contract is tainted and the courts will not compel its performance. ‘You shall not stipulate for iniquity; all writers upon our law agree in this: no polluted hand shall touch the pure fountains of justice/ (Collins v. Blanton, 2 Wils. 341.) The policy of the law is to leave the parties in all such cases without remedy against each other; the courts will not lend their aid to a party who founds his cause of action upon an immoral or illegal act. If, from a plaintiff’s own statement, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of the state, there the court says he has no right to be assisted. (Wharton, Contr., § 340; Korman v. Heron, 32 Kas. 49, 343.)”
“No agreement between parties to do a thing prohibited by law, or subversive of any public interest which the law cherishes, will be judicially enforced.” (Bishop, Contr., § 471, and authorities there cited; 2 Randolph, Com. Paper, §517; Brandt, Surety, and Guar., §11; Handy v. Globe Pub. Co., 42 N. W. Rep. 872; Scott v. Gilmore, 3 Taunt. 226.)
The plaintiff in error insists that the defendants cannot avail themselves of the illegality of the transaction until they restore to the other party all that has been received from him. The answer made to this position is, that the notes were given for the excess of the invoice, which was found to be fraudulent; that there was in fact no excess, and therefore there was nothing to tender back; that the consideration for the notes was illegal and therefore void.
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
Johnston, J.:
On March 30, 1888, at Andover, Edward Clark engaged a car of the St. Louis & San Francisco Railway Company, and loaded thereon 60 hogs and four head of cattle for shipment to Kansas City. It appears to have been the intention to ship them by the road of the plaintiff in error to Cherryvale, and from Cherryvale to Kansas City over the Southern Kansas railroad. When the stock was unloaded from the car at Cherryvale, it was found that 16 of the hogs were dead. Clark claims that the hogs were killed by the negligence of the company, and he sues for the recovery of their value. He claims to have made a parol contract with the agent of the company on the day before the shipment was made, by which he was to have a car in which to ship stock from Andover to Kansas City for .$32.20, and that in pursuance of the contract the car was furnished to and loaded by him. On the part of the company, it is contended that a written contract was entered into between the company and Clark, whereby the liability of the company for loss o¡r damage was limited to a considerable extent. It is conceded that a paper which embodies rules and regulations for the shipment of property, and also a special contract, was signed by Clark upon the day when the stock was shipped; and it is contended by the company that that coutract must be held to embody all the terms and conditions of the prior oral agreement, and is the best and only evidence of the ¡agreement of the parties. It is therefore claimed that the court erred in defining to the jury the liability of the railroad company at common law, under the theory that the plaintiff had entered into a prior agreement not affected by the terms of the written contract, and that the case should have been submitted to the jury, not upon the common-law liability of the railroad company, but upon its liability under the written contract. The jury were instructed that the company might by special contract relieve itself from the strict liability imposed upon it by the law, but could not contract for exemptions from the consequences of its own or its agents’ negligence. The jury were also advised that—
“The plaintiff had a right and had the power to make a parol contract with the defendant to ship his hogs to Kansas City, if the defendant, by its agent,, chose to so contract; and, if you find that the plaintiff drove his stock — the hogs in question — to the shipping yards of defendant, and loaded them into a car designated and set apart by the defendant for that purpose, and that the defendant received the car thus loaded into its train, coupled on to it and moved it out on its line and away from the station where loaded and on the way to its destination, all in pursuance of and in accordance with a parol contract previously made and entered into between plaintiff and defendant as to price, rate, point of destination, etc., and that, after all this had been done the defendant arbitrarily inserted in a bill of lading or written contract conditions and limitations as to liability, responsibility or point of destination not in accordance with the said parol contract, but in conflict therewith, and that the said plaintiff signed said written contract without reading it and without knowing its contents, then, and in that case, I instruct you that the parol contract will control and govern the parties and settle their rights as against said written contract, and said written contract will not supersede or overturn or destroy the parol contract between the parties.”
The question of what was the contract was left, to the jury, and we think from an examination of the testimony that the court was warranted in submitting this question, and in defining the common-law liability of common carriers in the transportation of property. The testimony of Clark is that a complete parol contract had been made, and the stock had been shipped, before his name was attached to the bill of lading or contract, and that after the stock was on the way to Kansas City he returned to the station and signed the paper, but was unaware that it was anything more than an ordinary receipt. He states that he could not readily read writing, and did not read this paper- or know that it contained any limitations or restrictions, or any conditions different from the contract which had been previously made and under which the stock had been shipped. He further states, that he had previously shipped stock over the road of the company from that station without any written contract, and it appears that the agent of the company admitted that stock was sometimes shipped from the station without a written contract between the company and the shipper. The agent also admits that Clark asked for a car to Kansas City, and he agreed to furnish him one, although it appears from the terms of the written contract that the company had only contracted to carry the stock from Andover to Cherryvale. This testimony was admissible, and brings the case within the rule of Mo. Pac. Rly. Co. v. Beeson, 30 Kas. 298.
The testimony offered in behalf of the company is in conflict with that of Clark with respect to the making of the oral contract and the shipping of the stock thereunder. The agent states that the only contract made was that which was embodied in writing, but we think the testimony was such as to require the court to present to the jury the theory of each party and the rules of law applicable to each theory, and the testimony presented to sustain the same. This question of dispute was very important in determining the rights and liabilities of the parties to this action. If the paper which was signed is a valid and controlling contract, it restricted the liability of the company to a great extent, and placed upon the shipper the burden of showing that the loss resulted from the negligence of the company. (Railroad Co. v. Piper, 13 Kas. 505; Railroad Co. v. Kiff, 32 id. 263.) On the other hand, if the stock was shipped under the parol contract, as testified to by plaintiff, the company will be held to its common-law liability; and when it is shown that the property was received by the company in good condition and was injured or destroyed before its delivery, then the burden of proof was upon the company to show facts or circumstances which would relieve it from liability. (McCoy v. Railroad Co., 44 Iowa, 424; Hart v. Railroad Co., 27 Am. & Eng. Rld. Cases, 59; Hussey v. The Saragossa, 2 Wood, 380.) In charging the jury as to the general liability of the company under the common law, the court treated the company as an insurer of the hogs and cattle transported against all loss or injury from whatever cause, except the acts of God or the public enemy. In view of the testimony in the case, the court should have added a further exception, relieving the company from liability where the loss or injury is attributable to the nature and propensities of the animals themselves, and which the ordinary diligence of the company could not prevent. In Evans v. Fitchburg Rld. Co., 111 Mass. 142, it is said:
“But the transportation of horses and other domestic animals is not subject to precisely the same rules as that of packages and inanimate chattels. Living animals have ex-citabilities and volitions of their own, which greatly increase the risks and difficulties of management. They are carried in a mode entirely opposed to their instincts and habits. They may be made uncontrollable by fright, or, notwithstanding every precaution, may destroy themselves in attempting to break loose, or may kill each other. If the injury in this case was produced by the fright, restiveness or viciousness of the animals, and if the defendants exercised all proper care and foresight to prevent it, it would be unreasonable to hold them responsible for the loss.”
In 3 Am. & Eng. Encyc. of Law, p. 6, it is said:
“In nearly all the states the rule is now well established that the liability of carriers of live stock is the common-law liability of common carriers of other property, subject only to the qualification that the carrier may be excused from liability where the loss is attributable to the intrinsic qualities or nature of the animals, provided he is himself free from negligence, or is exempted by a valid contract protecting him.” (See the many cases cited to sustain the text.) “This is in harmony with the exception to the general rule which has always existed, excusing the carrier from liability for such losses as arise by reason of some inherent defect or characteristic of the article conveyed, as for natural decay of fruit, veg- e tables, or meats, spontaneous combustion, the heating of grain, and the like.” (McCoy v. Railroad Co., supra.)
It is difficult to determine from the testimony in the record what caused the death of the hogs that were found dead in the car at Cherryvale. The testimony tends to show that they were in good condition when they were placed in the car; but it is shown that four head of cattle, one of which was a male animal, were placed in the car with the hogs; and Clark’s own witness stated that it is not a good practice to ship loose cattle with live hogs; that they were liable to move around and worry them to a certain extent; and that a person who ships them in that way may expect to find some of the animals crippled and injured. There is some testimony which tends to show that, when fat hogs are crowded and driven around by cattle in a car, they will smother. The witnesses say that cattle shipped in the same car with hogs should be tied up, or kept separate from the hogs. Clark is unable to say that he tied the cattle when he placed them in the car with the hogs; and one witness who saw them when they arrived at Cherryvale testified that the cattle were loose in the Car. This testimony required a qualification of the rule given by the court as to the common-law liability of the company.
It is further contended; that the court erred in refusing to require the jury to answer certain special questions more definitely; and there is a further contention that their answers are so evasive as to show prejudice, and warrant the court in granting a new trial. It appears from the record that the court charged the jury that they might answer special questions by simply saying, “ We do n’t know.” This was error. (Railroad Co. v. Cone, 37 Kas. 577.) Some of the questions are quite material, and there was evidence upon which to found answers to them. For instance, the jury are asked how many times the stock were watered between Andover and Cherryvale, and they answered, “Do n’t know,” although there was undisputed testimony submitted to them that they were watered three times between those stations. The court should have required an explicit answer to all material questions which could be readily answered from the testimony. Another question was concerning the care, competency and skill of those in charge of the train. Upon this subject there was testimony, but the answer of the jury was, “Do n’t know.” In another question, they were asked over what road the stock was to be shipped from Cherryvale to Kansas City, and they answered, “Do n’t know,” when there was testimony offered to show that it was the Southern Kansas. In answer to other inquiries, the jury found that the hogs died at Cherryvale, and that their death was caused by the failure of the employés of the company to take proper care of them at Cherryvale; while the only testimony that we can find in the record with respect to their death is, that they were in bad condition and dead upon their arrival at Cherryvale. Some of these findings are unsustained by the testimony, some of them are inconsistent with each other, and some of them are evasive. For these errors, a new trial should have been granted.
The judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action to restrain the city of Dodge City from interfering with and disturbing the plaintiff below in his possession and right to a .certain strip of land in the city limits as a street, which he had inclosed, and which the city authorities attempted to break down. The plaintiff claimed the property under a deed from the Dodge City Town Company. The city alleged that the town-site had been duly entered and patented for the use and benefit of the occupants, and was conveyed by the probate judge to the occupants, and that a portion of the same was platted into lots, blocks, streets, and alleys, and the plat had been filed in the office of the register of deeds; that the streets and alleys as shown by the plat had been occupied and used as public streets, and lots and blocks abutting on said streets had been sold with reference to the streets so platted; that by reason of the filing of such plat the streets and alleys as marked thereon had been dedicated to the public use as such. The district court granted a perpetual injunction, restraining the officers of the city from interfering with the plaintiff in his possession. The city brings the case here. The controlling question in this case is, whether the land in controversy was dedicated to the public use as a street.
The first error assigned is the refusal of the district court to permit the plaintiff to introduce a plat of R. M. Wright’s addition to the city of Dodge City. It is claimed by the plaintiff in error that this was a plat of an addition filed in the office of the register of deeds in 1884 by the plaintiff below, and showed that an addition was platted just east of the city and adjoining the land in controversy; that the streets corresponded to the streets of the original plat. This does not appear in the record. The plat is not made a part of the record, and there is no statement as to what the city proposed to, prove. “Error cannot be predicated upon a ruling excluding testimony, where the evidence desired is not shown in the record, nor any statement made as to what the proposed testimony would be.” (The State v. Barker, 43 Kas. 262.)
It is next urged that the court erred in sustaining an objection to the admission of certain evidence as to the use of the land in controversy. The defendant below expressly disclaimed any intent to prove user for the period of 15 years to establish dedication. There was only one other purpose for which evidence of the use of the property could be introduced; that would be to show acceptance by the city of a dedication by the owner of the land. There was no allega tion of dedication by tbe owner, and such user to show acceptance was not properly an issue in the case, and such evidence, was therefore incompetent. The plat offered in evidence was not acknowledged, and there was nothing to show that it had been made by the owner of the land. It had not even been filed in the office of the register of deeds. There was nothing in the evidence to establish either a statutory or common-law dedication.
It is recommended that the judgment of the district court be affirmed.
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 Lane county on January 14,1889, by Maurice Roche against J. R. Greenlees, to recover a judgment for $1,350, an alleged balance due on sale of certain real estate, with interest, and to sell the real estate to satisfy such judgment. The original foundation for the action was a certain title-bond stipulating for the conveyance of such real estate by Roche to Greenlees upon certain terms and conditions, which bond was signed only by Roche. This bond was attached to and made a part of the plaintiff’s petition. The defendant demurred to such petition upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer the court overruled; and for the reversal of this ruling the defendant, as plaintiff in error, has brought the case to this court.
The only question which has been presented, either to the court below or to this court, is, whether the petition of the plaintiff below stated facts sufficient to take the contract made by the parties for the sale and purchase of the real estate out of the statute of frauds. The contract was of course only an executory one, relating to the purchase, sale and conveyance of certain real estate upon certain terms and conditions, and was not an executed contract of purchase and sale; and as it was signed only by the vendor, and not by the vendee, the vendor cannot maintain an action upon it against the vendee unless there are still other facts, extraneous to the contract but taking place because thereof, which will take the contract out of the statute of frauds. (Guthrie v. Anderson, 47 Kas. 383; same case, 28 Pac. Rep. 164.) The facts alleged in the plaintiff’s petition, and relied on by him to take the case out of the statute of frauds, are the following: Roche, the vendor, executed the bond, signed his name to it, delivered it to the vendee, Greenlees, who accepted the same, paid the vendor $450 of the purchase-money for the property to be conveyed, accepted and received the possession of the property, exercised acts of ownership over it, placed it in the hands of several real-estate agents for sale, and agreed that if it should be sold he would execute warranty deeds to the purchasers for the premises; and he is still in the possession of the bond, holding it as a valid and existing obligation against the plaintiff, and is still in the exclusive possession of the property, exercising acts of absolute ownership over it; and all this the plaintiff as vendor permits the vendee to do, and claims only the remainder of the purchase-money and a lien upon the land therefor, and tenders to the vendee a good and sufficient warranty deed for the land, in compliance with the terms of the bond, and asks that the land shall be sold for the purpose of satisfying the remainder of the purchase-money.
Are all or any of these things sufficient as a part performance of the original contract to take the case out of the statute of frauds? The acts of part performance must be those of the plaintiff, who in this case is the vendor. (8 Am. & Eng. Encyc. of Law, 740; Browne on Frauds, § 453.) They need not, however, be the acts of the plaintiff alone or exclusively, but they may in some cases be his acts in connection with the acts of the defendant. And they need not in all cases be acts of commission, but they may in some cases be acts of permission-They must, however, be acts done or permitted by the plaintiff which he would not have done or permitted except for the contract. The question then arises, what acts of part performance to take the case out of the statute of frauds can be attributed to the plaintiff as his acts? For, as before stated, the exclusive acts of the defendant, independent of the plaintiff’s acts, and in and of themselves and alone, cannot be considered. The acts of the plaintiff for this purpose are these: He executed the bond to the defendant compelling himself to convey the property to the defendant whenever the defendant should comply with the conditions of the bond; and time not being of the essence of the, contract, the bond is still valid and binding upon the plaintiff. He permitted the defendant to take the exclusive possession of the property under this bond and to exercise acts of absolute ownership over it from the time when the bond was first executed, which was on May 10, 1887, up to the commencement of this action, which was on January 14, 1889, and he still permits the defendant to have the exclusive possession of the property and to exercise such acts of ownership over it. All these acts were done and permitted because of the contract, and they certainly would not have been done or permitted except for the contract. They were acts for the benefit of the defendant and in derogation of the plaintiff’s unquestioned right of absolute dominion over what was, when the bond was executed, his own exclusive property. This certainly was sufficient to take the contract out of the statute of frauds. (Wharton v. Stoutenburgh, 35 N. J. Eq. 266, 276, 277, and cases there cited; Walker v. Owen, 79 Mo. 563; Steininger v. Williams, 63 Ga. 475, 476; Harris v. Knickerbacker, 5 Wend. 638; Lawrence v. Saratoga Lake Rld. Co., 36 Hun., 467; Steenrod v. Railroad Co. 27 W. Va. 1; Browne on Frauds, § 471, and cases tlieré cited.) But if the plaintiff does not have his remedy for the remainder of the purchase-price, then what remedy has he? Or is he without remedy? He has lost the use of his property since May 10, 1887, when the bond was executed, and the defendant has had the benefit of the use thereof; and all this was under and in pursuance of the contract. Now, is the plaintiff to lose all, and is the defendant to have the benefit of all without compensation ? And after the plaintiff has lost all this, how shall he regain the possession of what was formerly his property, or shall he lose that too? Must he commence an action in the nature of ejectment and prosecute it to its final termination in the courts? Is all this a proper construction of the statute enacted for the prevention of frauds? Unless it can be held that the plaintiff may recover in this action the remainder of the purchase-money with interest, then the statute enacted for the prevention of frauds will be converted into an instrument for the fostering and protection of frauds.
The decision of the court below, overruling the defendant’s demurrer to the plaintiff’s petition, will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was commenced in the district court of Sedgwick county on the 27th, day of February, 1888, to recover for damages done to the land of the minor heirs of Severin Griesser by the construction of a line of railway through said land by the Chicago, Kansas & Nebraska Railway Company. It was tried in the court of common pleas, having been duly transferred thereto, and resulted in a general verdict for the plaintiffs for $1,200. The railway company bring the case here for review, and the principal contention clusters about the regularity of certain condemnation proceedings by which it is claimed by the railway company that the land had been duly taken and appropriated before the commencement of this action. Prom these proceedings no appeal was ever taken. It is claimed that they are so irregular that they could be entirely disregarded,, and an independent action, like this, instituted for damages» If these condemnation proceedings were not utterly void, but only technically informal, this action will not lie, the only remedy being by appeal from the award. The court below withdrew these.proceedings from the jury and told them not to consider them. The reason for this ruling is not plainly stated in the record, but, as a matter of fair inference from what the trial court said, it seems to us that the trial court did not consider the general notice of condemnation sufficient to bind minor heirs. But be that as it may, this is the controlling question in the case, and we will proceed to determine it.
As we understand the contention of the counsel for defendants in error, they insist that these condemnation proceedings are not sufficient for three reasons, and these are, that there is no evidence tending to show that the persons appointed by the district court to condemn the right-of-way and assess the damages were qualified to act as such commissioners; there is no showing that the map and profile of the intended route was made, certified and filed with the county clerk before the.road was constructed, no written notice was given to the occupant; of the land, no proper assessment of damages was ever made; and, finally, that neither the notice nor the proof of the publication thereof was sufficient. The proceedings withdrawn! from the jury substantially show that, on or about the 17th day of January, 1887, the judge of the district court of ¡Sedgwick county, state of Kansas, on the written application of the Chicago, Kansas & Nebraska Railway Company, plaintiff im error, appointed three commissioners, having the qualifications required by law, to lay off and condemn a route and line foir the railway of said company through said county of Sedgwick; that said commissioners, after duly qualifying as required by law, and after giving the notice prescribed by the statute, located and condemned a route and line for said railway over the real estate in question, in the manner and form provided for by the statute, all of which was embodied by them in a written report, and filed in the office of the county clerk of said county on the 2d day of March, 1887; that the county clerk of said county forthwith prepared and filed in the office of the treasurer of said county a copy of said report, properly certified; that said railway company, on said date last aforesaid, caused to be paid to said treasurer the full amount of the appraisement of the commissioners aforesaid, and as shown by said report, for the route and line over the real estate in question; and that said copy, so filed in said treasurer’s office, was, on said 2d day of March, 1887, duly filed and recorded in the office of the register of deeds of the said county of Sedgwick, after the fact of said payment had been duly certified thereon by said treasurer.
I. We find that the petition of the railroad company presented to the district court of Sedgwick county, of date December 20, 1886, asking for the appointment of commissioners, recites that a map and profile of the line of the railroad through Sedgwick county had been filed in the office of the county clerk. The order appointing the commissioners to lay off along the line of the railroad the necessary land, and appraise and assess the same as required by law, recites that “ the said lands so desired by said company for the purposes aforesaid being particularly shown by the map and profile of said road on file in the office of the county clerk of Sedgwick county.” With these recitations in the record, it is fair to conclude that the map and profile were filed before the land was condemned, and disposes of that contention.
II. It is contended that there is no evidence tending to show that the commissioners appointed were freeholders. The order appointing them recites that they are. Even if they were not, the case of Huling v. K. V. Rly. & I. Co., 130 U. S. 559, is conclusive authority that such an objection can not be raised in a collateral attack on the condemnation proceedings.
III. It is said that the failure of the railway company to serve written notice on a tenant of the owners, who was in actual possession of the land, invalidates the proceedings, it being admitted that no such notice was ever served. In the first place the section that requires such notice to be served is no part of the condemnation proceedings. (Hunt v. Smith, 9 Kas. 137; M. R. Ft. S. & G. Rld. Co. v. Shepard, 9 id. 647; C. K. & W. Rld. Co. v. Grovier, 41 id. 685; C. K. & W. Rld. Co. v Abbott, 44 id. 170.) Admitting that it is absolutely required to be given before the construction is commenced, then it would only affect the questions of damages occasioned by their failure. It is said in the case of M. R. Ft. S. & G. Rld. Co. v. Shepard, supra, that the object of such a notice “ is to inform the occupant that the company is about to commence work, so that he may prepare his fences so as to confine his stock and preserve his crops.” It is perfectly evident that this question does not affect in any manner the validity of the condemnation proceedings. Such a notice is required under the general road law of the state, but it has been held that the want of it is not a jurisdictional defect.
IV. The next contention is, that no proper appraisement of the land taken or assessment of damages to the land not taken was made. ' Two reasons are advanced in support thereof. The first is that it was done in the name of a dead man; and the second is, that as this land belonged one-half to the widow of the deceased and the other half to the two minor children, the interest of each should have been determined and appraised. Both these objections are fairly met by the case of C. K. & W. Rld. Co. v. Grovier, 41 Kas. 685.
V. Finally, it is said that the jurisdictional notice is not sufficiently definite, and that by reason of its numerous omissions the proceedings are void. In the cases hereinbefore cited of M. R. Ft. S. & G. Rld. Co. v. Shepard, 9 Kas. 647, and Huling v. K. V. Rly. & I. Co., 130 U. S. 559, the objec tions made here are fully met, and determined adversely to the view of counsel for defendants in error.
It follows that the trial court erred in ruling out the condemnation proceedings and withdrawing them from the jury, and for this reason the judgment should be reversed and the cause remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
The plaintiff in error brought an action to foreclose a mortgage executed by D. W. Marshall and wife to the Equitable Trust & Investment Company to secure the payment of $800, dated February 1, 1886, due in five years. The notes and mortgage were assigned by the payee to the Massachusetts Mutual Life Insurance Company, and on December 27, 1887, assigned to the Home Insurance Company, the plaintiff below. The defendants below admitted the execution of the notes and mortgage, but alleged payment by the collection of an insurance policy of $800, which they were required by the mortgage to take out upon the building situated upon the mortgaged premises, which building they alleged had been destroyed by fire on the 13th of June, 1887; that the plaintiff in error, after it had received notice of the loss, sent an adjuster to inspect the same; and, for the purpose of defrauding the defendant in error out of the insurance, took an assignment of the notes and mortgage sued upon, including the policy of insurance. A jury was waived, and the court found in substance that the material allegations of the petition were true; that the sum of $800 and interest was due from the defendants upon the mortgage. The court then made the following findings in relation to the set-off claimed by the defendants:
“The court finds that the plaintiff issued to the defendant, Daniel W. Marshall, a policy of insurance on the dwelling-house situated on the mortgaged property for $800, for the term of five years, payable to the Equitable Trust & Investment Company, mortgagee, and assignor of the mortgage to the Massachusetts Mutual Life Insurance Company, and by said company assigned to plaintiff; that in June, 1887, the insured property was burned and totally lost, of which the plaintiff was notified, and by its agent and adjuster made an examination and inspected the affair, and afterward paid to the Massachusetts Mutual Life Insurance Company the amount of the policy, and took an assignment of the mortgage and of the insurance policy; that the plaintiff never adjusted this loss by fire with the defendant, Daniel W. Marshall, and on the 7th day of September, 1888, commenced this suit to foreclose the mortgage.”
The court found that the defendants were entitled to such a set-off as reduced the claim of the plaintiff to $103, and gave judgment in favor of the plaintiff for such amount.
It is first contended that there is no finding by the court that the plaintiff was ever indebted to the defendants upon the insurance policy, or that the policy found to have been issued was valid or in force at the time of the fire, or that any of the conditions of the policy which were necessary to make it the basis for a claim against the plaintiff were complied with by the insured. Was such finding necessary to fix the liability of the insurance company for the amount of the policy? The court did find that the property insured was destroyed by fire in June, 1887, and that there was a total loss of the property described in the policy; that the company had notice of such loss and inspected the same. The court also found that it paid to the Massachusetts Mutual Life Insurance Company the amount of the policy, and took an assignment of the mortgage and the insurance policy. How are we to regard this finding of the court? Is it not to be taken as a recognition of the policy by the insurer? Why should the insurance company pay the amount of the policy to the holder of the mortgage and policy unless the latter was valid? The rule has been stated in 2 Wood on Fire Insurance, §452:
“In all cases where a party has an election, he will be bound by the course he first adopts, with full knowledge of all the facts; and any act that indicates that an election has been made, and that in any respect affects the rights of the other party, estops him from afterwards doing anything inconsistent with such election. Therefore, where an insurance company is in a position where it may be liable upon &■ policy or not, at its election, whenever it does an act that indicates that it has elected to treat the policy as the basis of a legal claim against it, it cannot afterward recede, if anything has been done of a decisive character indicating its election.”
We think the finding of the court that the insurance company paid to the holder of its policy the amount named therein clearly established the fact that it recognized the policy as a valid and subsisting obligation. The insurance company had no right to the full amount due upon the mortgage, after recognizing the validity of the policy. The insurance was collateral to the debt, and the amount paid upon the policy should have been applied as a payment upon the debt secured by the mortgage. Equity and fair dealing between the parties to this contract of insurance require that the insurer should be required to make such application, in accordance with the finding of the court.
The plaintiff in error contends that the special findings of the court are not based upon the allegations of the answer, and are therefore not sustained by the pleadings. The answer alleged, among other things, that the debt secured by the notes and mortgage sued upon had been paid. It then stated what had been done by the plaintiff in reference to the loss and the payment of the amount of the policy to the holder of the mortgage and policy. In a case not unlike this in some respects, it was decided by this court that where the jury had found that the mortgagee had received from the insurer and other companies a sum sufficient to pay off the bond and mortgage, it authorized a legal conclusion that the payment was in satisfaction of the note and mortgage,- and not for the purposes of assignment. “In. other words, the insurance company had obligated itself to pay the loss to the mortgagee; .it did so, but instead of discharging the mortgage, it took an assignment of it and sought to enforce it. There can be no doubt but that the legal conclusion irresistibly follows the findings of the jury.” (Insurance Co. v. Smelker, 38 Kas. 288.) The legal conclusion of the court was, that the payment of the policy by the company was pro tanto to be applied in satisfaction of the note and mortgage, and was not made for the purpose of an assignment. Under this view of the findings, they are clearly in accordance with the allegations of the answer.
