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The opinion of the court was delivered by
Marshall, J.;
The plaintiffs prosecute this action to recover in the sum of $11,500 alleged to be due them from the defendant for .services rendered by them in securing legal adjustment of federal •income tax of the defendant. Judgment was rendered in favor of the plaintiffs, and the defendant appeals.
The contract entered into between the plaintiffs as attorneys and the defendant contained the following provision:
“The attorneys shall be entitled to receive from the corporation an amount equivalent to 15 per cent of that portion of said taxes which have or may be assessed in addition to those already paid by the corporation, which the attorneys may save the corporation, together with the same percentage fee for any of the said taxes already paid by the corporation, which the said attorneys may succeed in having refunded to the corporation. The sum of $500 has been paid, and receipt is hereby acknowledged, being advance payment of fees.”
Services were performed by the plaintiffs for the defendant, after which the defendant discharged the plaintiffs and employed other attorneys to conclude the matter. The plaintiffs were paid $500 at the time the contract was made. They sued for an additional $11,500 and recovered judgment for that amount.
The defendant contends that the contract is unenforceable because it is against public policy and violates section 203 of 31 U. S. C. A. (R. S. §3477). It contends that it is against public policy in this state to enforce contracts made for the purpose of interfering with any of the functions of government. The defendant argues that the contract was one between the defendant and the plaintiffs to assist the defendant to avoid the payment of taxes. That was not the purpose of the contract. It was one by which the plaintiffs agreed to assist the United States internal revenue officers to come to a correct conclusion concerning the amount of taxes that should be paid to the government by the defendant. The United States income tax law is complicated, and only those who are familiar with its provisions are able to reach correct conclusions concerning the amount of tax that should be paid by any large corporate business. Even those familiar with that law often reach incorrect conclusions concerning it. A considerable number of lawyers have prepared themselves to assist income taxpayers in determining the amount of tax they should pay. The work of these lawyers assists the government, and they are recognized as being able and proficient in that field of operation. It is right and proper that they be paid for their services. There is nothing in the public policy which forbids an attorney at law being employed in matters of this kind or receiving compensation for such services.
The defendant relies on 31 U. S. C. A., section 203 (R. S. § 3477). That section reads:
“All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, except as provided in section 204 of this title, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. S'uch transfers, assignments, and powers of attorney, must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same. The provisions of this section shall not apply to payments for rent of post-office quarters made by postmasters to duly authorized agents of the lessors.”
That statute prohibits the transfer and assignment of a claim against the United States until after the claim has been allowed and a warrant therefor has been issued.
The defendant argues that the portion of the contract which provides that the plaintiffs shall be paid a fee for the refund of such taxes as had been paid amounted to an assignment or transfer of the claim upon the United States, and brings this case within the prohibitions of the statute. The contract did not provide for the assignment or transfer of any part of the claim against the government, if there was one, or of any part of the money that should be refunded.
The compensation was to be an amount equal to fifteen per cent of what might be refunded. That brings this case within Nutt v. Knut, 200 U. S. 12, 20, where that court said:
“Such an agreement did not give the attorney any interest or share in the • claim itself nor any interest in the particular money paid over to the claimant by the government. It only established an agreed basis for any settlement that might be made, after the allowance and payment of the claim, as to the attorney’s compensation.” (p. 21.)
That decision was rendered on error from the supreme court of Mississippi, and involved the prosecution of a claim before the courts of the United States, before the departments of the government, and before congress. See, also, Wright v. Tebbitts, 91 U. S. 252; Stanton et al. v. Embrey, Administrator, 93 U. S. 548; Taylor v. Bemiss, 110 U. S. 42.
The defendant argues that contingent fees to lawyers are to be discouraged. That has not been the policy of this state.” Contingent fees have been recognized as legitimate and have been enforced.
In Sedbrook v. McCue, 104 Kan. 813, 180 Pac. 787, the following language was used:
“A contract between a client and attorneys to the effect that they would carry on the litigation mentioned and receive as their compensation one-half of the properties and moneys that might be saved by their efforts, the client to pay the costs, was not illegal or against public policy.” (Syl. ¶ 3.)
See, also, Aultman v. Waddle, 40 Kan. 195, 201, 19 Pac. 730; Paving Co. v. Botsford, 56 Kan. 532, 44 Pac. 3; Stevens v. Sheriff, 76 Kan. 124, 90 Pac. 799.
In Stanton et al. v. Embrey, Administrator, supra, the court said:
“Coming to the merits, the first objection of the plaintiffs in error is that the contract set up in declaration is one for a contingent compensation. Such a defense, in some jurisdictions, would be a good one; but the settled rule of law in this court is the other way. Reported cases to that effect show that the proposition is one beyond legitimate controversy.” (p. 556.)
The defendant cites Jones v. Blacklidge, 9 Kan. 562, where this court declared that — ■
“A contract between two parties whereby one party agrees to prosecute and collect a claim for the other, against the United States, for twenty per cent of the amount thereof, is in contravention of the first section of the act of congress to prevent frauds upon the treasury of the United States, and therefore void.” (Syl.)
The statute there referred to is the one quoted herein and referred to as section 203, 31 U. S. C. A. (R. S. § 3477). That case was decided in 1872. Stanton et al. v. Embrey, Administrator, 93 U. S. 548, was decided by the United States supreme court in 1876. Nutt v. Knut, 200 U. S. 12, was decided in 1905. Jones v. Blacklidge, supra, is not in harmony with the decisions of the United States supreme court, nor with the subsequent decisions of the supreme court of this state.
Complaint is made of instruction No. 7 given by the court. That instruction reads:
“7. I instruct you that the undisputed evidence in this case shows that the value of plaintiffs’ services, if plaintiffs are entitled to recover at all, is not less than §12,000 nor more than §15,000, and that in this case, if you find for the plaintiff, they having only claimed in their petition §12,000, are limited to the recovery of $12,000, and you will, therefore, assess the amount of their recovery at $12,000, less $500 which has already been advanced by the defendant, with interest from the date of plaintiff’s discharge at the rate of 6 per cent per annum.”
That instruction should be read in connection with instruction No. 3, as follows:
“The jury are further instructed that where attorneys are employed to perform legal services, and proceed under the contract of employment and perform part of the services contemplated by the contract, but are prevented from completing the performance by the wrongful act of the client in discharging the attorneys, that the attorneys are entitled to recover from the client the reasonable • value, if any, of the services shown to have been performed up to the date of the discharge, and in this case not more than the amount prayed for in the petition, to wit: $11,500. And in arriving at the amount of compensation, if any, found due, you should consider the evidence with reference to the nature and importance of the matter involved, the standing of the attorneys, the amount of time devoted to the matter by the attorneys, the results obtained, and all other elements in evidence indicating what was done by the attorneys under the contract, and then fix an amount of compensation which is fair and reasonable for said services in the light of the evidence of experts as to the value of such services; and in this connection you are permitted to consider the opinions of the attorneys themselves as to the value of their services.”
The defendant argues that instruction No. 7 was erroneous because it in effect directed.the jury to return a verdict in favor of the plaintiffs for the sum of $11,500.
In Bentley v. Brown, 37 Kan. 14, 14 Pac. 434, this court said:
“A court or jury trying the question of the value of legal services is not bound to accept as conclusive the opinions given by attorneys respecting such value. While the opinions of professional witnesses, who are familiar with the character and compensation usually paid for legal services, are entitled to great weight, such opinions are only to be considered in connection with the other testimony in the case, in the light of which, and of its own general knowledge, the court or jury should for itself determine the value.” (Syl. ¶ 1.)
See, also, Anthony v. Stinson, 4 Kan. 211; A. T. & S. F. Rld. Co. v. Thul, 32 Kan. 255, 261, 4 Pac. 352; Ball v. Hardesty, 38 Kan. 540, 542, 16 Pac. 808; C. K. & W. Rld. Co. v. Drake, 46 Kan. 568, 26 Pac. 1039; C. K. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 15, 30 Pac. 108; Noftzger v. Moffet, 63 Kan. 354, 359, 65 Pac. 670; Cudahy v. Broadbent, 70 Kan. 535, 544, 79 Pac. 126; Wade v. Electric Co., 98 Kan. 366, 158 Pac. 28; Epp v. Hinton, 102 Kan. 435, 170 Pac. 987; Lawson on Expert and Opinion Evidence, 2d ed., p. 282; and 22 C. J. 728.
The instruction violated the rule declared in these cases and was erroneous. There is no criticism of instruction No. 3.
The defendant complains of admonitions given by the court to the jury concerning agreement after it had developed that the jury was having difficulty in reaching a verdict. On two separate occasions the court admonished the jury concerning agreement, in the first of which the court said:
“It isn’t the duty of any one juror to take an obstreperous or obstinate stand where there are reasonable grounds for minds to differ and so hang the jury.”
In the second admonition given to the jury the court stated:
“I feel like you should endeavor to accommodate your views or differences to the others and come to an understanding or agreement, if it can humanly be done.”
The language used by the court went further than was justified, but it is not necessary for this court to now say that a reversal is compelled for that reason.
The court gave to the jury copies of the pleadings which were involved, voluminous and technical. The defendant complains of that ac.t of the court. The abstract of the defendant recites that “after stating the issues, the court instructed the jury as follows over defendant’s objection.” Then follows the second instruction given by the court which contained an epitome or summary of the issues made by the pleadings and the evidence, and which told the jury how those issues should be determined so far as the burden of proof was concerned.
In Williamson v. Oil and Gas Co., 94 Kan. 238, 242, 146 Pac. 316, this court used the following language:
“It appears that in cases where the pleadings are involved in complex and intricate phraseology it is not good practice and may be reversible error to send the pleadings to the jury; in eases where the pleadings are simple the practice of sending them is not commended, but is not reversible error; but where the court merely paraphrases and incorporates the plain and simple language of the pleadings in stating the issues to the jury, it is not error nor even ground for just criticism.”
Because of the error in the instructions concerning the amount of recovery, the judgment is reversed and a new trial is directed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, Mrs. Bessie Phillips, sued the city of Wichita for damages because of injuries sustained by her when riding in an automobile with her husband on Douglas avenue, the principal street of Wichita. As the automobile with its occupants was driven eastward, one misty evening after nightfall, it collided with one of the abutments of the railway viaduct which spans Douglas avenue as an overhead crossing. The street at that point is somewhat in excess of 114 feet in width, and pedestrian, vehicular and street-car traffic are kept separate under the viaduct and its approaches by cement abutments or what might be termed “wing walls” extending parallel with the street and which project for some distance beyond the width of the viaduct itself. The viaduct was constructed about eighteen years ago, under a city ordinance which prescribed:
“Section Two. A subway shall be constructed under said roadbed and tracks at Douglas avenue, which shall be 114 feet in width between the faces of the abutments supporting said tracks. This space shall be divided into two fifteen (15) foot sidewalk spans, two twenty-nine (29) foot roadway spans and one twenty-six (26) foot span over the street railway company’s tracks, with one line of posts at each curb and one line of posts each side of the center line of the street, at a distance of thirteen (13) feet therefrom; the above measurements being from center to center of posts. That portion of said street occupied by the tracks of the street railway company shall be depressed about three (3) feet, or not lower than elevation 109.55 city datum, and the remainder of the roadway shall be depressed about one foot six inches (!' 6") or not lower than elevation 111.05, city datum. The sidewalks shall be carried through said subway at about the same elevation as at present. There shall be a clear head room of thirteen (13) feet six (6) inches above the street railway tracks.”
The plaintiff alleged that the city negligently failed in its duty to keep the street in a reasonably safe condition for public travel in various particulars, to wit, in its maintenance of the cement abutment or “wing wall” with which the automobile collided; that the wall was unguarded and unlighted; that the wall was of low height and of a dirty gray or neutral color and without any signal light or warning device, and thus constituted a dangerous obstruction and nuisance on the public street, all of which facts were well known to the city and its agents and servants and unknown to plaintiff; and that her husband was driving the automobile—
“At a speed of approximately twenty miles an hour . .. At the time in question the weather was rainy and misty, and the pavements were wet and black, and the automobile in which said plaintiff was riding had both headlights and its tail light burning; that when the said automobile had proceeded to within a distance of approximately fifty feet from the elevated railroad tracks aforesaid, it came suddenly and without any warning whatsoever upon the end of the concrete wall so erected and maintained by the city of Wichita, as hereinbefore set forth, and collided with the end of said wall with great force and violence, and this plaintiff was hurled with great force and violence against the dash, windshield and front portions of the body of the said automobile in which she was riding, thereby inflicting great bodily injuries upon this plaintiff.”
The answer to plaintiff’s petition filed by the city of Wichita contained a general denial, alleged contributory negligence on the part of plaintiff in various particulars, set up a copy of section 2 of the city ordinance quoted above, and alleged—
“Further answering, this defendant alleges and states that if the plaintiff, in the operation of the automobile in question, collided with the concrete walls or abutments under the elevated tracks on Douglas avenue, as alleged in her petition, her injuries were not due to .any fault or negligence on the part of this defendant for the reason that said concrete walls or abutments were constructed pursuant to and -in accordance with a plan previously adopted by the governing body of the city of Wichita, which plan was expressly adopted by such governing body having control of the political, legislative and governmental affairs of the city, after due deliberation. That said plan was embodied in ordinance No. 4066 of the city of Wichita, being an ‘Ordinance providing a scheme of railway track elevation in the city of Wichita, Kansas, and affording means and facilities for the construction of a union railway station and making regulations and requirements incident thereto.’ . . .
“That said walls or abutments are in the same condition now as they were at the time of construction.”
On motion of plaintiff the trial court struck out of defendant’s answer the paragraph just quoted and also struck out section 2 of the ordinance pleaded in connection therewith.
Treating this ruling as the equivalent of sustaining a demurrer to so much of defendant’s answer, which was quite a proper view of it under the issues made by the pleadings, the defendant brings the ruling here for review.
Defendant contends that the matter struck out of its answer was a proper and material part of its defense to plaintiff’s a'ction. It may not be a complete defense, but certainly the city had a right to plead and prove, if it could, that the concrete wing walls or abutments which separated the eastbound and westbound traffic on Douglas avenue and separated the pedestrian, vehicular and street-car traffic under the viaduct were proper engineering traffic devices. At all events the striking out of so much of defendant’s answer was equivalent to a ruling of the court as a matter of law that the stricken allegations constituted no defense whatever to plaintiff’s action. We cannot assent to that view. Assuming, as we must, the truth of the stricken matter, the city would not be liable as for the wrongful maintenance of an obstruction in the public street unless the plan specified in the ordinance was manifestly unsafe and likely to cause injury and damage to reasonably prudent persons riding in automobiles driven at what would be a reasonable speed under the circumstances. The passageway under the viaduct for eastbound vehicular traffic between the cement wing walls was twenty-nine feet. It cannot be said as a matter of law that such a width of clear space between the cement obstructions was insufficient for the safe passage of persons riding in an automobile prudently driven. Such matters were within the ordinary comprehension of a jury and determinable by them upon view and other competent evidence. (Martin v. City of Columbus, 93 Kan. 79, 88, 143 Pac. 421.)
In the early and well reasoned case of Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822, where plaintiff sought to subject the city to damages because his carriage was overturned by an embankment in the street alleged to have been negligently maintained by the city, it was held:
“Where a street, as planned or ordered by the governing board of a city, is •so manifestly dangerous that a court, upon the facts, can say, as a matter of law, that it was dangerous and unsafe, the city should generally be held liable for any resulting injuries to individuals; but where, upon the facts, it would be so doubtful whether the street as planned or ordered by the governing board •of the city was dangerous or unsafe, or not, that different minds might entertain different opinions with respect thereto, the benefit of the doubt might properly be given to the city or to the governing board that planned it,, and the city held not liable.
“Where it is claimed that the city should be protected for the reason that the condition of the street was so brought about in accordance with a plan previously adopted or subsequently ratified by the city or its governing board in the exercise of a judicial, quasi-judicial, legislative or discretionary power, it must b'e shown that the exact matter was under consideration by the governing board, and that after due deliberation such plan was expressly .adopted, or expressly ratified.
“If a city or its governing board should order that a high and narrow embankment with precipitous sides should be made in a public street for the purpose that the travel should pass over the embankment, and should say nothing concerning railings, guards, or other barriers, and nothing concerning street lamps or other lights, to prevent persons in the nighttime from falling or driving off the embankment and thereby being injured, it should not be held that the city had planned or ordered that no such railings, guards, barriers, lamps or lights should be used. There should be no presumption that the city authorities had ordered or planned that a public street should be •dangerous.” (Syl. ¶¶ 4, 5, 6.)
Commenting on this case thirty years later in Evans v. City of Hutchinson, 99 Kan. 477, 479, 162 Pac. 342, Mr. Justice Mason said:
“Language used in Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822, is quoted as indicating that before a city can be held responsible for injuries sustained in a sidewalk, the condition of the walk must be such that a court can say as a matter of law that it is dangerous. As recently explained, that case holds merely that where reasonable minds may differ as to the dangerous •character of a defect in a street, the doubt may, not must, be given to the city .authorities by the tribunal charged with passing on the matter. (Klipp v. City of Hoyt, ante, p. 14, 160 Pac. 1000.)”
Plaintiff would justify the ruling of the trial court in the case at bar by Klipp v. City of Hoyt, 99 Kan. 14, 160 Pac. 1000, but nothing is said in that case to warrant a conclusion that a city may not plead .and prove, if it can, that its structures in city streets have been planned and erected with due care and concern for the safety of the traveling public. The Klipp case merely says that the court is not bound as a matter of law to give controlling weight to the judgment of the city officials in planning and constructing a street improvement “whenever it is so doubtful whether or not the improvement was dangerous that different minds might entertain different opinions regarding the matter” (syl. ¶ 1), and that the negligence of the city and the contributory negligence of the plaintiff were proper questions for a jury’s determination. In so far as the case just cited bears on the ruling under review it tends to support the appellant’s contention.
Plaintiff offers another suggestion to sustain the judgment which is to this effect: She says that the projection of the cement wall for a considerable distance beyond the base width of the overhead viaduct was not erected in accordance with the city ordinance. Perhaps so That may or may not weaken the city’s defense, but it affords no ground for striking out the matter pleaded in defendant’s answer, which is our only concern in this appeal.
The judgment of the district court is reversed and the cause remanded with instructions to reinstate the matter stricken from •defendant’s answer and for further proceedings consistent therewith. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This controversy arises out of an exchange of lands between the plaintiff, Walter N. Altman, and the defendant, Joseph Miller. Miller owned a tract of 120 acres, and it was alleged by plaintiff that he proposed an exchange of it for land owned by the plaintiff which included a tract of 135 acres. It is alleged in the petition that defendant represented his 120-acre tract was clear of incumbrances except a mortgage for $3,250 bearing interest at five per cent, and which would not mature for nine and one-half years; that a valuation of $10,000 was placed on the 120-acre tract, and the 135-acre tract owned by plaintiff was valued at $13,500. Plaintiff further alleged that in the agreement, of wliich there was a written memorandum, the defendant was to pay plaintiff in cash the difference on the basis of the valuations mentioned, except that a note for $1,000, payable within a year, would be accepted by plaintiff in lieu of cash; that accordingly deeds were executed by ■each party and delivered to the other; that sometime afterwards plaintiff learned that the tract of 120 acres conveyed to him had a mortgage thereon of $6,500 instead of $3,250, as represented by defendant; that the mortgage bore a higher rate than five per cent, and that the mortgage was then due and subject to foreclosure; that defendant refused to make good by complying with the agreement with respect to the incumbrance; that on October 8, 1927, a foreclosure suit was instituted on the 120 acres, and on November 25, 1927, judgment was rendered for $7,016 and for the foreclosure of the mortgages; that subsequently, and on January 9, 1928, the tract was sold to satisfy judgment. It was further alleged that defendant, intending to cheat and defraud the plaintiff, failed to make cash payments as promised or to execute the note for $1,000, and on the other hand that he placed a mortgage of $5,000 as a substitute for the one of $4,100 upon the 135 acres which plaintiff conveyed to him. Plaintiff also set forth special damages which he sustained by reason of the fraud of the defendant, and that relying on the good faith of the defendant to carry out the agreement he caused a public sale of personal property owned by him; that he entered into contracts relative to the exchange of a tractor for an automobile, and also that he had abandoned the use of eighteen acres of land to his damage in the amount of $1,125. As to the tractor transaction he alleged that he was prevented from trading it for an automobile by the lack of cash to pay the difference due to the default of the defendant in carrying out the contract, and that thereby he sustained a loss of profit to the extent of $175. He also alleged that he was damaged to the extent of $250 because he was compelled to let eighteen acres of land lie idle on account of defendant’s failure to carry out his contract. Another claim for damages set forth was that he had contracted obligations with parties named relative to the payment of money upon obligations which had been contracted and was unable to meet by reason of the default of defendant, and that his credit was therefore impaired to his damage in the sum of $500. A further loss was predicated on the claim that he was obliged to remain as an occupant of 135 acres conveyed to defendant, lest it should be sold to an innocent purchaser, and that it caused him to undergo pain and suffering from exposure to his damage in the sum of $2,000. He set up damages, too, because the defendant had increased the mortgage on the 135 acres from $4,100, when it was conveyed, to $5,000, and he asked $10,000 damages on that account. In his prayer he asked- that the contract between the parties be specifically enforced if it could be done, and if not, that he be restored to his statu quo prior to the making of the contract, and that he be allowed damages on the items alleged. He further asked that he be adjudged to be the owner of the 135 acres subject only to such incumbrances as are lawful, that he be adjudged to be the owner of certain moneys now in the hands of banks, placed there in pursuance of the contract and for crops. The actual damages prayed for were $5,125, and punitive damages in the sum of $5,000. No answer or other pleading was filed by the defendant and there was no appearance for him at the trial. Judgment was rendered by default upon the evidence presented by the plaintiff, and the court found that the allegations in plaintiff’s petition were true, and made an order canceling the deed conveying the 135 acres to defendant, and adjudged that the plaintiff was the owner thereof, free from any claims of the defendant, and awarded the plaintiff $3-,967 as actual damages, and $50 as punitive damages. He was also awarded the moneys in the possession of the bank, amounting to $905.18.
The defendant appeals and insists that there was no basis for the award of damages set forth in the petition or in the evidence offered in support of the claims. No motion for a new trial was filed by the defendant, and hence there can be no review of the evidence. The only question left for consideration on the appeal is that the petition itself does not state facts sufficient to form a basis for the judgment rendered. The action, as we have seen, was upon a breach of contract for the exchange of lands and for the recovery of the damages incident to the breach. It may be accepted as a determined fact that the defendant wrongfully broke his contract without just cause or legal excuse. The question remaining is whether the items of damages pleaded and upon which judgment for the alleged losses was rendered are proper elements of damage. There can be no contention but that a judgment rendered by default may be corrected for error if the petition fails to set forth facts essential to the support of the judgment. It may be reversed although no motion was made to set aside the default or for a new trial. This question was involved in Williams v. Schrock, 118 Kan. 347, 285 Pac. Ill, where it appeared that the judgment rendered was erroneous upon the face of the record and it was decided that—
“Direct appeal without motion for a new trial and without motion to set aside the default is proper procedure for correction of such an error.”
In a later case where judgment was rendered by default based upon a ground which did not constitute a cause of action as disclosed on the face of the record it was held to be erroneous, and therefore a reversal was ordered although no motion for a new trial had been filed. (Comer v. McGuire, 121 Kan. 820, 250 Pac. 345.)
It is manifest that most of the claims for damages alleged in plaintiff’s petition cannot be regarded as recoverable damages in this action or form a basis for the judgment that was rendered. The supposed profit lost by plaintiff’s inability to trade a tractor for an automobile is too remote and contingent to be treated as a result of a breach of a contract, and it is a matter of speculation whether the trade would have resulted in profit or loss to the plaintiff. The-same may be said as to the alleged loss set up by plaintiff because he made a public sale of his personal property after the exchange of properties had been made between the parties. Aside from its remote and contingent character it cannot be regarded as the proximate result of the breach of the contract, nor to have been within the contemplation of the parties when the contract was made. The claim that he had contracted obligations to outside parties relative to the payment of money which he was unable to meet falls in the same category and obviously cannot be considered as elements of damage in the case. Nor can the alleged loss arising from the payment of a commission be considered since the plaintiff alleges in his petition that no commission was to have been paid by either party to the transaction. The claim that he suffered the loss of the use of eighteen acres of the farm because he was compelled to let it lie idle during the season cannot afford a basis for a judgment. It appears that he remained in possession of the land and was at liberty to use it. In fact, the contract pleaded contained a stipulation that he was to hold possession of the land until the contract was completed.