We deem it unnecessary to notice the other assignments of error, in relation to the introduction of the evidence. In some of them to which our attention is called, we find, upon an examination of the record, that no reasons are given for such objections. These we cannot consider unless the reasons are so obvious that they need not be stated. (L. N. & S. Rly. Co. v. Usher, 42 Kas. 637.)
It is recommended that the judgment be affirmed.
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 was an action for malicious prosecution, brought by Charles Morse against Simeon B. Bell. Morse was a young man employed by Bell upon his farm, and after Morse had left his employment he found some of his harnesses missing; and, suspecting that Morse had taken them, he took the advice of attorneys, and then made an affidavit charging Morse with the larceny of the property, and stating that he suspected it was concealed on the premises of "Wilber Morse, who was the father of Charles. Upon this affidavit a search-warrant was issued and placed in the hands of an officer, who, in company with Bell, made a search for the property but failed to find it. It appears that no arrest was made, and the proceeding so begun was abandoned and ended. Shortly afterward this action was begun, and a trial was had with a jury, which resulted in a verdict awarding damages against Bell in the sum of $1,000. A motion for a new trial was made, alleging that the damages awarded by the jury were excessive, and appeared to have been given under the influence of passion and prejudice. The court ruled that a new trial would be granted unless Morse would remit $600 of the amount awarded. The remittitur was made, and the motion was then overruled and judgment given against Bell in the sum of $400.
The most serious objection to the rulings of the court is the denial of the motion for a new trial. One of the statutory grounds for a new trial is the award of excessive damages, appearing to have been given under the influence of passion and prejudice. The action of the court in finding that the greater part of the award made by the jury was excessive, and requiring the plaintiff below to remit the same, clearly indicates the view of the court. It is evident from this finding and the proceedings in the case that the jury were influenced by passion and prejudice in rendering the verdict which was so grossly excessive, and within the authority of the cases already decided a new trial should have been granted. (Railway Co. v. Hand, 7 Kas. 380; Railroad Co. v. Cone, 37 id. 567; Steinbuchel v. Wright, 43 id. 307; Railroad Co. v. Dwelle, 44 id. 410.)
The judgment of the district court 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
Valentine, J.:
This was an action brought before a justice of the peace of Meade county, on March 24, 1888, by E.. H. Behney and Irving Behney, copartners, against the Chicago, Kansas & Nebraska Railway Company, to recover damages alleged to have been sustained by the plaintiffs by reason of the neglect and failure on the part of the defendant to con struct and maintain cattle-guards on its line of railroad where it entered and left the fenced land of the plaintiffs. Judgment was rendered in favor of the plaintiffs and against the defendant in the justice’s court, and the defendant appealed to the district court, where the case was again tried, on April 11, 1889, before the court and a jury, and judgment was again rendered in favor of the plaintiffs and against the defendant for $150 and costs of suit; and the defendant, as plaintiff in error, brings the case to this court for review.
The first assignment of error is, that the court below erred in overruling the objection of the defendant below (plaintiff in error) to the introduction of any evidence by the plaintiffs, for the stated reason that the plaintiffs’ petition (bill of particulars) did not state facts sufficient to constitute a cause of action. The objection to the petition is with reference to its allegations concerning damages, which are as follows:
“ That the plaintiffs set apart in one tract 240 acres of said lands aforesaid, and had the same fenced, prior to the building of defendant’s railway line, and have ever since used the same for a pasture of live stock, to wit, neat cattle; that the plaintiffs are owners of divers and sundry head of neat cattle, and have no other pasture for their subsistence; that on the-day of February, 1888, the defendant company built and constructed its railway line through and over the pasture lands aforesaid, and negligently failed and refused to make and construct proper cattle-guards where said lands were entered and left by the defendant railway; that the plaintiffs, by reason of defendant’s failure to construct proper cattle-guards in passing through their lands, were compelled to herd and care for said cattle, to prevent their straying from the pasture aforesaid, from the-day of February, 1888, to the bringing of this action, to their great detriment and damage in the sum of $300.”
It seems to be admitted that the petition, or rather the bill of particulars, of the plaintiffs below, was sufficient in every respect except with regard to its allegations of damages; aud while it might have been made better with regard to such allegations, yet we cannot say that the court below committed any error in holding it to be sufficient. No objection was made to it except by an objection to the introduction of evidence under ■ it, for the claimed reason that it did not state facts sufficient to constitute a cause of action.
It is also claimed that the court below erred in permitting the plaintiffs below to show that it was necessary to herd their cattle; and in permitting them to show the value of such herding, and in permitting them to show these things by a witness who was not first shown to be an expert in such matters. Now, we do not think that any such errors were committed. First, the plaintiffs had a right to show that it was necessary to herd their cattle in order to prevent them from straying away from their pasture, and to avoid the loss of their pasture and possibly also the loss of their cattle, and to prevent the cattle from injuring the plaintiffs’ own property outside of their pasture, and also to prevent their cattle from trespassing upon the property of others. Second, they had the right to show the value of such herding, and evidently the witness, or rather the witnesses, were competent to prove these things; but whether they were or not, no objection was made because of any supposed incompetency as to the witnesses, but the only objection that was made was the objection that the evidence itself was “incompetent, irrelevant, and immaterial.” Such an objection is not sufficient to raise a question as to the competency of a witness.
The plaintiff in error, defendant below, also claims that the court below erred in giving the following instructions to the jury:
“ 5. If you should find from the evidence in this case that the plaintiffs were compelled to herd and care for their cattle in such pasture or inclosure by reason of the failure of the defendant to make such cattle-guards, and that such herding was necessary to protect the plaintiffs’ own growing crops, harvested crops, or orchard, or the growing crops, harvested crops or orchard of another, such growing crops, harvested crops and orchard growing and being on land just outside of plaintiffs’ inclosure, and immediately adjacent thereto, from destruction by plaintiffs’ cattle passing through the openings at such points on its said road where said road enters and leaves said inclosure or pasture, then you are instructed that the plaintiffs are entitled to recover for the value of their serv ices in necessarily herding said cattle in order to protect said' growing crops, harvested crops, and orchards.
“ 6. After you have determined the value of plaintiffs’ services in this case, from the evidence, then you may determine from the evidence whether the*value of the growing crops, harvested crops and orchards mentioned in the foregoing instructions were of greater or less value than such services in-herding said cattle.
“7. If you find that they were of greater value, then the amount that you have found the plaintiffs should recover for their services should not be increased or diminished for this-reason; but if such growing crops, harvested crops or orchards-were of less value than the amount that you have found plaintiffs should recover, then you should reduce the amount that you find the plaintiffs’ services to be worth to the amount of the value of such growing crops, harvested crops, and orchards.”'
The objections to these instructions are, that the court in substance instructed the jury that the plaintiffs would have a right to herd their cattle in order that they should not commit trespasses upon “the growing crops, harvested crops or orchards of anotherand that the plaintiffs might recover for-the value of the herding up to the value, but only up to the-value, of all the growing crops, harvested crops or orchards-which the plaintiffs had the right to protect, or which they were under obligation to protect, from the depredations of their own cattle. It is claimed that the plaintiffs should not recover anything for herding their cattle for the.purpose of protecting-other people’s property from the depredations of their own-cattle if they were permitted to run at large. This claim is certainly not correct, for the plaintiffs would be liable for the trespasses of their cattle upon the property of others. Besides,, th'e main object of the plaintiffs was to protect their own property.
It is also claimed that the court below erred in- permitting a recovery for the value of the herding up to the value of the-growing crops, harvested crops, and orchards; that the court should have permitted a recovery for the value of the herding-only up to the amount of the damages which the cattle would have committed to the growing crops, harvested crops, and orchards, if the cattle had been permitted to run at large. Of course this claim of the plaintiff in error, defendant below, would to a degree be correct if it could be ascertained with any degree of certainty just the amount of the damage which would have resulted if the cattle had been permitted to run at large. But it was not shown in the present case how much or how little damage, or how much or how little injury, the cattle would have done if they had been permitted to run at large,, and we cannot see how any such damage or injury might have been shown. No one could know how much or how little injury, or how much or how little damage, the cattle might have done if they had been permitted to run- at large. Besides, if the plaintiffs are to recover for the value of the herding, only up to the amount of the damages which the cattle might have caused if the cattle had been permitted to run at large, then how are the plaintiffs to obtain compensation for the loss of their pasture and the possible loss of their cattle, and the possible shrinkage in value of their cattle because of a possible loss of proper food; and how are they to obtain compensation for their time and trouble and expense in hunting for and recovering their cattle? "We do not think that any error, as-against the defendant below, plaintiff in error, was committed by the court below in giving these instructions.
We do not think that any material error was cctmmitted by the court below as against the plaintiff in error, and therefore.its judgment 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 upon an attachment undertaking brought before a justice of the peace of Comanche county, on April 10, 1888, by D. M. Chenoweth and George W. Chenoweth, partners as Chenoweth Bros., against Edgar Veateh, to recover the sum of $300. After judgment in favor of the plaintiffs for $81.50, the defendants appealed to the district court, where the case was again tried before the court and a jury, and a general verdict and judgment were rendered in favor of the plaintiffs and against the defendants for amounts to be hereafter stated; and the defendants, as plaintiffs in error, bring the case to this court for review.
The undertaking sued on in this case, which was made a part of the plaintiffs’ bill of particulars, was for the amount of $100. It was executed by Veateh and Belcher, in an action before a justice of the peace, in which action Veateh was the plaintiff and L. U. Miner and the two Chenoweths were the defendants. Veateh of course was the principal obligor, and Belcher was his surety. On the trial of the case, as the record shows, the following papers belonging to and being a part of the aforesaid attachment case were introduced in evidence and read to the jury, to wit: (1) The plaintiffs’ bill of particular’s; (2) the affidavit for the attachment; (3) the attachment undertaking; (4) the order of attachment; (5) the inventory and appraisement; (6) the affidavit denying the grounds for the attachment; (7) the notice of the motion to discharge the attachment; (8) the transcript of the justice of the peace. But none of these papers are to be found in the record brought to this court, except the attachment undertaking; hence, how much of the evidence is omitted from the record, and what these papers and the omitted evidence would prove, no one can tell. It seems to be admitted in this present action that there was a prior action before a justice of the peace, in which Veateh was the plaintiff, and Miner and the two Chenoweths were the defendants, and in which action the attachment undertaking sued on in the present case was given, and in which action an order of attachment was issued; but it is now denied that any property was attached under 'this order of attachment; or at least it is denied that the record shows that any property was so attached. It must be presumed, however, that the constable holding the order of attachment did his duty, and that he attached property if he could find any belonging to Miner or the Chenoweths to attach; and the plaintiffs in this action, the Chenoweths, claim that in fact hedid attach property belonging to them, to wit, a certain hay press. It must also be presumed that the officer holding the attachment made a return thereof and of his proceedings under it; for such was his duty under the statutes. The statute upon this subject, so far as it is necessary to quote it, reads as follows:
“Sec. 50. The officer shall return, upon every order of attachment, what he has done under it. The return must show the property attached, and the time it was attached.” (Justiees’ Act, § 50.)
It must also be inferred that the constable attached property, for it appears from the record that there was an “inventory and appraisement,” which would not have been the case if no property had been attached. But it is now claimed by the plaintiffs in error, defendants below, that the written return made by the constable of his proceedings under the order of attachment was not introduced in evidence; but whether it was or not we cannot tell from the record brought to this court. Presumably, however, it was; for presumably it was placed on the back of the order of attachment, and all went to the jury together; and presumably, also, the transcript of the justice of the peace showed what was done under the order of attachment. There is nothing in the record contrary to these presumptions or that expressly shows that the return of the constable was not introduced in evidence. We shall presume that the return of the constable was introduced in evidence, and that it showed all that was necessary with regard to the attachment of the property which it was necessary to show in order to sustain the judgment of the trial court; for to presume otherwise would be to presume a state of facts which would require a reversal of the judgment of such court, and it is not the duty of this court to presume a state of facts upon au imperfect record which would require a reversal of the judgment of the trial court; but on the contrary it is the duty of this court, in the absence of anything to the contrary, to presume a state of facts which would sustain and uphold-the judgment of the trial court. In all probability the return of the officer showed that he attached a hay press belonging to the Chenoweths, as the other evidence also tended to show, and as the jury evidently found. We think this court should presume that the papers introduced in evidence, but which have not been brought to this court, made out a clear case for the plaintiffs below, and therefore that the jury was authorized to find and the court to render a judgment in favor of the plaintiffs below and against the defendants below.
It is claimed, however, by the defendants below, plaintiffs in error, that errors were committed in the introduction of evidence, in the instructions of the court to the jury, in the verdict of the jury, and in the judgment rendered by the court. We do not think that any material error was committed in the introduction of evidence. It is true considerable latitude was permitted in the introduction of the evidence, but it seems to have been permitted for the purpose that the plaintiffs might recover exact compensation for their loss occasioned by the levy of the order of attachment upon their hay press, their consequent exclusion from the right to use it, the value of its use while they were not permitted to use it, and its partial destruction and its deterioration in value while it was in the' hands of the constable. If the officer’s return was introduced in evidence, and if it showed the levy of the order of attachment as is claimed by the plaintiffs, then the parol testimony with regard to these same matters could not have been materially erroneous. This parol testimony was principally with regard to the declarations of the constable that he had attached the hay press. The transcript of the justice of the peace, which was introduced in evidence, evidently showed when the attachment was dissolved. In what manner the constable made his levy is not shown, but he left the property where he found it, to wit, on the land of Miner. The defendants did not touch it afterward until the attachment was dissolved.
With regard to the instructions, we think they were substantially correct. They were, in substance, that the plaintiffs were entitled to recover exact compensation for their loss, including the value of the use of the hay press and the injuries to it while it was in the custody of the constable, and that, under the facts of the case, the plaintiffs were entitled to recover some damage; and the defendants, by an instruction which they asked the court to give to the jury, seemingly admitted that the plaintiffs were entitled to recover some damages. A part of the instruction asked by the defendants is as follows:
“The plaintiffs are entitled to nominal damages only, and the necessary expenses incurred in securing the dissolution of the attachment, including their attorney fees.”
As before stated, the jury rendered a general verdict in favor of the plaintiffs and against the defendants, and assessed the plaintiffs’ damages at $122.50, and the court then rendered judgment as follows:
“Whereupon plaintiffs remit all excess over $100 against defendant C. M. Belcher; and thereupon it is ordered, decreed aud adjudged by the court that said plaintiffs do have and recover of said defendants, Edgar Veatch as principal, and C. M. Belcher as surety, the sum of $100, and an additional sum of $22.50 of said defendant C. M. Belcher, and that said defendants pay the costs of this action, taxed at $-
The plaintiffs were entitled to recover at least up to the amount of $100, provided their proved damages amounted to that sum, for that was the amount of the bond sued on, and it does not appear that a judgment of any greater amount than that was rendered against Veatch, the principal on the bond, and while it appears that a judgment for an additional amount of $22.50 was rendered against Belcher, the surety, yet it appears that the plaintiffs remitted that amount as to him. There is evidently an error in the language used in the foregoing judgment, but we cannot well correct it.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action for damages. The plaintiff, who was also plaintiff' below, a resident of the city of Ottawa, in this state, contracted with the Cherryvale Water <& Manufacturing Company for a supply of water for the purpose of sprinkling his lawn, the use of the water to be regulated by the rules and regulations of the water company. The defendant, C. T. Ewing, the assignee and successor of the water company, by his agent, the manager of said water company, for the alleged violation of the rules and regulations of said company by the plaintiff, Mr. Shiras, in the use of the water supplied him by said company, shut off his supply of water for the period of about two months from August 10, 1887. The plaintiff alleges that the defendant unlawfully shut off his supply of water, and that because of the withdrawal thereof a number of his shade-trees died, and the grass on his lawn also died out. For these he claimed damages. The case was tried by the court and a jury, resulting in a verdict and judgment for the defendant. Motion for new trial was heard and overruled.
The contention of the plaintiff is, that the court misconstrued the contract between the parties. Plaintiff claims that because he had paid the contract price for the water in advance, and for the period of time during which it was shut off, the defendant had no right to shut off the water during said period, even though the plaintiff had violated the rules of the company for the regulation of the use of the water supply • that the doctrine of independent covenants applies, and the plaintiff, having complied with the principal covenant of the contract, was entitled to have the contract enforced as to the supply of water, leaving the defendant to his remedy by action for damages for any violation of the rules of the company in the use of the water supply.
We do not think the doctrine of independent covenants applies to the contract between the parties in this case in the sense in which it is sought to be applied by the plaintiff. The plant of the water company was constructed to supply the city of Ottawa and the inhabitants thereof with water. It necessarily has a large number of patrons. We do not think it reasonable or practicable to hold that for all the violations of the use, by its patrons, of the water supplied under its contracts therewith, the company shall be put to an action for damages. To so hold would be to deprive the company of any remedy, and leave it subject to the whim of each individual patron, so far as the use of the water supply is concerned, since it would be wholly impracticable for the company to bring an action for damages whenever the rules, or any of them which are a part of the contract, were violated by its patrons. It follows, therefore, that the company must be permitted to make reasonable rules for the government of its customers in the use of its water supply, and enforce such rules by shutting off the customer’s water, as a penalty for violation thereof, whenever the contract with its customer is made subject to such rules, the courts reserving the right to say in any particular case whether the rules are, or are not, reasonable.
The company in this case made rules for the regulation of the use of the water supplied by it to its patrons. The contract of the plaintiff with the company was made subject thereto, and the plaintiff was furnished with a copy of such rules before the violation thereof complained of, and for which his water was shut off, occurred. The evidence tends to prove that the plaintiff violated them. The jury found against him, and in so finding determined that he did violate them. The court found that the rules of the company were reasonable. We do not desire to say whether as a whole they are reasonable or not. The evidence strongly tends to show that the plaintiff’s washer, whence he got his supply of water, was left open all night, and the water was left to run to waste. We think the jury found that it was left to run to waste. The company presented the plaintiff a bill for the water so wasted. He refused to pay it. The bill, which was first $3, was afterwards reduced to $1.50, and still he refused to pay it. His refusal was not based upon the idea that the bill was too high, because he said he would not pay anything for the water so wasted. It is true he claimed it had not been let to run to waste by himself, nor by his permission. But, under the evidence as to the negligent and carelesa use of the water by the plaintiff, it was not difficult for the jury to-believe that the washer was left open by the negligence of himself or his family. Under the instructions of the court upon that question, and a general verdict for the defendant, it is undoubtedly true that the jury so found. A rule of the company against the unnecessary and useless waste of the water supply is certainly reasonable.
This is all we hold in this case. This requires this court to affirm the judgment of the district court herein, and we therefore so recommend.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action to foreclose a mechanic’s lien, brought by the Chicago Lumber Company in the common pleas court of Sedgwick county, against the plaintiffs in error. The mechanic’s lien was properly filed in the office of the clerk of the district court on the 24th day of October, 1887, to cover lot 25 on Burns avenue, in Ford’s second addition to the city of Wichita, for $1,332.33, on account of material furnished. The petition alleged that the building was completed on the 2d day of September, 1887, and that a statement for a lien was filed in the office of the clerk of the district court, giving the date of the filing, and alleging as a description of property, “lot 25 on Burns avenue, in Ford’s second addition to Wichita,” and that on the 24th day of October, 1887, the plaintiff furnished Sarah J. Drake a copy of the statement of the lien. The defendants below answered by a general denial, except that it was admitted that Sarah J. Drake owned the property described in the petition. It was admitted on the trial that Jackson & Plank were the contractors, and that the Chicago Lumber Company had furnished the lumber and material as claimed in the petition. There was no question raised about the filing of the lien or the service of a copy upon the owner of the property attempted to be charged with the lien. During the progress of the trial it was disclosed that the improvements for which*the material was furnished were for a building on lot 24, Payne avenue, in Ford’s second addition to the city of Wichita, and that the last-described tract of ground was a distinct lot from the land described in the lien and petition. The plaintiffs moved to amend the statement for a lien, as well as the allegation of the petition, so as to conform to the facts, and the court allowed the same, over the objections of the defendants, and gave judgment for the plaintiff for the amount claimed.
It is first urged that the lien law, as it existed prior to the law passed in 1889, did not permit any such amendments to be made, and that the enactment allowing a lien to be amended could have no retrospective effect; that the act of the legislature can only be construed to have a prospective operation, unless it is obvious from the statute itself that the legislature intended otherwise. Chapter 168 of the Laws of 1889 pro vided that any lien statement might be amended by leave of the court, in furtherance of justice, the same as pleadings, except as to the amount claimed. We think, under the unbroken current of authorities, a mechanic’s lien statement cannot be so amended after the statutory period for filing has elapsed as to change the description of the property entirely, unless upon express statutory authority. (15 Am. & Eng. Encyc. of Law, 178; 2 Jones, Liens, § 1455; Phil. Mech. Liens, § 426; James v. Van Horn, 39 N. J. L. 356.) .
Can it be claimed that the law of 1889 authorized the amendment? We think not. The enactment is prospective in its nature and cannot be well construed to have a retrospective operation. It has even been questioned whether the legislature would have the power to give the law such an effect. (Swayze v. Wade, 25 Kas. 559.) The general rule of interpretation is, that “statutes are not to be construed as to have a retrospective effect, unless such construction be required in the most explicit termá, the presumption being that they are to operate prospectively.” (15 Am. & Eng. Encyc. of Law, 180.) Mr. Chief Justice Fuller said, in the case of Sheveport v. Cole, 129 U. S. 43: “Constitutions as well as statutes are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond a reasonable question.”
We think the amendment of the mechanic’s lien statement was unauthorized, and that the court erred in allowing it to be made.
It is recommended that the judgment of the court be reversed, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was a proceeding pursuant to R. S. 1933 Supp. 39-211 and 39-221. The probate court, and on appeal the district court, held these two sections are in violation of article 15 of section 9 of the constitution of the state. The applicant under those two sections appeals.
The facts are all admitted. On November 24,1931, Harry Barnell was adjudged to be insane. He was committed to one of the state hospitals. Letters of guardianship were issued to Margaret Barnell, his wife. On or about January 6, 1933, Margaret bought in her own name a house and lot in Kansas City. She bought this property on the partial-payment plan. After making certain payments she found herself unable to continue. She and her daughter have been and are now occupying the property as a home. She is now attempting to refinance her purchase of the property through the Home Owners Loan Corporation. This will require the execution of a mortgage.
R. S. 1933 Supp. 39-211 provides as follows:
“Whenever the personal estate of any such person shall be insufficient for the discharge of his debts, the maintenance of himself and family or the education of his children, or whenever said real estate shall be unproductive oían expense upon the estate, the guardian may apply to the probate court by which he was appointed, praying authority to mortgage, lease, or sell, the whole, or so much of the real estate of such person as shall be necessary: Provided, however, That if the property sought to be mortgaged, leased or sold shall be the homestead of said incompetent person the court shall not enter any order upon said application unless the husband or wife of said incompetent, as the case may be, shall have first filed with the court a written consent to said application: And provided further, That no guardian’s deed executed by virtue of such an order shall be valid unless such husband or wife of said incompetent shall join in the deed as one of the grantors therein.”
R. S. 1933 Supp. 39-221 provides as follows:
“When any such person is a married woman or married man, and not having the property in her or his own right or name, it shall be lawful for her or his guardian, jointly with the husband or wife of such person, to sell, convey ox-mortgage any real estate, and such sale, conveyance or mortgage shall be valid when ordered and approved by the probate court, without the proceedings being had required by the provisions of this act; and in case of any foreign guardian of any such nonresident person, who has complied with section 39-218 of the Revised Statutes of 1923, such foreign guardian shall be authorized to sell, convey or mortgage any such real estate, jointly with the husband or wife of such person, the same as in cases of resident guardians; and in the event that the lands are situate in two or more counties in the state of Kansas, the appointment of such foreign guardian in any one county shall be sufficient, and a certified copy of the order authorizing the sale, conveyance or mortgage shall be filed in the office of the register of deeds in any county other than that in which the order for the sale, conveyance or mortgage was made: Provided, however, That no guardian’s deed executed by virtue of such order shall be valid unless such husband or wife, as the case may be, shall join in the deed as one of the grantor’s therein.”
The guardian brought herself within the terms of both of the above provisions. Her application comes within section 39-211, since the personal estate of the insane person is insufficient for the maintenance of himself and family; and within section 39-221 because she, as wife of .the insane person, has filed her written consent in the probate court and is now ready and willing to join in a mortgage, provided the sections are held to be valid.
The probate court and the district court held that the sections were a violation of section 9 of article 15 of the state constitution. That section is as follows:
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.”
It will be noted that a homestead cannot be alienated without the joint consent of husband and wife, when that relation exists, and that the provisions of the section do not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife. In the statutes above quoted the legislature attempts to authorize the alienation of the homestead where one spouse is insane. The statute was amended in 1925 to apply to homesteads. The question is, Can the legislature do such a thing? The argument of the guardian is that if the constitutional provision be construed to require the consent of both spouses when one of them is insane, the provision really requires the impossible.
The court has considered this question heretofore. In the case of Iles v. Benedict, 110 Kan. 200, 203 Pac. 689, the facts were that a contract for the sale of real estate constituting the homestead had been entered into, but before the conveyance could be made the husband became insane. The wife complied with the statute — it was before the amendment that has been spoken of heretofore — and was appointed guardian of her husband’s estate. She secured authority from the probate court to make the sale, executed a conveyance and tendered it to the purchaser. This court held the conveyance was not good because it was not joined in by the other spouse. The decision was placed on the provision of the constitution that is raised here. Abundant authorities are quoted in that opinion. The guardian in this case is asking the court to hold that the legislature by the enactment of a statute can confer on the probate court authority to permit a person to perform an act which under the constitution he cannot do. We adhere to the rule laid down in Iles v. Benedict, and hold that the constitution cannot be thus circumvented.
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to compel a district judge to grant a jury trial in an action pending in the district court of Brown county wherein L. E. Helvern, trustee in bankruptcy of the estate of Cyrus H. Sawyer, a bankrupt, is plaintiff and I. Y. Sawyer, Grace B. Sawyer and Edith V. Sawyer (the plaintiffs in this proceeding) are defendants. The sole question before us is whether plaintiffs here (defendants in the action in Brown county) are entitled to a jury trial as a matter of right. That depends upon the issues raised by the pleadings in the Brown county action. (Boam v. Cohen, 94 Kan. 42, 145 Pac. 559.)
While mandamus by this court is a remedy which may be invoked to require a trial court to grant a jury trial in a proper case (see Estey v. Holdren, 126 Kan. 385, 389, 267 Pac. 1098, where it was used, though the point was not disputed), obviously it is a remedy which should not be invoked unless it is at least reasonably clear the party complaining is entitled to a jury trial as a matter of right. To use it in every case where a party’s request for a jury trial is refused would increase the cost and unnecessarily delay the orderly administration of justice. One denied a jury trial may preserve the question and raise it on appeal, if necessary. (Humphreys v. Commerce Trust Co., 128 Kan. 600, 278 Pac. 736.)
In the action in Brown county the petition, briefly stated, alleged the bankruptcy of Cyrus H. Sawyer; the appointment of L. E. Helvern as trustee in bankruptcy; that in March, 1930,1. Y. Sawyer and Grace B. Sawyer, for value received, executed their note to Cyrus H. Sawyer for $2,000 and secured the same by a chattel mortgage on certain live stock and farm implements; that in March, 1932, the makers and payee of that note and mortgage and Edith V. Sawyer, with the wrongful and unlawful purpose of cheating, hindering, delaying and defrauding the creditors of Cyrus H. Sawyer, fraudulently caused a note and chattel mortgage on the same property to be executed by I. V. Sawyer and Grace B. Sawyer to Edith V. Sawyer for the sum of $2,000; that Cyrus H. Sawyer then released of record the chattel mortgage first above mentioned. It further was alleged that there was no consideration for the mortgage last given, and that Edith V. Sawyer had no interest in or lien upon the property described therein. The action sought to set aside that mortgage; in effect to reinstate the earlier one, and to foreclose it as against the property therein described. The answer of defendants denied the allegations of plaintiff’s petition respecting the fraudulent execution of the mortgage to Edith V. Sawyer and pleaded a number of facts relative to the transaction. An appropriate reply was filed.
'From the pleadings it is clear that plaintiff sued for the benefit of the creditors of the bankrupt. (U. S. C. A., Title 11, § 110 (e), and see McCarthy v. McKenna, ante, p. 267, 40 P. 2d 401.) The gist of the action was to set aside an alleged fraudulent note and mortgage, to have reinstated an alleged valid mortgage, and to foreclose it. The suit is in the nature of a creditor’s bill, clearly equitable in character. The parties are not entitled to a jury trial as a matter of right. (Culp v. Mulvane, 66 Kan. 143, 71 Pac. 273.)
The writ of mandamus prayed for is denied. | [
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The opinion of the court was delivered by
Smith, J.:
This is a workmen’s compensation case. The commissioner denied compensation, and on appeal the'district court allowed it. Respondent appeals.
The claimant was working for the Procter & Gamble Manufacturing Company. He testified that in the forenoon of December 22, 1933, he reached up for a box of Oxydol, weighing between forty and sixty pounds, and as he attempted to take it down he felt a pain in his back. He quit work. The plant shut down at noon that day and did not open for work until January 2. When the plant reopened claimant went back to work, but only did light jobs. He quit work on the 26th of March and has not been back. He testified that he still has pains in his back; that the pains interfere with his movements (he has to move in a certain way); it affected his left leg more than his right; the pain is in the small of the back. He filed his claim for compensation a few days before he quit work.
The commissioner of workmen’s compensation found that while claimant had disability it was due to focal infection and that the incident of December 22 was not of such a nature as to contribute to his disability. Compensation was denied. The district court heard the case on the record made before the commissioner and found that claimant had met with personal injury by an accident arising out of and in the course of his employment on December 22, 1933. The court found, as a result of the injury, defendant had suffered total disability, which would continue for an indefinite time. The award of the commissioner was set aside and claimant was awarded compensation at the rate of 110.80 for a period not exceeding 415 weeks, from March 23, 1934. The appeal is from that judgment.
Respondent argues the trial court erred because there was no substantial competent evidence (a) that the alleged accident occurred; (b) that what occurred was an accident within the meaning of the compensation' law; (c) that claimant suffered disability from the alleged accident; (d) that claimant suffered the disability found by the court; (e) that any disability was suffered from any accident arising out of or in the course of the claimant’s employment; (/) or that claimant suffered any disability.
As to subdivision (a) above, the claimant testified that he was injured while lifting the box of Oxydol down from a pile. This was ample evidence to justify the court in finding that an accident occurred. The circumstances pointed out and argued by respondent might very well have led the court to reach a different conclusion, but did not compel it. The same may be said of subdivision (6) above. The argument of respondent is directed to subdivision (c). There seems to have been no dispute but that claimant was disabled at the time of the hearing. Some of the doctor witnesses testified they found no evidence of a strain, but they did find diseased tonsils and infected teeth. They testified this caused his condition.
The doctor who testified for claimant testified his bending forward movement is limited, bending back is limited; that on bending his back to the right his back remains straight in the lumbar region, movement occurring only in the dorsal region. The doctor thought he had disability in his back; did not think claimant was able to perform manual labor on that day.
There was some evidence that the disability of claimant came from causes other than the diseased tonsils and teeth. The argu ment of respondent would mean the trial court was compelled to believe the evidence of the doctors who testified the condition of claimant was caused by the diseased teeth and tonsils. We cannot say that such is the law. At most, the evidence of the doctors was only an opinion. No one could state positively the disability of claimant came from the focal infection. On the other hand, the claimant testified the accident occurred, and that before that he was active, while after that he suffered and continued to suffer a disability. In view of such testimony we cannot say there was no evidence that plaintiff suffered disability from the accident. What has been said applies with equal force to the other subdivisions set out above.
Respondent complains because the court found the disability would continue for an indefinite period of time and awarded compensation payable weekly for the full length of time provided by the statute. The argument is that the court should have found the duration of the disability. The finding of the trial court that the disability would continue for an indefinite length of time amounted to a finding that the disability would continue for a period of time as long as the statute provides that payments should cover. The respondent has a right to have the award of compensation reviewed whenever he believes that claimant is no longer disabled.
The case is one where the trier of the facts has reached a conclusion from the record. There is ample evidence to sustain it, and this court cannot reach a different conclusion as to the facts. See Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; Harmon v. Larabee Flour Mills Co., 134 Kan. 143, 4 P. 2d 414, and cases cited.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to enjoin the city from' entering into, and challenging the legality of, a proposed contract with the federal government in connection with the construction of a municipal electric light plant. Although as originally presented to the trial court, other grounds for relief were urged and other relief was sought, only the principal question above outlined is presented by the appeal.
It is not necessary to review the pleadings nor to go into detail about the trial. The trial court made findings of fact which include the following: Plaintiff is a public utility corporation of Kansas, and under proper certificate of convenience and necessity from the corporation commission it serves the defendant city and about thirty other towns in the vicinity with electricity. Since 1926 it has had no franchise at Burlington. It owns real and personal property in Burlington on which it pays taxes, and it is also a federal taxpayer on account of its business and property in Burlington. Burlington is a second-class city, and on May 3,1933, the governing body enacted an ordinance calling an election to vote on a bond issue not exceeding $118,000 for the purpose of erecting an electric light plant and distribution system. The result was in favor of the bonds, and on July 5, 1933, the governing body passed a resolution making application to the federal emergency administration of public works for a donation of thirty per cent of the total cost of the construction and a loan to be secured by bonds of the city of seventy per cent of the total cost, and on September 13, 1933, an application was duly filed, showing the total loan and grant as $118,000. On January 10, 1934, the governing body passed a resolution confirming, renewing and amending its application for a loan of $118,-000 and a grant of whatever amount was necessary, when coupled with the loan the federal administration was willing to make the city, to enable the city to build the plant. On January 25, 1934, the federal administration allowed an allotment to the.city of $145,000, of which $35,000 was an unconditional grant, the remainder to be made up by the purchase of $110,000 of the general obligation bonds of the city to be issued and sold pursuant to the constitution and statutes of the state of Kansas, and on 'February 12, 1934, the federal administration submitted a “loan agreement” which provided for such grant and purchase of bonds, and provided further that the issuance and sale of the bonds should be pursuant to the constitution and statutes of Kansas, and that in case any of the bonds were sold to purchasers other than the federal government, the principal amount which the government was obliged to take and pay for would be correspondingly reduced. The trial court further found:
“13. That no evidence was introduced upon the trial of this, case showing or tending to show any invalidity in the proceedings taken by the city of Burlington under the statutes of the state of Kansas in the issuance of the bonds in question, or that said bonds when issued, would increase the total bonded indebtedness of the defendant city beyond the amount authorized by the statutes of this state.
“14. That the construction of the proposed municipal plant by the city of Burlington would cause a loss of business to the plaintiff and a consequent loss of profit derived from the operation of its present plant, and would make less valuable the plaintiff's investment in its property used and usable in rendering service to said city and its inhabitants, and the. property of plaintiff located in said city would be subjected to the payment of taxes to pay principal and interest on the bonds in question.”
As a matter of law the trial court concluded the city had a legal right to construct a municipal light plant and distribution system; to accept grants or donations, and to issue and sell its general obligation bonds in an amount not to exceed $118,000 for that purpose; that in the absence of any invalidity in the issuance of the bonds, the presumption is that the bonds are, in all respects, regular, and that the plaintiff was not entitled to an injunction by reason of the fact it is a state or federal taxpayer or because it is a public utility. A previously issued restraining order was set aside, and a permanent injunction denied. Plaintiff’s motion for a new trial was denied and it appeals.
It is noted that reference is made in the pleadings to chapter 32 of the Laws of-1933 (R. S. 1933 Supp. 12-805a to 12-805k), but as that act refers to revenue bonds as therein defined, and not to general obligation bonds, and as it is not the act under which the city acted or on which it relies, it will not be noticed further.
The bonds in question were authorized to be issued under R. S. 12-801, 12-802 and 12-834, and there is no question raised as to the regularity of the proceedings, nor does there seem to be any question the city could have proceeded to build the electric light system at a cost not exceeding the authorized amount if it had not attempted to cooperate with the federal government. After the ábove bonds were authorized, the legislature of Kansas enacted the Laws of 1933 (Special Session), chapter 33, section 1, which reads as follows:
“In order to cooperate with the federal government under the national industrial recovery act and during the time said act is in effect, the governing body or the proper officers of any municipality or governmental subdivision now empowered by law to make public improvements, or to extend or repair same and to issue general-property obligation bonds in payment of the cost thereof, is hereby given the power and authority, subject to all the limitations for the authorization thereof, and the issuance of general obligation bonds to pay the cost therefor as by law provided, to contract for and make such improvements or extensions or repairs in such manner as to comply with and secure the benefits of the provisions of the national industrial recovery act and the rules promulgated thereunder.”
This act took effect December 5, 1933, and prior to the city’s second application of January 10, 1934, on which the federal government seems to have acted on January 23, 1934, resulting in the so-called “loan agreement” above referred to. It is this attempt on the part of the city to cooperate with the federal government of which plaintiff complains.
While there is considerable argument as to the right of the plaintiff to maintain this action, it does not appear to be necessary to discuss separately its rights as a state taxpayer, a federal taxpayer and a public utility. It may be noted that here the regularity of the bond election and the legality of the bonds is not in question, there is no contention the city lacks power to construct the plant and, considered separate and apart from the “loan agreement,” plaintiff, as a state taxpayer, cannot maintain its action under R. S. 60-1121, for under such circumstances no public burden is created nor is there to be any levy of an unlawful tax, as the result of an unauthorized act. In the case before us the question as to doing an act not authorized by law pertains, not to the grant of power to the city to cooperate under R. S. 1933 Supp. 12-674, but to the power of the federal government to extend its aid as contemplated by 40 U. S. C. A. §§ 401-414, inclusive, hereafter referred to as “the national industrial recovery act,” and as evidenced by the “loan agreement,” of which complaint is made. If that question is properly before us in this action by reason of proper pleadings, proper parties, and findings of fact warranting relief, which a district court of this state is authorized to grant, then we may say plaintiff has the right to maintain the action. And the same is true generally with respect to plaintiff’s rights as a public utility or as a federal taxpayer. As those rights depend on matters hereafter discussed, we shall pass them for the moment.
Appellees insist that there is a defect of parties defendant. In their answer it is alleged that the reasonableness, constitutionality, propriety and validity of the acts of certain officials of the United States government, namely the administrator of public works, his agents, etc., and of the laws and authority under which they act, and the validity of said acts are the principal questions raised by plaintiff; that the rights of the administrator are involved, and that he is a proper, necessary and indispensable party to the action and to a complete determination thereof, and it is necessary the administrator be made a party defendant. It may be observed that we are not concerned with the propriety of the legislation involved here; both the federal and state legislation were the result of legislative discretion, and it is not the function of courts to pass upon the wisdom and sufficiency or lack of it in such legislation. The only question with which we may be concerned is the power of the legislative body to enact it. Nor are we concerned with whether the federal administrator would be a necessary party were the question before us limited to the right of a city to do an act which it was claimed violated some provision of our state statutes. So far as is necessary, the question will be treated later.
The loan agreement to which plaintiff objects contains many matters not of present interest. It is divided into four parts, part one providing that the borrower will sell and the government will buy $110,000 principal amount of an authorized issue of bonds of $118,000 at par and the government will make a grant of not to exceed thirty per cent of the cost of labor and materials employed on the project which shall cost not to exceed $145,000; that the proceeds of bonds and grant shall be used for the construction of the light plant pursuant to the city’s application, the national industrial recovery act and the constitution and statutes of Kansas, including R. S. 12-801, 12-802 and 12-834. The bonds are described as to form and maturities, place of payment, etc., and provisions for being taken up by the government, creation of retirement fund, etc., are made. Part two provides for requisitioning proceeds of bonds and grant by the city from the government. Part three contains covenants of the city as to labor, wages, labor preferences, employment services, use of human labor, accident prevention, compensation insurance, bonds, materiál, etc., and part jour provides for prompt construction, completion of the project and furnishing of information, as well as conditions precedent to the government’s obligation, and representations and warranties of the borrower and other matters not of present concern. There is, however, specific provision that the agreement shall be governed by and be construed in accordance with the laws of the state of Kansas.
As we view plaintiff’s contention, it no longer claims that under our statutes the city is without power to issue bonds-to build a light plant and, under R. S. 1933 Supp. 12-674, to enter into a contract with the federal government for assistance in connection therewith, and as generally outlined above, but that the govern- J ment itself lacks power in that the national industrial recovery act.* does not authorize such cooperation on the part of the United States, or if it be held that it does, so construed the act is unconstitutional, and that therefore the act of the city in making the agreement will be unlawful. Assuming for the moment that no other obstacle presented itself, it would seem that before this court could treat the question of the force and effect of the national industrial recovery act as applied to the federal government, some official or agency of that government would have to be a party defendant. To grant the relief prayed for would in effect adjudicate the rights of the government, which is not a party to the suit. It is argued that it is impossible to obtain service on any official or agency of the government, and that the government has been solicited to voluntarily appear, and refuses, but neither situation warrants the court in assuming to take jurisdiction and to render a judgment which will affect the rights of the absent party. (See 20 R. C. L. p. 667 et seq.; 21 C. J. pp. 237-282, inclusive, and Kansas decisions cited.) Also, see Hart Coal Corporation v. Sparks, 9 F. Supp. 825, where it was held:
“In suit to enjoin United States attorney from enforcing penalties under national industrial recovery act for violating administrator’s orders attacked as being arbitrary and capricious, court held without jurisdiction to consider such ground of attack in absence of administrator.” (Syl. ([ 1.)
But passing defect of parties and assuming that the relief prayed for might otherwise be granted, we are confronted with the proposition that a suit by a past or future federal taxpayer, to restrain the enforcement of an act of congress authorizing appropriations of public money upon the ground the act is invalid cannot be entertained in equity, and that to invoke the judicial power to disregard a statute as unconstitutional, the party who assails it must show not only that the act is invalid but that he has or will immediately sustain direct injury as a result of its enforcement, and not merely that he suffers in common with people generally. (Massachusetts v. Mellon, 262 U. S. 447, 67 L. Ed. 1078.) In that opinion, two separate actions were considered, one by the state of Massachusetts, and one by a federal taxpayer, both seeking to prevent the expenditure of federal moneys under the maternity act, it being claimed that the purposes intended by the act were a usurpation of power not granted to congress. In disposing of the matter as to the individual taxpayer’s bill, it was said:
“The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained. It is of much significance that no precedent sustaining the right to maintain suits like this has been called to our attention, although, since the formation of the government, as an examination of the acts of congress will disclose, a large number of statutes appropriating or involving the expenditure of moneys for ndnfederal purposes have been enacted and carried into effect.
“The functions of government under our system are apportioned. To the-legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct or restrain the action of the other. We are not now speaking of the merely ministerial duties of officials. (Gaines v. Thompson, 7 Wall. 347.) We have no power per se to review and annul acts of congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive- relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding. Here the parties plaintiff have no such case. Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be, not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess.” (p. 487.)
In its principal aspects, the same situation as exists in the case at bar was presented in City of Allegan v. Consumers Power Co., (C. C. A. 6th Cir.) 71 F. 2d 477 (decided June 6, 1934), where the power company, a Maine corporation owning property in the city, on which it paid taxes, and supplying the inhabitants with electricity, questioned the power of the city to issue bonds for a municipal light plant and to cooperate with the federal government by way of loan and grant under the national industrial recovery act. In disposing of the company’s contentions as to the scope and constitutionality of the recovery act, the court said:
“Aside from this, however, we are of the opinion that the utility is without right to raise any question either as to the effect of or the constitutionality of the recovery act in the present suit. As a federal taxpayer it neither has nor asserts such right. It relies upon its status as a taxpayer and as a property owner in Allegan.
“It has long been settled that the courts have no power per se to review and annul acts of congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. . . . The party who invokes the power must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive relief be presented, the court enjoins in effect not the execution of the statute, but the acts of the official, the statute notwithstanding. (Massachusetts v. Mellon, 262 U. S. 447, 43 S. Ct. 597, 67 L. Ed. 1078; Heald v. District of Columbia, 259 U. S. 114, 42 S. Ct. 434, 66 L. Ed. 852; Cusack Co. v. City of Chicago, 242 U. S. 526, 37 S. Ct. 190, 61 L. Ed. 472, L. R. A. 1918A 136, Ann. Cas. 1917C 594; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 34 S. Ct. 359, 58 L. Ed. 713; Arkadelphia Milling Company v. St. Louis S. W. Ry. Co., 249 U. S. 134, 39 S. a. 237, 63 L. Ed. 517; Williams v. Riley, 280 U. S. 78, 50 S. Ct. 63, 74 L. Ed. 175. . . .)
“A final contention remains to be noted. The city under the validating act is authorized to sell its bonds previously approved. It is claimed that authority to sell does not include authority to pledge, and since the announcement of the public works administrator indicates the nature of the advancement to the city to be a loan, the city is without power to avail itself of such aid. The contention is without merit. One who purchases municipal obligations from the city in a true sense loans his money to the city. The transaction with respect to the evidences of debt is nevertheless a sale by the borrower and a purchase by the lender. It is otherwise when securities are pledged for the payment of a debt with title in the borrower prior to default, and with the right of the lender to enforce a deficiency upon foreclosure and sale of the securities for an amount insufficient to liquidate the debt. There is no contention that the transaction here contemplated embraces such conditions. . . .” (pp. 481, 482.)
A petition for writ of certiorari in the above case was denied by the United States supreme court on October 8,1934 (79 L. Ed. 103).
Time and space forbid reference to the many cases in which questions arising under the national industrial recovery act have been considered, among which are: Missouri Public Service Co. v. City of Concordia, (Mo.) 8 F. Supp. 1; Missouri Utilities Co. v. City of California, (Mo.) 8 F. Supp. 454; Ashwander v. Tennessee Valley Authority, (Ala.) 9 F. Supp. 800, and in which there is contrariety of conclusion.
Conceding that some of the inferior federal courts may have held to the contrary, in so far as the national industrial recovery act is concerned, it appears that under the Mellon case, supra, and other cases mentioned, and assuming that all necessary parties were before the court, the plaintiff is without right to question the validity of the national industrial recovery, act, and therefore the judgment of the trial court is correct. Such a conclusion obviates discussing many of the propositions advanced in the briefs of both parties.
The order of this court of March 16, 1935, staying proceedings is set aside. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The city of Iola invokes our original jurisdiction in mandamus to require H. Hobart, mayor of the city, to sign a contract for the construction of a swimming pool.
Involved in the action are questions of law touching the validity of certain procedural steps taken by the city to acquire lands for the purpose of enlarging and improving its public park system, the significance to be attached to an authorized bond issue of $30,000, and negotiations with the federal government for a grant of funds toward the cost of the project.
The pertinent issues of law and fact were tendered in the city’s application for the writ. Exhibits attached thereto included a copy of the ordinance under which the swimming-pool project was initiated, the notice of the bond election, and other papers and documents not necessary to be mentioned here.
The answer and return to the writ contained a narrative of the negotiations with the federal government, the conditional assurance the city had received that a federal grant of funds would be forthcoming, the acquisition of additional lands for park purposes, the terms of the $30,000 bond issue, and more potent than any of the foregoing — the allegation that the contract sought to be validated by the mayor’s signature is for a sum of money which with the other pertinent expenditures already made and yet necessary to be made will greatly exceed the authorized amount to carry the park improvement and swimming-pool project to completion.
Although it might appear that the litigants could readily have simplified the issues to two or three controlling questions of law, their contentiousness required this court to appoint a commissioner to hear the evidence and report his findings of fact and conclusions of law thereon. Hon. C. O. Pingry, of Pittsburg, served in that capacity, and his comprehensive report is now before us. His findings of fact and conclusions of law sustain the attitude taken by the defendant mayor, and he recommends that the writ of mandamus be denied.
Exceptions to the commissioner’s report have been filed by plaintiff — to an understanding of which it will require some matters of controlling significance to be stated with some detail:
The title and avowed purpose of the bond ordinance read:
“An- ordinance declaring the expediency of improving the public parks of the city of Iola, Kansas, by the purchase of additional land, if necessary, and by the construction and building thereon a swimming pool, with buildings and appurtenances thereto; and providing for the calling and holding of an election in said city to procure authority for the issuance of bonds under the provisions of section 12-1302, 1931 Supplement to Revised Statutes of Kansas, 1923, and the amendments thereto, to raise the necessary funds to pay the costs and expenses of making said improvements.
“Whereas, the city of Iola is informed that the United States government, as a means of providing employment under the present economic emergency, will contribute thirty per cent of the cost of making the improvements hereinafter specified, and, whereas, said contributions will materially lessen the cost of the improvements hereinafter specified to the taxpayers of said city.
“Section I. It is hereby deemed and declared expedient and of public utility, that the public parks of the city of Iola, Kansas, be improved by the purchase of additional land, if necessary, and by the construction and erection thereon, on a location to be determined by the governing body of said city, a modern swimming pool, including buildings and appurtenances thereto.
“Section II. To raise the necessary funds to pay said construction and buildings of said improvements it is deemed and declared necessary to issue bonds of said city in the sum of $30,000, . . .”
Some terms of the ordinance provided:
“Section YI. It is hereby provided that in event the city of Iola, Kansas, fails to obtain the grant of funds from the United States government to cover thirty per cent of the cost of the improvements provided for in section I of this ordinance, then, said bond issue shall be deemed null and void, which condition shall be stated in the notice of said election.”
The statute which sanctioned the bond election and the bond issue reads :
“That for the purpose of purchasing land for park purposes or for the erection of buildings thereon, or the improvement thereof, cities are hereby authorized to issue bonds or make a special levy for the special purpose whenever in the judgment of the governing body thereof it shall be expedient to purchase such lands or erect such buildings or make such improvements, but no such bonds shall be issued or special levy made until the governing body shall be instructed to do so by a majority of all the votes cast on the proposition at any general or special election. Such election shall be held and said bonds shall be issued as provided by law.” (R. S. 1933 Supp. 12-1302.)
The ordinance specified the proposition on which the electors of the city were invited to vote as follows:
“Shall the following be adopted: Proposition to issue bonds of the city of Iola, Kansas, to the amount of $30,000, for the purpose of providing funds to pay the costs of improving the public parks of said city by the purchase of additional land, if necessary, and by the construction thereon of a modem swimming pool, with buildings and appurtenances thereto, the issuance of said bonds to be contingent upon the United States government contributing thirty per cent of the costs of said improvements.”
The election results were these:
For the bonds.................................... 815 ayes
517 nays
On this result, the city hired an engineer for $1,000 to draw plans for the swimming pool. A tentative site for the swimming pool was selected in Riverside Park (thirty acres in extent) which had belonged to the city for many years. Underlying that site were important pipe lines of oil and gas companies, and one of these offered $1,000 to the city to choose a site elsewhere. There is an old established agricultural society in Allen county which owned two tracts, 12.13 acres adjoining the city park on the northwest, and 45 acres adjoining the city park on the southeast. The society offered to convey both these tracts to the city upon condition that it would assume and pay the mortgage and other indebtedness pertaining thereto. This indebtedness was $12,160. The offer was accepted. The funds to liquidate the indebtedness on the lands thus acquired were procured as follows: The city owns its electric power plant. Pertaining thereto the city has two funds — the electric department fund, the electric department sinking fund. The first of these funds had a large but unstated amount of money to its credit. The second of these funds may be invested as authorized by statute (R. S. 1933 Supp. 12-830b) until needed to purchase or redeem the city’s obligations pertaining to that department. The city decided to transfer $12,160 from the electric department fund to the' electric department sinking fund; and then it borrowed that amount from the sinking fund to pay off the indebtedness against the two tracts of land it had acquired from the agricultural society. To keep straight the accounts of the sinking fund, the city executed to it ten demand notes for $1,000 each, and one for $1,160, all bearing six per cent interest, payable semiannually. Where the final $1,000 came from is not clear in the record. The interest on these notes is being paid out of rentals which the city collects from various persons and organizations for the privilege of using the acquired property. By resolution the city set aside seven acres of the acquired lands as the site for the swimming pool.
When the plans for the swimming pool were prepared, contractors were invited to submit bids. A majority of the city commissioners favored the bid of Lister and Cox, of Emporia, whose figures were as follows:
“General ...................................... $31,535.00
“Extra No. 1 .................................. 280.00
“Extra No. 2 .................................. 750.00
“Extra No. 3 .................................. 500.00
Total ....................................... $33,065.00”
The federal government PWA gave its conditional approval of the project and promised to contribute $8,200 toward the cost of the labor and materials, but its contribution was not to exceed 30 per cent of those particular costs. Lister & Cox were induced to revise their figures, and they reduced their bid to $31,535. This bid was accepted by a majority of the city commissioners, and it is the mayor’s refusal to sign a contract based on such acceptance which has precipitated this lawsuit.
The record contains many other interesting facts, but space forbids any further narrative thereof except to show the total contemplated cost of this project:
“Land acquired ................................ $12,160.00
“Contract of Lister & Cox ..'.................... 31,535.00
“Expenses of bond election; paid on account to special- engineer' for services; and miscellaneous items ................................ 1,186.00
“Balance due the special engineer............... 400.00
“Cost of connecting swimming pool with water main ...................................... 1,000.00
“Total ascertained cost .................... $46,281.00”
The assured contribution from the federal government may amount to $8,200 if the cost of labor and materials should reach that sum, but in no event will it exceed thirty per cent of the total cost of such labor and materials. The correspondence between the federal officials and the city emphasized the importance of this der tail; and it will be noted that the bond proposition submitted to the voters contemplated a contribution from the government of thirty per cent of the cost of “said improvement,” which would include considerably more than the mere cost of labor and materials.