The item of $2,000 for pain and suffering endured by staying on the farm in order to prevent a sale thereof to an innocent purchaser, as pleaded, is not a basis for an allowance. He had a right, as we have seen, to occupy and use the farm until there was compliance with the terms of the contract, and it appears that he did remain on the land. He does not plead a deprivation of its use, but on the contrary alleges possession and the right to use it. Nothing in the record shows that the pain and suffering were the proximate result of the breach of the contract, the pain and suffering were not accom panied by physical injury, and are too remote to be regarded as an element of recoverable damages.
The loss arising from the fact that a mortgage was placed on the 135 acres, of $5,000 instead of the existing $4,100, is more proximate in character, and if sustained by proof may be considered as an element of damages. It is apparent, however, from the petition that the claims for damages mainly are of a kind that are not recoverable and cannot legally form a basis for the amount of damages awarded. An examination of the evidence, if we could consider it, does not add anything to the averments of the petition that would make the questioned claims for damages elements of recovery. The judgment must, therefore, be held to be erroneous. It appears that the plaintiff is awarded not only the 135 acres which he conveyed to defendant, but is permitted to retain the 120 acres conveyed to him by the defendant. He is also awarded a considerable sum of money which was placed in escrow in the transaction and awarded damages in the amount of $4,017. While plaintiff says he is willing to reconvey the 120 acres deeded to him, no provision for a reconveyance is. decreed by the court in the judgment, and it leaves the plaintiff with both tracts of land, the money placed in escrow under the contract, and the damages, a large part of which cannot be the basis of a recovery in the action.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion'of the court was delivered by
Marshall, J.:
The action' is one for the partition of real property and was brought by the plaintiff against Nelle Landes, the widow of C. H. Landes, and against L. R. Wallace, the partner of C. H. Landes and a one-half owner of the real property. The petition alleged that the plaintiff as a child and as an heir of C. H. Landes owned a one-tenth interest in.an undivided one-half interest in the real property in controversy. Nelle Landes and L. R. Wallace answered separately. Each alleged that C. H. Landes, on April 14, 1927, deeded all his interest in the property to L. R. Wallace in trust, “the proceeds and income of the same to be paid to C. H. Landes during his lifetime or to Nelle Landes, his widow, and to Nelle Landes, this defendant, in case of "his death. That the terms of said trust were embodied in a written instrument executed by the said C. H. Landes in his lifetime,” to which Nelle Landes, the wife of C. H. Landes, in writing consented.
The trust agreement dated April 14, 1927, contained the following provisions:
“That whereas, L. R. Wallace and C. H. Landes are partners doing a general real-estate, loan and insurance business in Yates Center, Kansas; and
“Whereas, They are the joint owners of a number of tracts of land and other property which now stands in the name of each individual jointly, and
“Whereas, The said C. H. Landes is desirous of transferring his interest to L. R. Wallace in trust, and that the title may be transferred easily in case of sale, has this day transferred to said L. R. Wallace, an undivided one-half interest in the following property. . . .
“It being agreed and understood that same shall be handled by said L. R. Wallace as partnership property and disposed of, rented and cared for the same as heretofore, by said parties, and to be sold and transferred on the consent of either the said C. H. Landes or on the consent of his wife, Nelle Landes, without the consent of C. H. Landes, and one-half of the proceeds of said property or the rents or income therefrom, shall be paid to the said C. H. Landes or Nelle Landes, and upon carrying out this agreement or the closing up of the said partnership and the return to said C. H. Landes or to Nelle Landes of the proceeds of said partnership and ownership of said land being a one-half interest, the said L. R. Wallace shall be fully discharged from any obligation from having taken the deeds above mentioned, it being the intention of both parties hereto that the said deeds to the property above mentioned are only made for convenience to handle the title thereto, and the interest of the parties therein or the proceeds thereof shall be and remain a one-half interest by the said C. H. Landes that said interest may be transferred or paid to his wife, Nelle Landes, if not paid to him.”
The trust agreement was signed by C. H. Landes, Nelle Landes, and L. R. Wallace, and was acknowledged by them on April 14, 1927.
The plaintiff demurred to each of the answers. Those demurrers were sustained. From the orders sustaining them the defendants appeal.
The determination of the controversy depends on the interpretation of the trust agreement.' Each answer alleged that the deed was made in trust and that the contract provided that the interest of C. H. Landes in the property should be held by L. R. Wallace in trust for C. H. Landes or Nelle Landes; that the rents or income arising from the property should be paid to C. H. Landes or Nelle Landes; that in case .of sale of the land the proceeds arising therefrom should be paid to C. H. Landes or Nelle Landes; and that if such rents, income or proceeds were not paid to C. H. Landes they should be paid to Nelle Landes. No beneficial interest was given to L. R. Wallace.
The answers disclose that Landes died with the title to the land in L. R. Wallace in trust and with the trust agreement valid and existing.
A trust was created. For whose benefit? For the benefit of either C. H. Landes or Nelle Landes. The trust was not discharged by the death of C. H. Landes. Nelle Landes was a beneficiary un der the trust. She was not divested of that interest by the death of C. H. Landes. It would be contrary to the deed and to the trust agreement to hold that on the death of C. H. Landes the land became subject to partition at the suit of one of the children of C. H. Landes.
The judgment is reversed. The trial court is directed to overrule the demurrers and proceed with the cause in accordance with this opinion. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover, from a member of the Kansas Wheat Growers Association, damages, expenses and attorney fees for failure of the member to deliver wheat according to his contract with the association. Judgment was rendered for .defendant, and plaintiff appeals.
The controversy relates to nondelivery to plaintiff of wheat sold by defendant in June, 1922, and in August, 1922. The court made full findings of fact, which were sustained by the evidence, and stated the following conclusions of law:
“1. Defendant is not liable for damages to plaintiff because wheat sold during August, 1922, was not accepted by elevator controlled by plaintiff association, and as he was under obligations to deliver wheat at the earliest reasonable time after harvest, and as he had been instructed by plaintiff to deliver same to Farmers Elevator, and had not received any different instruction prior to time of said delivery, he was released from the obligation of delivering said particular wheat to plaintiff, and for damages for such failure so to do.
“2. The defendant is not liable in damages to plaintiff for wheat sold during June, 1922, because there is no showing that it was raised during any of the years for which contract was in force, nor that it was on hand with defendant at time of the signing of the contract, nor for what year it was raised, nor whether the same had been purchased by the defendant and not been raised and produced by him.” .
Plaintiff contends the conclusions of law were unsound.
It appears that in July, 1922, plaintiff discussed with the manager of its elevator at Hoxie plans for handling the 1922 wheat crop, and the expectation was that wheat would be shipped as rapidly as enough came in to load a car. Defendant commenced to harvest his crop about July 1. Previous to August 1 plaintiff instructed defendant to deliver his wheat to the elevator. Defendant’s farm was three or four miles from Hoxie. About August 30 he hauled to town three loads of wheat and took them to plaintiff’s elevator. The manager would not accept the wheat, and defendant sold it to the Robinson Milling Company, of Hoxie. Plaintiff’s manager was a witness for plaintiff. He testified cars were scarce, the elevator was full, and he could not take the wheat. He did not testify that, so far as defendant was concerned, tender of the wheat was inopportunely made, or that he gave defendant any instruction with reference to temporary disposition or subsequent delivery of the wheat. There was nothing in defendant’s contract with the association, or in the instructions he had received, which required him to do more than he did do, and he is not liable in damages for failure to redeliver his wheat.
There was no evidence which identified the wheat which defendant sold in June with any wheat covered by the contract. Plaintiff cites paragraph 12 of the contract. That paragraph related to wheat produced or acquired by or for defendant as landlord or lessor. Plaintiff merely proved that defendant sold and delivered wheat to the Robinson Milling Company. Plaintiff cites paragraph 13-a of the contract, which mentioned commercial wheat under defendant’s control. That paragraph related to length of time the contract should continue to be binding. Proof that defendant sold and delivered wheat to a purchaser other than the association did not make a prima jade case against him.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the parents of a nine-year-old girl whose death is alleged to have been caused by the negligence of defendant, a corporation, which, under a contract with the city, had constructed and was operating a swimming pool or bathing beach on land owned by the city as a park. The trial court sustained a demurrer to the- petition. Plaintiffs have appealed.
The sole question before us is whether the petition states facts sufficient to constitute a cause of action. It alleges that defendant, under an agreement with the city (set out as an appendix hereto), had constructed and owned, operated and maintained a bathing beach containing a pool of water, with equipment for water sports such as bathing, swimming and wading, all for hire and profit and under its management and control. It further alleged facts relating to the death of plaintiffs’ daughter, and facts tending to show that such death resulted from the negligence of defendant, its servants and employees, and damages resulting to plaintiffs by reason thereof; but since it is not argued that the petition is defective in these respects we shall give them no further consideration.
It is well settled in this state that a city in the exercise of its governmental powers, under certain circumstances at least, may construct, maintain and operate a swimming pool in its park without the city being liable in damages to one injured -there through the negligence of its officers or agents. (Bailey v. City of Topeka, 97 Kan. 327, 154 Pac. 1014; Gilliland v. City of Topeka, 124 Kan. 726, 262 Pac. 493; Smith v. Fuest, 125 Kan. 341, 263 Pac. 1069; Warren v. City of Topeka, 125 Kan. 524, 265 Pac. 78, and authorities there cited.) But the city is not sued in this case, and we note this principle of law only for the bearing it may have on the liability of defendant. The question here is whether this governmental immunity of the municipality is imputed to or extends to the defendant so as to relieve it from liability; for, had defendant constructed this swimming pool on land which it owned, or leased from a private individual, firm or corporation, there would be no question of its liability for injury or death caused by its negligence.
We turn now to the contract which establishes the relation between the defendant and the city. We note, first, that even though defendant violated the provisions of this contract with the city, that of itself would not give rise to a cause of action in favor of plaintiffs, for the reason that neither plaintiffs nor their daughter were parties to that contract, or privies to it. (Warren v. City of Topeka, supra, syl. ¶ 3.) We examine this contract to see if the municipal immunity from liability for negligence is imputed to defendant with respect to its own negligence. It is not necessary to quote extensively from the contract, for it is set out in full. We note, however, that it expresses the desire of defendant to construct and maintain a swimming pool and to lease from the city a site for that purpose, and by the instrument the city does make such a lease to defendant., This presents a situation entirely different from that before the court in Bailey v. City of Topeka, supra, for it was there said that the provisions did “not amount to the leasing of any part of the park.” (p. 329.) Considered as a whole the defendant in this contract acquired a site on which to construct, at its own expense (except as to certain excavating and drives and walks), a bathing beach or swimming pool, and to maintain and operate the same for profit. It is true the city reserved certain rights with respect to policing the premises, but since the place was within the' city park perhaps it would have had such rights anyway. Other details of the contract might be mentioned, but they do not vary its general purpose from that above stated.
Defendant relies on Warren v. City of Topeka, supra, where the city and one Torsney, who had a contract with the city with respect to conducting a swimming pool in the city park, were sued jointly for a wrongful death alleged to have resulted from negligence in conducting the swimming pool. It was there held that neither the city nor Torsney was.liable, for the reason, as to the city, because of its immunity from such liability, and as to Torsney, because under the contract there involved he was held to be more nearly an employee. We do not care to extend the doctrine by which Torsney was relieved from liability in that case. (See annotation on that case, 57 A. L. R. 560; 42.Harvard Law Review, 282.) But the contract there under consideration was quite different from the one involved in this case. Under the contract before us it cannot be held that defendant was an employee of the city for the purpose of carrying out its governmental function. The result is that defendant’s contract with the city does not relieve it from its own'negligence. It had the duty common to individuals, firms or corporations of using due care in the conduct of its business, and if, through its negligence in so conducting its business, loss or injury result, it cannot escape liability simply because of this contract or the fact that it had leased the ground on which to construct its improvements and operate its business from the city rather than from a private individual.
The judgment of the court below is reversed.
APPENDIX.
This agreement made and entered into this first day of October, 1926, by and between the city of Independence, a municipal corporation acting by and through its duly constituted officers, first party, and R. W. Arnold, of Independence, Kan., second party.
Whereas, First party is a municipal corporation owning certain real estate hereinafter described; and
Whereas, Second party desires to construct and maintain a swimming pool, and desires for such purpose to lease such site from first party and to contract with first party concerning the construction and maintenance of such swimming pool;
Now, therefore, this agreement witnesseth: That for and in consideration of the sum of II by each party to the other paid, the receipt of which is hereby acknowledged, and in further consideration of the mutual agreement herein contained, the parties have agreed one with the other as follows:
1. The city of Independence does hereby lease and let unto second party, his heirs and assigns, for the use and purpose hereafter stated and for the period of fifteen years from the date hereof, the following-described real property, to wit: “Commencing at a point 65 feet east of the east line of Mount Hope cemetery and 25 feet north of the north curb line of Oak street, thence north 325 feet; thence east 250 feet; thence south 325 feet; thence west 250 feet to place of beginning in Independence, Montgomery county, Kansas.”
2. On such site and at a location to be designated by second party and within reasonable time after designation, first party agrees to excavate for a swimming pool, to be 100 feet by 200 feet with a depth of 24 inches at the side walls and increasing to a maximum depth of 9 feet, all as is more fully set out in the description contained in second party’s contract with the builders of such pool, a copy of which description is hereto attached and made a part thereof so far as the same may be applicable to this contract; complete plans and specifications for which are to be submitted to the commissioners for their .approval before building work is- started.
3. First party further agrees to furnish thereafter such water as second party may require to operate and maintain such swimming pool through a gravity line at a price of 3 cents per thousand gallons; water so furnished is to bo metered and paid for by second party within thirty days after the rendition •of the monthly statement therefor.
4. First party is to furnish and connect with such pool, when completed, a 10-inch sewer, connecting with the storm sewer under Third street and a 6-inch connection with the sanitary sewer.
5. First party agrees after excavation for such pool to grade such excavation for the cement work, and thereafter to regrade around the pool and to lay out and thereafter maintain in good condition a roadway at least 25 feet in width entirely circling such pool and 75 feet wide on the east side, and to further install near such pool and thereafter maintain, at its own expense, not less than six ornate street lights of the type now in use in the city park of Independence, Kan.
6. First party agrees that the city of Independence, neither through its own proper officers or agents nor through any other lessee, shall engage in the swimming-pool business or own and operate directly or indirectly any swimming pool in the city of Independence, except with consent of both parties, during the life of this contract; and further agrees that it will turn over to the second party without cost such swimming-pool equipment as may be now located in the present swimming pool operated by the Rotary club of Independence, Kan.
7. Second party, for his part and for his heirs, successors and assigns, agrees within a reasonable time after the execution of this contract and- following the excavation herein provided to be done by first party, to cause to be constructed a sanitary swimming pool as is more fully described in the description heretofore attached; second party further agrees to build and maintain a baby pool containing only eight to twelve inches of water for the use of small children.
8. Second party agrees to maintain said pool after construction and installation in due conformity with all laws of the state of Kansas, rules of state and local boards of health and of the ordinance of the city of Independence.
9. Second party agrees to erect and maintain adjacent to such pool adequate and proper dressing rooms for both sexes, with adequate toilet facilities connected therewith. • .
10. Second party is' to have exclusive concession rights, with the right on his part to sublet or sell concession rights to competent proper persons.
11. Second party agrees to conduct such swimming pool in proper manner, and to enforce by reasonable rules and regulations good conduct on the part of all persons patronizing the same and promises to exclude or reject undesirable patrons, and to himself provide proper guards and police facilities, only calling upon the city officials in extreme cases; provided, that first party shall at all times retain police control and supervision over said premises.
12. Second party agrees to establish and maintain a schedule of prices to be approved by the city commissioners of the city of Independence, Kan., and to adopt rules and regulations governing the use of such pool, which said rules and regulations, together with such schedule of prices, are to be posted in conspicuous places adjacent to such pool; the schedule of prices above referred to shall be and hereby is established to be the following: 1, admission to pool with use of dressing rooms, adults 25 cents; 2, rent of bathing suits per person 15 cents, children under 14 years of age 10 cents; 3 towels per person 5 cents.
13. It is mutually agreed between the parties that after the expiration of 15 years from the date hereof second party will assign to first parties all of his rights, title and interest in and to such swimming pool and all equipment and material used in connection therewith, making such assignment by bill of sale, vesting in the said city all rights, title and interest in and to this contract and such pool. The second party agrees to maintain the property in a good state of repair during the entire life of the lease, and a failure to keep the property in repair shall forfeit the rights of second party hereunder, provided proper notice is given and time allowed for repair.
14. For the considerations above set out the option is hereby given to second party by first party to lease such swimming pool, equipment and material, from and after fifteen years from the date hereof for an additional period of five years at an annual rental or royalty to equal 10 cents for each adult admission paid during such year to such pool.
15. It is expressly agreed that it shall be the privilege and duty of second party to exclude or eject from such pool objectionable persons, and to maintain and operate such pool in such sanitary and safe manner of [for] inhabitants of such city.
16. It is expressly agreed that the interest of second party in this contract may be assigned by him to any other person, persons, firm or corporation, but that all of the terms, conditions and agreements herein contained shall be binding upon both parties, their respective heirs, successors and assigns.
In witness whereof, the parties have hereunto caused this agreement to be executed the day and year first above written.
City of Independence,
By (Signed) C. H. Kekr, Mayor, First Party.
(Seal) (Signed) R. W. Arnold, Second Party.
Attest: (Signed) G. H. Krienhagen, City Clerk. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action in conversion of the proceeds of a crop of wheat. The plaintiff bank claimed the crop and its proceeds by virtue of a contract with the farmer who planted, harvested and delivered it to an elevator company. The defendant, A. L. Saylor, claimed and obtained the proceeds of the crop from the elevator company by virtue of a chattel mortgage which the farmer had given him soon after it was planted.
The material facts were these: In the summer of 1926, one C. C. Cain, a Kingman county tenant farmer, was so heavily burdened with debt that he had not sufficient credit to buy seed wheat, although he held under some sort of tenure about 400 acres of land suitable for wheat growing. He was also confronted with the dilemma that if he could procure some seed wheat and sow it on his own account his more insistent creditors would attempt to subject the crop to attachment and execution as soon as it sprouted and appeared above ground. Cain owed the plaintiff bank about $2,200, and it held a chattel mortgage on his farming equipment. The bank also held a chattel mortgage on some 400 or 500 bushels of Cain’s 1926 wheat crop which was stored on Cain’s premises. To enable Cain to put out a crop in the autumn of 1926, he and the plaintiff made a written contract whereby this stored wheat held on the bank’s mortgage should be surrendered to the bank as part payment on what he owed, and that the bank would furnish so much of it as would be needed to seed the wheat lands under Cain’s control. The agreement provided that the crop should belong to the bank, but that as soon as it was sprouted and through the ground so as to furnish a tangible basis of security as a chattel mortgage the bank would sell Cain the wheat it had thus furnished and surrender its interest in the crop to him and take in lieu thereof a chattel mortgage on the crop in payment for its seed wheat and as further security for what he already owed the bank.
Cain set about the performance of this contract and sowed the bank’s wheat, but he never sought to exercise his option to buy the wheat and thus acquire for himself the bank’s interest in the crop under the terms of the contract. On the contrary, shortly afterwards Cain gave the defendant a chattel mortgage on 110 acres of this young wheat crop on the assumption and pretense that it was already his own property. Defendant recorded his mortgage; and when the crop was grown, threshed and placed in the elevator the following July, he claimed the proceeds under his mortgage, and notwithstanding the elevator company knew of plaintiff’s claimed ownership of the wheat, as did the defendant (although the latter apparently did not know of such claim until after he had obtained and recorded his chattel mortgage), the elevator company handed over to defendant the entire proceeds of the wheat crop grown on this 110 acres, except the amount due the landlord, of no present concern.
Hence this lawsuit; jury waived; trial by the court; findings of fact and conclusions of law in favor of the bank; judgment accordingly.
Defendant appeals, his main contention being that the bank did not own the wheat. In determining this point it seems necessary to quote at length from the agreement between Cain and the bank:
“This agreement made and entered into this July 30, 1926, by and between C. C. Cain, party of the first part, the Penalosa State Bank, Penalosa, Kansas, party of the second part.
“Witnesseth: That party of the first part [Cain] is indebted to the second party and is desirous of putting out a wheat crop during the fall of 1926; and that party of the first part is indebted to other parties who are threatening attachment proceedings upon first party’s property; that said second party has certain • wheat first party has delivered in his bin and to said second party, which second party desires to have sown; that said second party will not furnish as seed wheat to said party to sow as his own wheat.
“In consideration of the above and mutual covenants herein contained, first party agrees to sow 460 acres more or less of wheat for said second party on the following-described land, to wit:
“110 acres on S. E. % section 10-27-9.
[And other lands described.]
“Second party to furnish sufficient seed. First party agrees to sow said wheat for second party as early as possible and in a good workmanlike manner; that said wheat when sown shall be the absolute and sole property of the second party. Upon completion of the sowing of the said wheat as above described, said party of the second part agrees to sell same to party- of the first part who agrees to buy same, and to pay second party in cash therefor or to execute 'a first and prior mortgage thereon in payment of said wheat and which mortgage shall also secure other indebtedness owing second party by first party and the sale price of the said wheat shall be the reasonable value of the same.”
Defendant asserts that this contract was void for four reasons— want of consideration, fraudulent as to Cain’s creditors, unconscionable, and never intended to be fulfilled.
Touching these points in order, it can hardly be said that the contract was wanting in consideration. By entering into it and sowing the bank’s wheat Cain obtained an option to buy the bank’s interest at a very moderate figure, and by the exercise of that option he would acquire a crop of wheat which might go far towards the extinguishment of the burden of debts which were paralyzing his farming activities. Neither does it seem proper to characterize the contract as fraudulent in its tendency to assist Cain to defeat his creditors. How could the contract have that effect? Unless the bank would furnish the wheat there would be no crop planted, and consequently no possibility of a harvest and wherewithal to pay any of Cain’s creditors. It seems that the contract could not be otherwise than beneficial to Cain’s creditors, at least to one or more of them, and it certainly could not result detrimentally to any of them. Defendant’s argument on this point takes it for granted that Cain could and would have acquired some seed wheat of his own and sown it for the general benefit of all his creditors if the bank had not consented to have him sow its wheat, but there was no evidence to that effect, and the contract itself recognized the circumstances which had put a period on Cain’s farming operations except under some such arrangement as he effected with the bank.
It is also urged that the contract was unconscionable. Why so? There is nothing particularly invidious nor unusual in our wheat-growing sections about a contract where one party risks his seed wheat against the other party’s labor of preparing the ground and planting it, both parties to have an interest in the crop, if there is one. Here it seems the bank was somewhat more generous than the usual run of men who furnish seed wheat on shares. It stipulated that as soon as the young crop was far enough along to be a proper subject of sale and hypothecation it would sell its interest to Cain for the fair price of its seed wheat, provided he would pledge the crop to the bank to secure the large sum of money he already owed it. If the seed had died of drought Cain would have been out nothing, and the bank could charge off the value of its seed wheat to profit and loss. There is nothing in law or morals or common fairness which would forbid that sort of a contract. Courts look with favor upon contracts which encourage the growing of crops, “which being a public benefit,” as the old law writers declared, “tending to the increase and plenty of provisions ought to have the utmost security and privilege that the law can give it.” (Cooley’s Blackstone, Book II, 122; Bank v. Jesch, 99 Kan. 797, 800, 163 Pac. 150.) Agreements touching the respective interests of parties contributing to the growing of a crop are valid. (Dodson v. Covey, 81 Kan. 320, 105 Pac. 579; Dannefer v. Aurand, 106 Kan. 605, 189 Pac. 371.) So far as getting itself some advantage over Cain’s other creditors by this contract, it is familiar law that a diligent creditor violates no man’s right by looking out for his own interest, and he does not need to hold back out of mere courtesy to others who also have demands against his debtor. (Brecheisen v. Clark, 103 Kan. 662, 176 Pac. 137.)
The fourth objection to the contract was that it was never intended to be fulfilled. It did afterwards transpire that perhaps Cain never intended to exercise his option to acquire the crop and mortgage it to the bank, since he did not do so, but did mortgage it to defendant without the formality of acquiring it. But there is not a syllable of evidence nor evidential circumstance which tended to prove that the bank did not intend to carry it out. It did carry it out as far as was necessary for it to become the owner of the young crop; and it was the owner of it, subject to Cain’s option, when defendant procured the mortgage from .Cain; and as Cain did not then own the crop and never performed the requisite stipulations whereby he might acquire it, defendant’s mortgage from Cain conferred upon him no title to the crop nor to its proceeds nor anjr interest therein.
' It was contended, however, that whether plaintiff was the owner of the crop or not, defendant was not guilty of converting it or its proceeds, defendant’s idea being that he never had the wheat in his possession and never exercised any dominion over it, and that the sale of the wheat was by Cain himself; and that he (defendant) had a right to receive his due from Cain regardless of what right or lack of right Cain had to sell the wheat; and that it was no concern of defendant’s however or wherever Cain raised the money to pay him; and that if Cain did'not own the wheat mayhap the elevator company still owes the bank notwithstanding it has already paid defendant therefor. This argument is plausible but unsound. That there was a conversion of plaintiff’s wheat crop is scarcely controverted. Of course Cain converted it. But not Cain alone. All who cooperated with him to that end were likewise guilty of its conversion. The elevator company participated in that conversion, and it, too, of course, would be liable. (We understand from the record that both Cain and the elevator company have, since gone through bankruptcy, which is unfortunate for both these litigants.) But the fact of most importance at present is that defendant also aided and abetted in the conversion. In company with Cain’s wife, who apparently went along to give strengthened color to his claim of right, he went to the elevator and demanded and received from the elevator company the entire proceeds of this 110 acres of wheat (less the landlord’s portion). He received $1,214. When he took that money he knew he had no right to it. He knew it belonged to the bank. Moreover, he assumed the rdle of disbursing functionary, not only to pay himself what Cain owed him, $850, but also to disburse the remainder of the proceeds to others for harvesting expenses and the like. Defendant himself testified:
“At the time I was paid the $1,200 I just went down there and told him I came down for the settlement for the wheat on the Tennal place. [110 acres.] He said, ‘All right.’ This talk was with Mr. Parsons. [Manager of the elevator.] He said ‘All right’ he would figure it up and pay me. He asked me about taking out the cash rent. I said the cash rent went to Mr. Tennal. He should pay that to Mr. Tennal, so he took out the $150 and gave me this $1,215 as evidenced by this check.
“Mr. Parsons did not come to me a time or two and try to get me to turn this money back to-him. He asked me what I was going to do about it. I ■said I ain’t going to do anything about it.”
The court feels bound to hold that the evidence tended to show that defendant actively participated in the conversion of the crop and its proceeds.
Touching the point of law that the mere receipt of the proceeds of the sale of the wheat would not render defendant liable as for a conversion, that point might be important if the sale had been lawful. If Cain had the right to sell the wheat and had paid the proceeds to defendant, the fact that Cain was morally bound to hand the money over to the bank would not render defendant liable as for conversion. But the rule contended for has no application to the situation we are'considering — where the sale of the wheat was illegal. It was not Cain’s wheat, but the bank’s. Defendant had no right to meddle with the wheat or knowingly with its proceeds. (Barnhart v. Ford, 37 Kan. 520, 15 Pac. 542; Brown v. Campbell, 44 Kan. 237, 241-247, 24 Pac. 492.) In Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 120 Kan. 21, 24, 245 Pac. 734, a railway carrier de livered a car of wheat to a grain dealer without requiring a surrender of the bill of lading. The dealer sold the wheat to a milling company which paid the grain dealer therefor. It never accounted to the plaintiff shipper for the proceeds. Suit- was begun against the railway company, the grain dealer and a milling company. All three were held liable as for conversion. This court said:
“It appears that all of the defendants participated in the wrongful appropriation of plaintiff’s wheat. All knew that it had been delivered without the surrender of a bill of lading, and with this knowledge each contributed its part to the misappropriation and their joint work occasioned the loss. Each party who took possession of the wheat, whether by purchase or otherwise, from one who had no power from the owner to dispose of it, is guilty of a conversion, and all who assist in the wrongful appropriation and disposition or shared in the proceeds thereof with guilty knowledge are guilty of a conversion and all are jointly and severally liable.even though all may not have been equally guilty.” (Citations.)
In Gooch v. Gooch, 108 Kan. 416, 195 Pac. 874, it was said:
“If separate and independent acts of wrongdoers combine to produce a single injury, each is responsible for the result although the wrong of one alone might not have produced the result.” (Syl. ¶ 3.)
In Velsian v. Lewis, 15 Ore. 539, 3 A. S. R. 184, where defendants were held liable as for conversion of 412 bushels of wheat which they had innocently purchased from one who did not own it, on defendants”behalf it was argued:
“But the contention of counsel for the defendants is, that where the purchase is made in good faith, although from one without title, and the possession is taken from one rightfully in possession, that the action of trover for a wrongful conversion is not maintainable without previous demand before suit, unless some subsequent acts of the purchaser make him guilty of a conversion.” (p.541.)
The exhaustive opinion of the court completely demolished this argument, but we can only take space to quote:
“At first blush, it may seem strange that one who takes possession of goods or chattels under a contract of purchase, from one who had no right to sell, should be treated as a wrongdoer; but the explanation of the principle lies in the common-law maxim caveat emptor, which applies to the transfer of personal property. It is the buyer’s own fault, if he is so negligent as not to ascertain the right of the vendor to sell, and he cannot successfully invoke his bona fides to protect himself from liability to the true owner, who can only be divested of his rights or title to his property by his own act, or by the operation of law. Every person is bound at his peril to ascertain in whom the real title to property is vested, and however much diligence he may exert to that end, he must abide by the consequences of any mistake. ... In such case, good faith, or the absence of evil intent, cannot infuse validity into the transaction, nor make a possession rightful which is exercised in derogation of the rights of the true owner to control and enjoy his property.” (pp. 541,550.)
In Farmer T. & H. v. Bank, 130 Ia. 469, syl. ¶ 2, it was held: “One who participates in a wrongful sale of mortgaged property, receiving the proceeds of a portion thereof, is guilty of conversion, and he is not relieved by the good faith of his acts.”
A final objection that certain special findings which entered into the judgment were not supported by any evidence is untenable. Moreover, most of the facts involved in special findings were scarcely matters of bona fide dispute. There never was any seriously controverted fact in this lawsuit for the litigants to quarrel about. The crucial question throughout was one of law — whether the contract between Cain and the bank was valid, and what were the consequences attaching to the invasion of plaintiff’s rights by Cain, the elevator company, and by the defendant, once that question was properly determined.
The matter of Cain’s bankruptcy and the attitude of plaintiff and defendant in respect thereto, as disclosed by the record, have been duly considered, but need no discussion further than to hold, as we do, that the rights and liabilities of the parties to this appeal were not affected thereby.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover- taxes paid under protest. Plaintiff recovered, and defendants appeal.
The decision depends on the proper interpretation of R. S. 79-310, which reads as follows:
“That no person shall be required to include in the list of personal property any portion of the capital stock of any company or corporation which is required to be listed by such company or corporation; but all incorporated companies, except such companies and corporations as are specially provided for by statute, shall be required to list by their designated agent in the township or city where the principal office of said company is kept, the full amount of stock paid in and remaining as capital stock, at its true value in money, and such stock shall be taxed as other personal property: Provided, That such amount of stock of such companies as may be invested in real or personal property which, at the time of listing said capital stock, shall be particularly specified and given to the assessors for taxation, shall be deducted from the amount of said capital stock: Provided, That' mortgages owned by any such company on property, real or personal, in any other state, shall not be deducted: Provided further, That real or personal property in any other state, or county in this state, shall be deducted if it be made to appear that the same has been duly listed for taxation in such other state or county in this state.”
Plaintiff made the following capital-stock return:
Capital stock ................................ $250,000.00
Surplus ...................................... 255,528.46
Undivided profits ............................ 13,630.91
$519,159.37
Less deferred charges ........................ 2,641.80
Net capital stock.......................... $516,517.57
With its capital stock return, plaintiff returned for taxation the following specific items of property:
Real estate .....................................:........ $162,070.00
Personal property:
Auto trucks ...............................’ $1,170.00
Average merchants’ stock.................. 241,945.00
Average moneys and credits................ 18,980.00
Furniture and fixtures...................... 37,960.00
- 300,055.00
Total ...........■.................................. $462,125.00
The difference between the amount of capital stock and the amount of real estate and personal property was $54,392.57. Plaintiff’s return disclosed investments in shares of stock in Kansas corporations, taxed under the general law, in the sum of $53,755. Plaintiff deducted this sum from the $54,392.57 and returned the difference, $637.57, as the amount of its capital stock remaining as capital stock on which its capital-stock tax should be computed. The deduction was explained in a letter to the assessor accompany ing the return. The deduction was disallowed by the assessor, by the board of equalization, and by the public service commission.
The general-tax law, by virtue of which plaintiff was taxed, is a property-tax law. The first section reads as follows:
“That all property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed by this act.” (R. S. 79-101.)
The list of property which the taxpayer is required to give to the assessor includes the following items:
“18. Stocks in any company or corporation; 19. Moneys; 20. Credits 8-, legal deductions 8-, balance taxable; 21. Average value of merchants’ stock for preceding year; 22. Average value of merchants’ moneys and credits for preceding year.” (R. S. 79-307.)
This is a general provision, and after provisions relating to location of property and time of listing (R. S. 79-308 and 79-309), R. S. 79-307 is qualified by R. S. 79-310 printed above, and which should be reread here.
The result of the foregoing is listed capital stock, with increments of surplus and undivided profits, represents the corpus of the corporation’s avails, real and personal. Shares of capital stock are merely divisions of capital stock. The value of capital stock is the total value of all the divisions and, except in cases specially provided for by statute and not material here, shares are not taxed to shareholders. (Bank v. Geary County, 102 Kan. 334, 346.)
If, at the time of listing capital stock for taxation, the corporation discloses investments in real and personal property which it returns for taxation according to the general method of taxing real and personal property, such investments may be deducted from capital stock and the remainder, if any, is taxed as capital stock.
Capital stock is paid in and profits accumulate which are added to the capital stock account as surplus and undivided profits. Capital stock and its additions are invested in real and personal property. In this instance plaintiff invested in personal property, consisting of shares created by other corporations, to the amount of $53,755. The certificates lay among plaintiff’s assets as merchandise lay on its shelves and in its showcases. Capital stock was necessarily reduced by those investments. Capital stock was valued, however, to include the shares, just as capital stock was valued to include store building, merchandise, and delivery wagons; and if the shares were not deducted from capital stock they would be taxed contrary to the legislative intention.
Shares of stock, exempt from taxation to the stockholder and having no place in a list of personal property to be taxed to the stockholder, are not specifically mentioned in the first proviso of R. S. 79-310 as deductible. Because they are not specifically mentioned, the taxing authorities ruled that plaintiff’s shares were not deductible. This court has expressly repudiated this interpretation of the statute and has repeatedly held that enumeration in the statute of certain kinds of investment as deductible from capital stock does not forbid deduction of other kinds of investment. (Life Insurance Co. v. Anderson et al., 117 Kan. 451, 232 Pac. 592; Davis-Wellcome Mortgage Co. v. Haynes, 119 Kan. 1, 237 Pac. 918; Hodgins v. Shawnee County Comm’rs, 123 Kan. 246, 255 Pac. 46; State, ex rel., v. Haynes, 128 Kan. 343, 278 Pac. 39.)
The opinion in Life Insurance Co. v. Anderson et al., 117 Kan. 451, 232 Pac. 592, contains the following:
“The defendants concede that in the listing of property, bonds of the United States are ordinarily not regarded to be subject to taxation, but they insist that the statute last quoted specifically provides for deductions from the amount of the valuation of corporate capital stock, and that as government bonds are not specifically mentioned in the exceptions the plaintiff was not entitled to a deduction of them.
“The contention that because the United States securities are not included in the provisos or exceptions mentioned in the statute renders them taxable cannot be sustained. The fact that they were not expressly exempted and that there is no provision for a deduction of the same from a tax statement does not affect the exemption nor justify the taxing authorities imposing a tax on such securities.” (pp. 452, 454.)
In this instance the statute itself exempted plaintiff from taxation on its shares of stock created by other corporations.
In the case of Davis-Wellcome Mortgage Co. v. Haynes, 119 Kan. 1, 237 Pac. 918, the syllabus reads:
“A Kansas corporation in making up a statement of the amount of its capital stock (that is, of the value of all the outstanding shares of stock) for purposes of taxation is entitled to deduct the amount it has invested in Kansas real-estate mortgages, on which it has paid the registration fee required by the statute of 1925 in lieu of all other taxes.” (Syl. ¶ 1.)
The mortgage company returned its mortgages, not for taxation but for deduction from capital stock, just as plaintiff returned the shares of corporate stock which it owned, not for taxation but for deduction from capital stock. The case arose on a return for taxation made in 1925, the year the mortgage-registration act was passed. The opinion of the court affiliated payment of registration fees to giving mortgages to the assessor for taxation. The reasoning would seem quite sophistical if applied to the return of the mortgage company for 1929, and the plain fact is that because the mortgages were exempt from taxation under the general-tax law they were deductible from capital stock by virtue of R. S. 79-310.
The necessary implication of the decision in Ranchmen’s Trust Co. v. Duncan, 114 Kan. 308, 219 Pac. 523, is that investments in shares of bank stock would be deductible from the capital stock return of a trust company were it not for the provision “except such companies and corporations as are specially provided for by statute.”
Plaintiff’s valuation of its capital stock was $516,517.57. This valuation was accepted by the assessor, and plaintiff was assessed and taxed accordingly. Plaintiff’s return disclosed that this valuation included shares of stock of other corporations to the amount of $53,755, and plaintiff deducted this amount from the recapitulation in its return. The tax proceedings plainly show the deduction was simply disallowed. Capital stock was not revalued. It was admitted at the trial that plaintiff owned shares of stock in other corporations. Whether correctly valued or not, those shares were valued at $53,755, and plaintiff was obliged to pay under protest a capital-stock tax on that valuation. It is not material whether the corporations creating the shares paid their taxes. The shares were exempt from taxation to plaintiff.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
In this action, tried to a referee, a deed was held to be a conveyance of real property rather than an equitable mortgage, and defendants have appealed. No motion for a new trial was filed, as provided by R. S. 60-3001. This limits our view of the record to the question whether the judgment is supported by the pleadings and the findings of fact. The evidence cannot be considered. (Perkins v. Accident Association, 96 Kan. 553, 152 Pac. 786; Doty v. Shepard, 98 Kan. 309, 311, 158 Pac. 1; Printing Co. v. Paper Co., 115 Kan. 735, 736, 224 Pac. 898.) While the evidence was abstracted by appellants it was, on motion of appellees, stricken from the abstract by an order of the court made before the submission of the case on the merits.
In 1917 Katie Rosebaugh purchased the real property in contro versy for $12,000. In 1919 she and her husband, U. H. Rosebaugh, mortgaged it to the Union Central Life Insurance Company for $7,500. This was a first lien on the land and was payable by the amortization plan in fifteen years. In November, 1921, Katie Rosebaugh and her husband gave a mortgage on the property to the Iola State Bank (subject to the $7,500 mortgage) to secure a note for $1,892.22 due in six months. At some time before January 28, 1924, Katie Rosebaugh died intestate, leaving her husband and three children. The husband bought the interest of two of the children in the real property. The other child, Maurice B. Rosebaugh, became the owner of an undivided one-sixth interest in the property subject to the mortgages above mentioned. Because of default in making two of the annual payments on the first mortgage an action was brought to foreclose it in January, 1924. U. H. Rosebaugh was further indebted to the Iola State Bank in the sum of $1,155 secured by a chattel mortgage, and his son, H. A. Rosebaugh, was indebted to the First National Bank of La Harpe in the sum of $550 secured by a chattel mortgage. These two chattel mortgages described some of the same property. The Rosebaughs were desirous of reinstating the mortgage to the Union Central Life Insurance Company and having the suit brought by it dismissed, and desired the Iola State Bank to furnish the money necessary for that to be done. On January 28, 1924, U. H. Rosebaugh and Maurice B. Rosebaugh and his wife executed to F. O. Benson, who was in fact cashier of the Iola State Bank and acting for it, a deed to the real property, subject to the 'mortgage to the Union Central Life Insurance Company. The bank advanced the money, $1,570.66, to reinstate the first mortgage, which caused the action brought to foreclose it to be dismissed, and paid the $550 to the First National Bank of La Harpe. This made the total indebtedness of U. H. Rosebaugh to the bank, including that, secured by the second mortgage to the bank on the real estate, amount to $5,557.55. On March 1, 1924, U. H. Rosebaugh executed to the bank two notes representing the indebtedness last above mentioned. One of these notes was for $900, due in one year, and was secured by a chattel mortgage. This note was later paid and is no longer in controversy. The other note was for $4,557.55. It bore interest at eight per cent per annum and was due in one year, and on March 1, 1924, F. O. Benson executed, in the form of a letter to U. H. Rosebaugh, the following instrument:
“In consideration of a deed which you have given to me for the following-described farm land and property, namely: The northeast quarter of section seventeen, township twenty-four, range nineteen, of Allen county, Kansas, and which deed was given me to secure and pay the following:
“Notes to Iola State Bank, Iola, Kan.
“Notes to First National Bank, La Harpe, Kan.
“Notes to Union Central Life Insurance Company, of Cincinnati, Ohio, and for accrued interest, costs and attorney’s- fees- on the same, and which amounts are now represented in two certain notes due the Iola State Bank, Iola, Kan., as follows: One-note for 1900 and the other for $4,557.55, which are dated March 1, 1924, due in one year, at eight per cent interest from date, with interest payable semiannually:
“Now, therefore, I hereby agree to sell and deed you the above-described real estate, or deed it to anyone whom you may designate, at any time within two years from this date, which will be on or before March 1, 1926, under the following conditions:
“First. That you pay all notes, whether secured by this land or chattel mortgage, together with all interest, taxes and assessments due the Iola State Bank at the time of settlement.
“Second. That you pay all taxes as they accrue, and that you keep the property fully insured and in my favor.
“Third. That you assume any unpaid part of the first-mortgage loan now held by the Union Central Life Insurance Company or their assigns, together with all interest and charges.
“Fourth. If the above option is not accepted and settled by U. H. Rosebaugh on or before March 1, 1926, then this agreement will be null and void.”
This was accepted in writing by U. H. Rosebaugh. On the same date F. O. Benson executed to U. H. Rosebaugh a lease, which is said to be on the standard form of farm leases, for a term of twelve months, beginning March 1, 1924, by the terms of which the lessee agreed to pay as rent for the land one-third of all the crops, and to pay $35 cash for the pasture rent.
The amended petition sets out three causes of action. The first sets out in detail the -indebtedness of U. H. Rosebaugh to the bank. Copies of the deed, the note for $4,557.55, and the instrument of March 1, 1924, above quoted, were attached to and made a part of the petition. With respect to these instruments it was alleged:
“That at or about said time, to wit, March 1, 1924, and as evidencing the said indebtedness, the said U. H. Rosebaugh executed and delivered to the said Iola State Bank his promissory note in writing of that date in the sum of $4,557.55, due one year after date, with interest at eight per cent per annum from date, a copy of which is attached hereto marked ‘Exhibit C’ and made a part hereof, which said note is past due and wholly unpaid, and that the plaintiff is the owner and holder thereof.
“That the negotiations finally leading up to the execution of said note and the payment of said sums of money had been pending for some time, and to induce the said plaintiffs to advance the said money necessary to save the said land from foreclosure and to extend the time of payment upon the other indebtedness owing by the said U. H. Rosebaugh to the said bank, the said U. H. Rosebaugh, Morris Rosebaugh and Martha Ellen Rosebaugh offered to execute a deed conveying the said lands to said F. O. Benson, and in consideration of the premises did execute and deliver a deed to him conveying the said lands, a copy of which deed is hereto attached, marked ‘Exhibit D’ and made a part hereof, and that at the same time said F. O. Benson, acting for himself and on behalf of the Iola State Bank, and the said defendant U. H. Rosebaugh entered into a written agreement by the terns of which the said F. O. Benson was to hold the said land for a period of two years, and if in that time the said indebtedness was paid, and the other indebtedness mentioned therein was paid, and the agreement otherwise complied with, the said land to be reconveyed to the said U. H. Rosebaugh, a copy of which agreement is attached hereto marked ‘Exhibit E’ and made a part hereof. That the said deed bears date January 28, 1924, but was in fact delivered and took effect at the time said note was given and contract made, the deed having been made some time prior to the final consummation of the deal, but during the time oral negotiations were pending.”
It is further averred that the defendants had paid nothing on the note, and that by virtue of the terms of the agreement Benson should be ordered to transfer the lands to the bank in settlement of the indebtedness, or, if not so ordered, that it should be foreclosed. The second cause of action made the first a part of it and further alleged that since the execution of the instruments referred to in the first cause of action the bank had paid to the Union Central Life Insurance Company, and for insurance on the premises, sums amounting to $1,556.64, and it is averred that if plaintiffs be not decreed the owners of the land the bank should be subrogated to the rights of the first mortgagee and the lien should be foreclosed. The third cause of action is predicated on the lease, and it is alleged that the defendants had paid no rent, and it is averred that the plaintiffs were entitled to a decree barring defendants from further interest in the land and quieting plaintiffs’ title thereto, and that if the court found it inequitable to do so, that the deed be foreclosed as a mortgage and plaintiffs have a lien on the crops raised on the premises by virtue of the lease. The prayer was for judgment against U. H. Rosebaugh on the first cause of action for $4,557.55, with interest since March 1, 1924; on the second cause of action for $1,566.64, with interest from the time payments had been made; that plaintiffs’ claim be adjudged a lien on the land, subject only to that of the Union Central Life Insurance Company; that the lands and crops be sold according to law, and the proceeds be applied, first, to the payment of costs and taxes, and, second, to the payment of plaintiffs’ claim.
The answer of U. H. Rosebaugh admitted his ownership of five-sixths interest in the land, giving the mortgage to the Union Central Life Insurance Company, and the mortgage for $1,892.22 to the bank, and the execution of the stipulation of settlement of the foreclosure action brought by the Union Central Life Insurance Company. There was a general denial as to all other material allegations of the petition and a specific denial of indebtedness to plaintiffs. The prayer was that if the court found him to be indebted to plaintiffs he should be given the period of redemption provided by law. The answer of the defendants, Maurice B. Rosebaugh and wife, admitted ownership of a one-sixth interest in the property, the mortgage to the Union Central Life Insurance Company, and the execution of a stipulation by which the foreclosure action brought by that company was dismissed, but specifically denied that knowingly, or for any consideration, they had executed a deed to Benson, and averred that if they signed the same that their signatures were obtained without their knowledge, by fraudulent means and without consideration, and averred that the same was void as to them, and generally denied other material allegations of the petition.