However, an infirmity in this project of much greater importance than the matter just mentioned stands out of this controversy so that it overshadows all other details. The electors of Iola were invited to vote on a project which was not to cost more than $30,000, of which amount the federal government was expected to pay thirty per cent and failing in that expectation the whole project should be called off. What sort of a dish is now served up for this court to approve? The city has misused the funds of its electric department. The shifting of surplus funds of the electric department to its sinking fund for the ostensible purpose of having them available for investment was a transparent hocus-pocus which deceived nobody. The investment of these moneys in the agricultural society’s lands was the sheerest camouflage to conceal a substantial part of the cost of the park and swimming-pool project on which the will of the voters was taken in the bond election.
Our commissioner did not deem it necessary to denounce this' disingenuous feat of fiscal legerdemain, but it is impossible for this court to overlook it. We hold that the lands of the agricultural society were acquired pursuant to the avowed purposes of the bond ordinance and the bond election; and the cost of these lands, or the cost of liquidating the indebtedness on these lands, which was the consideration for their conveyance to the city, is as much a legitimate and proper charge involved in the total cost of the improvement project as any other item in the bill.
Touching the legal questions pressed ori our attention, we are first reminded that the performance of a duty imposed on a public official by virtue of his office, trust or station, may be enforced by' mandamus. (R. S. 60-1701.) Quite true, but there are important qualifications on that rule of law. In State, ex rel., v. Younkin, 108 Kan. 634, 196 Pac. 620, where mandamus was invoked to compel a county clerk to register a bond issue tainted with illegality, it was held that although the exclusive responsibility for the bond issue rested on the board of county commissioners, and the defendant’s duty was purely clerical, he would not be required by mandamus to perform an act which in itself was purely incidental and ministerial to that which other officials were unlawfully seeking to accomplish.
In Kolster v. Gas Co., 106 Kan. 84, 196 Pac. 738, it was said:
“Mandamus is a discretionary writ, and before granting it the court may and should look to the larger, public interest which may be concerned — an interest which the private litigants are apt to overlook when striving for their private ends. (Citations.)” (p. 86.)
See, also, State, ex rel., v. Miami County Comm’rs, 133 Kan. 325, 299 Pac. 965.
Among the exceptions taken by plaintiff to the findings of the commissioner is the thirteenth. His findings are only advisory. In the thirteenth finding he dealt more tolerantly with the maneuvers of the city to acquire the lands of the Allen County Agricultural Society than this court can approve. (Hunt v. Gibson, 99 Kan. 371, 375, 161 Pac. 666; State, ex rel., v. Foley, 107 Kan. 608, 193 Pac. 361.) The only statutory grant of power to the city to purchase these lands was for park purposes. (R. S. 12-1301; R. S. 1933 Supp. 12-1302.) Either the city bought this property as.a part of the park improvement project, which included the swimming pool, or there has been such a flagrant diversion of the public funds of the city as would call for the investigation of a grand jury, not a mere dispassionate examination of the corporate powers vested by statute in a city of the second class.
Moreover, before lands could have been lawfully purchased for the electric light plant the commissioner of finance and revenue, upon an advisory estimate by the head of that department, would have had to make provision for its purchase in the annual budget; and no expenditure in excess of the estimate could have been incurred. (R. S. 14-1601, 14-1602.) It is superfluous to say that no( attempt was made to conform to these statutory provisions in the acquisition of these lands.
■Plaintiff excepts to the finding of the commissioner that the cost of laying the necessary pipe line to connect the proposed swimming pool with the city water mains, estimated at $1,000, should be charged to' the project. This finding must be sustained. The city has no other existing fund from which it could lawfully be met.
Objections are also made to the commissioner’s nineteenth finding in which he holds in substance that even if the price of the land be eliminated from the total cost of the improvement, the remainder would exceed the amount the city has been authorized to spend on this project. If the entire cost of the land, $12,160, be omitted from the computation we have made above, and if the promised $1,000 donation from the oil company be also taken into account, the remainder would still be $33,121. But, it is argued, the sums already paid to the special engineer, the cost of the bond election and other incidental expenses, have already been paid out of the general funds of the city. They have been paid out of the pockets of the taxpayers who gave their sanction to an expenditure of the proceeds of a bond issue of $30,000 less what the government was expected to contribute. The electors of the city never did sanction an- expenditure of any more, no matter what fund it has temporarily come out of. The election expenses, the services of the special engineer, and any other incidental expenses of this park-improvement project are as much a part of its total cost as are the wages of the men who dig the swimming pool and the price of the materials which go into its construction. Indeed, the city clerk testified that in practice such incidental expenses of projected improvements are met for the time being by drafts on the general fund, and that it is reimbursed when the moneys for the improvement are available. Of course, where a bond issue is defeated at an election, there are certain incidental expenses which must be met by the general fund. (State, ex rel., v. Bentley, 98 Kan. 442, 157 Pac. 1197.)
Passing for the moment the important matter that the purchase price of the 57.13 acres of land should be considered as a part of the cost of the projected improvement, the city set off seven acres of that acquisition as the particular site of the pool, and allocated to the project the sum of $875, which would be $125 per acre. The cost of the entire tract was $212.85 per acre, and there was neither rhyme nor reason for estimating the value of the seven acres at $125 per acre — which is only another proof of the evasive financiering which the city has pursued from first to last in this project— the net result of which is the complete undoing of what was apparently a public-spirited project sanctioned by the voters of Iola and encouraged by the generosity of the national government.
This court has not overlooked the fact that the government has been approached for a larger allotment of federal funds, with a reasonable prospect -that they will be granted, but even so, that grant in no event will exceed thirty per cent of the cost of labor and materials. The remainder of all costs must come out of the proceeds of the bond issue. Neither the bond ordinance nor the proposition submitted to popular vote is susceptible of an interpretation that the cost of the project was to be $30,000 plus whatever sum the government would contribute thereto. The language of the bond ordinance, and particularly sections 1 and 6 thereof, is explicitly to the contrary. The correct interpretation of the ordinance as well as the proposition on the bond election ballot is'that the Iola taxpayers may be out of pocket $30,000 less whatever sum the federal government will contribute — and not a cent more.
It is not uncommon when a course of official action has been found to be illegal that any number of reasons can be advanced to show its illegality. The new cash-basis law (R. S. 1933 Supp. 10-1101 ■et seq.) was in full force and effect ere this park and swimming-pool project was set 'on foot. Not the slightest attention was paid to the terms of that law, which makes it perfectly clear, if it is not already apparent, that the city’s authority for the incurring of debts and expenditures for this improvement was to be found within the terms of the statute which authorized the enactment of the bond ordinance, the ordinance itself, and the affirmative vote on the proposed bond issue- — and under no other statute or rule of law whatsoever.
The record is long and suggests other matters which might be-discussed, but time and space forbid. The controlling features of the commissioner’s careful and helpful report are approved.
The writ of mandamus is denied, and judgment will be entered: in favor of defendant.
Writ denied. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to foreclose a mortgage on 100 acres of Mitchell county land.
The only defense was interposed by seven grown children of the mortgagor, whose claims of interest were based on the following facts:
Martin Childers and Beatrice Childers, parents of the defendant interveners, who lived as husband and wife for fifty years, made a joint, mutual and reciprocal will, in which they devised to each other as survivor all their personal property and—
“III. We, as husband and wife, further direct and provide, as to our real property, and we do now give, devise and bequeath to each other as the survivor may be a life estate in and to all the real property of which we or either of us may die seized or possessed.
“V. We further direct and provide, subject always to the life estate in all the real estate herein and hereby given, devised and bequeathed by us and either of us to the other as the survivor may be, we now do jointly, mutually and severally hereby give and devise the said real estate to our other sons and daughters, the same to be divided between them share and share alike, namely, Luella Watson, Ernest Childers, Edward C. Childers, Maude Whit-more, Hattie O’Loughlin, Claude Childers and Lettie Walters, . .
Some three years after the execution of this joint will Beatrice died. The will was probated and her surviving husband elected to take under its terms. He thereby acquired the personal estate of Beatrice, which included $1,000 in baby bonds. He thereby also acquired a life estate in 20 acres of land on which was the family domicile,The title to which stood in the name of Beatrice. Martin himself held the title to the 100 acres in controversy and to one or two other tracts of real estate.
Seven months after the death of Beatrice, Martin married his present wife. He and she borrowed $2,000 from a local mortgage company and mortgaged this 100 acres as security for its repayment. The'note and mortgage passed into the hands of plaintiff, and default having occurred, foreclosure was instituted.
The children of Martin and Beatrice were let in to defend, and they pleaded their alleged respective interests under the joint will of their parents which had been probated, and under whose terms their father had acquired the entire estate of their mother, in consequence of which the seven interveners each claimed an undivided one-seventh interest in the property, subject to their father’s life estate.
The trial court heard considerable evidence in the case, but eventually ruled'that the joint will of Martin and Beatrice imposed no restriction upon Martin’s right of alienation of any property owned by him; that plaintiff’s mortgage was a first lien thereon; and that the answering defendants had no legal or equitable defense to plaintiff’s action.
Judgment was entered accordingly, and the intervening defendants appeal, contending here, as they did below, that the joint will of Martin and his first wife was contractual, and bound him especially, since he elected to take under its provisions made in his behalf.
There is no gainsaying the soundness of these contentions, but just how far and to what extent do they affect the validity of plaintiff’s mortgage? By the joint will Martin Childers impliedly agreed that whatever property he may die seized of shall pass under that will to the seven children named in its fifth paragraph quoted above. He did not bind himself not to alienate or dispose of any of his property during his life as his own wants, needs or convenience might require. When Martin Childers joined in the execution of the mutual and reciprocal will of himself and his first wife, he did ■ not thereby intend to disable himself to exercise dominion over his own property. Certainly he had a right to borrow the $2,000 sued for in this action. And the judgment creditor could certainly have subjected this particular 100 acres to execution sale to the satisfaction of its judgment without a mortgage lien thereon, since it was not the homestead of Martin and his second wife. They reside on the 20 acres on which he enjoys the life estate devised to him by his first wife.
We have not overlooked the many interesting cases which the industry of counsel for appellants has revealed for our perusal; but as was said in Morse v. Henlon, 97 Kan. 399, 155 Pac. 800, “there is no occasion for employing rules of judicial construction of a will in search of the testator’s intention where such intention is expressed clearly and unequivocably in the instrument.”
The joint will of Martin and Beatrice is still a perfectly good will. When in the fullness of time Martin is gathered to his fathers, the real estate of which he dies seized will pass to the seven children named in the fifth clause of the will, as both their parents intended.
If what we have said were insufficient to dispose' of this appeal it could as conclusively be determined under the general rule that one who acquires any sort of interest in real property may rely on the record when he has no personal notice or knowledge, of some outstanding interest in it. What would the most careful examination of the record title of this 100 acres have disclosed at the time this mortgage was executed? It would have shown clear title in Martin Childers — nothing whatever about the joint will of Beatrice and himself which had been probated, and which merely disposed of her property.
The judgment of the trial court was correct and it is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a conviction of owning and having in possession a motor vehicle, the original numbers of which had been destroyed, removed, altered or defaced, in violation of R. S. 8-116, as charged in the information.
The testimony of the removal, or attempt to remove, alter or deface the numbers on the automobile, showed quite plainly that several numbers had been tampered with, showed the effects of grinding off and the stenciling on of other numbers.- The defendant had been in the possession of the car- for fifteen months and therefore had a long time to gain knowledge of the change in the numbers. The sheriff, who made an examination of the car, testified that the numbers appeared to have been filed off and new numbers stenciled on. The transmission number had been taken off with a file or chisel. He made an examination of numbers on screen shaft. The words of the law with reference to the change of, the numbers on cars, covers almost every form of tampering with them. Anything which operates to destroy, remove, alter or deface the numbers is sufficient, and we think the testimony of the state covered the question and is sufficient, showing an obvious change.
Photographs were taken of the motor numbers which appeared as the state’s exhibits, while the defendant had several witnesses, two of whom had never seen the motor number, and two others had only made a casual examination of it.
The testimony given by the state was based on careful scrutiny and examination of the car when it was brought into the garage for examination. Our conclusion is that the testimony of the state was sufficient to support the -decision overruling the demurrer.
There is a complaint of instructions. One was asked and it is insisted that the refusal of it was error. It was:
“The jury are instructed that intent is a necessary ingredient to the commission of crime, and if the evidence shows that the defendant did not know that the original motor number of said motor vehicle had been destroyed, removed, altered or defaced, and had no reasonable grounds for believing that it had been destroyed, altered, removed or defaced, and had said motor vehicle in his possession without any intent of violating the law, then you cannot find the defendant guilty.”
This instruction was refused on the ground that a sufficient and satisfactory instruction had already been given as to intent and knowledge.
Instruction No. 6 was as follows:
“The law presumes the defendant innocent of every offense charged against him, innocent of any guilty intent and innocent of every fact necessary for the state to prove in order to establish his guilt, and this presumption of innocence continues to operate in his favor throughout all the stages of the trial and until each and every fact necessary to constitute the offense charged against him is established by the evidence, beyond a reasonable doubt.”
Instruction No. 8 was as follows :
“You are instructed that one of the defenses is that the defendant had no notice or knowledge that the original motor numbers of the Chevrolet automobile had been destroyed, altered, removed or defaced and he thereby acted in good faith in the purchase of said Chevrolet automobile and the possession of the same. In this connection you are instructed that it is the duty of a purchaser of an automobile to use reasonable care to ascertain if the motor number on said automobile has been destroyed, altered, removed or defaced, and if you find under all the facts and circumstances of .this case that the defendant did use such reasonable care and had no notice or knowledge that spch number had been or was destroyed, altered, removed or defaced, then your verdict should be for the defendant.”
The instructions six and eight, given, sufficiently cover the question.of knowledge and intent and state the principle as completely as the one refused.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C.. J.:
This is an appeal from a judgment rendered against the defendant in the district court of Lyon county, i^ an action for damages based on personal injuries and property damage received by plaintiff in an accident occurring because of the alleged negligence and carelessness of the driver of a bus, he being the agent, servant and employee of appellant company.
The appellee is a resident of Emporia; the appellant is the Southern Kansas Stage Lines Company, which operates motor buses in Kansas as a common carrier under the rules and regulations of the public service commission. Appellee testified that on the evening of May 9, 1933, at about nine o’clock, he was driving a Ford truck with a trailer west on U. S. highway 50 south, at a point about a mile and a half east of Emporia; that his truck was a ton-and-a-half truck with a two-wheel trailer, loaded with about 10,000 pounds of freight; that the trailer body was a plain stake body about twelve feet long, and about five feet high from the bottom of the trailer and attached to the chassis by a fifth wheel; that he had been operating as a common carrier truck for about four years; that on the night in question he was driving west on the north side of the pavement about eight miles per hour. He testified that his truck was equipped with two marker lights at the rear end of the trailer, with two green lights at the bottom of the trailer, and one headlight and a stationary light which reflected lights of approaching vehicles; that he suddenly felt like he was being crushed from behind and was knocked unconscious, and so injured that he could not go out to the scene of the accident until about two weeks afterward. His load consisted of soap, white soda, lime ricky, asphalt, shingles and tires; and after the accident about one-third was unfit to deliver. That he was in bed a week at home and suffered pain in his hips and back, and it was several days before he was able to get out of bed; that he used crutches nine days, during which time and for some time thereafter he had pain in his left leg and pain in his back, and it was about two months before he was able to use his left leg; that ever since the accident he has been unable to lift heavy objects without pain in his back and hips; that his doctor bill was $25.50; that his business had netted him on an average of $50 per week prior to the accident; that he made three trips per week to Kansas City and back, and that his business now was a total loss.
Special questions were submitted by the court and answered as follows:
1. Was plaintiff stopped on the highway at the time the accident occurred? A. No.
2. If he was traveling, at what speed was he traveling? A. Five miles per hour.
3. Do you find from the evidence that the plaintiff’s truck was of such color that it had a tendency to blend in with the highway and could not be distinguished until an approaching motorist was almost to it? A. No.
.4. What was plaintiff’s business at time of accident? A. Operating a truck line.
5. Was the driver Barnhill’s view of the highway temporarily obstructed immediately prior to the accident, and if so, what caused it? A. Yes; lights of approaching car.
6. Do you find that the plaintiff was guilty of negligence in the manner in which his truck was being operated on the highway? A. No.
7. Did plaintiff’s truck have a tail light in operation at time of said accident? A. No.
8. Did plaintiff’s truck have marker lights showing at the time of the occurrence in question? A. No.
9. What if any—
(a) Do you allow damage to truck and trailer?................... $450
(b) Do you allow for damage to goods?........................... Ill
(c) Do you allow for loss of service?............................... 750
(d) Do you allow for pain and suffering?.......................... 500
(e) Do you allow for exemplary damage?.............................
10. Did plaintiff have a 1933 tag? A. No.
Did plaintiff have a public-service permit? A. Yes.
The jury found generally for the plaintiff. He had received no notice that his application for certificate of permission had been canceled. The authority of the commission was not certified until the sixth day after the trial, but it is contended that the absence of a permit would not avoid the consequence of this negligence. Unless the negligent act of the plaintiff was the proximate and procuring cause of the injury it would not bar his recovery. But the court in instructions 14 and 20 told the jury that it must appear from the evidence that the damages and injury, if any, were the result of such negligence and that such negligence was the proximate cause of the injury and damage.
The defendant contends that the plaintiff was guilty of contributory negligence in operating his truck and trailer without lights. While there was some conflict in the testimony about the lights, the jury trying the case has found upon competent evidence in answer to question number seven that plaintiff’s truck did not have any tail light, and in answer to question number eight that there were no lights on the trailer showing at the time of the accident. The statute requires that a person using such a vehicle on the roads shall exhibit a reflector and lights on the rear of the trailer.
In Deardorf v. Shell Petroleum Corp., 136 Kan. 95, 12 P. 2d 1103, it was held that—
“The statute requires that every automobile used on the public highway between one-half hour after sunset and one-half hour before sunrise shall exhibit a red light visible at the rear end. (R. S. 1981 Supp. 8-122.) It is established that the appellants failed to comply with this statute and consequently were guilty of negligence.” (p. 96.)
It is contended by appellant that where a truck operator fails to have his truck properly lighted and the jury specifically finds that it was not properly lighted, that' such failure clearly establishes negligence on his part, and he therefore cannot recover damages from one who runs into his truck.
In Hiller v. Kepler, 125 Kan. 679, 266 Pac. 73, the jury in answer to special findings stated, “that no lights had been placed on the rear truck with which the automobile collided until after the accident occurred,” and this court found that the defendant truck driver who so operated his truck was guilty of contributory negligence in operating his truck in that manner.
In Barzen v. Kepler, 125 Kan. 648, 266 Pac. 69, a companion case to the Hiller case, the court held that—
“When the automobile in which she was riding over a highway in the nighttime collided with defendant’s truck, which was not properly lighted and on which large projecting timbers were being carried, the plaintiff recovered, and it is held that the evidence supports the finding of the jury that the collision and plaintiff’s injuries were caused by the negligence of the defendant.” (Syl. HI.)
In the case of Sponable v. Thomas et al., 139 Kan. 710, 33 P. 2d 721, quoting from another case, it was stated:
“The purpose of a highway is for passage, travel, traffic, transportation, communication. The automobile is a vehicle used for travel, traffic, transportation and communication and the statute is regulatory of such use. Highways are not maintained for the purpose of providing places for storage of automobiles. . . . The subject of regulation by statute was movement of automobiles on highways, in the sense indicated. A red light at the rear end, visible at night, was deemed essential. The purpose was to provide a danger signal to overtaking traffic. The warning is more necessary when the automobile is at rest than when it is in motion. . . . (McCoy v. Pittsburg Boiler and Machine Co., 124 Kan. 414, 261 Pac. 30.)” (p. 720.)
There was abundant testimony to show there were no marker lights on the rear end of the trailer before the collision. The driver of the bus said there was no light in view. Aitkens, who was an employee of the Midland Oil Company, testified that he was coming to Emporia that night and had followed the bus traveling about thirty miles per hour; that he turned out to go by it and saw the light of the car that was going east and did not see the truck ahead, and that there were certainly no tail lights nor anything ahead of the bus; that just as the east-bound car passed the bus it hit the center of the truck; that he was only about 200 feet back from where the accident occurred. The crash occurred just a moment after the east-bound car had passed. He testified that he noticed the trailer was dirty, and that it was muddy, about the color of the pavement; that he noticed this after the accident occurred.
R. E. Roth, who lived in Emporia, was driving east about 8:45 or 9 o’clock. He went east about eight miles then turned around and came back; he thought he got back to Emporia about 9:05 p. m. He met the truck coming west; said that it had a headlight, but did not have any lights on the trailer. He passed it going out and when he turned around and came back towards town he noticed that “the trailer had no marker nor tail lights, absolutely not.”
Another witness, T. Y. Root, who lives in Chase county, was a passenger on the bus the night of the accident, sitting in the center of the back seat facing straight ahead. He remembered the accident; he saw a dark object coming up in front of the bus and immediately the bus hit it, and the object had no lights on it. Asked how much time elapsed from the time he saw the object until he hit it, he answered, “It was right now.”
While the plaintiff alleged and testified that there were lights on the trailer, the jury has settled that question and held that there was no red or green light and no i’eflector on the rear of the trailer as the law required. It appears that the trailer was not painted, some of the witnesses have spoken of it as muddy, and essentially the color of the pavement. The authorities cited have held that where negligence in not observing the law with respect to notices is the cause of the collision, the party will be held guilty of contributory negligence. (See McCoy v. Pittsburg Boiler and Machine Co., 124 Kan. 414, 261 Pac. 30; Witte v. Hutchins, 135 Kan. 776, 12 P. 2d 724; Conwill v. Fairmount Creamery Co., 136 Kan. 861, 18 P. 2d 193; Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438.)
That absence of lights was the proximate and procuring cause of the accident and injury was established by the evidence. These omissions were clearly acts of contributory negligence on the part of plaintiff, and are so declared to be in the decisions cited. While the jury found in favor of the plaintiff in the general verdict, they found the absence of lights in special findings, which prevail over the general findings.
In the instruction the court advised the jury that—
“If the jury find from the evidence that the plaintiff was careless and negligent in one or more of the particulars as charged in the answer at the time or place of the happening, and that such negligence contributed to the damage he sustained, if any, then the plaintiff cannot recover in this case and your verdict should be for the defendant.”
The omission of the lights was charged and proven to the satisfaction of the jury and should have been held to be contributory negligence, which bars a recovery by the plaintiff, and should have been so held in the present case. Defendant cites some other grounds of error in the admission of evidence and in the instructions, but having held that the plaintiff was guilty of contributory negligence it is unnecessary to consider other grounds of error assigned by the defendant.
The judgment is reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action against the members of the school board, and the principal of the school, of a common-school district in which is a city of the third class and which maintains a high school, to enjoin them from using the moneys of the school district for the purchase of a bus, paying expenses of its upkeep and operation, including services of a driver, for the purpose of transporting pupils from without the district to attend the high school within the district. Plaintiff contends such use of the money of the school district is not authorized by law. After a hearing on the merits the trial court denied the injunction and rendered judgment for defendants. Plaintiff has appealed.
At the trial, when the court was advised of the nature of the controversy, it directed that the action be dismissed against the principal of the school. Appellant complains of that order. Authority to expend school-district money is vested in the school board, not in the principal of the schools. Therefore, the order dismissing the action as against the principal was proper.
The school board’s defense was that the making of the expenditures complained of had been discontinued before the action was brought; that it had determined not to make such -expenditures in the future, and to sell the bus previously used for the transportation of such pupils; that the bus was sold soon after the action was brought, and as soon as authority for its sale could be obtained from a school-district meeting; and that at the time of the trial of the action no such expenditures as plaintiff complained of were being made, or contemplated. There was evidence to support this defense. While the trial court made no special findings of fact, its judgment for defendants necessarily embodied the finding of all material facts in their favor. In that view the court could not do otherwise than render judgment for defendants, for a practice which does not exist, and is not in contemplation, cannot prudently be enjoined.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to recover from the city of Wichita damages suffered by the plaintiff when struck on the shoulder by a branch of a tree standing in the parking in front of his home where he had lived two years. The accident occurred during a windstorm, when the tree was blown down and fell as plaintiff was getting out of an automobile in front of his home.
The petition alleged that the tree in question had for several months prior to the injury been dead, rotted and decayed, and the roots thereof were weak and of insufficient strength to support it in an upright position and withstand the pressure of the ordinary winds which prevailed in that locality; that this dangerous and unsafe condition was known by the defendant, its officers, agents, servants and employees, or ought to have been known and could have been known by the exercise of reasonable or ordinary care, but that the city negligently permitted the tree to remain; that defendant had been notified of its unsafe and dangerous condition, and that in a few days after being notified of its condition the officers of the city inspected and examined the tree and condemned the same as being insecure, unsafe, dangerous and a hazard to the safety of the public.
The answer of the defendant city consisted of general and special denials; that the city was not liable generally, that the windstorm was unusually violent and severe, and that plaintiff was guilty of contributory negligence. The reply was a general and special denial.
The jury rendered a verdict for the plaintiff and answered several special questions. The defendant moved to strike out the answers to two of the questions, which motion was overruled. Defendant then moved for judgment on the answers to the special questions notwithstanding the general verdict, which motion was overruled, as was a motion for a new trial. Defendant appeals, assigning several errors, among them the failure and refusal of the trial court to render judgment for the defendant on the answers to the special questions.
It is not seriously contended in this case that the maintenance of trees in the streets is a governmental function for which there can be no liability for negligence in connection with the care and attention necessary to keep them in a fair and reasonable condition for the safety of the public. But the city is not an insurer of the safety of its streets from falling trees or branches and is only liable where it has been negligent in some respect. This was apparently uppermost in the minds of the court and counsel in the trial of this case, for all the special questions asked of the jury were on questions of negligence and contributory negligence, and they have most to do with the result of the action. A recent decision in the same kind of a case, and from the same locality, is particularly pertinent here as defining the liability, duties and obligations of a city, with reference to the care of trees on the street. The first syllabus of this case, Turner v. City of Wichita, 139 Kan. 775, 33 P. 2d 335, is as follows:
“A city is liable in damages to a person injured by a falling branch or limb of a tree only when the city has notice of the defective condition of the tree, and the branch or limb falls on account of its decayed or rotted condition or is thrown down as the result of usual and ordinary winds; but in case a high and more or less unusual wind is blowing, and it need not be a tornado nor even of unprecedented velocity, and it is obvious to a person of ordinary intelligence traveling upon the street that limbs and branches, either decayed, rotted or living, from trees standing in the highway may be thrown down, there is no liability, unless the condition of the tree or the limbs or branches thereof is so patently bad and has existed for such length of time that permitting them to remain is equivalent to an utter disregard of the safety of the traveler in the street.”