The findings of fact are quite in'detail. It will not be necessary to set them out at length. The gist of them, so far as here pertinent, may be thus stated: The first relates to the purchase of the farm by Katie Rosebaugh, the giving of the first mortgage to the insurance company, and of the second mortgage to the bank, the death of Mrs. Rosebaugh and the subsequent vesting of title to the property. The second recites the default in the first mortgage; that a suit was brought to foreclose it; that in January, 1924, U. H. Rosebaugh was indebted to plaintiff bank on the note secured by the second mortgage on the land and the note secured by chattel mortgage, and that a son, H. A. Rosebaugh, was indebted to the bank at La Harpe. The third recites that F. O. Benson was cashier of the plaintiff bank and that defendants dealt with him when transacting business at the bank. The fourth, that U. H. Rosebaugh entered into negotiations with plaintiffs for the purpose of preventing the foreclosure of the first mortgage; that as a result of these negotiations' defendants executed the deed of January 28, 1924, which deed was held by Benson until the deal was consummated; that as a part of the transaction Benson executed an agreement to reconvey the land to U. H. Rosebaugh upon his paying a note for $900 secured by a chattel mortgage and a note for $4,557.55, both payable to the bank, and paying the taxes and keeping the property insured, .and that the plaintiff bank advanced the money to reinstate the first mortgage and have the foreclosure suit then pending dismissed. The fifth recites the execution by Benson of the farm lease. The seventh, that U. H. Rosebaugh agreed that if plaintiffs would pay the note of H. A. Rosebaugh to the bank at La Harpe he would assume the same and secure the plaintiffs on his real estate. Sixth, that at the time of closing their deal, about March 1, 1924, U. H. Rosebaugh owed plaintiff bank $5,457.55. Eighth, that this indebtedness was evidenced by two notes, one for $900, secured by a chattel mortgage which was later discharged, and the other for $4,557.55, dated March 1, 1924, and due in one year. Ninth, that this note was never paid, and that since it was given the plaintiff bank had made payments on the first mortgage and for insurance on the premises. Tenth, that about two years after their deal of March 1, 1924, Benson talked with U. H. Rosebaugh and informed him that plaintiffs could not carry the loan, as nothing was being paid on it, and that the land would have to be sold and the debt cleaned up; that U. H. Rosebaugh had paid plaintiffs nothing since March, 1924; and the facts concerning the filing of the amended petition are stated. The eleventh is a finding that at the time of the transaction, in March, 1924, the maximum value of the land was $9,600, and that the sum then due on the first mortgage and to plaintiffs exceeded this more than $1,800. In the twelfth there is a finding, “That there was no personal liability against the defendant U. H. Rosebaugh upon said note of $4,557.55, and said note was given as a matter of convenience and as a method of carrying the real estate in the guise of commercial paper. That said notes were given as part of said transaction, and as a part of said agreement to reconvey said real estate, and said agreement (above set out) was a mere option to the defendant U. H. Rosebaugh to repurchase said real estate upon his performing the conditions set forth therein, . . . and upon the failure of the defendant U. H. Rosebaugh to exercise said option, said agreement became null and void by virtue of its terms, and that said note which was given as a part of said agreement likewise became null and void.” The thirteenth recites that a good consideration passed from plaintiffs to Maurice B. Rosebaugh. The fourteenth, that this being an equitable action defendants should be given a reasonable time to exercise their option to repurchase on payment to the plaintiffs of the note of $4,557.55 with interest at eight per cent since March 1,1924, the payments which plaintiffs have since made on the first mortgage, and for insurance, with interest at six per cent since the date of the payments, the costs of this action, and any sums paid by plaintiffs on the first mortgage since the trial; and they were given until February 29, 1928, to make such payments.
The conclusions of law were: First, that the deed and contract of March 1, 1924, was a sale with right to repurchase, and not a mortgage, and the deed in question is absolute. Second, that Benson was acting for the bank. Third, that as defendants failed to exercise their option to repurchase by paying the sums mentioned in the fourteenth finding by February 29, 1928, possession of the premises should be surrendered to plaintiffs, and if necessary a writ of restitution should be issued to put them in possession.
The referee’s report was filed January 10, 1928, and was approved by the court on March 1, and judgment was rendered in accordance with it.
The matters stated in the tioelfth finding of fact with respect to the effect of the instruments executed in connection with the deal between the parties about March 1, 1924, are more properly conclusions of law as distinct from findings of fact, and are tantamount to the first conclusion of law. Appellants contend that this conclusion of law is not supported by the findings of fact previously made. This contention must be sustained. It seems clear, both from the pleadings and the findings of fact one to eleven inclusive that at the time of the transaction between the parties, about March 1, 1924, there was an actual indebtedness to plaintiffs. The parties recognized it as such. Notes were given for it, one of which was later paid, and even in this case plaintiffs sought judgment on the other one. The instrument executed by Benson, dated March 1, 1924, and hereinbefore set out, refers to this as an indebtedness evidenced by notes, and provides for a reconveyance on the payment. It is the substantial equivalent of the usual provision in a real- estate mortgage which, after reciting a conveyance of the property by the mortgagor to the mortgagee, provides that on the payment of certain sums the conveyance shall be of no effect, the only difference being that here there is an agreement to reconvey on the payment of the debt. The ordinary test in determining whether or not instruments of this character constitute a mortgage, or a conveyance, is the existence of a debt (Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127; Lincoln State Bank v. Breazier, 122 Kan. 423, 251 Pac. 1080), and the universal rule is that if a debt exists there is in effect a mortgage, and especially is that true if the debt exists in an enforceable form, evidenced by notes or otherwise, which would form the basis of an action. (Live Stock Co. v. Trading Co., 87 Kan. 221, 123 Pac. 733; Gilmore v. Hoskinson, 98 Kan. 86, 157 Pac. 426; Root v. Wear, 98 Kan. 234, 157 Pac. 1181; Hegwood v. Leeper, 100 Kan. 379, 164 Pac. 173; Myers v. Mills, 109 Kan. 734, 201 Pac. 856; Lanborn v. State Bank, 115 Kan. 415, 223 Pac. 293; Williams v. Schrock, 118 Kan. 347, 235 Pac. 111; Rusco v. DeGood, 127 Kan. 708, 275 Pac. 201.)
Here the parties not only referred to the matter as a debt, but notes to evidence the debt were executed, hence the debt was evidenced by instruments which could, and did in fact, form the basis of an action. The result is that the judgment of the court below must be reversed.
It is said in the brief of appellees-that perhaps the referee and the court were influenced largely by the fact that at the time of the transaction between the parties, March 1, 1924, the sum owed by defendants on the first mortgage and to plaintiffs exceeded the value of the land. This fact is not controlling and should have but little weight. The fact that one takes a mortgage on land for its full value, or more, does not convert that mortgage into a deed of conveyance.
Since the facts as found in this matter are not questioned and are no longer open to dispute, there is no occasion for a new trial. The judgment of the court below is reversed with directions that it be set aside, that a decree of foreclosure be entered for the sale of the property for the sum due plaintiffs, as shown by the findings, with the period of redemption as provided by law. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a promissory note and to foreclose as an equitable mortgage a deed given to secure its payment, and to hold a bank and its liquidating agent on a repurchase agreement. The action was tried first as between the plaintiff and the defendants who executed the note and mortgage deed, resulting in judgment for plaintiff, and as to this there has been no appeal. It was later tried on issues joined between plaintiff and the bank and its liquidating agent, resulting in a judgment for plaintiff. From this judgment the bank and its liquidating agent have appealed.
A more complete statement of the facts disclosed by the record is as follows: The Commercial National Bank was a going institution for years. Its president and active managing officer was A. E. Asher until his death early in the year 1923, when A. H. Suter, formerly cashier, became its president. Sometime in 1924 it sold and trans-. ferred its live assets to the American National Bank of Hutchinson,, and in November, 1924, C. M. Williams was by the comptroller of the currency appointed as liquidating agent of the Commercial National Bank. The plaintiff, L. P. Sentney, is a well-to-do resident of Hutchinson who had been a depositor in and had transacted business with the Commercial National Bank for many years. He had from time to time purchased notes from the bank on an agreement that the bank would guarantee their payment or repurchase them at or before maturity. At times an agreement had been made with respect to specific notes sold by the bank to plaintiff, and at other times with respect to a group of notes or several notes sold to absorb certain deposits. On February 2, 1922, an agreement, general in its nature, was put in the form of a letter by the president of the bank to plaintiff, as follows:
“We, as a bank, from time to time have been furnishing you some paper to absorb some money- that you have on hand. This is to say to you that we will be very glad to take this paper up at maturity if you do not want to carry it any longer, and this shall be applicable to any paper that you may take from us in the future, but I do not think this guarantee is necessary as to the real-estate loans from the fact that they will be secured by good farm lands on such property that has ample security with them at the time you purchase. But, as to all other paper that you have taken from us or will take in the future, this guarantee will be good.”
On further consideration, and perhaps on the ground that the instrument would authorize plaintiff to bring the paper in at any time before its maturity, and preferring to know that it be brought in at a definite time before maturity, the bank, by its president, on March 17, 1922, reduced the agreement to the form of a letter addressed to plaintiff, as follows:
“The matter of furnishing you from time to time paper to absorb your funds and keep them invested. Will say that we are willing to furnish you this paper from time to time if we have it to spare; provided you will bring this paper back fifteen days before its maturity that we may have it in time to notify the makers of the notes. We can put this into our collection department, give you a receipt for the notes left, and we will credit your account with the notes at maturity. This includes all former paper bought of us also.”
The terms of these writings were discussed with and agreed to by plaintiff. On March 11,1922, plaintiff, under the terms of the agree ment he had with the defendant bank, purchased from it a note of that date of the face value of $12,000, due in six months, executed by J. S. Sifers, and payable to the order of the Commercial National Bank, and on that date plaintiff gave to the bank his check for $11,580, being the amount of the note less interest to maturity. This check was accepted by the bank and charged to plaintiff’s account. About the time this note came due plaintiff was advised by the bank’s president that Sifers desired to renew the note, and accordingly on September 11, 1922, Sifers executed a new note due in six months for $12,000 payable to the Commercial National Bank, which the bank by its president indorsed, without recourse, and delivered to plaintiff. About fifteen days before this note came due, and on February 23, 1923, plaintiff took the note to the bank and took a receipt for it. He was not credited with the amount of the note when due and took the matter up with the then president of the bank, Mr. Suter, who denied liability. After a discussion it appears to have been agreed between the parties that without waiving their respective rights they would endeavor to get security for the note from Mr. Sifers, and an agreement in writing to that effect was entered into between plaintiff and the bank by its president, A. H. Suter, on April 18, 1923. They took the matter up with Mr. Sifers to secure the payment of the note. He and his wife executed a deed to their residence property in which they were living in Hutchinson to secure payment of the note. The time for the payment of the note was extended twelve months and the deed placed in the bank in escrow.
In this action plaintiff sought to recover a personal judgment against J. S. Sifers on the note and to foreclose the mortgage deed given, to secure its payment, and also sought to hold the bank liable on its repurchase agreement. Originally the American National Bank was made a party defendant, on the theory that it assumed the obligations of the Commercial National Bank, but later the action was dismissed as to the American National Bank. On the trial of the issues between plaintiff and the defendants, J. S. Sifers and wife, there was a judgment for the full amount of the note and a decree for the foreclosure of the deed as a mortgage.
The original answer filed by the Commercial National Bank and its liquidating agent in this case contains, among other things, the following:
“Defendant admits that there was sold to plaintiff by said Commercial National Bank, one note for the sum of $12,000, made payable to said Commercial National Bank, and signed by J. S. Sifers.”
But it was alleged the note was indorsed without recourse.
In the trial of the case, and after the testimony of Mr. Suter to the effect that the note above mentioned did not show on the discount record of the bank, defendants, by leave of court, amended their answer in this respect so as to read as follows:
“Defendants say that in their original answer, they admitted that there was sold by the said Commercial National Bank to plaintiff one note for the sum of $12,000, made payable to the Commercial National Bank, and signed by J. S. Sifers, but said defendants were mistaken as to the facts; that since a thorough investigation of the books of said bank, defendants now allege that .■said $12,000 note was never in said bank and never was the property of said bank, but that said $12,000 note was negotiated to plaintiff by A. E. Asher in the name of the Commercial National Bank, without the authority of said bank, and that the said A. E. Asher indorsed the name of the Commercial National Bank upon said note ‘without recourse.’ ”
In rendering judgment for plaintiff as against the bank and its liquidating agent the trial court did not make specific findings of Jact, but did file a memorandum opinion in which there is a general -discussion of various features of the case and which contains, in effect, a finding that the $12,000 J. S. Sifers note sold to plaintiff had not been shown on the note record or discount record of the bank as being the property of the bank. And further, that while the check of $11,580 given by plaintiff to the bank in payment of the note was charged to plaintiff's account on the books of the bank there did not appear on the books of the bank a corresponding credit, from which the court reasoned that the records showed that the bank did not receive the money.
Turning now to the legal points presented. Appellants had demurred to plaintiff’s petition on the ground, among others, that several causes of action were improperly joined. This was overruled. Appellants complain of that ruling and argue that plaintiff’s cause ■of action against Sifers and wife on the note and to foreclose the mortgage deed is separate and distinct from his cause of action .against the bank and its liquidating agent on the bank’s repurchase .agreement. But this is an equitable action to foreclose a mortgage, and it is proper under R. S. 60-601 to join as defendants all parties who might have any interest in or lien upon the property, or the rfunds to be derived from its sale. Even had the court thought the ■demurrer good and sustained it, it should have permitted the filing of separate petitions under R. S. 60-709, in order that the parties might have as nearly as could be separate trials on their respective issues. But the defendant bank and its liquidating agent in this case have had a separate trial on the issues relating to them as nearly as could have been possible had plaintiff been permitted or required to file separate petitions. Hence there can be no error in this ruling.
Appellants argue that the bank never owned the Sifers note; that it did not appear on the records of the bank as having been owned at any time; that it bore no number such as the bank placed on its notes. Passing the fact that defendants originally pleaded that the bank owned the note and sold it to plaintiff, these things stand out rather forcefully. It was payable to the bank and in the possession of its president and active managing officer, who sold it to the plaintiff and took payment in the name of the bank, and in this very action; by the judgment in favor of plaintiff and against the maker of the note, it was necessarily determined that the note had been given originally for a valid consideration.
Appellants argue that the bank did not receive the benefit of the payment from plaintiff for this note. The check made by plaintiff for such payment was made payable to the bank, was delivered to its president and active manager, and was charged to his account on the books of the bank. In this situation we think that the bank cannot be heard to say that it did not receive the money. The fact that someone looking at the books a year or two later was not able to find a corresponding credit for it is not sufficient to overthrow the other evidence of payment having been received by the bank.
Appellants argue that it was not shown that the directors of the bank had authorized its president to make a repurchase agreement with plaintiff. There was evidence tending to show that the board of directors did authorize it, and that similar agreements extending over several years, of which there were records in the bank, must have been known to and authorized or acquiesced in by the directors; but passing that, we do not regard such action essential. It is one of the functions of banks to buy and sell negotiable paper (U. S. R. S. § 5136, ¶7), and its chief managing officer, either president or cashier, has authority from the nature of his position to transact such business.
We had occasion to consider that question in McDaniel v. Altoona State Bank, 126 Kan. 739, 271 Pac. 394, where it was held:
“The president and cashier of a bank, being its active managing officers in the conduct of the business of the bank, have authority to sell and transfer notes and to guarantee their ultimate payment.”
Naturally, if they have authority to sell the notes of the bank, they can sell them upon such terms as may be agreed upon, whether that be a guarantee of ultimate payment or agreement to repurchase before maturity, so long as such terms are not illegal or against public policy. (See, also, Rankin v. City National Bank, 208 U. S. 541; Auten v. United States National Bank, 174 U. S. 125.) The court below based its judgment for plaintiff on the apparent authority of the president, under the facts here shown, to bind the bank by the agreement he made with plaintiff. While that holding is correct, we think the president had not only apparent but actual authority so to bind the bank.
Appellants point out that the note in this case was indorsed without recourse. So were the notes in question in the McDaniel case, supra. Plaintiff did not sue on the contract of indorsement, but is suing on the repurchase agreement, in view of which the indorsement had the effect only of transferring title to the note pending the repurchase.
Appellants contend that there was no consideration for the agreement to repui’chase. The sale itself was a sufficient consideration. It is argued that the x'epxxrchase agreement is general in its terms and does not apply to this specific note, but it is clearly broad enough to cover it, and was obviously intended to do so.
The judgxnent of the court below is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendants were convicted of the larceny of hogs, and appeal, contending chiefly that the court erred in permitting the state during the trial to change the date of the alleged commission of the offense, thereby preventing the defendants from relying on a defense of alibi. Also, in unduly restricting the cross-examination of the state’s witnesses. We have given due consideration to these contentions but cannot concur therein.
A claim that the state’s witnesses first laid the commission of the crime as of March 27, 1926, and that later on rebuttal it was changed to the date of March 30, is not sustained by the record. The state’s witnesses testified substantially that the theft was committed during the last of March or just before the first of April. The evidence as a whole shows that the defendants were at the residence of one Fred Hubka, the place to which the hogs were transported after being stolen, on two nights the latter part of March. The state at no time fixed the date of the larceny other than March 30. The defendants fixed March 27, the night after a hog sale in Washington, Kan., as the date on which they were at the Hubka'place, and then attempted to prove that if the crime was committed on the night they were at Hubka’s they did not participate therein and had no knowledge of it. A setting out of the evidence in detail is not necessary. In our opinion it justified the verdict.
Concerning the alleged limitation of the cross-examination of the state’s witnesses the record shows the court first limited such examination, later concluded the limitation was wrong, reversed itself and permitted the examination.
Complaint is made of some of the instructions. This complaint has to do with the question of alibi above discussed and cannot be sustained, because the instructions given, while contrary to the theory of the defendants, were in substantial accordance with the testimony brought out in the trial.
A complaint that there was a lack of corroborating testimony as to the kind and color of the hogs alleged to have been stolen cannot be sustained; nor a complaint that the court erred in not granting a new trial on the ground of newly discovered evidence. (State v. Evans, 119 Kan. 469, 239 Pac. 996; State v. Turner, 121 Kan. 364, 247 Pac. 427.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The state upon the relation of the attorney-general, Hon. W. A. Smith, brought this action and named the board of county commissioners of Saline county as defendant. The purpose of this action is to obtain a declaratory judgment as to the validity of “An act relating to the construction and improvement of the state highway system by counties and other persons and agencies” (Laws 1929, ch. 229, § 1), about which an actual controversy exists. The statute provides:
“That if any county or other political subdivision of this state desires to immediately improve any section of the state highway system within any county, which has been designated as a part of the state highway system, the state highway commission may enter into an agreement with such county or other political subdivision to finance the construction or reconstruction of said highways or section thereof. No county shall be allowed to issue bonds or borrow money to carry out any provisions of this act: Provided, however, That the funds so advanced shall be without interest:- Provided further, That the commission shall make repayment to said county or other political subdivision annually as the funds are available, and to apportion for such construction or reconstruction until the amount so advanced has been repaid. The total amount of agreement to be redeemed in any one year shall not exceed one million dollars,”
In behalf of the state it is alleged that the commissioners of Saline county, without authority to do so, passed a resolution declaring that it was desirable to improve two highways in that county, which constituted a part of the state highway system, by hard surfacing them, and that in order to secure the immediate improvement of these highways the county enter into an agreement with the state highway commission to advance to that commission 1210,000 to assist in financing the improvement, that amount to be obtained from the county road fund, from the county bridge fund, from the county general fund, from the sinking fund, from the bond fund, from the twenty per cent state road fund, and by issuing deficiency warrants against each of the above funds for such amounts as may appear to be expedient and proper.
It was resolved that the sums so advanced to the state highway commission should be expended by that commission upon the construction of the highways, at least to an amount equal to the amount advanced by the county, and that such principal sum, without interest, should be repaid to the county on or before the first day of September, 1930. This step was taken under and in pursuance of the provisions of the quoted statute. The state alleges that the resolution was passed, and the proposal to advance the named funds is without authority and would be a wrongful exercise-of power by the board of county commissioners, and that unless ousted the defendant will advance the funds mentioned to the state-highway commission, thus diverting them to a purpose other than the one for which the taxes were levied. A demurrer to the petition was filed, and the question presented here is whether the proposed advances from the different funds of the county, may be made within the limitations of the constitution. The county road fund is levied under the authority of R. S. 68-519, for the construction, improvement and maintenance of county roads. It is provided' that the levy should not be less than one-fourth of a mill nor more than one and one-half mills on the dollar on all the property in the county, unless directed by a vote of the electors. The legislature, evidently apprehending that bridges and culverts might be regarded as a part of county roads, specifically provided that no part of the fund should be used to construct or repair bridges or culverts.
The county bridge fund is raised by a levy authoried by R. S. 68-1102 and following sections. It provides for the construction and repair of bridges and culverts, under limitations as to the extent of the levy and as to the apportionment of the fund for bridges on county and township roads. The amount needed for county and township bridges and culverts for the year is to be determined by the county commissioners after consultation with the county engineer, and after they have held a public meeting of electors to advise as to the particular bridges to be constructed or repaired during the taxing period.
As to the county general fund, the statute provides that the county commissioners shall levy a county tax sufficient to pay all county charges and expenses incurred during the year and also any delinquencies that may exist. (R. S. 19-241.) This fund is raised for the ordinary current expenses of conducting the county government, and the board is to exercise its judgment in determining the amount necessary to be raised to defray such expenses. The statute provides that the levy for this purpose is in addition to taxes for other purposes.
The bond and sinking funds are raised to pay outstanding bonds and the interest thereon and to raise money and place it in the sinking fund during the period the bonds are to run sufficient to pay such bonds when they become due. These are raised for specific purposes, and it is provided that if any of the funds so. raised are diverted or used for another purpose by anyone he shall be guilty of a misdemeanor and subject to penalties of fine and imprisonment. (R. S. 10-117.) As to authority to provide sinking funds, see R. S. 10-118.
The proposed issuance of deficiency warrants to be advanced out of all the different funds mentioned to the state highway commission is without any statutory authority. This action contemplates not only the loaning of the special funds raised by taxation, which are in existence, but also pledges the funds to be raised by taxation in the future by issuing what they call deficiency warrants against all of the funds. It may be conceded that there is authority in the legislature to control the finances not only of the state but also of its municipalities, and to provide for the transfer of funds from one to the other unless prohibited by constitutional limitations. There is a limitation that “No tax shall be levied except in pursuance of a law which shall distinctly state the object of the same, to which object only such tax shall be applied.” (State Constitution, art. 11, § 4.) This restriction is an insuperable barrier to the loaning of the funds named or to their application to the building of state highways. The taxes were levied in pursuance of law for specific purposes, and the funds derived from these levies must be exclusively applied to those purposes. Each of the funds is distinct from the others and it is beyond the power of the commissioners or others to divert funds raised by taxation for one purpose and apply them to another. It would be a violation of the constitution to apply the bond fund to the building of county roads or to apply the sinking fund to the building of county bridges. No more can the funds raised for each of the specific purposes mentioned be loaned to the state highway commission or applied to the building of state highways. State highways and county and township highways are not in the same class, nor are they under the same control. In the classification made by the legislature, highways are specifically placed in groups, one of state highways and all the others into county and township roads (Laws 1929, ch. 224, § 1), and state highways cannot be regarded as county roads.
The effect of the act in question is to provide for the loan of county funds to the state highway commission, and in the act itself there is a provision that: “No county shall be allowed to issue bonds or borrow money to carry out the provisions of this act.” The state highway commission is to borrow the money without interest, and pay it back to the county, when? It is to be paid back annually, if the highway commission has funds available for that purpose, but it is not to be paid then or at any particular time if funds are not available. If the commission deemed it best to spend its own funds provided from other sources on state highway projects that it deemed to be very necessary and pressing, it might postpone paying back the borrowed money for several years. This no-interest-loan to be made by the county commissioners to the highway commission is to be taken from the funds mentioned without regard to whether there is a surplus in them, and also as to whether such funds are actually needed for current expenses of the county or to meet obligations which had been assumed by the county in the building of county roads and bridges or for the payment of county bonds and interest or to provide sinking funds to meet such bonds.
The deficiency warrants proposed to be issued by the county commissioners to be used by the state highway commission in building state roads afford an opportunity to create evidences of a large indebtedness when there was in fact no indebtedness, and if the funds were depleted by advancing and loaning the funds, and warrants were presented when the treasury was empty and these were indorsed “Not paid for want of funds,” the holders of the warrants would draw interest on them. (R. S. 10-807.) Such obligations are somewhat in the nature of bonds or in a sense the borrowing of county money to carry out the provisions of the act. This would be not only a diversion of the funds but would conflict with statutory provisions regarding deficiencies. It is unlawful for the commissioners to levy a tax in each year for more than is required for county charges and expenses — -than is necessary to defray' such charges and expenses, and also to make up any delinquent taxes of the same year. (R. S. 19-241.) Provision is made for the issuance of warrants which shall specify the nature of the claim or service and the fund out of which they are to be paid. (R. S. 10-801.) If the claim presented is not payable out of the fund upon which it is drawn, the warrant would necessarily be invalid. The invalidity would also appear from the records of the county clerk, who is required to keep a correct record of all the warrants drawn on the county treasurer, showing its number, date, the fund on which it is drawn and the person to whom payable, and it must, before delivery, be countersigned by the treasurer. (R. S. 10-804, 10-805.) If the claim presented is not legally payable out of the fund on which it is drawn, any warrant issued thereon would be invalid and those instrumental in the issuance, delivery or payment of such warrants would be personally and criminally responsible. (State v. Pierce, 52 Kan. 521, 35 Pac. 19.) However commendable the purpose to aid in the early construction of state highways, it is clear that the means adopted by the legislature to accomplish the purpose, contravenes the constitution, and the act being void, the proposed action of the defendant is without authority of law.