Many of the earlier decisions in this and other courts are cited and discussed in the opinion, and negligence and contributory negligence are almost the sole determinating features of such cases.
Nine special questions were asked and answered in this case. The first two questions and answers have to do with the condition of the street as to its being unsafe. The next three are directly upon the question of negligence and contributory negligence, the third and fifth applying as much to the defendant as to the plaintiff. These five are as follows:
“1. Do you find from the evidence that any portion of the fourth block on South Walnut street was not, on the 29th day of June, 1933, reasonably safe for pedestrians or vehicles? A. Yes.
“2. If you answer question No. 1 in the affirmative, was it rendered unsafe for them by reason of the condition of the tree complained of? A. Yes.
“3. If you answer question number 2 in the affirmative, was the unsafe condition of the tree such, first: that an ordinarily prudent person could have observed it? A. No.
“Second: That an ordinarily prudent person would have regarded it as unsafe? A. No.
“4. Did the plaintiff regard the tree as unsafe during the wind which was blowing immediately before he got out of the car in which he was riding? A. No.
“5. If you answer question number 4 in the negative, state whether or not any ordinary, reasonably prudent person would have regarded the tree as unsafe at the same time. A. No.”
In connection with these, there must be considered on the question of contributory negligence the second part of the answer to question No. 8, which finds the plaintiff not guilty of any negligence, which is in harmony with the answers to the third, fourth and fifth questions, and disposes completely of the question of contributory negligence. If these five questions and answers were all there were on the matter of negligence, they would also completely exonerate the defendant from negligence, because they find that an ordinarily prudent person could not have observed the unsafe condition of the tree but would have regarded it as safe, and the city and its officers and agents are governed by- the same rules and requirements as others, and unless there is something definite to bring its. condition to the attention of the city it would not be negligent. The answer to the sixth question is not really an answer. It asks for facts, and the answer is practically a quotation of a part of one of the instructions given by the trial court as a pure matter of law. It is as follows:
“6. What facts, if any, regarding the condition of the tree did the officers or agents of the defendant know, which were unknown to the plaintiff? A. City should have known all the facts, as they made an examination of said tree.”
The three remaining special questions and answers are as follows:
“7. Was the plaintiff’s injury due to an unavoidable accident? A. No.
“8. If you find for the plaintiff, state:
“First: The acts of negligence of which the defendant was guilty. A. Neglect to remove tree after notice of its dangerous condition and their examination thereof.
“Second: The acts of negligence, if any, of which the plaintiff was guilty. A. None.
“9. Do you find that the city was notified of the condition of the tree on or about the 14th day of June, 1933? A. Yes.”
The answer of the jury to the seventh question disposes of the defense that the windstorm was so unusual and severe as to relieve the defendant on that account. The answer to the ninth question shows that the city was notified of the condition of the tree on June 14,1933. The date of the injury as shown by the answer to the first question was June 29, 1933. The answers to two of the questions show that the city made an examination of the tree without naming any date of such, but presumably between these two dates. So there would be no negligence in the failure of the city to make an examination of the tree within a reasonable time and before the accident.
The negligence found by the jury was the neglect to remove the tree after notice and examination thereof. But what was the result of that examination? What did that examination reveal which an ordinarily or reasonably prudent person could not observe or detect as to its being unsafe? That was evidently the very purpose of question six, which the jury in effect failed to answer, except to quote a law phrase and say defendant had made an examination of the tree, which is repeated in the answer to question eight. Suppose a reasonably careful examination had revealed the same apparent condition of the tree as the casual observance of it by reasonably prudent persons, including the plaintiff, who had lived beside it for two years. Suppose such reasonably careful examination might have revealed it was in a reasonably safe condition to stand for a while, although later such conclusion might be shown to be incorrect. A careful examination does not always reveal the actual condition. The court and counsel wanted to know the facts revealed by such examination. Reading all the answers together, they show the tree would not have been regarded as unsafe by the plaintiff or any other ordinarily prudent person without an examination, and then we are left entirely uninformed as to what it would show on examination. The rule is uniform that we are limited to the feature of negligence found by the jury, regardless of the many other features of negligence pleaded. Here we are limited to the neglect to remove the tree after notice and examination. Counsel knew something else was necessary as to why it should be removed and asked for facts, and the answer gave no facts.
These answers a,re not inconsistent with each other, but are inconsistent with the general verdict, because no reason was given for removing the tree or any facts that would make it subject to removal, except those shown after the accident to have existed before the accident. The general information known to plaintiff and defendant alike after the tree had blown down will not supply this omission as to facts of negligence before the accident, when the other answers are so strong to the effect that the unsafe condition could not be observed by an ordinarily prudent person. The closing lines of the syllabus, quoted above from the Turner case, supra, are particularly applicable here:
. . there is no liability, unless the condition of the tree or the limbs or branches thereof is so patently bad and has existed for such length of time that permitting them to remain is equivalent to an utter disregard of the safety of the traveler in the street.”
In the case of Carlgren v. Saindon, 129 Kan. 475, 283 Pac. 620, it was held:
“When answers to special questions are consistent with each other, but in conflict with the general verdict, the answers to special questions should stand and the general verdict be set aside.” (Syl. ¶ 2.)
It was held in the case of Behler v. Wichita Transportation Co., 136 Kan. 591, 16 P. 2d 503, that—
“Where the special findings of the jury acquit the defendant of the negligence charged in the petition, a general verdict for the plaintiff cannot be reconciled with such findings and the defendant is entitled to a judgment.” (Syl. See, also, Tacha v. Railway Co., 97 Kan. 571, 155 Pac. 922; Hurt v. Stout, 105 Kan. 54, 181 Pac. 623; and Musgrave v. Equitable Life Assurance Society, 124 Kan. 804, 262 Pac. 571.)
We conclude that the answers given by the jury are insufficient in themselves to make the defendant city liable; they are consistent with themselves as far as they go, and all taken together are inconsistent with the general verdict, and therefore the general verdict cannot stand, but judgment should be rendered for the defendant on the answers to the special questions notwithstanding the general verdict.
The judgment is reversed and the cause is remanded with instructions to render judgment for defendant on the answers to the special questions. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover the purchase price of an automobile. Judgment was for defendant. Plaintiff appeals.
Plaintiff entered into a contract for the purchase of a new Hudson-eight sedan. On the back of the contract of purchase there was the following warranty:
“The warranty of the Hudson Motor Car Company is that standard warranty of the National Automobile Chamber of Commerce against defective material only, and none other.”
When the car was delivered plaintiff drove it from Hutchinson to Colorado Springs and back. The evidence of plaintiff was that on the trip the engine of the car would heat badly and when she turned off the ignition the engine would keep running. The hotter the engine got the longer it would run after she had turned off the ignition. This trouble occurred all the way between Hutchinson and Colorado Springs and return. When plaintiff returned to Hutchinson she advised defendants of the trouble she had experienced and left the car at the garage. Defendants stated that they would make the car run all right. They subsequently delivered the car to her and said it was in perfect condition.
Plaintiff then drove to Florida and back. On this trip she had the same trouble. The clutch would not hold. The engine would get hot. She had to oil the pump shaft about every thirty or sixty miles. At Pensacola she had a new clutch put in. The old clutch was worn out. Other witnesses testified that shortly after the oar was purchased the engine showed coloring where the Ethyl gasoline had leaked out; that there were places where the upholstering was worn; that the car showed wear on the brake levers and other places. The judgment of one witness, who was a mechanic, was that the car had been driven twelve or fifteen thousand miles.
The petition of plaintiff set out the purchase and that defendants represented to plaintiff that it was a new automobile in perfect condition and that plaintiff believed these representations to be true and that later plaintiff discovered the car to be in bad mechanical condition. The petition further alleged that after the return of plaintiff from Florida she informed defendants that the car was not a new one and was not the kind of a car she had contracted to buy. She tendered the car back and demanded of defendants that they supply her with a new and unused car in perfect condition in compliance with the representations made by defendants.
A second cause of action was to recover for money expended for repairs.
The answer was a general denial, but admitted the sale of the car. The answer set out the written warranty which has been heretofore set out in this opinion. It denied the allegations of the petition with reference to the representations and alleged that the entire transaction was covered by the written warranty. The reply was a general denial.
At the trial the court sustained objections to offers of plaintiff to prove what the representations of defendants were at the time of the purchase. The evidence of plaintiff was substantially as it has been detailed here. At the close of plaintiff’s evidence the trial court sustained a demurrer to it on the ground that the only warranty by which defendants were bound was the printed one referred to and the evidence did not disclose any breach of that. The theory of defendants is that a Hudson-eight sedan is a well-known article of trade; that plaintiff contracted to buy such an article and such an article was delivered to her and that in such a case there is no implied warranty that the article purchased will answer the purpose for which it is purchased.
We have concluded, however, that the above rule does not apply here. All parties seem agreed that what plaintiff thought she was buying was a new car. As a matter of fact, there is sufficient evidence in the record to warrant the court in submitting the case to the jury on that question. If that question should be answered in the negative then the rule laid down in Oliver Farm Equipment Co. v. Rich, 134 Kan. 23, 4 P. 2d 465, would apply. In that case a tractor was sold under a contract that it would develop certain horsepower, but it would neither develop nor sustain sufficient power to be of value. This court held that the contract of purchase could not be enforced under such circumstances.
Certainly it cannot be said that a dealer could represent that a car was a new one, when as a matter of fact it was not new, and at the same time hold the purchaser to a written warranty that applies only to the sale of new cars.
Defendants insist that the case was tried in the court below solely on the question of whether plaintiff was entitled to prove facts that would show an implied warranty by defendants that the car sold to plaintiff would meet the requirements for which it was purchased and was in perfect mechanical condition and whether the liability of defendants was limited to the written- warranty. The circumstances as to plaintiff thinking she was buying a new car were clearly pleaded, and there was ample evidence to warrant the court in submitting the question to the jury.
The judgment of the trial court is reversed with directions to grant plaintiff a new trial. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to enjoin the members of the school board of a common-school district in which is situated a city of the third class, and which maintains a high school, from using moneys of the school district to employ a person to transport pupils from without the district to its high school, or to pay directly to pupils without the district a sum to provide such transportation. After a hearing on the merits the trial court denied the injunction and rendered judgment for defendants. Plaintiff has appealed.
The facts are not seriously controverted and may be stated as follows: School district No. 27 in Bourbon county is a common-school district, and maintains a high school with a four-year accredited course. Within it is Fulton, a city of the third class, and it sometimes is spoken of as the Fulton school. It is small in area, about one mile square. It appears to be adjoined on all sides by common-school districts, none of which contains a city of the third class, or maintains a high school. West of Fulton about eight miles is Mapleton, a city of the third class, situated in a common-school district which does not maintain a high school. The school district in which Mapleton is situated does not adjoin the Fulton district— in fact, two other common-school districts are situated between them. It seems the county is authorized and levies a tax to pay the tuition of high-school students residing in a common-school district which does not maintain a high school, to a high school in the county which the pupil attends. This tuition is $108 per year. The year prior to the bringing of this action the Fulton district had received high-school students from adjoining and nearby school districts, perhaps some from Mapleton, which did not maintain high schools. The Fulton district received from the county the tuition for each of such pupils and paid to the pupil a bonus of fifty cents per week for attending its high school, to compensate the pupil in whole or in part for the cost or expense to him of his transportation to the Fulton high school. Shortly prior to the bringing of this action the members of the Fulton school board decided to change this plan to one best described by the testimony of D. T. Bunton, clerk of the school board and one of the defendants. A synopsis of his testimony on this point is as follows:
“It was our intention if this injunction suit had not been started to operate the bus at the expense of district No. 27 and transport students from without the said district to the high school in Fulton. The district was to pay Bob Meek 175 a month for operating the bus; besides this we offered students residing outside of district and not in the bus route fifty cents a week as a bonus for attending the Fulton high school. District No. 27 paid this same bonus to some students last year. We paid this to help pay their cost of transportation. This was paid direct to the students themselves. We made this offer for the district to pay this amount to pupils residing as far south as the Hammond line, six miles south of Fulton, as far east as the Missouri line, two miles north to the Linn county line and as far west as Mapleton, 9 miles. The district board did not adopt any formal resolution, but we talked it over and planned to have Mr. Meek run the bus; we, the district board, agreed to pay Mr. Meek $75 per month to run the bus and transport the students. There are two country school districts intervening between district No. 27 and Mapleton. We were to pay Mr. Meek and he was to bring students to the Fulton high school from Mapleton and along the road. We were going to use public money, the money of the district No. 27, for that purpose. We planned to use a part of the $108 tuition money paid by the county for each outside student attending the Fulton high school.”
Mr. Meek testified:
“I am the ‘bus man’ in this case. Last year we had cars and the children drove them themselves.' This year we decided amongst ourselves we would get a bus and Fulton agreed to pay $75 a month. I am now hauling 44 pupils. The children that haul pay nothing in addition to the $75.”
There is no contention that any statute authorizes Eulton district to use any of its money, whether received as tuition or otherwise, to pay transportation cost or expenses for nonresident pupils attending its high school, or to pay any of its money to such pupils for attending its school as bonus, or for transportation cost or expense, or for any purpose. All the money of the Fulton district, including what it received for tuition, so far as this record shows, was raised by taxation, and its school board had no authority to use it for a'purpose other than that for which the tax was levied and collected. Obviously the trial court was impressed with the desire of all good citizens to educate children and to give them' an opportunity to obtain an education, and further by the fact that the legislature has enacted statutes repeatedly providing for payment by the public of cost or expenses of the transportation of pupils to school when suitable schools were not near them. However commendable these motives may be — and they are — we have a department of our government, namely, the legislature, to provide for such use of public money if and when it deems such action proper, and until it does make such provision neither should school officials use the money for a purpose for which it was not levied and collected, nor should courts authorize such use. Chapter 242 of the Laws of 1929 (R. S. 1933 Supp. 72-604) was referred to as illustrative, but it is conceded not to be in point, since it applies to two high-school districts, and here the Fulton district alone has a high school. Appellees, however, do stress R. S. 1933 Supp. 72-605 as being applicable. It reads:
“That the board of education of any city of the third class having a four-year accredited high school may use such public funds of such board of education or such school district for the purpose of transporting high-school students from an adjoining district having a city of the third class and maintaining only a graded school, under such mies and regulations as such board of education or school board may prescribe.”
The argument concerning the applicability of this statute centers about the meaning of the word “adjoining” as used in the statute. Adjoin means to be contiguous to; to be in contact with; to abut upon; and adjoining means contiguous, adjacent, according to the approved usage of the language (Webster’s International Dictionary). We are admonished by statute (R. S. 77-201, clause 2) to construe words and phrases according to the context and the approved usage of the language. This is the meaning applied by courts to statutes authorizing acts of cities or districts in adjoining cities or districts. (See Lower Ind. Creek Dr. Dist. v. Vallery, 343 Ill. 49, 174 N. E. 842; Bullock v. Cooley, 225 N. Y. 566, 122 N. E. 630; Rehill v. East Newark and Jersey City, 73 N. J. L. 220, 63 Atl. 81; Plainfield Water Co. v. Plainfield, 84 N. J. L. 634, 87 Atl. 448; Fralinger v. Cooke, 108 Md. 682, 71 Atl. 529.)
“What is adjoining must touch in some part.” (Baxter v. York Realty Co., 112 N. Y. Supp. 455.)
. Our own cases construing statutes using the word “adjoining” or “adjacent” and defining those terms are to the same effect: State, ex rel., v. Kansas City, 50 Kan. 508, 31 Pac. 1100; Board of Education v. Jacobus, 83 Kan. 778, 112 Pac. 612; City of Hutchinson v. Danley, 88 Kan. 437, 129 Pac. 163; Packing Co. v. Insurance Co., 94 Kan. 630, 636, 146 Pac. 1175; Martin v. Lown, 111 Kan. 752, 208 Pac. 565; State, ex rel., v. Board of Education, 128 Kan. 487, 491, 278 Pac. 471.
If the word "adjoining” used-in the quoted statute is given its' usual and ordinary meaning it has no application to the situation disclosed by the record in this case; for, none of the school districts which adjoin the Fulton district contains a city of the third class. Counsel for appellees realize the force of what we have said and the authorities above mentioned, but point out that the word “adjoining” is sometimes inaccurately used as meaning close to, near to, in the neighborhood or vicinity of, rather than as touching or joining, and cases are cited supporting this view. When the word is so construed the context requires such construction. There is nothing in the context here which requires, or even suggests, the inaccurate use of the word; hence, this line of authorities has no force.
Appellees argue there are so few situations in the state where two cities of the third class are situated in adjoining school districts, one of which maintains an accredited high school and the other does not, that the legislature cannot be presumed to have passed a statute so limited; that such a statute would have so little application throughout the state as to be practically useless. The courts can indulge in no such presumption. On the other hand, it is well known that our school laws have become complicated by the enactment of statutes needed or wanted by the people of one or a few localities in the state, the statute being so framed as to apply to the situation its promoters had in mind, and not to other situations. In the opinion rendered by the trial court there is a suggestion that the statute in question was sponsored by people in another county and designed to apply to a situation which existed there, but it was thought that by giving to the word “adjoining” the unusual meaning which its context sometimes requires it could be made to apply to the Fulton district. The difficulty with this view is: (1) Nothing in the context authorizes the giving of the inaccurate meaning to the word “adjoining,” and (2) such meaning makes the statute so indefinite in its application that the legislature cannot be presumed to have used it in that sense.
Here the school board of the Fulton district determined to construe it to extend over a wide area, across adjoining districts, to include Mapleton, eight or nine miles away. When may the same school board conclude to extend it farther, across other districts, as much as fifteen or twenty miles or more? Or when may some other school board similarly conclude? And what is the guide to determine the soundness of such a conclusion, if made? These and other questions suggest themselves. The legislature has told us what the statute means by using the word “adjoining.” If it means something else it is better to let the legislature change the language used.
The judgment of the court below is reversed, with directions to grant the injunction prayed for against the school board and its members. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an award under the workmen’s compensation act.
The claimant was employed by the manufacturing company at a salary of $75 per month, with an allowance of $30 per week for expenses. Claimant testified he used $15 per week for his meals and lodging. On December 23, 1932, while engaged in the course of his employment, he was injured through the negligence of a third party, the injury occurring in the -state of Oklahoma. On March 7, 1933, claimant brought suit against such third party in Oklahoma; thereafter and on March 10, 1933, he made claim for compensation by written demand upon his employer. As a result of his demand, on March 31,1933, he was paid accrued compensation in the amount of $135.06 and thereafter he was paid three weekly installments of $10.39, the last being paid April 24, 1933. There had been some correspondence between claimant’s attorneys and attorneys for the insurance carrier, and on the last-mentioned date the manager of the insurance company learned of the suit in Oklahoma and further payments of compensation were stopped. Correspondence continued between counsel for the claimant and counsel and representatives of the insurance carrier as to the Oklahoma suit, from which it conclusively appears that the insurance carrier was fully aware of that suit. We are not concerned with whether or not it agreed to the prosecution thereof. Compensation having stopped, claimant on June 21, 1933, made a further demand on his employer for compensation. The suit against the third party was finally tried and on October 25, 1933, judgment was rendered in favor of the plaintiff for $400, the judgment being paid. Under his contract with his attorneys, claimant received only $240 of the judgment.
The employer and the insurance carrier continued to deny liability and thereafter the claim for compensation came on for hearing at which the above and other facts not here material were developed. The commissioner found that written demand for compensation was made on June 21, 1933, within ninety days from the date of the last payment of compensation, and that—
“From the testimony and correspondence introduced there appears to be an understanding of the parties all along that the civil action was not an election by claimant to pursue his remedy against a third party to the exclusion of his claim for compensation, but was for the benefit of the employer, it, the company, being subrogated to the recovery.”
It was further found that claimant did not file an election to pursue his remedy against the third party and had no intention to waive his right to compensation and that claimant had accepted compensation payments; that the civil action against the third party was for the benefit of the employer and that the representative of the insurance company so understood, and that the employer was subrogated to the recovery in the sum of $240. Compensation was awarded at the rate of $18 per week.
The employer and insurance carrier appealed to the district court, which adopted the findings of fact and conclusions of law of the commissioner, except that it found written demand for compensation was made on March 10, 1933, instead of June 21, 1933, and the award as made by the commissioner was affirmed. The employer and the insurance carrier appeal, and present four questions which will be discussed.
It is first urged that claimant elected to proceed against the negligent third party and may not now recover compensation. It is claimed that there is no evidence to sustain the trial court’s finding there was an understanding claimant might maintain his common-law action without prejudice to his right to compensation. Our examination of the record shows there was evidence to sustain the finding, but it is not necessary to set it out, for in any event the matter is controlled by statute.
Prior to 1927 the workmen’s compensation act provided that where the injury for which compensation was payable was caused under circumstances creating a legal liability against a third person, the workman might take proceedings against that person to recover damages and against any person liable to pay compensation for such compensation, but he should not be entitled to both damages and compensation (R. S. 44-504), and in construing the statute it was said in Swader v. Flour Mills Co., 103 Kan. 378, 380, 176 Pac. 143:
“The statute thus gives a sort of dual cause of action — for compensation and for damages — but qualifies and limits the recovery to the one or the other.”
And our attention is directed to somewhat similar statutes and decisions of other states. In 1927, however, the act was amended, and now provides that within ninety days after receiving injury, the workman shall elect whether to accept compensation or pursue his remedy against such third person; that the election must be in writing and delivered to the employer, and that the acceptance of compensation by the injured workman “shall be construed as a positive election to accept compensation under this section,” and that failure on the part of the injured employee to file such written election with the employer within ninety days that he will pursue his remedy against the negligent third party, shall operate as an election to accept compensation and as an assignment of any cause of action in tort which he may have against such third person, which action the employer may enforce in his own name or in the name of the workmen for their benefit as their interests may appear. (R. S. 1933 Supp. 44-504.) It is not claimed that the workman filed' any election as provided, and thus one was made for him by the above statute, for two reasons: He accepted compensation, and he failed to make written election he would pursue the negligent third person.
It is also noted that the employer and the insurance carrier were aware of the common-law action, and before its trial each was notified that the workman would dismiss the suit unless it was understood that trial of it would not prejudice his right to compensation. Assuming the parties could contract contrary to the plain provisions of the statute, and whether a definite agreement as to prosecution of the suit was made or not, it does appear that the employer and the insurance company did not object to its being prosecuted to judgment.
It is next contended that claimant is barred by reason of failure to make a statutory demand for compensation within ninety days after the last payment of compensation, and Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396, is cited in support. It may be conceded that it so holds. In the last mentioned case is an erroneous statement of fact which has confused appellant. The claimant was injured February 15, 1928. On page 411 of that opinion it was said:
“On the following day, February 16, 1928, he made a claim on his employer for compensation, and in compliance therewith his employer paid him $18 per week,” etc.
An examination of the abstracts on file in that action shows that in his claim for compensation made to the commissioner of workmen’s compensation, claimant did say that he made claim for compensation on February 16, 1928. The claimant’s testimony was that the day after the accident he presented himself to a company physician for treatment. In his offer of proof he stated that in the month of December the defendant finally refused to pay any further compensation and within thirty days thereafter the claim was filed with the compensation commissioner “as well as a written letter having been made demanding further compensation upon the defendant.” In the stipulations made before the commissioner, respondents specifically denied that written claim for compensation was made. With this explanation, quotations from the commissioner’s award as appear in the above-entitled opinion become more intelligible. It definitely appears that no written claim for compensation was made within ninety days from the date of injury or within ninety days after the date of the last payment of compensation. Therefore, that case does not support claimant’s contention here.
In Pribbenow v. Meeker, 139 Kan. 325, 31 P. 2d 15, the section of the statute pertaining to written claims for compensation was under consideration, and it was there held that the times stated in R. S. 1933 Supp. 44-520a are in the alternative. And see Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853. The claimant in the present case made a sufficient written demand within ninety days from the date of injury and it was not necessary that within ninety days after payments of compensation ceased that he make another written demand. But even if the statute should be construed to require two demands it would not avail the employer and the insurance carrier here.
Attention has been directed to the commissioner’s holding that claimant’s demand was made June 21, 1933, but that the trial court found the demand was made on March 10, 1933. In Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, 297 Pac. 429, it was said:
“So far as this appeal is affected by controverted' issues of fact, the judgment of the trial court, when based upon substantial evidence, supersedes whatever findings of fact the examiner-and commission made to the contrary.” (See cases cited.) (p. 808.)
In view of the court’s finding, we shall assume demand was made March 10, 1933. But there was offered, by both claimant and respondent, a mass of documentary evidence consisting of letters between the employer, its insurance carrier and its counsel on the one side and the claimant and his counsel on the other, having to do with the common-law action and the right to compensation, about which letters there is no controversy respecting their having been written and received. What was the effect of the following communications? As has been noted, the insurance carrier became aware of the common-law action and stopped payments after April 24, 1933. On May 6, 1933, claimant’s counsel wrote the insurance carrier concerning the situation, saying:
“It seems now that Mr. Copeland is covered by the insurance and your company has so recognized the fact,” etc.
On June 15, 1933, they wrote counsel for the insurance carrier:
“This being our view of the law, we see no reason why you should not continue paying the compensation insurance, and we insist upon your doing so,” etc.
On June 21, 1933, they wrote the employer:
“The insurance company that carries the compensation insurance for your company has quit paying Mr. Copeland his compensation, and in such cases the Kansas law makes it necesary for us to make a written demand upon you for payment of said compensation, which we are doing at this time.”
On July 31, 1933, they wrote the insurance carrier:
“We have had no response from you with reference to this proposition and Mr. Copeland’s condition and finances are such that unless you continue payment of his compensation,” etc.
On September 6, 1933, they wrote counsel for the insurance carrier:
“. . . and it will be necessary for him to dismiss his case against the Banfield Packing Company and claim his compensation, if your client withholds his compensation on account of the fact that he has pending the damage suit against Banfield.”
On September 18, 1933, they wrote the insurance carrier:
. . and unless you are going to continue Mr. Copeland’s compensation and do it at once, we will have to dismiss this case.”
And finally, on December 28, 1933, after the common-law action had been tried, they again wrote the insurance carrier:
“This compensation is due Mr. Copeland and there will be no way that you can escape payment. We must have an answer ... or it will be necessary that we file an action to receive an award,” etc.
It thus appears that the original demand was repeated, affirmed and renewed many times, and even had claimant not filed his demand of March 10, 1933, any one of the above letters, concerning which there is no dispute, might well be held, as a matter of law, to be a sufficient demand for compensation.
It is further contended that the court erred in including moneys paid for traveling expenses, etc., in determining the weekly wage. Although the statute has since been amended, at the time of the in jury section 11 of chapter 232 of the Laws of 1927 (R. S. 1931 Supp. 44-511) was in force. It provided, in part, as follows:
“(d) Where the employer has been accustomed to pay to the workman a sum to cover any special expenses entailed upon him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings of the workman; nor shall tips nor gratuities received from the employer or other persons be considered or included as a part of the workman’s earnings, but reasonable value of board, rent, housing, lodging, fuel or other similar advantages received from the employer as a part of the remuneration of the employee, and the value of which can be estimated in money, shall be considered and included as a part of the workman’s earnings.”