Judgment will go in favor of the plaintiff. | [
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The opinion of.the court was delivered by
Marshall, J.:
The plaintiff sued to recover on a promissory note signed by the defendant, made payable to himself, indorsed by him, and delivered to the plaintiff. The defendant answered and alleged that the note was void; that there was no consideration for it; that the original note, of which the note sued on was a renewal, had been procured from the defendant by fraudulent representations; that the original note had been executed under certain conditions; that those conditions were violated; and that the plaintiff, when it acquired the original note, knew there was no consideration for it and had knowledge of the conditions under which it had been given, and at the time the note sued on was given had knowledge of the violation of those conditions. The plaintiff filed a demurrer to the answer of the defendant; that demurrer was sustained. The defendant elected to stand on his answer. Judgment was then rendered for the plaintiff, and the defendant appeals from the ruling on the demurrer and from the judgment rendered against him.
The only question is, Was the demurrer properly sustained? The answer alleged that there was no consideration for the note. The representations alleged by the defendant to have been fraudulent and the violation of the conditions under which the original note was given, if proved, would show there was no consideration for it. That want of consideration attached to the note sued on. Those allegations, with the allegation of the knowledge of the plaintiff, stated a sufficient defense. The demurrer to the answer should not have been sustained, and judgment should not have been rendered against the defendant.
The judgment is reversed, and the trial court is directed to overrule the demurrer. | [
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The opinion of the court was delivered by
Dawson, J.:
This case is a sequel to that of State, ex rel., v. Richardson et al., 117 Kan. 138, 230 Pac. 68, wherein this court affirmed a decree of the district court of Montgomery county adjudging cer tain real property of defendants Charles Richardson and Emma Richardson (Nos. 412-412% East Main street, on lot 11, block 46, in the city of Independence) to be a nuisance because liquor selling, drinking, gambling and prostitution had been permitted on the premises. The judgment of the district court was rendered on April 30, 1924, and enjoined all such criminal misconduct in the future. Part of that judgment decreed—
“That the defendants and each of them, and their tenants, servants, agents, employees, successors, assigns and all other persons be, and they are hereby forever restrained and enjoined from having, keeping, selling or manufacturing intoxicating liquors of any kind or character on the premises hereinbefore described, or from congregating or permitting persons to congregate thereon for the purpose of drinking intoxicating liquors, or having intoxicating liquors in their possession.”
On June 3, 1927, the state filed a motion for a writ of abatement and padlock order, alleging that at divers times after the granting of the injunction of April 30, 1924, and particularly since May 28, 1927, the property covered by the injunction had continued to be a place where intoxicating liquors were unlawfully sold and where persons were permitted to resort for the purpose of drinking intoxicating liquors, and that persons were permitted to keep such liquors in their possession on the premises in violation of law.
Defendants Charles and Emma Richardson filed objections to the jurisdiction of the court, and denied the power of the court to “change or add to the original judgment” or to issue any padlock order, and raised the point that the facts alleged in the state’s motion stated no cause of action, and invoked the fifth and fourteenth amendments to the -federal constitution and the bill of rights of the Kansas constitution against the objects sought to be accomplished in plaintiff’s motion.
On June 4, 1927, the plaintiff’s motion for the writ of abatement and padlock order and defendants’ objections thereto came on for hearing. The court heard what evidence the parties had to offer, and took the cause under advisement “with leave to either party to introduce additional evidence thereon.” Some time afterwards the state renewed its motion for a writ of'abatement and padlock order, setting up substantially the same facts as those contained in its motion of June 3, with the additional allegation that the liquor nuisance of which it had already complained was still being maintained on the premises. To this motion defendants filed objections similar to those urged against the state’s motion of June 3.
On December 2, 1927, the state presented additional evidence in support of its motion, and “the court not being fully advised in the premises, doth take said motion under advisement and continued the hearing thereof.”
On December 28, 1928, Charles Richardson died [intestate] leaving as his heirs his wife, Emma Richardson, codefendant in this proceeding, and his two daughters, Lorena Thomas and Willie Evans. On January 27, 1929, notice of the pendency of the proceedings was served on the daughters, Lorena and Willie, and they were apprised that further evidence in support of the state’s motion would be presented on February 2, 1929; and on that date the state and defendant Emma Richardson presented additional evidence in the cause. Emma Richardson renewed her objections to the proceedings, and demurred to the state’s evidence. Lorena Thomas made what her counsel chose to characterize as a special appearance and objected on the ground that the court was without jurisdiction, that there had been no revivorship of the proceeding following the death of Charles Richardson, and that the state’s motion did not state facts sufficient to show that she had any knowledge of or had consented to the use of the property in any unlawful way. She also invoked the federal constitution and the Kansas bill of rights against the order prayed for by the state. The judgment record then proceeds thus:
“And thereupon the court, being now fully advised in the premises, doth find that the motion of the plaintiff should be sustained; that the judgment of permanent injunction of said court heretofore rendered in said cause on the 30th day of April, 1924, has been violated in that intoxicating liquors have been kept for sale and sold on said premises, and persons have been permitted to resort thereto for the purpose of drinking and possessing intoxicating liquors in violation of the law; that in order to protect the judgment of the court and prevent the violation of law on said premises, a writ of abatement should issue herein commanding the sheriff of said county to take possession of said premises, eject the defendants and all other persons therefrom, and padlock the buildings thereon until such time as the court shall be satisfied that the law will not again be violated thereon.”
Judgment was entered accordingly and the defendants appeal, assigning and arguing various errors which' we will consider in the order of their presentation.
It is first suggested that the court had no authority to issue a padlock order for the violation of an injunction in case of a liquor nuisance unless some provision to that effect was incorporated in the original judgment rendered years previously. Applied to this case, that would have required that in the judgment of April 30, 1924, enjoining the use of defendants’ premises as a liquor and gambling nuisance and as a house of prostitution, some express provision should have been inserted to the effect that if the court’s injunction were disregarded the premises might be padlocked to insure its enforcement. The mere statement of such a contention should be sufficient refutation of its soundness. It is not required in any decree that the court shall anticipate that its judgment will be flouted. The court need not commit itelf in advance as to how it will deal with that sort of situation. The statute contemplates that the court will not make any such order until the necessity therefor shall arise. It reads:
“Upon its being shown to any court or judge thereof that any injunction granted by such court or judge under the provisions of chapter 338 of the Laws of 1903 is being violated, such court or judge may make an order commanding forthwith the enforcement of such injunction by such measures and means as in the judgment of the judge, or court, may be necessary to prevent further violation of such injunction.” (R. S. 21-2132.)
It is next suggested that the proceedings abated by the death of Charles Richardson. But it already is settled law in this jurisdiction that proceedings in rem for the suppression of liquor nuisances at the instance of the state do not abate because of the death of a defendant. (State v. Dixon, 90 Kan. 594, 135 Pac. 356; 47 L. R. A., n. s., 905. See, also, State, ex rel., v. Durein, 46 Kan. 695, 27 Pac. 148; State v. Porter, 76 Kan. 411, 91 Pac. 1073.)
Defendants’ next contention is that the state should have instituted contempt proceedings for the violation of the injunction rather than by this proceeding to abate the nuisance by a padlock order. But the state was not limited to such redress as contempt proceedings might furnish. While any and all persons who flouted the injunction by the sale or possession of liquor on the premises or by resorting thereto for the purpose of such drinking would be guilty of contempt of the court’s injunction, punishment for such contempt would be by proceedings in personam, and that might be an endless job. By a padlock order, however, or other means which a writ of abatement might properly authorize, the paramount purpose of the injunction can be effectively accomplished. As Blackstone put it, in writing of the suppression of public and private nuisances—
“. . . The founders of the law of England . . . provided two other actions — the assize oj nuisance and the writ of quod permittat prosternen — which not only give the plaintiff satisfaction for his injury past, but also strike at the root and remove the cause itself, the nuisance that occasioned the injury. . . . Both these actions . . . are now out of use, and have given way to the action on the case; . . . and the effect will be much the same unless a man has a very obstinate as well as an ill-natured neighbour who’ had rather continue to pay damages than remove his nuisance. For in such a case recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant’s perverseness, by sending the sheriff with the posse comitatus, or power of the county, to level it.” (2 Cooley’s Blackstone, Book III, 220-222.)
Our own statute, although having more regard for economic values, is broad enough for all practical purposes, and the padlock order was well within its letter and spirit.
It is next broached rather than urged that it was necessary to charge the defendants with “negligence, knowledge, permission or consent” before the padlock order could be issued. We cannot approve such proposition. An injunction forbidding the maintenance of a liquor nuisance on premises is a restriction, in the nature of an encumbrance upon the use of the property, and runs with the land or tenement, and binds everybody then or thereafter concerned therewith. (State v. Porter, 76 Kan. 411, 91 Pac. 1073; note in 15 A. L. R. 386-401.)
Defendants next raise a point of constitutional law against the validity of R. S. 21-2132. They argue that in the grant of 'power to the court to enforce its injunction “by such measures and means as, in the judgment of the judge or court, may be necessary to prevent further violation of such injunction,” there is a tying of legislative and judicial power in one department of government. On the contrary, the statute is merely a declaration of the power which courts of general jurisdiction have always possessed — the power to make their decrees respected and to have their judgments obeyed. Without that power, or if its exercise were unduly abridged or conditioned by legislative fiat, the usefulness of the courts would be destroyed. (15 C. J. 732; 13 C. J. 46 et seq.) Of course the measures and means to be taken to enforce the injunctive orders of a court must be reasonable; the court must exercise discretion; that discretion must not be abused. Measures for the enforcement of an injunction may be imagined which would neither fall within the spirit of the statute nor within the scope of judicial discretion; but the particular measure undertaken to enforce the court’s injunction in this case — that the defendants and their tenants be ousted and the premises padlocked by the sheriff until the proprietors shall satisfy the court that the law will not be violated thereon — is not only reasonable but apparently necessary to secure obedience to the injunction, and it certainly is not subject to any constitutional objection. To the fear expressed by counsel of the danger “that some spotters or persons with ulterior motives would persuade an occupant or stranger to carry a bottle of liquor onto the premises” with all the drastic consequences which might possibly fall on innocent and law-abiding proprietors, we can only reply that we live in a world of possible dangers, including the one here suggested; but such possibilities cannot serve to overthrow the judgment under review.
Touching the questioned sufficiency of the evidence to support the judgment, a careful perusal of the record quite effectively disposes of that point, but it would serve no good purpose to extend this already too lengthy opinion to quote excerpts of the testimony which did support it. (State v. Rose, 124 Kan. 37, 257 Pac. 731.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by a resident taxpayer to enjoin the city of Wichita from broadening the paving on Central avenue to more than twice its present width and from subjecting plaintiff’s property on Central avenue to special assessments to pay for such improvement.
Central avenue is one of the principal streets of the city of Wichita. It is about four miles long and runs east and west through the city, connecting on the east with an improved highway which leads to an aviation field near by, and to an agricultural and oil-producing district further on. On the west by various cross streets it connects with Douglas avenue, which is the principal street in Wichita and which parallels Central avenue and connects with the leading highway out of town on 'the west. Central avenue was paved eight years ago to a width of 26 feet, and plaintiff’s residence and those of taxpayers who reside on that street are subjected to annual assessments to pay for this improvement. Eight such annual assessments have been paid and two more are yet to be paid. The city now proposes to tear up the curbing of this eight-year-old paving and put down additional paving to a width of fifteen feet on each side of the existing pavement, so that the widened pavement will be 56 feet instead of its present width of 26 feet.
Plaintiff alleged that the state law and the city ordinances under which the city was undertaking to act were void, and that the threatened subjection of his property to special assessments to pay for such improvement was an invasion of his rights under the federal and state constitutions.
Plaintiff was defeated and appeals.
The statute under which .the city set about this work reads:
“That the governing body of any city of the first class having a population of more than ninety-five thousand, may by ordinance declare any street within said city that connects two business portions of said city or is a main thoroughfare to be a business or traffic street. And whenever any street is so declared to be a business or traffic street the governing body is empowered to grade, curb, gutter, pave, macadamize, or regrade, recurb, regutter, repave or remacadamize, any such business or traffic street by resolution; and the fact that said street has been declared to be a business or traffic street shall authorize the governing body to improve said street as above provided by the passage of a resolution and without the formality of a petition and any protest that may be filed by parties affected thereby may be disregarded by the governing body, and the cost of said improvement shall be taxed against the property liable therefor in like manner as though a petition had been legally and regularly filed requesting said improvement. And the fact that the governing body shall pass the ordinance declaring said street to be a business or traffic street shall be final and conclusive.” (R. S. 13-1041.)
Pursuant to this statute the city commission of Wichita enacted an ordinance declaring Central avenue to be a main thoroughfare and traffic street, and followed this with a resolution and ordinance—
“Section 1. That it is hereby declared necessary to excavate, curb and pave Central avenue ...
“The existing curb and gutter to be removed and additional pavement, fifteen (15) feet in width, constructed on either side of the present pavement, making a total roadway of fifty-six (56) feet between curbs. . . .
“Sec. 2. The cost of said improvement provided for in section 1 hereof, when ascertained, shall be at the cost of the owners of the land liable for special assessment therefor, which special assessment shall be levied to pay the cost of said improvement as by law provided.”
Plaintiff contends that the statute (R. S. 13-1041) quoted above is unconstitutional for various reasons: Because it creates an arbitrary classification of cities where the relatively -few taxpayers residing on main thoroughfares or traffic ways are subjected to special assessments and taxation for public improvements of no particular concern to them, and that there is no justification for the singling out of the relatively few in his situation to bear this onerous burden, and that the widening of the pavement of Central avenue from 26 feet to 56 feet is of no benefit to persons in his situation, and that the avowed purpose of the statute “to connect two business portions of said city” is a public purpose for which the general body of taxpayers should pay and not the limited few, like plaintiff, whose homes happen to be located on the street thus dedicated to the larger public use of a traffic street.
While it is quite true that neither the legislature itself nor its creatures, the municipal corporations of this state, can arbitrarily cast an undue proportion of the burdens of government upon one group of taxpayers while other groups in not dissimilar situations are shielded from such burdens, yet exact equality is not a prerequisite to the validity of a statute or city ordinance pertaining to assessment and taxation. In 6 R. C. L. 380, 381, it is said:
“A classification, having some reasonable basis does not offend against the federal constitution merely because it is not made with mathematical nicety, or because in practice it results in some inequality. The principle of equality necessarily permits many practical inequalities, and classification is not invalid because not depending on scientific or marked differences in things or persons or in their relations. It is not essential that there should be a logical appropriateness of the inclusion or exclusion of objects or persons involved in a classification. . . . It is also unquestioned but that legislative classification may in many cases properly rest on narrow distinctions.”
Again it is said:
“In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction the state is recognized as enjoying a wide range of discretion. The question of classification is primarily for the legislature, .and it can never become a judicial question except for the purpose of determining, in any given situation, whether the legislative action is clearly unreasonable. Whenever the power to regulate exists, the details of the legislation and the exceptions proper to be made likewise rest primarily within the discretion of the state legislature. Before a court can interfere with the legislative judgment, it must be able to say that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched. When the classification in a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. The courts cannot require the legislature to specify its reason for the classification, but they will always presume that the legislature acted on legitimate grounds of distinction, if any such grounds exist.” (6 R. C. L. 384.)
In the case at bar no particular benefit to plaintiff’s property by the doubling of the width of the pavement was shown because a demurrer to plaintiff’s evidence was sustained and the city was not called upon to adduce evidence on that point, but it may be assumed that the added improvement to Central avenue by doubling the width of the paving will have the usual sequel which attends such enterprise in our rapidly developing metropolitan centers — a sharp 'advance in the value of property fronting on that street. Nothing is more common in this state and in this country than the fact that when a straggling outlying residence street in a growing town is brought within the area of its expanding business activities the town lot values on that street multiply many hundredfold in a decade or less. Of course, this increment does not always nor immediately occur, but it is such a common experience and happens so frequently that a court cannot say that a classification of assessment districts in our larger cities cannot be predicated on such a basis. In other words, we cannot say that a statute and city ordinance (6 R. C. L. 403; 19 R. C. L. 761, 762) which proceed on such an assumption of fact infringe either the constitutional inhibition against unrestricted grants of power of assessment and taxation to cities (Kan. Const., art. 12, § 5) nor the inhibitions of the fourteenth amendment. In Chicago, M. & St. P. R. Co. v. Janesville, 137 Wis. 7, 28 L. R. A., n. s., 1124, Chief Justice Winslow quite pertinently observed that it is not altogether nor in every case a prerequisite to the validity of a special assessment on property that the improvement for which that assessment is made shall especially benefit the property assessed. He said:
“It is well settled that assessments against adjoining property are not limited to benefits received, where such assessments are properly made under the police power. Thus, the court has held that the entire cost of a sidewalk may be properly assessed against the adjoining lot without reference to or ascertainment of actual benefits. (Hennessy v. Douglas County, supra; Lisbon Ave. Land Co. v. Lake, 134 Wis. 470, 113 N. W. 1099.) In the last case it was held that, inasmuch as the presence of a defective and dangerous sidewalk constituted a serious public inconvenience and danger, the city might, under the police power, be clothed with the right to build or repair it at once without notice, and to charge the entire expense to the abutting lot upon which it stands, regardless of the question of the amount of benefit actually conferred. . . . The decisions are quite unanimous upon this question, and may be found collated in 2 Cooley on Taxation, 3d ed., pp. 1128-1130. Upon the last-named page Judge Cooley proceeds as follows: ‘There seems to be no legal impediment to a requirement under the police power that lot owners in cities and villages shall be at the expense of constructing that portion of the public sewer in front of their respective premises’—citing Van Wagoner v. Paterson, 67 N. J. L. 455, 51 Atl. 922. See, also, Gleason v. Waukesha County, 103 Wis. 225, 79 N. W. 249.” (p. 12.)
See, also, the excellent note to the case just cited in 28 L. R. A., n. s., 1124 et seq.; also, 6 R. C. L. 403; 19 id. 761; 25 id. 86, 129 et seq.
Another objection to the act is based upon its being limited to cities of more than 95,000 population, but that classification is manifestly not unreasonable. Under the inhibitions of our state constitution it was and is impossible to confer corporate power upon a single city by special act (art. 12, § 1), yet of necessity our leading metropolis, Kansas City, does require much legislative attention not demanded by smaller municipalities, so a classification of cities is resorted to, quite properly, which satisfies the constitutional requirements of article 2, section 17, and article 12, section 1, although but one city may come within the legislative classification at the time the statute is enacted. This was precisely the situation when R. S. 13-1041 was enacted in 1921. At that time only Kansas City had more than 95,000 population. But now the city of Wichita has grown into the same class, and doubtless Topeka will attain thereto ere long. With the passing years there is no reason to doubt that other Kansas towns will reach the same standard. In Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, where the validity of a statute was challenged on the ground that it was. applicable to but one city, and therefore special legislation, this court held:
“The matter of the method of providing for the cost of street improvements is one with relation to which cities may reasonably be divided into classes upon the basis of population.
“A law for the government of cities of a certain population is not rendered special in its operation by the fact that there is at the time only one city in the state of the size designated.” (Syl. ¶¶ 3, 4.)
In the opinion it was said:
“That for many purposes the classification of cities according to population is a natural and proper one is clear, and we think has never been doubted. The statutes providing for municipal government in this state have always proceeded upon the theory that a system adapted to a small town might not be suitable for a larger one. . . .
“Granting the reasonableness of the principle of classification, its application rests with the legislature and is not subject to judicial review, although an extreme case could perhaps be imagined in which a court would be justified in holding that an ostensible classification upon the basis of population was only colorable, its real purpose and effect being to limit the application of an act to a single community or group of communities, not distinguishable from others by any differences having relation to the subject matter involved. Counsel for plaintiff contend that the present instance is such a case. Judicial notice is of course taken that Kansas City is now the only city in Kansas having over 50,000 inhabitants. This is not determinative of the matter, however, for it is not only conceivable and . probable but practically inevitable that other cities in the state will in time attain that size. As was said in The State v. Downs, 60 Kan. 788, 57 Pac. 962: ‘An act general in its provisions, but which can presently apply to only one city on account of there being but one of requisite population or other qualification, but which was designed to, and can in all substantial particulars, apply to other cities as they become possessed of the requisite population or other qualification, cannot be regraded as a special act.' (p. 793).” (p.725.)
See, also, Clarke v. Lawrence, 75 Kan. 26, 33, 88 Pac. 735; Railway Co. v. Cowley County, 97 Kan. 155, 157, 155 Pac. 18.
To support the contention that the classification of cities of the first class having a population of more than 95,000 from other cities of the first class of less than that population is altogether arbitrary and without reasonable basis, attention is called to R. S. 13-1037 to 13-1040, enacted at the same session of the legislature, where cities of the first class having more than 45,000 and less than 95,000 population are given similar power to repave or otherwise improve the city streets without petition of the affected taxpayers and against their protest, and in which statute the cost of the improvement is apportioned between the city at large and the abutting property, the city to pay one-third of the cost and the owners of abutting property the other two-thirds. But that does not constitute such a great difference in the burden imposed on the abutting property owners in these towns of the larger and smaller population as superficially appears. In the cities of smaller population, while one-third of the whole cost of the improvement is to be paid by the city at large, yet in computing that cost the paving of the street intersection is not segregated. (Weigand v. City of Wichita, 111 Kan. 455, 207 Pac. 651.) In the act under present scrutiny the city at large pays the cost of paving the intersections, and the abutting property is only specially charged with the cost of the improvement within the block.
It is also contended that the resolution and ordinance concerning this improvement are broader in their terms than the statute itself. We think not. There may be more than one main thoroughfare through a city, and as our cities continue to grow several thoroughfares will be a necessity. It is a matter of common knowledge that the increasing congestion of traffic in the larger cities is one of the chronic problems of municipal government, and many devices are being used to deal with it, including the rather drastic one of requiring all traffic on certain streets to move in one direction only. In this, as in many other respects, the police power expands as necessity compels.
Another objection to the resolution and ordinance which make a traffic street out of Central avenue is that Central avenue does not in fact connect two business districts of Wichita. Somebody has to determine that fact and the legislature has said that the city authorities may do so, and has also declared that the city government’s finding to that effect is conclusive.
The other arguments against the validity of R. S. 13-1041 and the resolution and ordinances based thereon have had our careful attention, but need no further discussion.
The judgment is affirmed.
Hutchison, J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff sued to recover on a promissory note in which he was named as payee and to foreclose a chattel mortgage given to secure its payment. The defenses pleaded were that the plaintiff was not the owner or holder of the note, but that it had been given to Tom Ladenes, who was the owner of it; that the note had been fully paid to Tom Ladenes; and that all that had been done by Tom Ladenes had been authorized by the plaintiff and had been done with the latter’s full knowledge and consent. The execution of neither the note nor the mortgage was put in issue. The evidence was submitted to a jury under instructions, a verdict was returned in favor of the defendants, and judgment was rendered thereon in their favor. The plaintiff appeals.
The evidence of the plaintiff tended to prove that the signatures on the note and mortgage were genuine. He introduced the note and mortgage in evidence. The evidence of the defendants tended to prove that, at and prior to the time when the note was given, Nicholas G. Ficho and Tom Ladenes each owned a half interest in a restaurant in Topeka; that Tom Ladenes sold his interest in the restaurant to Thomas Ficho for $2,500, $1,200 of which was paid and the note in controversy in this action for $1,300 was given for the balance; that the name of the plaintiff, W. Rea Heath, was inserted in the note as payee for the convenience of the parties; that Tom Ladenes was the person actually interested in the note and was the owner thereof; that payments were made on the note until the full amount thereof was paid; that at the time the payments were made Tom Ladenes had the note in his possession; that at the time the note was given the plaintiff was not present and did not take any part in the negotiations for the sale of the half interest in the restaurant by Tom Ladenes to Thomas Ficho; and that Nicholas G. Ficho and Thomas Ficho are brothers and Tom Ladenes is their brother-in-law.
In stating the issues to the jury the court said that the execution of the note had been admitted by the defendants and instructed the jury as follows:
“The burden of proof in this case is upon plaintiff. It is for him to prove his cause of action by a preponderance of the evidence. By a preponderance of evidence is simply meant a greater weight of evidence. When you have weighed all the evidence in this case, if you find there is a greater weight on the side of the plaintiff than on that of the defendant, then the plaintiff has proven his cause of action by a preponderance of evidence, and your verdict should be for plaintiff. But if you find the evidence equally balanced, or if you find there is not a greater weight on the side of plaintiff than on that of the defendant, then plaintiff has failed to prove his cause of action by a preponderance of the evidence, and your verdict should be for the defendants. The burden of proof is likewise upon the defendants to prove to your satis faction, by a preponderance of the evidence, the affirmative allegations of their answer.”
The defendants argue that it was error to give that instruction.
The plaintiff was the payee of the note. He produced it in court. Its execution, and that of the mortgage, was admitted by the pleadings.
In Williams v. Norton, 3 Kan. 295, this court declared that—
“There is no necessity for producing a note sued on at the trial, where the execution thereof is by the answer virtually admitted.” (Syl. ¶ 3.)
In Gulf Rld. Co. v. Wilson, 10 Kan. 105, this court declared the' law to be that—
“Where an action is founded on a written instrument, and the petition sets forth the same in full, an answer not verified does not put in issue the execution of such written instrument, and there is no necessity for proving the same on the trial.” (Syl. ¶ 2.)
In Central Branch U. P. R. Co. v. Wilcox, 14 Kan. 259, 271, this court said:
“The plaintiffs in error did not put their execution in issue by denying their execution by a pleading verified by affidavit, and hence the statements of the petition, alleging their due execution must be taken as true.”
In Esley v. People of Illinois, 23 Kan. 510, this court said:
“Where a person executed a promissory note for value received, he thereby admits prima facie that the payee thereof has the power to take the note, and sue thereon when the same becomes due.” (Syl. ¶ 1.)
This court used the following language in King v. Bellamy, 82 Kan. 301, 302, 108 Pac. 117:
“It is a well-established general rule that the possession of negotiable paper proves prima facie the ownership of the holder.”
The execution of the note being admitted, the plaintiff’s cause of action was established by the pleadings. The facts alleged in the answer, if true, were matters of defense, and the burden was upon the defendants to prove those defenses by a preponderance of the evidence. Under these circumstances it was error for the court to instruct the jury that “the burden of proof in this case is upon the plaintiff ... to prove his cause of action by a preponderance of the evidence.”
The judgment is reversed and a new trial is directed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This is an original proceeding in mandamus to compel the board of education of the city of Goodland to admit the plaintiff’s daughter, Dorothy Nutt Mitchell, to the Sherman county community high school as a pupil.
The case is submitted upon an agreed statement of facts, together with affidavits, wherein it is stated, among other things, that the Sherman county community high school is open to all pupils of the city of Goodland and the county of Sherman and has met with the requirements of the board of education, its governing body; that the plaintiff’s daughter, Dorothy Nutt Mitchell, was enrolled in such high school in the year 1927-1928 under the classification of a sophomore; that she completed the first semester and was promoted to the second semester, at which time she left school; that she again enrolled for the school year of 1928-1929 under the name of Dorothy Nutt; that shortly after her enrollment in the fall of 1928 she was informed that she would not be allowed to attend school any longer because she was a married woman; that she was allowed to return to school for one day, at which time there was a meeting of the board of education which decided and declared that she would not be permitted to return to the school; that Dorothy Nutt, the minor daughter of the plaintiff, was married February 29, 1928, to one Oliver Mitchell and that on August 9, 1928, a child was born to the said Dorothy Nutt Mitchell; that there are other married women enrolled in such high school.
Affidavits filed for the defendant school board in addition show that Dorothy lived with her husband a short time only; that the child was not prematurely born; that after separation from her husband she attended school at Edson; that she associated with other men several times each week during her attendance there, although married; that she persuaded another girl sixteen years of age to accompany her to a public dance.
On her behalf there are affidavits showing that one of the parties with whom she drove from Edson to Goodland was her cousin; that the other happened to be a party leaving Edson about the time school was out, who brought her directly to her home at Goodland, being on the road only three-quarters of an hour and arriving at her home before dark; that she attended the dance in question in company with her mother; that the sixteen-year-old girl who attended the dance with her stated to Dorothy that she had permission from her parents to attend the dance. There are affidavits of her associates stating that she was a girl of good moral character. Thefe is one by John Battin in which he says that in the school year of 1927-1928 he was the principal of the Sherman county community high school at Goodland and acquainted with Dorothy Nutt Mitchell; that she applied to him in February, 1928, to withdraw from school because of sickness, and that upon that application she did withdraw from school; that she was an average student; that she attended school regularly and that her deportment and discipline were good; that she had a good reputation and that her character could not be questioned.
There is no controversy as to a minor béing entitled to an education in the public schools. The question of her statutory right to enter school is not questioned provided, of course, her moral standards are not objectionable. The constitutional and statutory right of every child to attend the public schools is subject' always to reasonable regulations, and a child who is of a licentious or immoral character may be refused admission. As a general rule the power of expelling a pupil is in the school board, which has the power of controlling and governing the schoól. (R. S. 72-1029; R. S. 72-2614; R. S. 72-3209.) School authorities may exclude from association with the school anyone who may be or become undesirable from either physical malady or moral obloquy. (Kenney v. Gurley, 208 Ala. 623; 26 A. L. R. 813; 24 R. C. L. 644-648.) However, under the general public policy a student should not be excluded from attending school unless it is clear that his conduct conies within the rules just enumerated. It has been held that the directors of a school district had no right to enforce a rule authorizing expulsion of a pupil for attending social parties where the pupil had returned to his home and his parents approved of his attending such parties. (Dritt v. Snodgrass, 66 Mo. 286.)
The public schools are for the benefit of children within school age, and efficiency ought to be the sole object of those charged with the power and privilege of managing and conducting the same, and while great care should be taken to preserve order and proper discipline, it is proper also to see that no one within school age should be denied the privilege of attending school unless it is clear that the public interest demands the expulsion of such pupil or a denial of his right to attend. On the record submitted here, we are of the opinion the evidence was insufficient to warrant the board in excluding plaintiff’s daughter from the schools of Goodland. It is the policy of the state to encourage the student to equip himself with a good education. The fact that the plaintiff’s daughter desired to attend school was of itself an. indication of character warranting favorable consideration. Other than the fact that she had a child conceived out of wedlock no sufficient reason is advanced for preventing her from attending school. Her child was born in'wedlock and the fact that her husband may have abandoned her should not prevent her from gaining an education which would better fit her to meet the problems of life.
Under all of the circumstances we are of the opinion she should have been permitted to attend school. The writ is allowed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is a proceeding in habeas corpus commenced in the district court of Sedgwick county by W. E. Hodson to obtain the custody and control of his daughter, Jewell Hodson, from the respondents, Walter Shaw and Rachel Shaw. The court denied the custody of Jewell Hodson to the petitioner, W. E. Hodson, and gave that custody to the respondents, Walter Shaw and Rachel Shaw. W. E. Hodson appeals.
The district court heard the evidence and made findings of fact and conclusions of law as follows:
“1. That Jewell Hodson is a minor, born on the 4th day of June, 1915, and one of the ehildren'of the petitionfer and his wife who died in 1918.
“2. That after the death of the petitioner’s wife, Jewell Hodson, together with her two sisters, Dorothy and Archie, who are both older than Jewell, was left in the custody of Mrs. Rose Silknitter, a sister of the petitioner, in Wichita, Kan.
“3. In the month of November, 1919, Walter Shaw and Rachel Shaw, the respondents herein; requested Mrs. Silknitter to let them take Jewell Hodson home with them, which request was granted, and Jewell Hodson has resided since that time with the Shaws, visiting occasionally with Mrs. Silknitter and, at one time, she visited with her father in Texas.
“4. The Shaws reside on a farm and have a good home and they have provided Jewell with a good home and the necessary clothing and have sent her to school and Sunday school. She is now attending high school in Mulvane, Kan., where Mr. Shaw takes her regularly to school. She is now past thirteen years of age and has expressed a desire to remain with her foster parents, the Shaws.
“5. In March, 1926, the petitioner, W. E. Hodson, was sentenced by the United States district court at Wichita to the federal penitentiary at Leavenworth, Kan., for a period of three years, but was paroled before the expiration of his full term.
“6. While the petitioner was in the county jail of Sedgwick county, before being taken to the federal penitentiary, Mr. Shaw requested Hodson to allow Jewell to be adopted by Shaw, but this request was refused.
“7. In June, 1926, the Shaws attempted to adopt Jewell Hodson through a proceeding in the probate court of Sedgwick county, Kansas. This attempt was made by one of the probation officers of the probate court filing an affidavit in the juvenile court that Jewell Hodson was a neglected child, and the juvenile court then attempted to have the child given to the care of the Wichita Children’s Home and then the Wichita Children’s Home surrender the child to the Shaws. This proceeding was had without any notice to the petitioner or to his sister, Mrs. Silknitter. The Shaws knew at the time where Mr. Hodson was and where Mrs. Silknitter lived.
“8. At the time Mrs. Ozola Koontz made the affidavit in the juvenile court, concerning Jewell, she knew or easily could have ascertained where the relatives of Jewell were, and she made the affidavit at the request of the Shaws. Jewell Hodson was never actually placed in the children’s home and was not out of the custody of the Shaws during the proceedings in the juvenile court.
“9. The Shaws regard Jewell as their own child and there exists between them and Jewell a mutual love and affection. They are highly respected people and are financially able to give Jewell a good home and good education. They have no children of their own.
“10. The petitioner resides at Flint, Mich., and Jewell has never been there and does not wish to go. The petitioner and his other daughters live in Flint, Mich., where he is employed in the Buick automobile factory.
“11. The court believes and finds that it will be for the best interests and welfare of Jewell that she remain in the custody and care of the respondents. Walter Shaw and Rachel Shaw.
“12. The court finds that although it is for the best interests of Jewell that she remain with the Shaws, that her father and sister should be allowed to visit with her.
“13. The court is not able to say from the evidence that the petitioner is a proper person to have the care and' custody of Jewell.
“Conclusions of Law.
“1. The pretended proceedings in the juvenile court for the adoption of Jewell Hodson by the Shaws was void, and the juvenile court and the probate court had no jurisdiction in the case.
“2. It will be for the best interests and welfare of Jewell Hodson that she remain in the custody and care of Walter Shaw and Rachel Shaw, and they are the proper persons to have her care and custody.
“The writ of habeas corpus is denied.”
In determining questions of this character courts must take into consideration two things: one, the right of the parent to the custody of his child; and the other, the welfare of the child.
In Melroy v. Reiser, 123 Kan. 513, 255 Pac. 978, it was declared that—
“The father of a minor child (the mother being deceased) who has never legally surrendered his right to the custody of the child, and who is not found or adjudged to be an improper person to have such custody, is entitled to the custody of the child.” (Syl. ¶ 1.)
This principle has often been stated by this court — three times in 123 Kansas: the case just cited; In re Kailer, 123 Kan. 229, 255 Pac. 41; and Wood v. Lee, 123 Kan. 669, 256 Pac. 797. Many other cases might be cited.
In Chapsky v. Wood, 26 Kan. 650, this court said:
“The parents are the natural guardians and prima jacie entitled to the custody of their minor child, as well as chargeable with the obligation of its support.
“A child is not in any sense like a horse or other chattel, subject matter for absolute and irrevocable gift or contract.
“A parent’s right to the custody of a child is not like the right of property, an absolute and uncontrollable right. It will never be enforced where its enforcement will obviously destroy the happiness and well-being of the child.
“In such cases three rights or interests are to be regarded: First, that of the parent; second, that of those who have for years discharged all the obligations of parents; and third, and chiefly, that of the child.” (Syl. ¶¶ 1, 2, 3, 5.)
Another case is In re Snook, Petitioner, 54 Kan. 219, 38 Pac. 272, where this court said:
“In a habeas corpus proceeding by a mother, the father being dead, to obtain the custody of an infant Child from its paternal grandparents, who have had the care and possession of the child from infancy, the future welfare of-such child is the paramount consideration; and, under the evidence in this case, it is held that the best interests of the child will not be subserved by removing her from the custody of the grandparents.” (Syl.)
A large number of cases from this court might be cited to support this rule, but it is unnecessary to make further citations.
On the trial of the present action the court had before it the father, the child, and those who had cared for her since her babyhood. Under such circumstances the correct determination of the controversy depended largely on the sound discretion of the trial court. Unless the record shows that such discretion was abused, the judgment will not be disturbed. A host of cases from this court may be cited to support the rule just declared. The rule has been stated so many times that every lawyer practicing in the supreme court has knowledge of it. For that reason citation of authorities would be useless.
It follows that the judgment must be and is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action upon an oral contract whereby defendants agreed to assume and pay plaintiff’s labor bill against a contractor who at the instance of defendants had undertaken to drill an oil-and-gas prospect hole on a Sumner county quarter section to a depth of 3,800 feet, but who threw up the job when he had reached a depth of 2,929 feet and went off without paying his laborers, one of whom was this plaintiff.
Plaintiff’s petition alleged the interest of the defendants in the premises, their contract with one G. G. Sawtelle, the contractor, the drilling of the well, plaintiff’s services as a laborer on the project to the value of $1,288, the suspension of operations by the contractor on December 7, 1925, and plaintiff’s right to a lien on the leasehold and well-drilling equipment, piping and miscellaneous chattels used on the project for the satisfaction of his wage claim; and that he and a number of other laborers in like situation had assigned their claims to a trustee, who brought suit in the district court of Sumner county thereon and obtained an attachment on all property actually or colorably subject to the payment of their wage claims, and that plaintiff and other laborers in like situation were about to file statutory lien claims against the leasehold, well-drilling equipment and miscellaneous chattels pertaining thereto when these defendants made certain arrangements with one Braymer, an expert well driller, to continue the drilling to a depth of 3,600 feet. To enable Braymer to prosecute this job without hindrance and without being deprived of the use of the property subjected by the laborers’ attachment proceedings, and to avert the threatened subjection of the property to statutory liens on behalf of plaintiff and other laborers, the defendants orally agreed, as plaintiff alleged, to pay his claim and those in like situation with himself. Plaintiff further alleged that relying on this agreement he and his fellow laborers and their trustee forebore to file statutory lien claims and permitted Braymer to use the tools, fixtures, pipe lines, casing, derrick and other chattels covered by their attachment, and that pursuant to such agreement Braymer and defendants had the benefit of all the attached property without interference in prosecuting their drilling project to a depth of over 3,800 feet. Plaintiff’s petition concluded with an allegation of breach of contract and a prayer for judgment.
The defendant corporations, whose affairs inter sese are of no present concern, filed separate answers containing general and specific denials, setting up their interest in the premises by virtue of a lease from the owners of the fee. They admitted and alleged that plaintiff had no lien on the leasehold estate or the drilling equipment and related chattels; they recited the history and disposition of the attachment suit referred to in plaintiff’s petition, and concluded with a prayer for judgment of nonliability.
The cause was tried before a jury which rendered a verdict as prayed for in plaintiff’s behalf, and judgment was entered thereon. Defendants’ motion for a new trial was overruled and they appeal, assigning and arguing certain errors to be considered.
The first point pressed on our attention is that there was no consideration for the oral contract, and that the contract itself, being oral, was void under the statute of frauds.
That feature of the statute of frauds which denies the binding force of a promise to answer for the debt of another unless evidenced in writing and signed by the promisor does not materially affect this case. Either the defendants, for a sufficient consideration passing to themselves, obligated themselves to pay the plaintiff’s claim or they are not bound. Plaintiff did not seek to hold them merely because they had orally promised to pay the debt of Gib Sawtelle, the contractor. The defendants had spent a lot of money on the incompleted work of the contractor, and they stood to lose it all unless the prospect hole was drilled to a sufficient depth to determine whether oil and gas lay there. Even if it should prove to be a dry hole, other leaseholders of the vicinity had obligated themselves to contribute to the expense, but to obtain those contributions a specified depth had to be drilled. These contributions were to be available only as “bottom-of-the-hole” money. Moreover, the leasehold property and drilling equipment, piping, and the miscellaneous chattels pertaining to such a project, were tied up more or less effectively by the laborers’ attachment proceedings, and threats of labor liens were impending. An adjustment and understanding concerning these matters which neutralized for the time being the effect of the attachment and held off the imposition of statutory labor liens was quite a substantial consideration, both as a hindrance to the laborers and as a benefit to the defendants, and the obligation thereby assumed was an independent one made by defendants in their own behalf, not merely a promise to answer for the debt of another. (Patton v. Mills, 21 Kan. 163; Johnson v. Huffaker, 99 Kan. 466, 162 Pac. 1150; Gestenslager v. Rixon, 107 Kan. 623, 193 Pac. 184; Smith v. Investment Co., 112 Kan. 201, 210 Pac. 477; Higgin Mfg. Co. v. Bankers Mortgage Co., post, p. 267.)
Part of defendants’ argument on this point is based on the assumption that the time had gone by in which the laborers could have subjected the property to their statutory liens. The contention is untenable. The contractor threw up the job on or about December 7, 1925. The alleged agreement relied on to support this action was made, if at all, on March 8, 1926, three months later. There was still about a month.’s time in which to subject the property to statutory liens. (R. S. 55-207, as amended by Laws 1925, ch. 197.)
It is next asserted that the evidence was insufficient to prove that the contract relied on was made. That evidence, in brief, was to this effect: An attorney for the laborers, S. C. Burnette, addressed a letter to the defendants concerning the labor claims of his clients. De fendants referred this letter to their attorney, R. H. Wills. Pursuant thereto Wills conferred with plaintiff’s attorney on one or two occasions, and on March 8, 1926, he came to Arkansas City, where, according to the testimony of three witnesses for plaintiff, Burnette, Renn and Broadhurst, the agreement sued on was effected. Renn testified in part:
“Mr. Burnette called me in and wanted me to approve an agreement which he and Mr. Wills had entered into. He told me that Mr. Wills had offered for their company that if we would release the attachment suit and let Mr. Braymer go ahead and finish this well to the contract depth that they would pay our claims in full, and I raised the objection. . . .
. . Mr. Wills entered the conversation there. He said he didn’t see any reason why it wouldn’t be satisfactory. He said if we would allow them to go ahead and finish the well, after it was finished they would pay, would pay all the labor, but that it was not good policy to pay any of the labor claims until after it was completed. As I remember I presented the situation there, and finally Mr. Wills I think, said, you and Mr. Burnette talk it over. . . . Mr. Burnette and I talked it over afterwards, and later on had some conversation again with Mr. Wills. . . .
“. . . Mr. Wills came in along about noon and had a conversation there. “Mr. Wills made inquiry as to what we had agreed upon. I told him that our clients, while we had only talked to Mr. Batdorf, they were not willing for them to go ahead, that they felt like they ought to have their money, but that if he assured me that these clients would get their money when the well was completed we would let them go ahead at this time. ... He assured me if we would let Mr. Braymer finish the well they would pay the claims in full.
“Q. Did you believe he would do that? A. Yes, sir.
“Q. Would you have consented to them going ahead and using this attached property unless they had made that agreement? ... A. Absolutely not.”
The testimony of Burnette and Broadhurst was_ in substantial accord with that of Renn. So defendants’ contention that the evidence was not sufficient to prove the contract cannot be upheld. It was sufficient to invoke and require the determination of the jury. We do not overlook the testimony of R. H. Wills in defendants’ behalf, in which he denied that he had entered into any such agreement as that testified to by plaintiff’s witnesses. As to that we will only observe that lawyer-witnesses were used on both sides to a degree not approved by the ethics of our profession, the pertinent canon being:
“When a lawyer is a witness, for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.” (Canons of Professional Ethics, 53 Rep. Am. Bar. Ass’n, 774.)
Nor have we failed to note the letter of Burnette written March 27, 1926, to the defendants and particularly invoking the attention of Mr. Wills. It contained statements and observations at variance with the idea that a fair and square contract such as testified to by plaintiff’s witnesses had been made with Wills some twenty days-prior thereto. However, the seeming discrepancy between Burnette’s letter of March 27 and his testimony concerning the making of the contract on March 8 offered an excellent opportunity for a skillful cross-examiner to discredit Burnette’s testimony, but the record does not show that counsel for defendants took much advantage of it. Moreover, Wills’ own testimony was not that no agreement of any sort was made, but that there was a sort of nebulous understanding, that if Braymer was permitted to go ahead and finish the well notwithstanding the attachment and without interference by plaintiff and his fellow-laborers and if the cost was not too great and if the parties interested in discovering what the finished well would reveal contributed their promised share of bottom-of-the-hole money, his clients would pay the plaintiff and the other laborers. Wills, himself, testified:
“My idea was to try and settle the entire matter. ... I wanted to try to settle the whole thing absolutely from start to finish. I was trying to effect a settlement of all these controversies just as Burnette was trying to effect a settlement for his clients. ... I was absolutely trying to settle them.” •
The weight and credence of the evidence summarized as above, together with all the circumstances, and even including the discrediting significance which might attach to Burnette’s testimony because of his letter of March 27, were all matters for the consideration of the jury, and their verdict with the approval of the trial court thereon ends all controversy over the facts, and the contention based on the insufficiency of the evidence cannot be sustained. (State, ex rel., v. Telephone Co., 115 Kan. 236, 269, 223 Pac. 771; Agricultural Ins. Co. v. Ætna Ins. Co., 119 Kan. 452, 457, 239 Pac. 974; Fagerstrorn v. Keller, 124 Kan. 386, 389, 260 Pac. 632; Citizens State Bank v. Wiseman, 125 Kan. 510, 514, 265 Pac. 39.) In American Nat’l Bank v. Lipe, 123 Kan. 674, 679, 256 Pac. 967, it was said:
“Of what avail is it to seek to persuade this court that this controverted issue of fact might very well have been decided the other way by the tribunal authorized to determine 'it? (Perkins v. Accident Association, 96 Kan. 553, 555, 152 Pac. 736; Lumber Co. v. Workman, 105 Kan. 505, 508, and syl. § 1, 185 Pac. 288.)”
Another contention on which defendants place much emphasis is that R. H. Wills had no authority to make the contract on which this action is founded. In support of that point they invoke the common rule that an attorney has no general authority to make monetary obligations binding on his clients, and that it was not shown that Wills had either express or implied authority to bind his clients in this case. Implied authority was fairly deducible from the circumstances. A communication from plaintiff’s attorney addressed to defendants was referred to Wills for attention. He acted upon that reference. He made the contract. His clients got the benefit of that contract. Burnette’s clients, plaintiff and the other laborers were induced to depend on Wills’ promise made on his clients’ behalf, and relying thereon they forbore to enforce their attachment proceedings and forbore to file statutory liens because of Wills’ promise. The fact that defendants had referred Burnette’s letter pertaining to their interests to Wills’ attention quite naturally led them to put faith in what he said. Since defendants did turn the matter over for Wills to attend to, the mere fact that he happened to be an attorney did not disqualify him to act in the broader capacity of a negotiator in which he did serve the defendants. And while speaking of rules pertaining to the authority of attorneys to bind their clients, we must not forget the primary rule that an attorney is presumed to deal candidly with his clients and to inform them of what he has done and is doing in their behalf, and the presumption may be indulged in this case that Wills did apprise his clients of the highly beneficial contract he had effected in their behalf on March 8, 1926, on which this action is founded. (Hess v. Conway, 92 Kan. 787, 794, 142 Pac. 253.) It would be a queer rule of law to hold that a corporation could turn over to an agent a matter of business for attention, and when that agent had negotiated a settlement of the business beneficial to it that it could assume the position that it had no notice of the terms upon which the settlement had been effected and its benefits obtained, and thus be relieved of the pertinent obligation which its agent had made in its behalf, especially when the opposite party had been induced to forego his tactical advantage on the faith of such settlement. (22 C. J. 377, 385; 1 R. C. L. 483, 484.) In Globe & Rutgers F. Ins. Co. v. Warner Sugar R. Co., 176 N. Y. S. 3, it was said:
“The rale that one must ascertain an agent’s authority or deal with him at his peril, and that a special agent cannot bind his principal when acting outside the scope of his authority, is subject to the qualification that, where an agent is intrusted with a certain kind of business, he becomes between the principal and parties dealing with him, the general agent for such business, and his acts bind the principal, though he violates a private instruction.” (Syl. ¶ 2.)