The testimony showed that prior to April, 1931, claimant had been employed by the respondent employer at $175 per month. The arrangement was then changed to $75 per month, with an expense allowance of $30 per week. The evidence showed and the commissioner found that of this amount claimant required $3 per day for a five-day week for meals and lodging, and that it should be computed as part of his weekly wage under the above statute. Without discussing the authority cited by appellants (Thibeault v. General Outdoor Advertising Co., Inc., 114 Conn. 410, 158 Atl. 912), and whether or not he obtained or did not obtain benefit from the weekly allowance made by the employer, we are of opinion that under the statute and the facts, the trial court made no mistake in approving the finding of the commissioner that the $15 used for meals and lodging should be computed as part of the claimant’s earnings.
And lastly, it is contended that the employer was entitled to full credit of $400 on account of the judgment recovered against and paid by the negligent third party and that the court erred in allowing credit only to the extent of the amount actually received by the claimant, i. e., $240. We agree. Under the statute (R. S. 1933 Supp. 44-504), the assignment to the employer was of the “cause of action in tort which the employee . . . may have against any other party,” etc., and not of any amount actually received. The burden of prosecuting this action in tort was not upon the employee, and he is not entitled to expenses incurred or fees paid in so doing, at least not in the absence of some specific agreement to that effect. The employer was subrogated to the total recovery of $400, and it was error not to so hold.
The judgment of the trial court is modified to give credit to the employer for the sum of $400 recovered from the third party, in the tort action, and, as so modified, is affirmed. | [
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The opinion of the court was delivered by
Tpiiele, J.;
This was an action to recover for personal services, and the principal point of contention is whether the contract was in writing and enforceable under the statute of frauds.
The petition alleged that defendant was in possession of certain described real estate, was engaged in farming, raising and handling livestock and especially sheep; that on August 28,1929, he stated to plaintiff there was money in sheep and he would like to employ plaintiff for five years and have him go upon the farm and look after and care for the sheep and other livestock, and that they then orally agreed upon the terms of employment, which included a straight monthly salary, a percentage of sales, living quarters for the plaintiff and use of wood and pasturage by plaintiff, it not being necessary to set out the details; that said contract was at once reduced to writing in duplicate, both copies being given to plaintiff, who took them home, where he read them over and signed them and the next morning delivered them to defendant when he met him on the street in Independence, and that defendant stated he would sign the contracts and return a copy to plaintiff; that defendant failed to do so; that plaintiff requested compliance, but defendant would make excuse that he had forgotten the contracts and finally denied that any contract had been made; that at the time the contract was made plaintiff went upon the lands and took charge of the sheep and fully performed his contract until sometime in January, 1931, when the defendant, without any just cause or excuse, stated to plaintiff that the contract would expire March 1, 1931, and at said later date defendant compelled plaintiff to leave the premises. Plaintiff’s claimed damages were alleged, including salary for the portion of the five-year period remaining after March 1, 1931. He also alleged that after that date and up to commencement of suit he had been able, to earn certain amounts, for which credit was given, and he asked judgment for the balance. To this petition defendant filed an answer containing a general demurrer, but without having it heard, he filed an amended answer, complete in detail, in which the demurrer was omitted. The amended answer was a general denial qualified by certain admissions, and contained an allegation withdrawing some admissions made in the original answer. He denied making the contract alleged and claimed the contract as alleged was unenforceable under the statute of frauds. He also alleged his own version of the contract, and that he owed plaintiff $35, and offered to confess judgment therefor. On the same day, by separate pleading filed, he offered to allow judgment to be taken against him for $41. With the pleadings as above set forth, the cause was heard by a jury. Plaintiff’s opening statement gave his version of the facts, and with reference to the contract, it was stated that defendant told plaintiff:
“Well, sir, I will tell you. I signed them up all right, and took up one and laid it on my desk where I could have it handy, and something happened, I went down there to get them and forgot it again, but I will give it to you, I will give it to you.”
Defendant moved for judgment on the opening statement and the allegations of the petition, which motion was denied, and then objected to the introduction of evidence for the stated reason the suit was upon an oral contract unenforceable under the statute of frauds. The objection was overruled. A further objection was made to introduction of evidence on the ground the petition did not state facts sufficient to constitute a cause of action, and it was overruled.
It is not necessary to review the evidence offered further than to say that plaintiff testified that he took the two contracts to his home and signed them and delivered them to defendant, who said he would take them to his office and sign and bring plaintiff a copy in the morning, and the next morning'plaintiff asked for it and defendant said he had signed it and left it lying on his desk and had forgotten to bring it out. It should here be noted that a few days before trial plaintiff made written demand on defendant for permission to inspect and make a copy of the alleged contract. The demand was never complied with. Plaintiff testified that after trouble arose, •defendant stated “this is all the contract I know about” and laid down a piece of paper with some writing on it. Plaintiff produced this paper and it was admitted in evidence as Exhibit A over defendant’s objection that it was unsigned and not the contract sued on. At the conclusion of plaintiff’s evidence, defendant demurred, his demurrer was overruled, and he then rested his case without submission of evidence. The court submitted the matter to the jury, which returned a verdict in favor of plaintiff and answered special questions. Defendant’s motions for judgment notwithstanding the verdict and for a new trial were denied, and he appeals, and his specifications of error will be discussed.
Although plaintiff’s petition may have been subject to motion to make more definite and certain the allegation with respect to defendant’s execution of the contract alleged, no such motion was filed. It does not appear the demurrer to the petition was ever presented, but if it was, giving the petition an interpretation favorable to the pleader, as must be done where no motion has been filed, it was sufficient. (Downey v. Phillips, 137 Kan. 362, 20 P. 2d 453, and cases cited.) After plaintiff’s opening statement had been made, the question of defendant’s execution of the contract, so far as pleading and statement of proposed proof was concerned, was such that for plaintiff to recover he had to adduce proof the defendant had signed the written contract. Such being true, there was no issue as to whether the contract was oral or written. The plaintiff had declared on a written contract, and that he had to prove before hé could recover. The court, therefore, properly denied defendant’s motion for judgment on the pleadings and opening statements as well as his objection to the introduction of evidence.
Plaintiff’s petition alleged the defendant had the written Contracts and his proof showed it. It also showed that when the disagreement arose defendant produced the unsigned document, referred to as Exhibit A, and left it with plaintiff. It is significant that this memorandum left by defendant with the plaintiff shows substantially the contract alleged by plaintiff. Whether the particular document was one of the original agreements, and was not signed by defendant, or was a memorandum from which the contract was prepared, or whether defendant signed the agreement alleged by plaintiff, were questions to be resolved by the jury. We do not believe the admission in evidence of Exhibit A was erroneous.
We have examined the instructions complained of and find there is no basis for the complaint.
The general verdict resolved all questions of fact in favor of plaintiff. The jury, in answer to special questions, found the agreement was reduced in writing in duplicate; that the plaintiff signed both copies and returned them to defendant; that the defendant then stated he would sign the contracts and deliver a copy to plaintiff; that the term of the contract was for five years, and that defendant owed plaintiff salary in the amount of $658. These answers are not inconsistent with each other or the general verdict, and the court’s ruling on the motion for judgment notwithstanding the general verdict was correct.
Most of appellant’s contentions hinge on his contention that the plaintiff had alleged an oral contract, which is not correct. The plaintiff alleged and proved a written contract. It is true he could not produce it, but he stated what it was and what he did under it. Defendant saw fit to let the matter go to the jury without offering any proof or explanation of his own. The fact the jury returned a verdict in plaintiff’s favor, under the circumstances, was to be expected. Essentially, this was a fact case and nothing else, and the verdict should be upheld unless prejudicial error has been made to appear, and that has not been done.
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The opinion of the court was delivered by
Johnston, C. J.:
Benjamin F. Sanders owned land in Atchison county and had entered into a contract, dated February 11, 1919, for the sale of eighty acres to his son, Rufus Henry Sanders, for the agreed consideration of $8,000. One thousand dollars was required to be paid on March 25, 1920, and the balance with interest at the rate of five per cent payable on or before March 2, 1925. The improvements were to be kept up and were to be insured. The failure to make prescribed payments, it was provided, should forfeit all payments previously made. A warranty deed was to be executed when the payments were completed, conveying a good and sufficient title to the son. There is an allegation that the son paid the $1,000, and that seems to be conceded, but he has failed to pay anything subsequently and is now being charged for the land purchased, of which he is and has been in possession for a long time.
The owner of the land, B. F. Sanders, died testate on January 7, 1929. The will provided that Etta Brown, a daughter, had already received her share of the estate and would receive nothing more of the remaining estate. He mentioned this, he said, so that she would know she was not forgotten, and that “I bear her no ill will, but love her as a daughter.” He stated that he had already advanced sums, credits and amounts exceeding $5,000.
He also stated in his will that Ira Sanders, a son, after allowing all proper credits, had received the sum of $5,000, not including interest, and it was his will that he receive nothing further from his estate. "These matters are mentioned merely that he may know I have not forgotten him in the making of this will and that I bear him no ill will, but love him as a son.”
He then treats of a grandson, Fred Moore, son of his deceased daughter, Bertha Moore, saying that this grandson “has received moneys from me and I am at this time holding his note for the sum of $812 . . . and if I continue to hold the note at my death .' . .1 direct that it be surrendered to him, and that he be not held thereon after my death.” Besides, he gives him in the will the sum of $800 in addition thereto.
To Mary Sanders, widow of his son, W. A. Sanders, he directs that the executor shall surrender "all notes held by me at the time of my death executed by my said son, W. A. Sanders.”
The testator then states that he has. been making his home with Arthur E. Kern and wife, and paying them for board and lodging, and, “while I am not indebted to them in any sum, still in recognition of the favors and courtesies they have shown me ... I desire and do hereby will to them whatever furniture I have in. their home at the time of my death, and also my interest in an automobile now in their possession which was purchased part by me and part by them.”
Then he concludes with the residuary provision, giving all the rest and remainder of his estate to his daughter, Frankie Moore, and to his son, Rufus Henry Sanders, share and share alike.
He then recites that he is the owner of the legal title to the land sold to Rufus Henry Sanders on February 11,1919, and it is his will that the executor shall carry out the contract existing between himself and Rufus Henry Sanders by deeding the land, “Rufus Henry Sanders to be charged with the amount which shall be owing on Said contract at the time of my death.” The testator provided that if the estate shall have diminished to such point that the residue will not be sufficient to pay Frankie Moore an amount equal to the amount that may be owing by Rufus Henry Sanders on the contract, then in order to receive such conveyance Rufus Henry Sanders shall be required to pay to the executor an amount sufficient to enable him to pay Frankie Moore an amount equal to one-half of the residue of his estate.
T. A. Moxcey, of Atchison, is named as executor of the last will, and he has been in charge of the estate since the time of testator’s death.
■ The will recognizes that the plaintiff' has made the initial payment of $1,000, and is chargeable with the obligations resting on the purchaser. Rufus Henry Sanders had been in possession of the land, receiving the benefits under the will after 1920. Moxcey says that the rents should have been $300. After making the contract for the land and the acknowledgment of the indebtedness, and after years of possession of the farm by the son, the father had a right to rely on the contract and terms of the will. He believed and intended that the price of the farm was part of his estate. The price of the land was a material part of the estate. There were bonds and securities of value about equal to the land. Apparently Rufus Henry Sanders expected that the will would be executed, carried into effect, and some benefits were received in which the son participated.
Some theory of equity and equality is claimed by the appellee which would operate to rewrite the will and fix terms and plan of division wholly contrary to the will as written by the testator. The will, interpreted as it was for many years, and free as it is from ambiguous and involved provisions, should be construed and carried out as written. Even when the matter came up for further consideration when the will was made at the time of his death, the testator repeated his direction that the contract with his son is binding, that the executor should carry it out by deeding the land to him, and the son would be charged with the amount owing to the testator for it. The testator took note of the changed times and the possibility that the estate might be diminished somewhat in value prior to his death, and that the residue might not be sufficient to pay Frankie Moore’s portion, and provided the son should be required to pay to the executor an amount sufficient to enable him to pay Frankie Moore an amount equal to one-half of the residue; the residue to be viewed as including the amount due on the land contract.
If the facts are found as to diminution in value between the time of the will and the time of his death, the subsequent provision maybe employed and a different amount paid as including the unpaid purchase money. Some time later appellee stated that he declined to pay the purchase price, that there is no obligation on him to pay for it or receive the conveyance from the executor; that the amount is not an obligation under the will, and that the executor has no authority to sell the property, and that it subsequently became a residue of the estate, and he claimed a share of it, to be divided under the proviso of the will, and which he claims entitled him to receive one-half of the residue. Before that provision could be enforced the court must have found that there has been a diminution in the value of the land between the time the will was made and the time of testator’s death. Some testimony was introduced to show that lands were worth varying amounts, but the executor states that it was worth at least $100 an acre at the time of the testator’s death. Under the last provision he was required to pay an amount sufficient to enable the executor to pay Frankie Moore one-half of the residue when viewed as including the unpaid purchase money on the contract. When the facts are found relating to the diminution in the value it will be the duty of the court to make the division under this last provision of the will.
The judgment is reversed and the cause remanded with directions to find the diminution between the time of making the will and the time of the testator’s death, and determine the amount due from the plaintiff, and divide the residue equally with Frankie Moore. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought against the receiver of a failed bank to establish his right to a fund claimed as preferred. A demurrer to plaintiff’s evidence was sustained, from which ruling the plaintiff, claiming the preference, has appealed.
O. Riley owed the plaintiff a debt of $527.58, which was secured by a chattel mortgage on Riley’s cattle and other property. Riley held a public sale and sold the mortgaged property. He was also indebted to the Maize State Bank, so he employed F. P. Bowen, cashier of the Maize State Bank, to act as clerk of the sale. The agreement with Riley was that Bowen should act as the cashier and should clerk the sale and keep a record of the items sold and collect the accounts. Riley and Bowen had an understanding that the proceeds of the sale should first pay the costs of the sale, second, pay the plaintiff’s mortgage, and then any balance over and above the amount of plaintiff’s mortgage was to be applied on Riley’s indebtedness to the bank, but there was no agreement with the bank that the deposit should be held in trust or as a bailee. The proceeds collected from the sale were taken by Bowen and placed in the bank under the name of “F. P. Bowen, clerk of the Riley sale.” Bowen gave some checks for expenses of the sale, gave the plaintiff a check in the amount of $527.58 in payment of the plaintiff’s note and mortgage. This check was signed E. P. Bowen, clerk of the Riley sale. It was dated February 20, 1933, indorsed on the back, but was not paid as the bank had closed its doors on February 28.
On February 20, 1933, there was on deposit to this account the sum of $552.89. At the time the bank closed there was a balance of $495.42. Part of the deposits had been checked out by Bowen to pay other costs incident to the sale. This money came into the. hands of the receiver when he took charge of the bank, but was not a separate fund. The receiver contends that it is not a trust fund.
The real question involved in the case is, Is this deposit, which passed into the hands of the receiver, a trust fund and entitled to be declared a preferred claim, or is it a general deposit in which the relation of debtor and creditor was created?
Bowen made the deposit in the bank substantially in the way all deposits of a general character are made. There was no agreement to keep the deposit as a separate fund or to create the relation of principal and agent as to the deposit. While Bowen was an officer of the bank, he was not acting for the bank in the making of the deposit. He took the results of the sale and deposited them in the bank to the credit of himself as would be done by another general creditor. Before the bank could be implicated in the relation of bailor and bailee some agreement must be made that the deposit should be treated by the bank as a trust. Bowen may have been a trustee as to the creditor or beneficiary, but he could not make him a trustee as to the bank without its consent or knowledge. In Marine Bank v. Fulton, 69 U. S. (2 Wall.) 252, 17 L. Ed. 785, it was held:
“All deposits made with bankers may be' divided into two classes, namely, those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter; and that other kind of deposit of money peculiar to banking business, in which the depositor, for his own convenience, parts with the title to his money, and loans it to the banker; and the latter, in consideration of the loan of the money and the right to use it .for his own profit, agrees to refund the same amount, or any part thereof, on demand. The case before us is not of the former class. It must be of the latter.” (p. 256.)
The Maize State Bank received the money as a depository. The evidence in the case shows that Bowen had no intention to retain the title to the money deposited, and the fact that he had withdrawn funds from this account is some evidence of an intention that only a general deposit with the bank had been made. The fact that Bowen may have stood in a fiduciary relationship with creditors and beneficiaries other than the bank, does not affect the debtor and creditor relationship between the bank and Bowen, who deposited the money as clerk of the Riley sale.
The case of Duncan v. Farmers State Bank, 128 Kan. 591, 278 Pac. 763, was where money was deposited in the bank, the cashier telling the depositor that he would make the payments on a contract which parties had made. This was agreed to and the deposit was made and the ordinary deposit slip showing the deposit of a certain amount to be paid to another was given the depositor. They did not request that it be kept in a separate fund for the purpose named and they did not request that it be segregated from other funds. The deposit was carried on the books of the bank as a general deposit. It was commingled with the general funds of the bank and was used in honoring checks, making loans and otherwise carrying on its general business. It was held that the relation of debtor and creditor was created and not that of principal and agent, or of trustee and cestui que trust.
Our previous cases on the subject were largely examined and cited to show that in this case a trust was not created. Some reliance is placed by appellant on Schoen v. Johnson, 134 Kan. 612, 7 P. 2d 117, but there it was held that no trust was created because there was no segregation of the money or state of facts which would give it a trust character. In a Kansas case in the federal court, Minard v. Watts, 186 Fed. 245, parties were in litigation over rentals of property. It was agreed between them that all rentals received should be deposited in a special account in a bank pending the outcome of the litigation. The amount of $450 was so deposited, after which the bank became insolvent; and upon a claim for preference it was held that there was no agreement that the same should be held separate and apart, that there were two ways of depositing money, and that this was a general deposit in which the relation of debtor and creditor existed, and a preference was denied.
Besides our own cases, there are holdings in other jurisdictions quite similar to our own. In the case of Officer v. Officer, 120 Ia. 389, where there was an intervention, an executor made a deposit of the state funds in a bank and when the bank failed they sought to recover the amount of the account as a trust fund. There the court found that no trust relationship existed although the money placed in the fund was a trust between others, but there was no trust relationship of the bank to the fund, and, therefore, the preference was refused. Paul v. Draper, 158 Mo. 197, likewise held that the bank was not a trustee and a preferred claim was disallowed. See, also, Bank of Hartford v. McDonald, 107 Ark. 232.
Our conclusion is that the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by plaintiff to recover damages for personal injury sustained by plaintiff as an employee of defendant. Liability was based on the factory act. A motion to strike out certain allegations of the petition was allowed, and plaintiff appeals.
The petition alleged plaintiff was chief cook at the Santa Fe hospital in Topeka, and her working place was in the kitchen, where food was prepared for patients and employees. There was a machine in the kitchen, .commonly called a slicer, which was not properly safeguarded to prevent injury, the slicer being out of repair' and the guard being useless. While plaintiff was using the slicer in course of her employment, two of her fingers were cut off.
The petition carefully avoided description of the slicer, what it was used for, and what plaintiff was doing when she was injured. To make a paper case under the factory act, the petition contained the following allegations:
“That said kitchen, is and was a place wherein natural products and other articles and materials in a raw and unfinished and incomplete state and condition are converted into a new, improved and different form, and that said kitchen is and Was a manufacturing establishment as defined in the factory act of the state of Kansas.”
For the same purpose, the petition also contained the following:
“That the absence of said safeguard directly contributed to said injury and said injury resulted as a consequence of the failure of the defendant to provide said kitchen with safeguards and precautions prescribed by the factory act of the state of Kansas for the purpose of preventing and avoiding injury to persons employed and laboring in said kitchen.”
Whether a place is a manufacturing establishment is a question of- law for the court. The quoted allegations added nothing to the cause of action attempted to be stated, and were properly stricken.
The factory act defines manufacturing establishments as follows:
“Manufacturing establishments, as those words are used in this act, shall mean and include all smelters, oil refineries, cement works, mills of every kind, machine and repair shops.”
The act then continues as follows:
“And, in addition to the foregoing, any. other kind or character of manufacturing establishment, of any nature or description whatsoever, wherein any natural products or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form.” (R. S. 44-107.)
It will be observed the statute does not say “any other establishment where, etc.” It says any other kind or character of “manufacturing establishment.”
The result of operation of smelters, oil refineries, cement works, mills of every kind, and machine and repair shops is well understood. The statute classifies these places as manufacturing establishments. The result of operation of other kinds of manufacturing establishments is made things; wares, fabrics, goods, commodities, etc., and their finishing, completion, improvement, adaptation, etc. This description is not complete, but it is sufficiently indicative, and it excludes all notion of things culinary, and of home, hotel and hospital cuisine.
The kitchen is still a place much used in this country,- and it is the same kind of place, whether in a dwelling house or elsewhere. Whether it be small and furnished with few utensils, or be a department of some establishment, fully equipped with modern devices, it is a cook room, used for cookery. Whether the number of persons served be few or many, the function is the same, preparation of food for human consumption.
■ A patient in the Santa Fe hospital, on the way to recovery and so a little peevish, might request his nurse to go down to the factory and have the cook manufacture a poached egg for him. He might even ask if the mechanic down there will make a bowl of soup for him. But when he gets better, he will drop the sarcasm.
Without further discussion, the court holds that when plaintiff pleaded she was in performance of her duties as cook in the hospital kitchen when she was injured, she excluded herself from benefit of the factory act.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by defendants from an order denying an application for an extension of the redemption period in a mortgage foreclosure action under the provisions of the Kansas moratorium law, being chapter 3 of the Laws of 1934, Special Session, which law became effective March 3, 1934, and appellants include in their appeal the error assigned by them in the sustaining by the trial court of the motion of the plaintiff for an order requiring • the sheriff to execute a deed to the plaintiff as purchaser of the property involved. This last-mentioned order was made at the same term of court and only a few days prior to the first-mentioned order on the motion for extension of redemption period.
The mortgage in question was given in 1925 by the then owners of land, who were the parents of the defendants in this action. Both parents died in 1930. The children inherited the land, and have ever since .occupied it as a homestead. This action to foreclose the mortgage was commenced April 6, 1932, and judgment by default was rendered June 20, 1932. Sheriff’s sale was had on August 15, 1932, at which sale the plaintiff was the purchaser for the full amount of the judgment, interest, taxes and costs. The sale was regularly confirmed and' eighteen months redemption was allowed, which period expired February 15, 1934. The sheriff refused to execute a deed at the expiration of the redemption period because of the moratorium law of 1933, being chapter 232 of the Session Laws of that year, which included the provision for the governor’s extension of an additional six months, which did not expire until March 4, 1934. The plaintiff filed its motion in the foreclosure case to require the sheriff to execute a deed to the plaintiff purchaser, setting up therein that the moratorium law of 1933, being chapter 232, was unconstitutional and void, and served notice of an early hearing of such motion. It was heard on February 24, 1934, and sustained. The sheriff, the same day, executed the deed, and it was duly recorded that day in the office of the register of deeds. Six days thereafter the special session of the legislature passed and approved the new moratorium law of 1934, being chapter 3 of that special session, and it became effective March 3, 1934. On March 10, 1934, which was seven days after the new law became effective and six days after the expiration of the governor’s extension, the defendants filed this motion for an extension under the new law. The motion was heard and denied by the trial court on March 20, 1934, which was during the same term the court had, on February 24, 1934, ordered the sheriff to execute a deed to the plaintiff, purchaser.
It is claimed that the defendants did not comply with the requirements of the new moratorium law by filing their motion at least ten days prior to the expiration of the period of redemption, and they did not, as the dates above cited plainly show. But there is a later provision in the same section of the new act giving an automatic extension of thirty days after the passage and approval of the act where the earlier moratorium act or the governor’s extension thereunder would expire less than thirty days after the passage and approval of the new act. The passage and approval of the new act was on March 2, 1934, and the governor’s extension under the earlier act expired March 4, 1934. So, considering these two provisions together, and aside from the question of the validity of either act, the filing of the defendants’ motion on March 10, 1934, might very properly be regarded as being within the ten-day requirement with the automatic extension expiring thirty days after the 2d of March, 1934.
Under the well-recognized rule that appeals are to be favored we will review-the ruling of the trial court requiring the sheriff to execute a deed, as well as its ruling on the motion of the defendants for an extended period of redemption. The correctness of both of which rulings depends largely upon the question of the constitutionality of the earlier act, and particularly that part of it authorizing the governor to make an additional extension of six months.
Appellee contended in the trial court, and contends here, that the following part of section 2 of chapter 232 of the Laws of 1933 is unconstitutional, as delegating legislative power to the governor:
“Provided, In case at or before the expiration of the six-months period, it shall in the judgment of the governor of the state of Kansas, be necessary for the preservation of the public peace, health and safety so to do, and in case in his judgment said emergency still exists, then the governor of the state of Kansas is hereby authorized to extend said moratorium for a period of not exceeding six months.”
It certainly extended to the governor the power and authority to extend the moratorium six months, and that was all the legislature had done in the first section and the first sentence of the second section. If the part to be performed by the governor under the section above quoted was not legislative in character, then the extending of the first six-months moratorium under this act was not legislative in character.
Our constitution has vested the legislative power of this state in a house of representatives and senate (art. 2, §1), and it has uniformly been held that such power cannot be delegated. An exception is recognized where a matter is distinctly made to depend upon a contingency, as the expression by a majority vote in favor of a certain project, but never upon the judgment of an individual or a group as to the need or expediency of so acting.
In 6 R. C. L. 164 it is said:
“Since under the doctrine of the separation of the powers of government, the law-making function is assigned exclusively to the legislature, the gen-’ erally recognized rule is that any attempt to abdicate it in any particular field, although valid in form, is unconstitutional and void.”
Also, in the same volume, at page 177:
“Although it is customary in the American system of government to intrust to the governor a qualified veto, he as chief executive has no real legislative functions. In accordance with the doctrine as to the - separation of the powers of government, and the prohibition implied therein as to the delegation to another department of the powers strictly belonging to the legislative department, it is generally recognized that the legislature of a state cannot transfer or delegate any strictly legislative powers to the governor. . .”
The same principle is strongly maintained in Corpus Juris, under the heading of constitutional law.
“The functions of legislation may not be delegated by the legislative to the executive department or to any officer or officers thereof . . . nor may an executive officer be given authority, in his discretion, to give or to withhold a permit to do certain kinds of business, without any indication by the legislature of the test or standard by which such discretion is to be controlled . . .” (12 C. J. 844.)
“It is a doctrine well established and frequently reiterated by the courts that the functions of the legislature must be exercised by it alone and cannot be delegated . . . But any power not legislative in character which the legislature may exercise it may delegate . . .” (12 C.J. 839.)
In the case of Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, where the legislature vested absolute control in peti tioners for a road improvement and for- a levy of tax therefor, it was held:
“The first contention is, that chapter 214 is unconstitutional because it attempts to delegate legislative power to the petitioners, and confer upon them the absolute and arbitrary power to levy taxes.and special assessments on the property of others. The petitioners named in the statute are authorized, absolutely and arbitrarily, to determine whether the improvement is necessary and shall be made.” (p. 158.)
In the case of State v. Johnson, 61 Kan. 803, 60 Pac. 1068, it was held:
“Chapter 28 of the Laws of 1898 (Gen. Stat. 1899, §§ 5779-5820), entitled ‘An act creating a court of visitation, declaring its jurisdiction and powers, and providing for proceedings and procedure therein,’ is unconstitutional and void, for the reason that, in the powers conferred upon that tribunal, legislative, judicial and administrative functions are commingled and interwoven in a manner violative of the constitutional requirement that the three great departments of government be kept separate, and the powers and duties of each exercised independently of the others.” (Syl.)
In the recent case of State, ex rel., v. School District, 140 Kan. 171, 34 P. 2d 102, where chapter 263 of the Laws of 1933 was under consideration, which concerned the redistricting of certain school districts and the withdrawal of certain lands from districts in which they had been located, it was held the act was unconstitutional for more than one reason, and it was said in the concluding part of the opinion:
“. . . it is not debatable that the legislature is powerless to clothe a private individual or a group of private individuals with power over corporate organization. An attempt to confer such power is said to be an attempt to delegate legislative power, which is futile. This is settled by a long line of decisions, beginning with Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, and extending to Barrett v. City of Osawatomie, 131 Kan. 50, 289 Pac. 970.” (p. 174.)
Appellants insist that this motion of theirs does not involve the constitutionality or validity of the earlier act or the delegation of authority to the governor or his proclamation thereunder, but rests exclusively upon the act of 1934. Section 2 of the latter act provides :
“Sec. 2. Where any mortgage upon real property has been foreclosed and the property sold, or upon the sale of any real estate under any judgment or execution, where the period of redemption as provided by law and as éxtended under the provisions of chapter 232, Session Laws of 1933, and as further extended by the governor of Kansas by proclamation, dated August 22d, 1933, has not expired, the period of redemption may be extended.....”
The period of redemption in this case expired by the judgment of the trial court on February 15, 1934. The act of the legislature of 1933, without the extension made by the governor, would not affect this case, and it is only by the extension made by the governor to March' 4,1934, that it can come under the later act of 1934, because without such extension the redemption period ended February 15, 1934, and had expired when the later act was passed.
We conclude that what the governor was delegated to do, and did attempt to do, was legislative in character, and that such delegation of legislative power was entirely unauthorized under our separately constituted functions of government, and was therefore unconstitutional, void and inoperative. This holding applies to both rulings of the trial court, first in sustaining the motion of the plaintiff to require the sheriff to execute a deed to the purchaser, and later in overruling defendants’ motion for an extension of the moratorium period under the new law of 1934.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained by plaintiff in falling on the sidewalk of a city street.
The locus in quo was as follows: Sixth street is the principal thoroughfare in the city of Kinsley. It runs east and west. On the south side of the street is a sidewalk whose width is not shown. Fronting the north, on the south side of the street and sidewalk, is a business establishment known as Weinelt’s Variety Store. The sidewalk was constructed, in part, of cement blocks about three feet square, and bordered by a curbing on the street side. One of these cement blocks next to the curbing has sagged below the level of the other portions of the sidewalk. The exact variances in the level of this particular cement block from those next to it and to the curbing were as follows:
On its northeast corner.......................... % of an inch
On its northwest comer.......................... Vz of an inch
On its southeast corner.......................... % of an inch
On its southwest corner.......................... % of an inch
In this depressed cement block and near its north edge is an iron apparatus for controlling the water supply.
On November 20, 1933, the plaintiff, a woman of 50 years, parked her car next to the sidewalk in front of the variety store and shopped there for ten minutes. On leaving she walked toward her car; her ankle turned when she stepped on this depressed block; this caused her to fall; she struck her knee on the iron cut-off and received various painful and lasting injuries.
Hence this lawsuit. Plaintiff charged the city with negligence, alleging that the described defect had existed for several years and that the city and its responsible officials had long known of it, and that they had negligently permitted the sidewalk to remain in such defective and dangerous condition. Plaintiff’s petition particularized her injuries and damages and prayed judgment for $5,000.
Defendant’s answer contained a general denial, and among other matters specifically denied that the sidewalk was defective or dangerous.
The evidence developed no serious dispute on the controlling issue of fact. The jury was given a view of the sidewalk. It returned a general verdict for plaintiff for $500, and answered special questions, the most pertinent of which read:
“1. At the time and place in question was the sidewalk in a reasonably safe condition for ordinary use and travel? A. No.
“2. Was the plaintiff’s fall caused by the negligence of the defendant or was it caused by the negligence of the plaintiff? A. Negligence of the defendant.
“5. Was the plaintiff’s fall caused by her stepping on the edge of the sunken cement block?' A. Yes.
■“7. Would the plaintiff have seen the sunken cement block and avoided the'fall if she had exercised ordinary care as defined by the court’s instructions? A. No.
“8. Did the plaintiff exercise ordinary care as defined by the court’s instructions? A. Yes.”
Judgment was entered for plaintiff and the city appeals, assigning various errors. The one most strongly urged is that the condition of the sidewalk, according to plaintiff’s evidence most favorably considered, showed such a slight and inconsiderable defect that the trial court should have ruled as a matter of law that the city was not liable therefor.
The general rule is that merely factual questions of. negligence are for a jury to decide, and ordinarily they cannot be disposed of as matters of law. In King v. City of Parsons, 95 Kan. 654, 149 Pac. 699, our official report is rather scant in its statement of facts, but the files of the state library (Briefs, 95 Kan., vol. 3) show that the sidewalk was made of bricks, that there was a depression about four feet long and two feet wide, and that some of the bricks lay slanting rather than flat, and some stood on edge, and that the center of the depression was three or four inches deep. Plaintiff stepped backward into that depression; her foot was caught in it; she fell and was injured. This court held that the question of the city’s negligence was for the jury.
A case on which appellee strongly relies is Evans v. City of Hutchinson, 99 Kan. 477, 162 Pac. 342, where the syllabus conveys the suggestion that the depression in the sidewalk was only half an inch deep, and that it had been caused by the scaling off of the cement crust in an area of two feet by six inches. In the opinion it would appear that not only was there testimony that the depression was half an inch deep, but other evidence that it was as much as three inches deep; but whatever its depth it was characterized as “the hole in the walk.” How many miles of half-inch cement crust have scaled off the sidewalks of the cities of this state since the Hutchinson case was decided? Is it still regarded as good law that our municipalities are liable as for negligence when people fall on sidewalks with so little the matter with them? In recent analogous cases where the state highway commission has been subjected to damage suits it has been held that the state is not liable for injuries sustained where the defect in the highway was slight and inconsiderable; and that users of the highway must take notice of defects which are within plain sight of any person using due care. (Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834; Snyder v. Highway Comm., 139 Kan. 150, 30 P. 2d 102.)
Looking into the decisions of other jurisdictions, it seems that the rule’ contended for by the appellant is the prevailing one. In Jackson v. City of Lansing, 121 Mich. 279, 80 N. W. 8, the top crust of a cement sidewalk had been broken off and a depression worn therein to a depth of from 1% to 3 inches below the general level of the walk, and the depression covered an area of 1% feet to 2 feet. The court held this was not an actionable defect, citing Shietart v. City of Detroit, 108 Mich. 309, thus:
“It was perfectly safe to all except the heedless and the public should not be required to make walks so smooth that people cannot stub their toes upon them. Sidewalks in many places require steps, single or in flights, and crosswalks are often upon a different level from the sidewalks which they join. Manholes for sewers must have covers which are above the level of the pavement. Wooden sidewalks become uneven by wear, and must be repaired by planks thicker than the half-wom planks which they adjoin, and flagstones are thrown out of level by the freezing of the ground. In all such cases, where the defect is obvious, the circumstances must be exceptional to authorize a recovery.” (p. 311.)
In a similar case, Weisse v. City of Detroit, 105 Mich. 482, 63 N. W. 423, the court quoted from an English case where it was said:
“To hold that such a liability was intended to be imposed by the legislature on municipal bodies would be most unreasonable, and would practically burden municipalities to an extent that could never have been contemplated by the legislature.” (p. 485.)
In Beltz v. City of Yonkers, 148 N. Y. 67, where the plaintiff sought to fasten liability on the city for a fall alleged to be attributable to a depression of 2% inches in a sidewalk, the court said:
“If the existence of such a defect is to be deemed evidence of negligence on the part of a city, then there is scarcely any street in any city that is reasonably safe within the rule, and when accidents occur the municipality must be treated, practically, as an insurer against accidents in its streets. The law does not prescribe a measure of duty so impossible of fulfillment or a rule of liability so unjust and severe.” (p. 70.)
In another New York case, where actionable liability was sought to be fixed on the city on account of a depression in a sidewalk of 1% inches, it was said:
“The defect in the sidewalk in this case was so slight that it is not in excess of similar defects found in great numbers in every village and city. To hold a municipality for accidents occurring from such defects would entail upon them a burden beyond that which they are reasonably required to bear.” (Terry v. Village of Perry, 199 N. Y. 79, 87.)
In 7 McQuillan on Municipal Corporations (2d ed.) § 2974, it is said:
“The municipality need not lceep sidewalks absolutely safe, and is not responsible for every accident thereon. ... To keep all sidewalks in perfect condition at all times is practically a municipal impossibility. , For instance, slight inequalities are nearly always found, at one place or another, especially where there is much travel. Minor defects or obstructions are generally not actionable. Generally, in accordance with the principle sustained by a majority of the judicial decisions, early and late, these minor defects or obstructions include slight depressions in sidewalks,
In 13 R. C. L. 398, 399, it is said:
“The tendency of the law as evidenced by legislative enactments has been in the direction of making less rather than more stringent the rules of municipal liability in cases of accident to persons using sidewalks. . . .
"... But a municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to mere convenient travel, and slight inequalities or depressions of differences in grade, or a slight deviation from the original level of a walk due to the action of frost in the winter or spring, and other immaterial obstructions, or trivial defects which are not naturally dangerous, will not make a municipality liable for injuries occasioned thereby. The fact that the surface of a walk may have become uneven from use, or that bricks therein may have become loose or displaced by the action of the elements, so that persons are liable to stumble or be otherwise inconvenienced in passing, does not necessarily involve the municipality in liability, so long as the defect can be readily discovered and easily avoided by persons exercising due care, or provided the defect be of such a nature as not of itself to be dangerous to persons so using the walk. So it has been held that a municipality is not liable for injuries to a pedestrian resulting from slipping or stumbling over a niche left in a sidewalk around a growing tree, from which the tree has been removed, or over a piece of stone projecting slightly above the level of a crosswalk.”
See, also, 5 R. C. L. Perm. Supp. 3368, 3369; Notes in 20 L. R. A., n. a., 640; L. R. A. 1916A 486; 3 A. L. R. 1139; 48 A. L. R. 1154; 20 Ann. Cas. 796.
In view of the foregoing this court holds that in so far as Evans v. City of Hutchinson is at variance with the general trend of the decided cases cited and quoted above it should be overruled. The correct rule and the one which should have controlled the decision in the instant case is the one contended for by the appellant city.
The judgment is reversed and the cause remanded with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This action involves the claim for a mechanic’s lien upon an oil and gas leasehold estate. It appears the real property was owned by Alvin F. Tinsley and that the defendant, Fred U. T. Smith, was the owner of the oil and gas lease thereon, and that he had a well drilled on the property. The project became involved financially and a number of mechanic’s lien statements were filed with the clerk of the district court. The plaintiff brought this action to have the claims adjudicated and the leasehold estate and property thereon subjected to their payments. A receiver was appointed to take charge, of, preserve and dispose of the property under the order of the court. Appellant, F. L. Jehle, by permission of the court, intervened, claiming a mechanic’s lien by virtue of the fact that he had furnished gas for the drilling of the well in the amount set forth, and alleged that he previously and in due time had filed his mechanic’s lien statement in the office of the clerk of the district court. Other lien claimants contested his right to a lien upon the ground that gas furnished for the drilling of the well was not a lienable item under the statute. That question was tried out, and the court found in favor of the claimant Jehle. The other lien claimants filed a motion for a new trial, and upon the hearing of that motion brought out the fact that in the mechanic’s lien statement and in the intervening petition filed by Jehle the leasehold estate was described as covering the northwest quarter of the southeast quarter of a described section of land, when in fact it covered the northwest quarter of the southwest quarter of that section. This matter had not been called to the attention of the court prior to the hearing on the motion for a new trial and apparently the discrepancy in the description had not been noticed by any of the parties to the action. Other lien claimants contend that the lien statement was void because of this inaccurate description. The time long since has passed for the filing of a lien statement. Jehle asked permission of the court to amend his lien statement and his intervening petition so as to describe correctly the land covered by the leasehold. That request was denied and judgment was rendered denying Jehle’s claim. He has appealed from this ruling and judgment.
Mechanics’ liens are statutory, and he who claims such a lien has the burden of bringing himself within the purview of the statutes. (Bell v. Hernandez, 139 Kan. 216, 218, 30 P. 2d 1101, and authorities there cited.) They are enforced, however, by an action in the district court (R. S. 60-1405, 60-1409), and in their enforcement courts apply equitable as well as legal principles, when the circumstances justify or require that to be done. (Bell v. Hernandez, supra, p. 223, and cases there cited.) With respect to the amendments of lien statements our statute (R. S. 60-1405) specifically provides:
. . any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed.”
Our courts have applied this statute and permitted amendments to be made to lien statements in a number of cases. (Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640; Lumber Co. v. Collinson, 97 Kan. 791, 156 Pac. 724; Brown v. Walker, 100 Kan. 542, 164 Pac. 1092; 101 Kan. 293, 166 Pac. 873; Lumber Co. v. Blanch, 107 Kan. 459, 192 Pac. 742; Supply Co. v. Oil Co., 110 Kan. 468, 204 Pac. 692; Badger Lumber & Coal Co. v. Schmidt, 122 Kan. 48, 50, 251 Pac. 196; Cooke v. Luscombe, 132 Kan. 147, 294 Pac. 849.)
The effect of inaccurate description has, been treated in some cases. (Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22; Golden Belt Lbr. Co. v. McLean, 138 Kan. 351, 26 P. 2d 274.) The tendency of the courts is to allow amendments where parties have not been misled and the rights of third parties have not intervened (40 C. J. 220).
Counsel for appellees cite decisions from other jurisdictions in which it has been held that a misdescription of the real property in the lien statement was fatal. With equal propriety it might be pointed out: “The lien has been held not to be defeated by a mistake in the number of the block or section in which the property is located.” (40 C. J. 224, and cases cited.) The fact that the right to mechanics’ liens and method of their enforcement are statutory and the statutes of the various states are not uniform and the court of each state construes its own statutes, render citations from other jurisdictions of but little value. We have statutes pertaining to these matters, and with respect to every point covered by the statutes we will do best to look to our own statutes and decisions rather than those of any other state. The point should not be overlooked that the lien sought to be enforced in this case is not a lien upon real property. It is authorized by R. S. 55-207 (as amended, see same number, 1933 Supp.) et seq., and is a lien only upon the leasehold and property used in connection with the lease. The description of the real property in the lien statement is therefore unimportant except as it aids in pointing out, the leasehold. Other parts of the lien statement made it clear what leasehold was intended, and no one in this action was misled or deceived by it. In fact, the statute providing for filing this kind of a lien (R. S. 55-209) does not require a description of the real property where no lien is sought upon it.
The real question before us is whether the court erred in refusing to permit the amendment requested, as it was authorized to do in furtherance of'justice by the statute (R. S. 60-1405). Since the statement filed misled no one, arid the rights of no third parties intervened, the amendment should have been permitted.
Counsel for appellees point out that claims had been allowed in this case, exclusive of appellant’s, in the amount of about $6,200; that the property in the hands of the receiver was sold under order of the court and brought a little more than $5,600. From this it is argued that claims allowed would have to be prorated; and that it would be inequitable to allow appellant’s claim because it would reduce the amount to be received by other claimants. This would not justify refusing appellant’s claim any more than it would the refusing of any of the claims of the appellees. The trial court was too wise and too just to place its decision upon that ground. It is much more equitable to allow all claims which should be allowed, and if the fund is insufficient to pay all of them, to let each have his pro rata share. The trial court was impressed with the view that it had no authority to permit the amendment. In this the court erred, and its judgment therefore is reversed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin defendant from engaging in the paint and varnish business in Topeka for a period of five years from January 22, 1932. Judgment was for plaintiff. Defendant appeals.
The facts are substantially as follows: Plaintiff is a corporation engaged in the wholesale distribution of paints and varnishes. Defendant was the president of the Miller-Hoyes Paint and Glass Company. This company is engaged in the business of selling paints and varnishes in Topeka. In 1928 defendant was an employee of plaintiff. He borrowed the money from plaintiff to purchase the stock of the Miller-Hoyes company. He became the president of that company. He operated the company by buying the goods and products of plaintiff on a consignment contract. By the terms of this contract the plaintiff furnished merchandise to the MillerHoyes company and this company agreed to make monthly reports of sales from the consignment and to make payment therefor on the fifteenth of each month. Defendant continued to operate the company and to sell the merchandise of plaintiff but did not make the remittances as the contract provided. On January 22, 1932, the Miller-Hoyes company had become indebted to plaintiff in a large sum of money. In the meantime the' loan made by plaintiff had become due and was renewed, and 900 shares of the stock of the Miller-Hoyes company owned by defendant was deposited as se curity. About this time defendant organized the Evans Paint and Glass Company and operated it at the same address as the MillerHoyes company. He continued to receive goods from John Lucas & Company in the name of the Miller-Hoyes Paint and Glass Company, under the consignment contract, but the goods were transferred by him to the Evans Paint and Glass Company and sold. Defendant did not remit to plaintiff for the consigned stock, and the indebtedness increased. About this time the contract which is the basis of this action was entered into. By the terms of the contract defendant turned over to plaintiff 1,200 shares of stock in the Miller-Hoyes company—
“With the understanding th'at you will have the full and undisputed right to vote this stock at all meetings of the stockholders of the Miller-Hoyes Paint and Glass Company, and to take such action in connection therewith as in your judgment is for the best interests of the Miller-Hoyes Paint and Glass Company and in all ways to act with respect to this stock as though it were your own property, subject to the following:”
The conditions therein set out were in substance: First, that the appellant would resign as president; second, that the appellee would suggest to the new board, which the appellee would name, the retention of the appellant in charge of the business; third, that the appellant would place his resignation as such employee in the hands of the appellee, which might be accepted by the appellee “at any time you should see fit”; fourth, related details as to how the business should be handled by the appellant.
The provisions of the contract with which we are concerned are as follows:
“5. In turning over to you twelve hundred (1,200) shares of stock as stated above, it is with the distinct understanding that you shall be liable only for the use of your best judgment in all matters pertaining thereto. To be more specific, I agree that in the event you should cause the business to be liquidated or if the business does not make money and its financial condition becomes worse than it is at the present time, that I will not hold you responsible and shall have no cause for action, and shall bring no action against you with respect thereto.
“6. In view of the above and as a part of this agreement, it shall be understood that if and when the business of the Miller-Hoyes Paint and Glass Co., or its successor, has discharged its present and future obligations to your company, to a point satisfactory to you, and I have discharged my personal obligations to your company, that then these twelve hundred (1,200) shares of stock are to be returned to me and become my property.
“7. I furthermore agree that should my connection with the Miller-Hoyes Paint and Glass Co., or its successor, cease at any time while you still hold this stock, that I will not, for five years thereafter, engage in the paint and varnish business in Topeka or vicinity, either directly or indirectly, provided that this agreement to keep out of the paint business for five years shall not be in effect if the Miller-Hoyes Paint and Glass Co., or its successor, has ceased to exist.”
After the contract had been complied with by a reorganization of the company defendant was reemployed to manage the company. He soon began to operate the Evans Paint and Glass Company in the same manner in which he had operated it before the consummation of the contract, and failed to make remittances as provided. On this account plaintiff discharged him. Plaintiff then moved the Miller-Hoyes Paint and Glass Company to a new location. In a short time the defendant engaged in the paint and varnish business under the name of Evans Paint and Glass Company at the old location of the Miller-Hoyes company. Plaintiff brought this action to enjoin defendant from engaging in this business. It is claimed that the action of defendant is in violation of section 7 of the contract heretofore set out. The petition alleged facts about as set out here. The answer of defendant admitted the execution of the contract, but alleged that it was signed by defendant under duress. The court heard the evidence and found for plaintiff by granting an injunction restraining defendant from engaging in the paint and varnish business in Topeka for five years from May 11, 1932.
The defendant appeals from this judgment, but does not bring any of the evidence here for review; hence, we will examine the action with the idea in mind that the allegations of the petition are true.
Defendant contends that the contract is not binding on him because it is a contract in restraint of trade, and such a contract is not enforceable unless it is ancillary to a contract for a sale of goods or a business, and this contract was merely one whereby the stock of defendant was pledged with plaintiff.
Defendant cites and relies on Tong v. McArthur, 121 Kan. 870, 250 Pac. 262. In that case the written contract was for the sale of a barber shop. The plaintiff sought to show an oral contract of defendant not to engage in the barber business. It was contended that this oral contract could be shown because it was separate and distinct from the contract of sale. This court said this could not be because such a contract must always be ancillary to a contract for the sale of goods or a business and part of the same contract. This opinion does not have the effect contended for by the defendant. It is supported by a reference to 13 C. J. 477 and there we find the following: “It is not necessary that the contract accompany the sale of the tangible plant of a business.”
The rule is that the contract is good if it is ancillary to any lawful contract. In Mills v. Cleveland, 87 Kan. 549, the question is discussed. There the conclusion is reached that the correct guide is the reasonableness of the contract and whether it is inimical to the public welfare. Considered from this viewpoint the contract in question is valid. The defendant had been in business under a relationship with plaintiff for several years. During this time he had become acquainted with the paint and glass trade in Topeka. He had made this acquaintance at the expense of plaintiff. The contract whereby he surrendered control of his company to plaintiff was a lawful one and was advantageous to defendant. The agreement not to engage in the paint and glass business in Topeka for five years was ancillary to it. We hold that it was a valid contract. See United States v. Addyston Pipe & Steel Co., 85 Fed. 271, 29 C. C. A. 141; also, Kent Oil Co. v. Waddill, 127 Kan. 704, 274 Pac. 1113, and cases there cited.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is another case of damages for the pollution of a well which furnished the water supply for domestic purposes. (See Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953.)
Plaintiff owned a small house in North Wichita near a large drainage canal constructed by the city. The soil is sandy and porous and the underflow is shallow thereabouts.
In 1928 oil was discovered at Valley Center, a few miles north of Wichita, and the defendant and other oil companies made arrangements with the city of Wichita for the discharge of salt water from their oil wells through a pipe line into the city’s sewer system. For its own purposes the city constructed certain locks and gates whereby the salt water from the oil wells might be turned into the drainage canal for flushing it occasionally.
The city’s sewer was of concrete and the salt water could do plaintiff no harm if not released therefrom; but the drainage canal was not lined so as to prevent seepage; and when the salt water was turned into the drainage canal it percolated through the soil and polluted plaintiffs well so that it was unfit for domestic purposes or for irrigation.
Plaintiff’s petition alleged that prior to the release of the salt water his house was worth $800, but worth no more than $200 after his well was damaged by the salt water. He also alleged that he was put to trouble and expense to the extent of $200 in carrying wholesome water to his chickens and livestock, for which sum as damages he also prayed.
Issues were joined on the facts and the pertinent law.
When the case was called for trial, on motion of the attorney for the plaintiff the allegations of temporary damages were stricken from the petition, leaving the petition stand only as to the permanent damages to the plaintiff’s real estate.
The case was tried before a jury, and evidence pro and con was adduced at length. In the instructions to the jury was one to which neither party objected. It read:
“No. 18. If you find for the plaintiff, then you will allow him an amount of money as compensation for the injury which he has suffered by way of loss or damage to his said real property as a direct result of the acts of the defendants.
“In determining the amount you will allow, you will take the difference between a fair and reasonable market value of his property just prior to the pollution of the water thereunder, and the fair and reasonable market value of the property immediately after such pollution.
“Along with such consideration, you should determine whether or not such pollution is permanent or temporary in nature and character.”
The jury returned a general verdict for plaintiff in the sum of $217, and answered special questions, some of which read:
"9. Do you find that the defendants’ mineralized water was the sole pollution which affected the underground water flow from which the supply of water underneath the plaintiff’s land was derived? A. Yes.”
“15. If you find that plaintiff’s water well was polluted by defendants’ salt water, then state specifically what act or acts of the defendants directly or proximately caused such damage. A. By the discharge of salt water into Wichita drainage canal.”
“3. What was the fair market value of the property in question just prior to the adandonment of plaintiff’s water well? A. $700.
“4. What was the fair market value of the property in question immediately after the .water well on plaintiff’s property was abandoned? A. $483.
“5. What elements have you considered in fixing the amount of damage? A. 1. Pollution of water. 2. Difference between fair market value before and after pollution. 3. Considering permanent pollution not assured based on evidence produced in trial.”
Defendant’s motion for judgment on the special findings was overruled, and judgment was entered on the general verdict.
Defendant appeals on various grounds, one of which will dispose of this appeal.
Plaintiff sued for both temporary and permanent damages. When the cause came on for trial, plaintiff unqualifiedly abandoned his claim for temporary damages. The jury declared in their special finding No. -5 that the evidence adduced in support of plaintiff’s claim for permanent damages was not sufficient to establish it. Their general verdict for $217 in favor of plaintiff is explained by their special findings Nos. 3 and 4. And, in No. 5, the jury specifies what elements they took into consideration in assessing the damages —pollution of water, and difference in fair market value before and after pollution. It is manifest that the jury regarded these elements as temporary, because they expressly stated that they did not consider any permanent damage as assured — that is, established — based on the evidence produced at the trial. In other words, the jury did not consider that plaintiff, who had the burden of proof, had supported his claim to permanent damages by a preponderance of the evidence. The result is, here was a lawsuit where temporary damages were waived, and where permanent damages were not established by the evidence. Consequently defendant’s motion for judgment on the special findings was proper and it should have been sustained.
The judgment of the district court is reversed, and the cause remanded with instructions to enter judgment for defendant.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover installments due on a contract of sale of a soda fountain. Plaintiff recovered, and defendant appeals.
Three installments amounting, with interest, to $300.63, fell due. Defendant made certain deductions, and sent plaintiff a check for the remainder. Plaintiff held the check for seventeen days, when the bank on which the check was drawn, failed. Other installments fell due and were paid. Then two installments fell due which were not paid, and plaintiff sued for all the unpaid installments, and interest. Defendant confessed liability for the last two installments, made tender of payment, and they were included in the judgment. The controversy relates solely to the installments in payment of which defendant sent the check, and in what follows the installments confessedly due and unpaid will be ignored.