In the opinion it was said:
“The reason for this rule is obvious. No man is at liberty to send a man forth to deal for him, with secret instructions as to the manner in which he is to execute his agency, which are not communicated to those with whom he deals, and then when his agent has deviated from those instructions to say that he was a special agent, that the instructions were a limitation upon his authority, and those that dealt with him acted at their peril. If the principal deemed the transaction to his advantage the instructions would remain a secret, and he would obtain the benefit. If in his opinion it was otherwise he could escape liability.” (p. 5.)
It is also suggested that if the agreement of March 8, 1926, was ever made it was waived and abandoned. This suggestion is prompted by certain language of Burnette in his letter of March 27 to Wills in which he especially urges payment of the claims of two laborers whose status was somewhat different from that of the others. Burnette wrote:
“While the other matter is in abejonee we thought the peculiar circumstance of their connection with this well would justify you in entertaining the proposition to settle with these two boys.”
Defendants argue that this language shows that the agreement of March 8 was “in abeyance.” But a matter in abeyance is not necessarily one that has been abandoned. Burnette’s obvious meaning was that, while the matter of paying the other laborers was being deferred until the completion of the well, there were good reasons why the claims of two of them should be paid without delay — that their wages should not be held in abeyance to await the completion of the well. Further than that, we see nothing in the point except a jury argument.
The next point argued by defendants pertains to the exclusion of certain evidence. This relates to exhibits of pleadings in other lawsuits which some of the attorneys for this plaintiff had filed against the trustee of the bankrupt contractor on behalf of other creditors of the bankrupt, and which contained no intimation of the agreement of March 8, 1926, sued on in this action. The argument is made that these pleadings would tend to prove that the alleged agreement of March 8 was never made, or was abandoned. This point is very remote, quite fanciful. It is, indeed, rather apparent that one or more attorneys bungled the cause of the laborers to a certain extent, and that better qualified counsel had to be brought into the case to put it to rights and to invoke whatever procedural rights plaintiff might have to enforce his just claim against the formidable defenses set up against it. The exclusion of those pleading-s was not erroneous. Other complaints on the exclusion of testimony cannot be considered because — whatever it was — it was not brought into the record as the code provides. (Civ. Code, § 307; R. S. 60-3004 and annotations; Newton v. Newton, 127 Kan. 624, 274 Pac. 247.)
Yet another error is assigned on misconduct of the trial judge in “making various and sundry prejudicial remarks upon the trial of the case in the presence of the jury.” There is no merit to this point and no excuse for raising it here. If anything of that sort had transpired it was the duty of counsel to raise it in the trial court at the proper time. Failing in that, it will not be considered on appeal. (State v. McKimson, 119 Kan. 658, 240 Pac. 567; American Automobile Ins. Co. v. Clark, 122 Kan. 445, 252 Pac. 215; State v. Robinson, 124 Kan. 245, 251, 259 Pac. 691.)
The foregoing disposes of the principal errors urged in defendants’ brief. Other arguments advanced therein have not been overlooked, but the reasonable limits of space have already been exhausted in this appeal. In defendants’ first brief and in their reply brief they argue that plaintiff and his fellow laborers had but a very attenuated claim on the property covered by the attachment, and that their right to a statutory lien would have been of little or no value, seeing that defendants had a claim on all the attached property superior to the attachment and superior to any statutory liens which might have been filed by virtue of the terms of their contract with the contractor. That contention is very far from being self-evident; we greatly doubt its soundness; but what is more important is that defendants did not have sufficient faith in it to litigate that question to a conclusion, but chose instead to make the bargain they did with plaintiff. It does not take a legal cinch to form a sufficient consideration for a settlement; a fairly debatable point is quite enough. (Reed v. Kansas Postal Telegraph & Cable Co., 125 Kan. 603, 264 Pac. 1065.)
The record contains no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The action was one to recover damages for failure to convey real property in accordance with a contract alleged to have been made for such conveyance. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The case was tried on an agreed statement of facts, from which the court made findings of fact and conclusions of law. The conclusion of the court was that there had been no contract because the minds of the plaintiff and the defendant had not met upon any proposition made by one of the parties and accepted by the other. Whether or not there was a contract must be determined from the correspondence between the plaintiff and the defendant.
The first proposition of the plaintiff to the defendant was by telegram dated August 31,1927, in which the plaintiff said:
“I will give you twenty-two hundred dollars cash, net to you, for the northwest quarter of section eleven, township twenty-seven, range thirty-seven. Answer.”
The defendant responded to that telegram under date of September 2,1927, in which the defendant said:
“I have decided to let you have the place at $2,200. . . . You pay the tax which will become due this fall. . . . You will get the rent crop this fall and take the place subject to my bargain with Mr. Rowe for next year’s wheat crop.”
On September 6 the plaintiff wrote the defendant in part as follows:
“. . . I am to give you $2,200 cash net to you. ... I am to stand all expense here at this end and pay all taxes this fall, and I am to receive % of the row crop from the renter, Ed. Rowe.”
On September 5, 1927, the defendant wrote the plaintiff notifying him that the land had been sold to another party. That letter contained the following language:
“The only difference between you and I on the deal was the taxes and agreeing to take it subject to the lease, which I haven’t heard whether you would do it or not.”
There is nothing in the record to show that one-fourth of the row crop mentioned in the plaintiff’s letter to the defendant corresponded to the rent crop mentioned in the defendant’s letter to the plaintiff. The plaintiff by his letter to the defendant on September 6 did not accept all of the counter proposition made by the defendant to the plaintiff. Consequently, there was no contract; the minds of the plaintiff and of the defendant did not meet.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Carl Wilson was found guilty in the first degree of the murder of his wife. He has appealed and contends that the court erred in not granting to him a new trial, for the reason that in the judgment of the trial court the evidence was not sufficient to support the verdict. This contention must be sustained.
There had been a previous trial of this case, at which time the jury returned a verdict of guilty of murder in the second degree. On the hearing of a motion for a new trial at that time the trial court set aside the verdict for the reason that the evidence was insufficient to sustain it. There appears to have been some public criticism of the action of the court in setting that verdict aside. In another criminal case disposed of recently the court was severely ridiculed in the local press as to the penalty imposed. While this case was being tried it came to the ears of the court, through no one connected with the trial of the case, that it was stated “that I got ‘a piece of money’ for giving this man a new trial before, and they supposed I would do the same thing again.” In ruling on the motion for a new trial in this case the court reviewed those matters and said:
“Now, as I say, with those things bearing down on me, I just wonder, sometimes, whether I am competent to pass on this motion for a new trial, and for fear that I might' be prejudiced or influenced by some such ridiculous things, I’m going to guard against it. I feel that I have done my duty toward Mr. Wilson in giving him a new trial in the other case, and the fact that the jury went out and so readily convicted him on this occasion of a murder offense, as I said before, gets me to thinking as to whether or not I might not have been influenced by the manner in which I have been treated in the handling of this case, and, of course, I do not want to be influenced; neither do I want to be put in the position that I’m afraid of public clamor or criticism of any kind, because I’m not. I try to do my duty fearlessly. Now, I am not going to make a lengthy comment on the evidence in the other case or this one, but what I stated, and I have no apology to make for what I did in that case at that time, and I am very much of the same opinion yet. I say I was not thoroughly satisfied that Mr. Wilson was guilty of murder and am not now; he may be. The jury thinks so, but the evidence is mighty slight, in my opinion. It seems that all the circumstances as I look at them resolve themselves in his favor. Now, counsel for the state mention the fact that he, Wilson, attempted to explain that a cow killed his wife, but the juiy did not accept that explanation. Well, I am wondering if it might be that the jury did go off on a proposition of that kind, that they thought it was up to Wilson to explain how his wife met her death. But we know that there is no explanation due from him whatsoever — it is up to the state to prove that he is guilty. It is hard for me to believe from the testimony that he is guilty, but, as I say, having resolved the matter in his favor once and for fear that I am being guided in my conclusions by the manner in which I have been treated in this case by some rabble on the outside who was not even in the courthouse and knew what took place, I believe I will overrule the motion for a new trial.”
In this case the prosecution relied upon circumstantial evidence, there being no direct evidence that the defendant was in any way responsible for the death of his wife. Hence, when the court stated, “It seems that all the circumstances, as I look at them, resolve themselves in his favor” instead of against him, it necessarily follows that the trial court’s judgment was that the defendant was not guilty. It is clear from the statement as a whole that such was his judgment, and yet he overruled the motion for a new trial and sentenced the defendant to the penitentiary for life. This was clearly erroneous.
No more important duty is imposed upon a trial court than that of approving or disapproving the verdict of a jury. It has been sometimes stated that the trial judge sits as the thirteenth juror, and though not quite accurate, it is a forceful way of stating his duty in the premises. The court has a somewhat broader field of view of the matter than the jury has, for the court should consider all that the jury considered and in addition to that the fact that twelve jurors have expressed their views in the verdict. But, having considered all of those matters, if in the judgment of the court the verdict is erroneous, it should be set aside.
In Williams v. Townsend, 15 Kan. 563, it was held:
“It is unquestionably the duty of the district court to set aside a verdict and grant a new trial whenever the jury have manifestly mistaken the evidence. And the district courts cannot shirk their responsibility by saying that the jury are the exclusive judges of all questions of fact; for, while this is true as long as the jury have the case under their consideration, yet, when the jury have rendered their verdict, then the judge himself becomes the exclusive judge of all questions of fact; and, while he cannot reform the verdict, nor modify it in any particular, nor set it aside if it is sustained by sufficient evidence, yet, if the verdict is manifestly erroneous, he should always set it aside, and grant a new trial; and he should be controlled by his own judgment in the case, and not by that of the jury.”
And in State v. Bridges, 29 Kan. 138, a prosecution for murder, the rule was thus stated:
“Where a verdict finding a defendant guilty of murder in the second degree is challenged in a motion for a new trial, upon the ground that it is not sustained by sufficient evidence, and the district judge announces that he declines to look into the evidence or pass upon its sufficiency, and then overrules the motion pro forma, and the evidence in the case is greatly conflicting and about equally balanced, held, that the rendering of the judgment upon the verdict by the trial judge without his approval thereof is in such a case a material error, and one for which the judgment must be reversed and a new trial granted.”
And in the opinion it was said:
“The district judge did not approve of the verdict of the jury as is usually done by trial courts in similar cases when such a motion is overruled, but expressly announced that he overruled the motion pro joma, and declined to look into the evidence, or pass upon its sufficiency. This was serious and grievous error. It was a refusal on the part of the trial court to perform its bounden duty, alike unjust to this court and the appellant. When a verdict is challenged upon the ground alleged in this case, the judge, who has the same opportunity to hear and see the witnesses as the juiy, should declare his approval or disapproval of the verdict, and if he refuses to do this by overruling the motion pro forma, and thereby attempting to transfer the whole question to the supreme court, he trifles with the sacredness of his duty. A party is deprived by such action of a review and consideration of the evidence by the court hearing and seeing the witnesses. This court does not have the same opportunity as the trial judge for forming a just opinion of the credence to be placed in the various witnesses, as testimony on paper is not like testimony from living lips. Even in a civil case, when the judgment of a trial judge tells him that the verdict is wrong, that, whether from mistake, or prejudice, or other cause, the jury have erred and found against the fair pre ponderanee of the evidence, then no duty is more imperative than that of setting aside the verdict and remanding the question to another jury. Railroad Co. v. Kunkel, 17 Kan. 145. In a criminal case this duty is still more important, and a trial judge ought never to sentence a prisoner upon a verdict which is properly challenged, unless he is willing to declare that the ver-diet of the jury should be accepted as just.” (p. 142.)
Here the situation is even worse than it was in the Bridges case,for the trial court makes it clear that in his own judgment the evidence does not support the verdict.
The rules above stated have been followed repeatedly. See K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 12, 30 Pac. 108; Butler v. Milner, 101 Kan. 264, 166 Pac. 478; State v. Frey, 111 Kan. 798, 208 Pac. 574; Stroup v. Northeast Oklahoma Rld. Co., 122 Kan. 587, 592, 253 Pac. 243, and cases there cited.
Appellee argues that the overruling of the motion for a new trial is itself an approval of the verdict, but the language of the court in passing on the motion in this case discounts that view. No heed should have been given to temporary public displeasure expressed with respect to former rulings, and especially with reference to rulings in cases other than that on trial. Particularly should this be true in a criminal case where personal liberty is at stake. This ruling of the court requires that a new trial be granted.
Other points argued by appellant need not be specifically discussed, for it is not likely they will occur on a new trial.
The judgment of the court below is reversed with directions that a new trial be granted. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for breach of covenants of a lease relating to maintenance and repair of the leased premises during the term, and condition of the premises at the end of the term. Plaintiff recovered, and defendant appeals.
E. J. Dietrich owned land which was suitable for use as a sand dump. To make the land available for such use Dietrich built a wooden trestle, on which the St. Louis-San Francisco Railroad Company laid a spur track. The track was constructed and was subse quently operated by the railroad company pursuant to a contract with Dietrich dated March 8, 1915. Dietrich built the trestle and entered into the contract with the railroad company for the purpose of leasing the land for use as a sand dump, and a lease to the Kansas City Sand Company dated March 8, 1915, was duly executed. The term extended to April 1, 1925. On November 7, 1917, the Kansas City Sand Company was absorbed by defendant, and the lease was formally assigned to defendant. The trestle was used for a sand dump by the Kansas City Sand Company until it was taken over by defendant, and was so used by defendant until some time after February 13, 1920. The trestle became unsafe for operation of the spur track because parts of the structure were beginning to rot. The railroad company suggested to defendant that the pieces be renewed. Defendant did not renew or repair. The railroad company then refused to operate the spur track, and later took up the track. At the end of the term the trestle was in a dilapidated condition. Defendant paid the rent stipulated in the lease from the time it entered until the end of the term. On February 27, 1920, Dietrich conveyed to Robert J. Brannon; in March, 1920, Brannon conveyed to plaintiff and another; in February, 1924, plaintiff’s cotenant conveyed to plaintiff.
The action was commenced on May 27, 1925. The petition pleaded the lease. The lease contained three covenants relating to condition and repair of the trestle. One was that the lessee would keep the premises in good and sufficient repair. Another was that at the expiration of the term the lessee would yield up the premises in as good condition as when entered upon by the lessee, ordinary wear excepted. The third covenant requires development.
The lease referred to the agreement between the lessor and the railroad company, referred to the track of the railroad company, and required the lessee to pay switching charges. After these provisions came the following:
“And the second parties [lessee] . . . assume and agree to perform all things required of said first party [lessor] under the contract between said first party and said receivers [of the railroad company], . .
The contract between the lessor and the railroad company contained the following provisions:
“The shipper [Dietrich, lessor] shall, before the construction of said spur track is begun, construct a wooden trestle to support the southerly one hundred and ninety-five (195) feet of said proposed spur track, so as to permit the economical unloading of sand from cars to be placed upon said trestle by opening the dumps in the cars and permitting the sand to be discharged from the cars to points underneath the track upon the trestle. Said trestle shall be constructed of and in a good, sound and safe material and manner. . . .
“The shipper shall at all times renew and maintain said trestle in and of good, sound and safe material and manner.”
When the lease was executed there was a small house on the land, which was in good repair, and which Dietrich used as an office. The house was standing when the lease expired, but was no longer habitable.
The result of the foregoing is, the lease must be read in this way: The lessee covenanted specially to renew and maintain the trestle of good, sound and safe material, and in a good, sound and safe manner. The lessee further covenanted to keep the premises generally in good and sufficient repair, and to surrender them in as good condition as when taken, ordinary wear excepted.
Defendant contends the provision in the contract with the railroad company relating to renewal and maintenance of the trestle was a personal covenant of the lessor, and was not binding on defendant. The provision concerned the land itself, and related directly to its beneficial use. The contract containing the provision recited that it should be binding on Dietrich’s lessees, and Dietrich required his lessee to covenant that the lessee would renew and maintain the trestle according to the contract with the railroad company. Therefore, defendant became bound by that covenant precisely the samp, as it became bound by the covenants to repair and leave in good condition.
Defendant contends plaintiff did not sue on this covenant. Plaintiff did not plead this, that and the other covenant in his petition, but pleaded the lease, and thereby pleaded all the pertinent covenants contained in it. He further pleaded failure of defendant to repair and to keep the property in as good condition as when defendant entered; pleaded demand on defendant to repair and to place the property in the condition called for by the lease; and pleaded it would cost $7,500 to repair and to place the trestle in as good condition as when defendant received it, natural wear excepted. The petition made it plain, therefore, that plaintiff was asking for an amount which would compensate him for the loss sustained through defendant’s failure to keep and deliver the trestle in proper condition.
Because the lessee received a new trestle safely built of sound ma terial, and surrendered a trestle on the verge of ruin, plaintiff was entitled to damages. To enable the court to make a fair estimate of damages, plaintiff proved first cost of the trestle, present cost of rebuilding it new, cost of putting it in condition to operate by using salvaged material, life of such a structure kept in repair, rate of deterioration, and other informative facts. Defendant objected to this evidence. It was properly received, not that any single item was conclusive, but for the purpose indicated by the court:
“I think it is competent. It is helping us to arrive at' an equitable sum here.”
The award of damages is not questioned, except as affected by method of proof.
There were some conflicts in the testimony. The court found generally for plaintiff, and the testimony favorable to plaintiff must be accepted here.
As indicated, the trestle was erected to be used, and was used, for a sand dump. Filling the structure with dumped carloads of wet sand, removing the sand, and repeating the operation over and over again, caused timbers to decay, and defendant’s theory of the case was this: Defendant rested under no duty to replace pieces of the structure as they deteriorated and to maintain the structure itself in good condition. Defendant covenanted to repair. Plaintiff became owner on February 13,1924, when his cotenant deeded to him. Right of action for damages accruing to the cotenants did not pass to plaintiff by the deed. When defendant became owner the trestle had been condemned and was in a nonreparable and worthless condition. Between the time defendant became owner and the time the lease expired nothing occurred to impair the usefulness of that which was already hopelessly decayed. Therefore, liability of defendant could not be predicated on the covenant to repair, and the covenant to surrender in good condition, ordinary wear excepted, was not available to plaintiff, because the trestle went to destruction through natural and ordinary wear.
Defendant’s superintendent testified that if timbers in a trestle are replaced as they decay, the trestle will last indefinitely. Plaintiff, who qualified as a witness on the subject, testified as follows:
“A. If the trestle is kept in repair it would last indefinitely.
“Q. Explain what you mean by kept in repair. A. Well, when a certain timber becomes unsafe, or ties become rotten or rails become broken, they are replaced. Just because there might be a weak spot in a certain tie or certain stringer would be no reason for letting the whole structure go to decay.”
This experience of men in the business explains the special covenant imported into the lease relating to renewing and maintaining the trestle. It was contemplated there would be a trestle fit for use on the land at the end of the lease. Whenever defendant became owner, duty to him to renew and maintain arose. He could wait, however, until the end of the term to put the structure in proper condition for leaving; but plaintiff was entitled to receive at the end of the term a trestle so renewed and maintained by replacements and repairs that it would be in good operating condition, ordinary wear of a trestle so kept up excepted.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to’recover $208 for certain soda-fountain booths sold and delivered by plaintiff, a manufacturer or jobber of drug-store fixtures, to defendants, who owned and operated a drug store. There is no real controversy about the sale for which the suit was brought. The defense was that a few months prior to this sale defendants had purchased a soda fountain from plaintiff on a written order contract and had paid for the soda fountain in part at the time the order was executed and the balance on the receipt of the bill of lading, and defendants alleged that they were damaged by delay in shipping the soda fountain and by various specified defects therein to the amount of $572, for which they asked judgment. Issues were joined on these claims of defendants. There was a trial to a jury, which answered special questions and found that plaintiff was indebted to defendants in excess of the amount sued for by plaintiff in the sum of $171.20. Judgment was rendered accordingly. Plaintiff has appealed.
On the trial it was stipulated that defendants had bought the merchandise for which suit was brought; that the same had been delivered to them; that the agreed price therefor was $208; that the merchandise had not been paid for, and should be paid for with interest at six per cent from June 21, 1926, except for the fact that defendants had a counterclaim against plaintiff, as set out in their answer.. The case therefore resolved itself into an action for damages by defendants against plaintiff for the breach of the contract for the sale of the soda fountain. The jury found damages in favor •of defendants and itemized the same as follows:
(a) For delay in delivering soda fountain..................!........ $150.00
(b) Because the fountain was 2% inches short of the exterior bar..... 75.00
(c) Because the draft arms are 4 inches off center................... 25.00
(d) On account of noisy Frigidaire machine or motor................ 100.00
•(e) On account of imperfect refrigeration............................ 50.00
Generally speaking, plaintiff contends that none of the damages .allowed by the jury resulted from a breach on the part of the plaintiff of the contract between the parties. With respect to the several items of damages there are further contentions in the alternative that they are not supported by the evidence, and that the proper measure of damages was not used. But we shall not find it necessary to deal specifically with these questions. We shall examine the various items of damages allowed to see if they are properly recoverable as breaches of the contract.
With respect to the allowance of' $150 for delay in delivering the soda fountain it was defendants’ contention that under the contract the fountain should have been delivered by June 1. Defendants were moving their drug store from one store building to another and desired to open their new store on June 1, and wanted the fountain to reach them in time to be installed by that date. The fountain did not reach them until about June 26. • They were unable to move until after the first of July, and as a consequence they had to pay, or did pay, rent on both buildings for a month at an extra cost to them of $150.- The written order for the purchase of the soda fountain was executed by defendants May 3, 1926. With reference to time of shipment it provided:
“Ship on or about soon as possible — want to open store June 1, 1926. . . . This fountain not to be shipped later than May 25, 1926.”
It contained a provision that it was made subject to the acceptance in writing of the plaintiff at its general office at Cleveland, Ohio. This written order was received by the plaintiff at its home office on May 10, and on that date plaintiff wired defendants:
“Rushing fountain, but tremendous volume and delay receiving materials makes it impossible to install for June first opening. Will require about four weeks to build your fountain. We are watching carefully and if any possible way of shipping sooner we will do so. Please wire collect if satisfactory.”
And on the same date plaintiff wrote defendants:
“. . . Our factory is considerably behind on shipments owing to the tremendous volume of business received this year and the delay in getting materials. We have instructed the factory to rush your order all that they possibly can and ship as soon after June 1 as possible.”
On the receipt of this telegram and letter defendants, on May 12, wired plaintiff:
“Do the best you can, but would like fountain installed earliest possible moment. Rush.”
It will be seen from this order and the correspondence that there was no agreement on plaintiff’s part to ship the fountain by June 1 or on any specified date. When plaintiff received defendants’ order it immediately notified defendants of its inability to construct and forward the soda fountain until some time in June, owing to volume of business and delay in getting materials, stating that the work would be rushed and completed as soon as possible, and asked to be advised if that was satisfactory. Defendants advised plaintiff to do the best it could. Hence the only agreement with respect to time of delivering the fountain was that the fountain would be constructed and delivered as soon as possible in view of other orders which plaintiff then had and delay in getting materials, and the defendants specifically acquiesced in that provision with respect to the time of delivery. Now there was no evidence that plaintiff did not rush the construction of the soda fountain, nor was there any evidence that it was not completed and shipped as soon as possible, in view of other orders which plaintiff had and delay in getting materials. There was therefore no breach of the contract with respect to the time of delivering the soda fountain. From this it necessarily follows that no damages can be predicated upon such breach. The •contract between the parties was in writing and consisted of the written order for the soda fountain and the correspondence between them. It is the duty of the court to interpret these writings as a matter of law. (Smith v. Paper Co., 104 Kan. 732, 734, 180 Pac. 983; Dohner v. Grocery Co., 116 Kan. 237, 240, 226 Pac. 767.) Plaintiff’s objection to submitting this item of damage to the jury should have been sustained.