To arrive at the amount he should remit to pay the first three installments, defendant properly deducted some freight and drayage charges, because the fountain was to be installed for a gross price. The written contract of sale provided, however, that no plumbing or electric wiring was included. Defendant nevertheless deducted from the amount due, the sum of $37.90 for plumbing, and remitted the balance by a check for $215.59.
Notwithstanding the fact that the contract itself in effect defined installation as not including plumbing, defendant tried to show by oral evidence plaintiff should pay the plumbing bill. The court held defendant had no right to deduct the plumbing bill. The ruling was manifestly correct, but is of no consequence, in view of the final judgment, to be discussed later.
Defendant presented a claim to the bank receiver for the whole amount of his deposit, with the $215 check uncashed, and the claim was allowed. Afterwards, defendant received a dividend of twenty-one per cent on his claim. The. amount apportionable to the $215 check was $45, and the court rendered judgment in favor of plaintiff for that sum, because defendant did not lose that sum -through plaintiff’s failure to present the check.
Defendant says he should not be charged with the dividend, and plaintiff should be charged with the full amount of the check. In support of the contention, defendant quotes the statute:
“A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” (R. S. 52-1703.) ■
. Defendant simply ignores the concluding and controlling words of the statute, “to the extent of the loss caused by the delay.”
Following the quotation of the statute, defendant’s brief contains the following:
“Anderson v. Elem, 111 Kan. 713, 714. The iaw of the case is simple enough. ‘A check is a bill of exchange drawn on a bank payable on demand, and a check must be presented within a reasonable time after its issue, or the drawer will be discharged from liability.’ ”
The matter in quotation marks is taken from the opinion in the cited case. ' The concluding words. of the court’s statement, which govern- this case, are not quoted. The following is what the court said, italics used to show the suppression:
“The-law of the case is simple enough. A check is a bill of exchange, drawn on a bank, payable on demand. (Neg. Inst. Act, § 192, Gen. Stat. 1915, § 6713.) A check must be presented within a reasonable time after issue, or the drawer will be discharged from liability thereon to the extent of loss caused by the delay." (Anderson v. Elem, 111 Kan. 713, 714, 208 Pac. 573.)
Receipt of the dividend, which was not lost to defendant, was admitted. The statute is unmistakably plain, the decision is equally plain, and the law of the case is so simple that to urge defendant’s contention is to trifle with the court.
The check was insufficient to pay the amount due plaintiff, in full. Plaintiff did not accept the check, but did not notify defendant, and plaintiff held the check until the bank failed. Defendant was not authorized to deduct the plumbing bill, so the court held both parties were at fault, divided the loss on the check, $170, between the parties, and rendered judgment in favor of plaintiff and against defendant for one-half the sum, or $85. The result was, plaintiff was given judgment for two items, the' dividend, $45, and one-half the loss on the check, $85, a total of $130. In doing this, the court took into consideration the check only, and so actually allowed defendant the plumbing bill of $35.90, which the court had found specially should not be allowed. Plaintiff does not appeal, and the judgment may not be corrected here. By using the plumbing money wrongfully in his hands, defendant can satisfy the judgment by paying $92.10 more.
' Defendant contends judgment should not have been rendered against him for the $85 item. The amount is not within the appellate jurisdiction of this court. Defendant’s contention with respect to the dividend of $45 is frivolous, and the court does not regard that item as genuinely in controversy. Therefore it may not be used to piece- out a jurisdictional amount.
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The opinion of the court was delivered, by
Thiele, J.:
This is an appeal in an action for damages to an automobile owned by plaintiff and insured against theft by defendant.
Plaintiff was engaged in the automobile business at Stockton. On May 24, 1933, a man calling himself Hanson appeared at plaintiff's place of business with a Chevrolet coupé in which he had a number of surveying instruments. Plaintiff suggested to Hanson that he needed a larger car and Hanson looked at cars, trying them to see how the instruments would fit into them. Hanson told plaintiff he had to go to Palco to do some work and would be back to consider buying a certain sedan. Later the same day Hanson called plaintiff and asked plaintiff to meet him at Plainville. Plaintiff took the sedan and met Hanson at Plainville where terms of trade were discussed. Before Hanson would make the trade he wanted to try the sedan, to which plaintiff agreed. Hanson stated he had no keys for his coupé and asked plaintiff to watch it while he tried out the sedan. Plaintiff agreed. Hanson got into the sedan, drove off and failed to come back. He was later apprehended in Ohio and the plaintiff’s car recovered. Plaintiff’s car was insured under a policy of the defendant company. The suit was to recover for damages to the car from the time it was taken until it was recovered. From a judgment in plaintiff’s favor defendant appeals.
The policy insured plaintiff’s automobile against theft, robbery and pilferage “excepting by any person ... to which person . . . the assured . . . voluntarily parts with title and/or possession whether or not induced so to do by any fraudulent scheme, trick, device or false pretense,” etc.
The sole question presented is whether under the facts the assured voluntarily parted with title and/or possession of the automobile as a result of the above trick.
That the manner in which the automobile was taken from plaintiff by Hanson constitutes a species of theft has been settled. In Motor Co. v. Insurance Co., Ill Kan. 225, 207 Pac. 205, where a pretending purchaser falsely representing himself to be Ben Cole, a reputable person of the community, delayed his negotiations for purchasing a car until after banking hours and then gave a check signed with the name Ben Cole and thereby obtained the car and vanished with it, it was held:
“Under a contract of insurance issued to protect a dealer in automobiles against ‘theft, robbery or pilferage,’ the act of a swindler who deprived the insured of an automobile by means of a preconceived plan which involved impersonation, misrepresentation and fraud was a species of theft for which the insurance company was liable.” (Syl.)
And a similar ruling was made in Overland-Reno Co. v. Indemnity Co., 111 Kan. 668, 208 Pac. 548. The policies of insurance in those cases did not contain the exception above noted. Under the admitted facts, did plaintiff voluntarily part with possession of the car?
Under similar circumstances of fact and under policies having substantially identical provisions as to theft and exceptions thereto as are involved in the instant case, in Stuart Motor Co. v. General Exchange Ins. Corporation, (Tex. Civ. App. 1931) 43 S. W. 2d 647, and American Indemnity Co. v. Higgenbotham, (Tex. Civ. App. 1932) 52 S. W. 2d 653, it was held plaintiff could not recover. Ap pellant relies on these cases. In Allen v. Berkshire Mut. Fire Ins. Co., 105 Vt. 471, 168 Alt. 698, 89 A. L. R. 460, it was held plaintiff should recover. Appellee relies principally on this case.
As we view the matter, the disposition of this appeal turns largely on the meaning to be given the word “possession.” In Webster’s New International Dictionary (2d ed.), the word “possess” is defined—
“3. a. To have and to hold as property; to have a just right to; to be master of; to own,” etc.
and “possession” is defined—
“1. Act or state of possessing, etc., and
“6. Law. Act, fact, or condition of a person’s having such control of property that he may legally enjoy it to the exclusion of all others having no better right than himself. What constitutes such possession depends upon the subject matter and the legal system involved; but, in general, all legal systems recognize as having possession him (as a thief) who has actual physical control of a thing and holds it for himself, the Roman and civil law distinguishing these elements as the corpus of pessession (detention, or naturalis possessio) and the animus possidendi, calling the two together simply possession, or civilis possessio. English law does not expressly recognize this distinction but distinguishes custody, where one does not exercise the physical control for his own purposes, from possession.”
We do not find the word to have been defined in any of our cases similar to this one, but in an intoxicating-liquor case (State v. Metz, 107 Kan. 593, 193 Pac. 177) there is discussion of its meaning, and it was said:
“Following Salmond’s definition and analysis, which are open to as little objection as any, corporeal possession is the continuing exercise of a claim to the exclusive use of a material thing. The elements of this possession are, first, the mental attitude of the claimant, the intent to possess, to appropriate to oneself; and second, the effective realization of this attitude. Effective realization involves the relation of the claimant to other persons, amounting to a security for their noninterference, and the relation of the claimant to the material thing itself, amounting to a security for exclusive use at will.” (p. 596.)
It was said in Nat. Safe Dep. Co. v. Illinois, 232 U. S. 58, 67, 34 S. Ct. 209, 212, 58 L. Ed. 504, 509, and quoted with approval in Allen v. Berkshire Mut. Fire Ins. Co., supra, that “both in common speech and in legal terminology, there is no word more ambiguous in its meaning than possession.”
And the use of the term with modifying adjectives is common in the law, e. g. “actual possession,” “constructive possession” and “physical possession.”
In 22 R. C. L. 80 it is said:
“The mere fact of putting one’s property into the charge or custody of another does not divest the possession of the owner. The legal possession still remains in him. So one having the mere custody of another’s property may commit a larceny of it.”
In this connection, see State v. Walker, 65 Kan. 92, 68 Pac. 1095, and 36 C. J. 776, § 134.
Other authority showing diversity of definition of the word might be cited but the above is sufficient to show that mere change of custody does not always amount to change of possession or to surrender of it.
The general rule for the interpretation of insurance policies is that if the terms thereof are open to more than one construction, that one which is more favorable to the insured must prevail. (Samson v. United States Fidelity and Guaranty Co., 131 Kan. 59, 289 Pac. 427; Hoskins v. North American Accident Ins. Co., 123 Kan. 731, 256 Pac. 981; Evans v. Accident Association, 102 Kan. 556, 171 Pac. 643; Bank v. Colton, 102 Kan. 365, 170 Pac. 992; Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78, and cases cited therein. See, also, 32 C. J. 1152 et seq.)
Applying this rule to the facts before us, we are constrained to hold that Hanson’s acts resulted in his obtaining,'not the possession of the car, but simply the custody of it; that plaintiff in letting Hanson drive the car to try it was not intending to and did not part with the possession of it; that had the insurance company wanted to make an exception with reference to change of custody resulting from fraudulent scheme, trick, device or false pretense, it could easily have used words so appropriate to that end there could have been no difference of opinion with respect thereto, and failing that, the terms of the exception must be construed against it and favorably to the plaintiff, and so construed, plaintiff did not voluntarily part with possession of the insured automobile.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to cancel an oil lease made July 9, 1931, by Oscar Rolander to H. C. Finefrock, and to quiet the title to the leased premises. The lessor died in August, 1932, and plaintiffs are his heirs. The defendants are assignees claiming under Finefrock.
Omitting formal allegations, as well as those pertaining to heir-ship of Rolander and assignment by Finefrock, the petition alleged the execution of the lease, a copy of which is attached to the petition and to which reference is hereinafter made, and that no oil or gas is being produced from the leased premises; that-the lease has expired by its terms, and plaintiffs are entitled to have it canceled and discharged of record. In a second cause of aQtion it was alleged defendants claim some right, title and interest by reason of the lease, the exact nature being unknown to plaintiffs, etc., and which con stitutes a cloud on plaintiffs’ title; that plaintiffs’ title is paramount and superior to defendants’ title, and asking that title be quieted in plaintiffs.
Defendants answered admitting the historical matters pleaded and pleading the provision of the lease relating to rental, hereinafter quoted, and alleging payment of rents for 1932 and 1933 and tender of rents prior to March 9,1934, which last tender plaintiffs refused; that defendants have complied with all terms and provisions of the lease and the same is in full force and effect. Further tender of $40 for the year 1934 is pleaded.
To this answer the plaintiffs demurred, which demurrer the court sustained, and rendered judgment canceling the lease and quieting plaintiffs’ title. Defendants appeal.
The lease was dated July 9, 1931, and provided it should remain in force “for a term of one year from date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.”
Provision is made for share of oil and gas produced and saved and—
“If no well be commenced on said land on or before the ninth day of March, 1932, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the Peoples State Bank at McPherson, Kansas, or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of forty no-100 dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well twelve months from said date. In like manner and upon like payment or tenders the commencement of a well may be further deferred for like period of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privileges granted to the date when said first rental is payable, as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred.”
It seems to have been conceded, in addition to the admissions made by the demurrer, that there had never been any drilling on the leased premises, and that plaintiffs had given no notice to defendants that rents would not be accepted on March 9,1934.
In ruling on the demurrer the trial court said:
“It is the opinion of the court that the mineral lease must terminate some time and the terminal date was set in the lease by the parties thereto at March 9, 1932. After that date it became optional with the landowner whether or not he did accept further payments and thus renew the lease from year to year. He did accept such payment which did renew the lease for one year, but with his refusal to accept another payment the lease expired by its own terms.
“This is not a forfeiture of lease; it is merely the refusal to renew the lease. The two are quite different and no notice on the part of the landowner is required.”
In support of the trial court’s judgment, appellee argues that the lease is for a primary term of one year and as long thereafter as oil or gas is produced, etc., and there being no production) the lease ended one year from its date of July 9, 1931, citing in support authorities holding that if the time for termination of a lease is fixed therein the term will not be extended beyond the time thus fixed. (1 Willis’ Thornton on Oil & Gas, 5th ed., p. 391, and 40 C. J. 1058 and some of the cases cited therein.) Let us observe the effect of that rule as applied to the facts here. It must be noted that while the lease at one place fixes the term at one year, at a later place it provides that if no well be commenced on or before March 9 of the following year, or eight months after date of the lease, the lease shall terminate as to both parties unless certain rentals are paid, and that successive payments could thereafter be made. Reading the whole lease, it is apparent that had no well been drilled and no rental paid before March 9, 1932, the lease would then and there have terminated; if a producing well had been drilled, the term would have been “as long thereafter as oil or gas . . . is produced . . .”; if no well had been drilled and rental had been timely paid it would have terminated March 9, 1933, unless further extended by additional payment of rents. It is likewise quite apparent that under no circumstances could this lease have terminated July 9, 1932. It either terminated March 9, 1932, or on March 9 of a later year, dependent upon payment of rent. Whatever might be the rule where a longer term than one year is fixed, under the facts of this case the lease by its own terms did not terminate in one year. Although it was said in Baldwin v. Oil Co., 106 Kan. 848, 850, 189 Pac. 920:
“By paying the rent provided in the leases, the lessee could neglect to drill until the leases expired, but the lessee, if he failed to produce oil or gas from the lands, could not, by paying rent, extend the leases one day beyond the time fixed for their expiration nor could excuses for nonperformance extend the leases beyond that time,”
it- cannot avail plaintiffs here. In that case, the lease was for three years, and about fifty days before termination drilling operations were started, excuses being offered for failure to perform. The lessees sought to avoid forfeiture on the ground of inadequate water supply, muddy roads, etc. The question of effect of tender of cash rentals was not presented to this court and what is said concerning the same was beyond the issue, even though it be conceded to be a correct statement of an abstract principle of law. And for reasons heretofore mentioned, the rule could hardly apply here.
The lessors accepted rentals for two successive years. If the lease was ambiguous by reason of the different termination dates, the parties, by their action, put their own interpretation on it. It was held in Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803:
“Such contract is not void for want of mutuality. It is of the essence of an option contract that it is not mutual. The purchaser pays his money or does what he agrees tó do for the privilege of choosing whether or not he will perform or claim performance of the contract, and for the consideration received the seller parts with his right of choice.
“Where certain terms of a contract are ambiguous, but such terms have been construed and'acted upon by the parties interested, such construction will be adopted, even" though the language used may more strongly suggest another construction.
“The amount paid at the execution of the contract and the rental thereafter paid constitute a sufficient consideration to support the contract in its entirety.” • (Syl. |12,3, 4.)
And see Summers on Oil and Gas, § 119, p. 383.,
It is not necessary to review cases holding that a lessee cannot indefinitely avoid development, of the lease, for that is not complained of here.
It is said in 2 Willis’ Thornton on Oil and Gas, 5th ed., § 279:
“A lessor may have a cancellation of his oil and gas lease if he refuse to accept the rentals when due, notify the lessee that he will no longer accept the rentals, and permit his land to remain idle and undeveloped, and that he will require the lessee to execute the lease contract according to the intention of the parties by beginning in good faith the sinking of a well. But no cancellation can be had until the lessor gives such notice.and the lessee fails after reasonable time to begin such development.” (p. 524.)
The case of New American Oil, etc., Co. v. Troyer, 166 Ind. 402, 76 N. E. 253, involved a gas lease which required the lessee to pay a quarterly rental in advance for delay beyond a stated period in drilling a well. The lessor accepted five quarterly payments of rental without protesting at the' delay in drilling the well. It was held that his action in commencing suit for the forfeiture of the contract for failure to sooner drill the well only ten days after the expiration of the last quarter for which rent was paid, without previously giving notice to the lessee and a-reasonable time to drill the well, was inequitable, and would not be sustained. The court there said:
“Under a contract of this sort parties must act fairly with each other. The landowner must be given a fair opportunity to compel such timely operations as will preserve the underlying oil and gas, and prevent its being mined through wells on other premises. While, on the other hand, he will not' be permitted to take advantage of delays that have been reasonably induced by his own conduct and force a forfeiture for nonperformance. The operator must have a fair chance to perform his contract. (Citing cases.) He has not had a fair chance in this case. If appellees, when they accepted the advanced payment on March 10th, or at some other reasonable time, had given appellants notice that they must drill a well within that quarter, and that no further extension of time would be granted, then we should have quite a different question. This suit, however, is brought and prosecuted upon the theory that the failure of appellants to drill a well within the paid period put an end to their rights to drill one at all. This view is erroneous. The peculiar character of the contract, and the conduct of the parties while acting under it, are such, we have seen, as make an action without notice and reasonable time to perform, inequitable and unsustainable. The judgment is therefore reversed, with instructions to sustain the motion for a new trial.” (p. 407.)
The case relied upon by appellees is American, etc., Glass Co., v. Indiana, etc., Co., 37 Ind. App. 439, 76 N. E. 1006, where an oil and gas lease gave the lessee a right to explore the land for oil and gas for a period of twelve years and so long thereafter as oil or gas should be produced, and provided for the payment of annual rentals. It was held that the acceptance of an annual payment after the expiration of the twelve-year period, and the execution of a receipt stating that the payment continued the lease in force for another term, did not extend the lease for an additional term of twelve years, but did constitute a waiver of the right to claim a forfeiture at the end of the twelve-year period, so as to entitle the lessee to notice and a reasonable time thereafter to comply with the terms of the lease before forfeiture.
Appellees direct attention to the difference in time between the primary term in that lease and the one in the case at bar. However, it matters little that in the above-cited case the term was twelve years, while in the present case it was only one year. The twelve-year term had expired and the lease was continued by payment of rental which was held not to extend it for another twelve-year period but to constitute a waiver by landowners of the definite time of termination therein fixed. It was therefore a waiver of their right to claim a forfeiture of the lease at the end of the twelve-year period and effective to require notice to the lessee and a reasonable time thereafter to comply with the terms of the lease before for feiture. It seems that such holding supports appellants’ contention rather than that of .the appellees, and should apply to the case at bar, as this lease provided for extension beyond the primary term upon exercise of the rental option, and that therefore lessees were entitled to notice and a reasonable time for development thereafter before forfeiture of the lease.
It is noted the trial court concluded the lease terminated March 9, 1932, and the payment of rentals was in effect a renewal of the lease which the landowners had a right to refuse. Whether the first conclusion is right or not, it fails to give any effect whatever to the termination date as fixed in the first portion of the lease. Assuming correctness of the conclusion that payment of rentals amounts only to a renewal of the lease, we are of opinion that after having accepted rentals for two years, it would be inequitable to permit the lessors, without having given any reasonable notice of their intention so to do, to refuse to accept subsequent rentals timely tendered. Had such notice been given, lessees would have had an opportunity to commence drilling to develop the lease so as to determine whether it could be kept in effect by the production of oil or gas as provided in the lease.
We conclude the trial court erred in canceling the lease and quieting plaintiffs’ title, and the judgment of the lower court is therefore reversed. | [
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The opinion of the court was delivered by
Hutchison, J.:
Five separate actions commenced October 30, 1931, each by a different plaintiff, but all against the same defendants, are consolidated for trial and review.
The abstract contains a copy of the pleadings in the case brought by George O. Dewey. The allegations in each of the other cases are understood to be the same except as to the name of plaintiff and dates and amounts of deposits. Each action is against the Commercial State Bank, the officers and (directors thereof, and the receiver and assistant receiver of the bank.
The first count of the petition alleged that the officers and directors of the bank knew that the bank was insolvent and in failing circumstances several months before it went into the hands of the receiver and closed its doors on September 17, 1930, or could have known of such condition by the exercise of reasonable diligence in making proper investigation and examination into its condition, as was their duty under the law to do, but plaintiff, not knowing of the insolvency of the bank, continuing to make deposits in the bank, having a balance there on September 1, 1930, and making other deposits on September 16 and 17, 1930, is entitled to recover the same from such officers and directors under R. S. 9-163 and 9-164.
The second count repleaded the allegations of parts of the first count, and further alleged that the defendants misled and deceived the plaintiff by keeping the bank open for the transaction of business in the regular course by paying, checking and receiving deposits and carrying on business with the public, that plaintiff relied on these representations and was deceived thereby into retaining his balance and making deposits in said bank, and on account of such fraudulent representations such funds so left with the bank became trust funds which the bank and its receiver hold as trustees, as the title thereto did not pass to the defendants, and that plaintiffs’ said sums of money left with defendants constituted a part of the five thousand dollars in cash which the defendants had when the bank closed and suspended payments.
The demurrer of the bank and the receiver to the petition was overruled, then an answer by way of a general denial was filed by all the defendants, after which a motion of the bank and the receiver was filed under R. S. 60-2902 and 60-2904, requesting a trial of the questions of law on the pleadings in the case in advance of the trial of the facts. On such trial the court concluded that the petition did not state a cause of action against the bank or the receiver, for the reason that it failed to state that a claim for the amount involved had been filed with the receiver within one year after the date of his appointment, and that the claim is therefore barred from participation in the estate of the bank, and further that the petition failed to allege that the amount involved augmented or increased the assets of the bank coming into the hands of the receiver. From these conclusions the plaintiffs each and all appeal.
We are not here concerned with the question of the liability of the officers and directors of the bank, but only with that part of the case which seeks to recover the involved amounts as trust funds from the bank and the receiver as trustees of such funds.
The appellants particularly rely upon the decisions of this court in the cases of Kime v. Ladd, 112 Kan. 603, 211 Pac. 628, and Ramsey v. Bank Commissioner, 115 Kan. 212, 222 Pac. 117, in the former of which it was held:
“A bank is guilty of fraud on a general depositor in accepting his deposit after the bank has become hopelessly insolvent and has committed an act of insolvency, and the depositor may recover from the receiver of the bank to the extent the deposit augmented the funds coming into the hands of the receiver.” (Syl.)
The latter was an action in mandamus in which the bank commissioner was compelled to recognize the demand of a depositor for his share of a dividend payable out' of the bank guaranty fund, notwithstanding he had already brought an action against the officers and directors of the bank for fraudulently receiving deposits knowing the bank to be insolvent, holding the bringing of such action against the officers and directors was not a waiver of his rights as a depositor, and holding that—
“It is true that one who has placed money in a bank after it has become insolvent may claim the fund, not as a deposit, but as a trust fund. Because of the fraud committed in taking the money, the claimant may assert that title did not pass and the relation of debtor and creditor did,not arise. In adopting such an attitude, the claimant denies he was a depositor. . . .” (p. 214.)
The case of Ramsey Petroleum Co. v. Adams, 119 Kan. 844, 241 Pac. 433, where the decision was rendered in 1925, is also cited by appellants.
Appellants argue from these decisions that the legislature, in 1927, with full knowledge of them, necessarily intended to make the bar of the nonclaim provision, which it at that time added to the original R. S. 9-130, to apply only to depositors, and leave the statute of limitations as to fraud apply to actions to recover trust funds procured by fraud, as is claimed by plaintiffs in these actions, urging further that by the terms of the amendment the bar is only from participation ;n the estate of such bank. However plausible this reasoning is, we cannot concur in the conclusions intended to be reached thereby. Appellants may logically disclaim being depositors, but cannot well escape the relation expressed by the term “other creditors.” In 15 C. J. 1370, 1372, a creditor is defined as follows:
“. . . a person to whom any obligation is due; a person to whom is owed a debt or obligation to pay money for which an action or suit would lie; ... a person to whom a sum of money or other thing is due by obligation, promise, or in law; one who has a valid cause of action; one having a legal right to damages capable of enforcement by judicial process; one who has a just claim for money; any one who has a legal claim against another; any one who owns a claim or demand . .
In the case of Henley v. Myers, 76 Kan. 723, 93 Pac. 168, it was said the word “creditor . . . may mean one having any character of claim against another.” (p. 728.)
But this very statute and this amendment thereto was fully considered and discussed in the case of Conrad v. Johnson, 134 Kan. 120, 4 P. 2d 767, where it was held;
“Under R. S. 1930 Supp. 9-130, a creditor of an insolvent bank who must file his claim with the receiver within one year after his appointment to prevent its being barred of participation in the estate of the bank includes a person who has been subjected to a tortious fraud for which an action would lie against the bank if it had not passed into the hands of a receiver for insolvency.” (Syl. 1f2.)
This Conrad decision is cited in the case of Commerce Trust Co. v. Farmers’ Exch. Bk. of Gallatin, 332 Mo. 979, where a similar statute was under consideration, and the Missouri case is made the basis of an extensive note on this subject in 89 A. L. R. 383, where the Conrad case is cited in connection with many other cases.
Even if it be conceded, for the purpose of this opinion, that the deposits made by the appellants are trust funds, as claimed by them, but, without herein deciding that point, we must conclude, in line with the generally accepted definitions and prior decisions, that these plaintiffs cannot avoid the requirement imposed upon creditors by R. S. 1933 Supp. 9-130, and their petitions fail to show that they filed claims with the receiver within a year after the date of his appointment, and their claims are therefore barred from participation in the estate of the insolvent bank.
We agree with appellants that they have not waived their rights in any way by bringing actions against the officers and directors Of the bank under R. S. 9-163 and 9-164.
As to the allegations of the petition showing that the deposits made by the plaintiff augmented and increased the assets of the bank coming into the hands of the receiver, the last paragraph of the petition on which plaintiffs rely for that purpose is very strong along that line where it says:
“Plaintiff further states that on September 17, 1930, at the time said bank closed and it suspended payment, that it had in cash over five thousand dollars and that plaintiff’s said sums of money left with defendants constituted a part of said five thousand dollars.”
But we must not overlook the allegations that, part of this fund was a balance on account September 1, 1930, that the bank was insolvent in September, 1930, and several months prior thereto, and that the defendants kept the bank open for the transaction of business in the regular course by paying, checking and receiving deposits and carrying on business with the public. This alleged course of business over the time in question is plainly and positively inconsistent with the latter allegation that funds on deposit in the bank one, two or seventeen days were part of the identical funds on hand when the bank closed.
We find no error in the conclusion reached by the trial court as to the petition not stating a cause of action and as to the action being barred by the nonclaim statute.
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] |
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