As to the item of damages allowed by the jury, $75, because the soda fountain was 2y2 inches short of the exterior bar, it may be noted that there was no provision in the contract between the parties that the soda fountain would fit the exterior bar, or that it would not be short of the exterior bar 2% inches, or any other distance. The only provision in the contract with reference to the length of the soda fountain was the statement in the written order, “Length of interior 13' 2".” This, on its face, refers to the inside of the bar and counter, the space within which the various units making up the soda fountain were to be placed, and the parol testimony of the defendant who gave the order and of the salesman who took it was to the same effect. If defendants had an exterior bar which they desired the soda fountain to fit they could have inserted a provision of that kind into their order or contract; but this was not done. There is nothing in the contract, or any of the correspondence between the parties, to indicate that plaintiff, in constructing this fountain, knew that defendants had an exterior bar, or the length of it, and certainly nothing to indicate that the plaintiff was to construct a soda fountain to fit the exterior bar. Hence the fact that it did not fit it snugly forms no basis for damages for the breach of contract between plaintiff and defendants. Substantially the same thing may be said with reference to the third item of damages, $25, allowed by the jury for the reason that the draft arms were not in the center of the fountain. The draft arms are the high faucets out of which soda water and plain water are drawn in connection with the soda-fountain business. They are about four inches to the side of the center, and it was contended by defendants that this made an unsightly appearance to the fountain and depreciated its value. But there is no provision in the contract between the parties that these draft arms would be in the center of the fountain. In fact, as the various units were ordered to be placed in the interior of the fountain,-it was not possible for the draft arms to be in the ■center. These units are manufactured in a uniform size. The order was for an odd number of them. The draft arms have to be placed between them. It was absolutely necessary, therefore, in constructing the fountain, to have one more of the units on one side of the draft arms than on the other. There is therefore no foundation for the allowance for this item of damages.
The other items of the damages allowed were for a noisy Erigidaire machine or motor, $100, and an imperfect refrigeration, $50. The written order provided for “Frigidaire plan No. 131.” This is a cooling device not manufactured by plaintiff, a fact well known to defendants. In constructing the soda fountain plaintiff purchases from a manufacturer or jobber, and puts into the soda fountain the kind of cooling device the purchaser desires. In this case defendants desired and ordered placed in the soda fountain a designated cooling device. There is no provision in the contract and no representation on the part of the plaintiff that it would, or would not, be noisy, or that it would, or would not, produce perfect refrigeration. Hence there is no basis for allowing damages for breach of contract by reason thereof. It may be noted, however, that the ■difficulty defendants had with the refrigerating machine appears to have resulted largely from their lack of knowledge of how to set it or regulate it.
From what has been said it necessarily follows that there was no basis for allowing any of the items of damages as a breach of the contract between plaintiff and defendants.
The judgment of the court below will be reversed, with directions to enter judgment for plaintiff for the sum sued for, $208, with interest at six per cent since June 21, 1926. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a contract for advertising. The jury answered special questions and returned a verdict for plaintiff. Defendants have appealed.
Generally speaking, the facts are as follows: Defendants own and operate the Gayety theater in St. Louis. The title to the property was in the name of a corporation, the stock of which is owned by defendants. The corporation leased it for operating purposes to a company, which was really a partnership composed for the most part of defendants. The partnership employed C. W. Daniels as manager of the theater, and, aside from the booking of plays, he was in full charge of the business of conducting the theater in St. Louis, employed and discharged the help, prepared advertising matter, and made contracts for advertisements in newspapers, on billboards, by printed circulars, or otherwise, collected and handled all receipts, paid the operating expenses, and remitted the balance to his employers with a detailed statement of receipts and disbursements..
The plaintiff is an advertising company, and had made a contract with the street-car company of St. Louis, by which it paid that company a stated sum for the' privilege of advertising in the 228 street cars of St. Louis by cards placed in the cars. The space so contracted by it from the street-car company it sold to various cor porations, firms or individuals who desired to use advertising of that kind. On March 27, 1919, Daniels, as manager of the Gayety theater for defendants, executed a written contract with plaintiff, by the terms of which he purchased for defendants certain advertising space in the street cars of St. Louis, for which he, on behalf of defendants, was to pay plaintiff $177.84 per month, the advertising to begin in August, 1919, and to continue for forty weeks, covering what is generally spoken of as the theatrical season. This contract was fully carried out and the payments made thereunder. On March 19, 1920, Daniels, as manager of the Gayety theater for defendants, executed a written contract with plaintiff for similar advertising space in the 228 street cars of St. Louis for a term of forty weeks beginning August 22, 1920, at $177.84 per month.
While Daniels had been a theater manager for defendants for several years, and had managed the Gayety theater for three years, he was in fact employed for but one year at a time, and for the theatrical season beginning in August and extending to May or June. At the close of the theatrical season each year the question of his employment was taken up by him with defendants and he was each year employed for another theatrical season. This continued until in June, 1920, at which time he was not reemployed for the theatrical season beginning in August, 1920. The partnership which had leased the theater from the corporation owner and was managing it through Daniels, as manager, was composed almost entirely of the L. M. Crawford family. There was a change in this partnership, in the summer of 1920 occasioned by the death of a son of L. M. Crawford, when a daughter' took the son's place in the partnership, and as between them there was also a change of the division of the net receipts from the operation of the theater. On August 11, 1920, the defendant, L. M. Crawford, wrote plaintiff as follows:
“N. Y. office desires to cut out all adv. (except newspaper) and will make no appropriation towards billboards or street cars. We have arranged to carryout this policy and look to you to cancel any existing contract. Personally, we have always beliéved in billboards and street cars, and it is just possible that we may want to be with you folks again later on. Mr. Daniels (former mgr.) has not arranged to be with us this season and had no authority to contract for anything this season. Yours truly, L. M. Crawford.”
At the time this letter was written there was no “existing contract” between the parties except the one which forms the basis of this action. The prior similar contract of March 27, 1919, had been fully carried out. The statement, “N. Y. office desires to cut out all adv. (except newspaper) and will make no appropriation towards billboards or street cars,” was in the nature of camouflage. The evidence disclosed there was no New York office, and no one there who had any interest in the controversy, or authority to make or refuse to make appropriations.
This letter was followed by correspondence in which plaintiff referred to its contract, expressed the view that it should be carried out, and defendants denied any responsibility for the contract, and contended that Daniels had exceeded his authority in executing it, asked plaintiff to discontinue the advertising Daniels had contracted, and stated defendants would not pay for it. Defendants declined to furnish any copy for the advertising, and plaintiff placed in the space contracted for by Daniels a card, “This space reserved for the Gayety theater, 14th and Locust street.” This card was carried by plaintiff in all of the street cars of St. Louis for the time covered by the contract made with it by Daniels. Defendants declined to pay for any of this advertising, and plaintiff brought this action to recover the contract price of such advertising.
On behalf of appellants it is contended, first, that Daniels, under his employment as manager of the theater, had no express authority to execute for defendants the contract sued upon, and that if he had authority to contract for any advertising he had no authority to make a contract for advertising to begin after the end of Daniels’ own term of employment. In answer to special questions the jury found that Daniels in March, 1920, was employed as manager of the Gayety theater for the theatrical season ending May, 1920, and that he was authorized to contract for street-car advertising for the theatrical season commencing in August, 1920; that he was so authorized by the defendants verbally at the time of his employment.
.It is argued by appellants that there is no evidence to support these findings of the jury. It is true there is no evidence as to the exact words used at the time of Daniels’ employment respecting any specific authority for making contracts for street-car advertising, nor is there anything in the record to disclose that this specific question was discussed at that time. There is evidence, however, that he was general manager of the theater, in full operating charge of it; that he prepared the copy and made contracts for all advertising for the theaters in newspapers, on billboards, by circulars and handbills, and that the year before the contract in question he had executed and carried out a contract with plaintiff identical, except as to the time of its performance, with the contract in question, and that his acts and conduct in respect to all of this advertising were fully reported to defendants and the expense thereof charged to the business and accounted for in such repoi’t. We think that evidence justifies the answer made to the special questions by the jury. (2 C. J. 566, 643; Banks Bros. v. Everest & Waggoner, 35 Kan. 687, 12 Pac. 141.)
Much of the argument of appellants is based on whether Daniels’ act in executing the contract in question rests upon his implied authority, or the apparent scope of his authority, and is coneededly not appropriate if Daniels had express authority to execute this contract. The jury having found that Daniels had express authority to execute the contract, and we having determined that this finding is supported by evidence, the distinction made by appellants with respect to implied authority, or apparent scope of authority, of an agent can be passed by.
Appellants argue that Daniels had no authority to execute a contract to begin after his own term of employment had expired and to extend for a future time. There is not much merit in this contention. Contracts are usually made with respect to things to take place in the future as distinct from the present or the past. To say that a firm or corporation might properly refuse to carry out a contract made on its behalf by its manager or agent, otherwise duly authorized, simply because the term of service of such agent was to terminate, or would be terminated, before the contract could be fully carried out, is a doctrine which we cannot approve.
Appellants contend that the court applied an incorrect measure of damages. This contract was executed in Missouri and is concededly governed by the laws of that state. In similar contracts executed in the state of Missouri and interpreted by the courts of that state it has been held that the measure of damages is the agreed contract price, and this holding accords with our judgment. (Collier v. Domino Mfg. Co., 215 Mo. App. 345; Missouri Retail Hardware Ass’n v. Planters’ Operating Co., 294 S. W. 755 [Mo. App.]. See, also, West. Grain Co. v. Barron G. Collier, Inc., 163 Ark. 369.)
Appellants argue that the partnership which had employed Daniels changed by reason of the death of one of the partners, which put an end to this partnership and everything connected with it. This point has little merit. The partnership was really a family affair. One of the children dropped out by reason of death, and the father put in another. The business went on; the Gayety theater was conducted. It is true another manager was employed for the theatrical season beginning in August, 1920, and defendants undertook to ignore the contract in controversy; otherwise the business went on as usual.
Complaint is made of the instructions. The court gave instructions as to the rights of the parties if the jury found that Daniels had express authority to execute the contract, if he had implied authority to do so, and if his doing so was in the apparent scope of his authority. Since the jury found he had express authority, the instructions on the other theories become immaterial.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Higgin Manufacturing Company brought this action against the Bankers Mortgage Company and Glen J. Pearcy to recover for weather-stripping equipment furnished and installed in a hotel and apartment building at Mankato, Kan. The mortgage company challenged the sufficiency of the petition, alleging that it did not state a cause of action against it. That demurrer was overruled, and the mortgage company appeals.
In the petition it was alleged that about January 30, 1926, a contract of purchase was entered into between the plaintiff and Glen J. Pearcy, and also the Bankers Mortgage Company, for the weather-stripping of the building which was at that time in the possession of the mortgage company as mortgagee; that at the time of making the purchase it was understood and agreed by the mortgage company that payment for the work and material would be made by it. The contract was execúted on January 19,1926, and it recited the purchase of the equipment for certain windows and doors in the hotel and apartment, building and provided that $335, payable thirty days after the installation, should be made with a guarantee of the plaintiff to correct any defects due to imperfect material and workmanship for a period of ten years from the date thereof. This contract was signed by Glen J. Pearcy, purchaser, and by W. S. McCreary, sales agent of the company.
It was -alleged that the company was a mortgagee in possession of the building, and that at the time of purchase of the material it was understood and agreed by the company that payment for the material and installment should be made by it,'and that on January 30,1926, it addressed a letter to plaintiff in words as follows:
"In compliance with our conversation over the telephone this will advise you that the statement to be rendered by' you for weather strips on the hotel building at Mankato, Kan., will be paid by us who hold the mortgage on this property.”
This letter was signed by the president of the company. It is alleged that after this letter was received the plaintiff proceeded to furnish the material and install the weather-stripping equipment in the building, and afterwards sent the bill for the same to the mortgage company and Glen J. .Pearcy. On March 11, 1926, after the completion of the work, the president of the company wrote the following letter to the plaintiff: -
“Gentlemen — We are in receipt of the statement mailed to Glen J. Pearcy of Mankato, Kan., asking for $335 for weather strips placed upon the hotel building there. As soon as this statement is OK’d by Mr. Pearcy and he states that strips are on and the work "is satisfactory to him, we are ready to pay your statement. Yours truly, M. W. Cave, President.”
There is an allegation that Glen J. Pearcy approved the work and material and sent the same to the mortgage company. Since that time the plaintiff has repeatedly demanded payment of the claim, but it has refused to pay the same, and therefore judgment was asked. It is urged first that there is no allegation in plaintiff’s petition that a valuable consideration or benefit inured to the Bankers Mortgage Company for the promise, and therefore there is no liability of the defendants.
The Bankers Mortgage Company contends that it was the debt of Pearcy and that the contract must be regarded as collateral rather than an original promise. The allegations of the petition are that the Bankers Mortgage Company was’ a mortgagee in possession, and that it agreed to pay for the material and work .at the time the purchase was made. This averment, together with the letters, is sufficient, we think, to show an original promise. Being in possession the material and labor furnished and done subserved its purpose, inured to its benefit and to the damage of the plaintiff. There was. therefore sufficient consideration for the promise, and it is not within, the statute of frauds. (Patton v. Mills, 21 Kan. 163.) In that case-the court cited and approved the following statement:
“ ‘It may, indeed, be stated as a general rule that wherever the main purpose and object of the promisor is not to answer for another, but to subservesome purpose of his own, his promise is not within the statute, although it. may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability-of another.’ [3 Parsons on Contracts, 6th ed., p. 24.]” (p. 169.)
A similar ruling was made by the supreme court of the United. States in Emerson v. Slater, 22 How. 28 (63 U. S.), where it was said:
“Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own,, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to. pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.” (p. 43.)
See, also, Johnson v. Huffaker, 99 Kan. 466, 162 Pac. 1150; Ezell v. Butcher, 104 Kan. 465, 179 Pac. 332; State Bank v. Murphy, 115. Kan. 350, 223 Pac. 486; Hoag v. Boyle, 125 Kan. 436, 265 Pac. 61.
The judgment is affirmed. | [
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'The opinion of the court was delivered by
Burch, J.:
The action was one to quiet title against a deed alleged to'be a mortgage, which was in default, and which at the time the action was commenced was unenforceable by foreclosure because of the statute of limitations. The answer was that the deed was not a mortgage, and defendant was in possession. The prayer of the answer was that plaintiffs take nothing, but if plaintiffs were .granted relief defendants’ interest should be protected. The court found defendant was a mortgagee in possession, found plaintiffs were equitable owners, found the amount plaintiffs should pay to be entitled to reconveyance or cancellation, and rendered judgment accordingly. Plaintiffs appeal.
The deed was a warranty deed, was executed in December, 1919, by Joseph Sallee and his wife Hattie to F. G. King for a consideration of 1600, which was paid. On the same day King executed an instrument whereby he agreed to reconvey in one year on payment of $600 and interest at six per cent per annum. No part of the principal or interest has been paid. The findings that the deed was a mortgage and that King was in possession were sustained by the evidence. Sallee died, and plaintiffs are his heirs. Pending the litigation King died, and the action was duly revived in the names of the proper persons.
Plaintiffs relied for recovery on the provisions of R. S. 60-1802, which reads:
“When any mortgage on real estate has been in default for more than fifteen years, or the lien thereof has ceased to exist, or when action to enforce such mortgage is barred by the statute of limitations, the owner of the land may maintain an action to quiet his title and have the cloud removed.”
The statute has no application to the present controversy. The statute was interpreted in the case of Shepard v. Gibson, 88 Kan. 305, 128 Pac. 371. The legislative purpose was to change the “sword and shield” rule relating to pleading the statute of limitations and remove the disability of a landowner to make the bar of the statute the basis of affirmative relief. Under the statute he need not wait to be sued. He may sue to obtain an adjudication of the question whether right of action on the mortgage exists or has become barred. But it was not the purpose of the legislature to authorize more than adjudication of status of the mortgage — whether alive or dead — and permit extinguishment of either existing right or existing remedy. The extent of the remedy afforded by the statute was noted in the case of Berkley v. Idol, 91 Kan. 16, 136 Pac. 923. In that case the vendee of land under a contract to purchase did not pay for the land. After action to recover the debt was barred he brought an action to quiet title on the ground action to recover the debt was barred. The court held the action could not be maintained. In the opinion it was said:
“A vendee of lands who has not paid the consideration cannot maintain an action for specific performance, or to quiet his title against the vendor, without paying the amount due. He who seeks equity must do equity. A recent statute (Laws 1911, ch. 232) allowing a mortgagor to maintain an action to quiet title where the mortgage debt is barred by limitations was construed in Shepard v. Gibson, 88 Kan. 305, 128 Pac. 371. It was suggested in the opinion that it was not in the legislative mind to extinguish a cause of action but merely to adjudicate a status, and that under that statute the mortgagor, without waiting for an action by the mortgagee, might take the affirmative to have the vitality of the mortgage determined. It was stated, however, that the judgment in such a case would go no further than would have been awarded in an action brought by the mortgagee.” (p. 17.)
In this instance King entered before action to enforce his mortgage was barred. For the court to declare.that action on the mortgage is now barred would not help plaintiffs. Notwithstanding the fact that for purpose of foreclosure King’s mortgage became a dead instrument while he was in possession, he has an interest in the land which the statute did not extinguish, and he has a remedy by way of action to compel redemption which the statute did not extinguish.
“The taking of possession is a method of payment and is one of the remedies afforded mortgagees to obtain satisfaction of their liens.” (Lumber Co. v. Bowersock, 109 Kan. 135, 136, 197 Pac. 1104.)
Under all the authorities a mortgagee in possession may remain in possession until the debt is paid, although foreclosure becomes barred by limitation. (Kelso v. Norton, 65 Kan. 778, 70 Pac. 896; 34 L. R. A., n. s., 356, n.; 41 C. J. 614, n. 15 [d].)
Plaintiffs contend King did not become a mortgagee in possession because he did not take possession under the mortgage or with a view of enforcing the mortgage, and because he asserted in his pleading that his deed was not a mortgage. Those contentions were fully disposed of by the opinion in the case of Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610. The conclusion of the court was expressed in the syllabus, which reads:
“A mortgagee of real property in possession of the mortgaged premises after condition broken may not be dispossessed without the payment of the mortgage debt, unless his possession was acquired under such circumstances that he ought not in equity to be permitted to retain it.”
Plaintiffs contend King did not become a mortgagee in possession because he obtained possession through attornment of plaintiff’s tenant, which under the landlord and tenant statute was void. Mrs. Sallee testified as follows:
“After, we left the farm we had it rented to Mr. Kerr, and he paid the rent to us. He continued to pay the rent after my husband’s death. He paid me a year or two until after we had our trouble, then I quit trying to collect, as I didn’t know whether we were entitled to it or, not.
“I haven’t had any tenant on that place for the last five or six years. . . . “This man. Kerr never actually occupied the place, but he lived close to it and farmed it.”
King testified as follows:
“I am in possession of the land. I am not living on that land now, the man on it is my tenant. He has been on it as my tenant since about 1924. . . . “I rented this land to Kerr about four years ago. He lives one-half mile east from this land. In 1924 I went out and rented him the land. I did not know, as a matter of fact, that- he had already been occupying that land. I did not know the land had been cultivated before I went out to rent it to Kerr.”
The foregoing is all the testimony abstracted relating to the manner in which King acquired possession. It fails to establish corruption of the tenant by King, or bad faith on his part, or delivery of possession to King by Kerr while Kerr was a tenant in possession under plaintiffs.
The court found that Mrs. Sallee and Kerr recognized each other as landlord and tenant until 1924. The contention of King’s successors that the finding goes beyond the evidence is justified by the abstract. The court also found that Mrs. Sallee knew Kerr was King’s tenant from 1924 on, and made no objection. Plaintiffs contend there was no evidence to justify this finding. The finding doubtless rests on Mrs. Sallee’s testimony that she quit trying to collect rent because she did not know whether she was entitled to rent, and she had no tenant on the place for five or six years preceding the trial in May, 1928. The result is the same whether there was or was not evidence to sustain the findings just discussed, or either of them. There is still no evidence that, as a tenant in possession of the premises under lease from plaintiffs, Kerr, during a term of known duration and in renunciation of his landlord’s title, surrendered the premises to King. (See Myers v. Clark, 115 Kan. 418, 223 Pac. 287.)
Plaintiffs say the judgment did not protect their interests. Judgment was rendered pursuant to the following conclusions of law:
“3. The plaintiffs cannot maintain an action to quiet title against the defendant without having paid or tendered the amount due to defendant.
“4. There is due and owing from plaintiffs to defendant the sum of $905.20 as principal and interest on the original loan, and $71.22 as taxes paid by defendant, together with interest thereon at 6 per cent from the date they were paid, less $29.60 rents collected by defendant, with interest at 6 per cent from December, 1926, or $31.25.
“5. The plaintiffs are the owners of the equitable title to the real property in question, and are entitled to reconveyance or cancellation of the defendant’s interest upon the payment of the amounts found due, with interest at 6 per cent from date of judgment.”
The court could say no more. Plaintiffs did not ask to redeem. They want the money and the land too. The judgment permits them to get the land on payment of the balance due on the King mortgage.
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The opinion of the court was delivered by
Marshall, J.:
The action, one in forcible detention of real property after lawful entry, was commenced before a justice of the peace. An opinion was filed on May 4, 1929. (McConnell v. Rhone, ante p. 257, 276 Pac. 830.) A motion for a rehearing has been filed by the appellants, in which they say:
“The opinion seems to have been made on the theory that the question of jurisdiction was not presented until after reaching the district court, and that if the point had been raised in the justice court the opinion would have been different.
“The abstract did not show that the question was raised in the justice court, and showed b}^ cops'- of the amended answer the raising of it in the district court.”
The appellants attach to their motion for rehearing a copy of the answer which was filed by them before the justice of the peace. The former opinion was based on the facts shown by the abstracts presented to this court. Those abstracts did not show that any answer was filed before the justice of the peace. The facts alleged in that answer make it necessary to rewrite the entire opinion of this court. The former opinion with the syllabus thereto is set aside.
The complaint filed before the justice of the peace alleged that the real property had been sold by the plaintiffs to the defendants for a stipulated price, payable in installments, which were not paid; that the contract was forfeited according to its terms; that the defendants had lawfully entered upon the premises; and that they unlawfully detained the same from the plaintiffs. The complaint also alleged that notice to vacate the premises had been given. The answer filed by the defendants before the justice of the peace denied the allegations of the complaint and recited how the defendants had first acquired the property, and the transaction between the plaintiffs and the defendants by which the defendants conveyed to the plaintiffs the property in controversy and by which the plaintiffs agreed to erect a house thereon for a stipulated price, and agreed to reconvey to the defendants upon payment of the cost of the house. The defendants also alleged that the deed and contract constituted a mortgage and asked that the action be dismissed for want of jurisdiction in the justice of the peace to try the matters in controversy, and further asked that the court render judgment in favor of the defendants for the sum of $250 and costs if it had jurisdiction to do so. The answer was verified.
The action was tried before the justice of the peace. That trial resulted in a judgment in favor of the plaintiffs, from which the defendants appealed to the district court. There they filed a lengthy amended answer, in which they alleged—
“That there was a contract purporting to be a purchase of said realty by defendants from plaintiffs and there was a deed signed by defendants purporting to convey absolutely said realty to plaintiffs, both of which did not express the true contract'relations between plaintiffs and defendants, but if they did said contracts were never legally forfeited by the serving of a reasonable notice of opinion [option] to forfeit upon defendants.
“That a justice of the peace nor the district court upon appeal therefrom has no jurisdiction to forfeit contracts of sale for realty where the title is in dispute and the question of title is the determining matter to be tried in the case.
The concluding paragraph of the answer was as follows:
“Defendants further state that by reason of the above facts stated in paragraph third, the relation of mortgagor and mortgagee exists between plaintiffs and defendants, and that the deed is a mortgage, and that the justice of the peace nor the district court on appeal from the justice court do not have jurisdiction to try the cause, but that the action is to be tried only by a court having the power to foreclose mortgages and to exercise equity powers, and that the action should be dismissed with costs against plaintiffs and such further relief to defendants as the premises warrant in law and equity.”
To that answer the plaintiffs filed a reply which denied the allegations of the amended answer.
Trial was begun in the district court on the appeal from the justice of the peace, and evidence was introduced. The judgment on that trial recites:
“That the title to the real estate in controversy or dispute is involved in the issues in the case at bar; that plaintiff claims title, ownership and right of possession under a contract and under a deed from defendants; that defendants claim title, on the ground that the deed from defendants to plaintiff is in legal effect a mortgage; that said cause is here on appeal from the justice court, and by reason thereof said action should be stayed and certified for trial to the district court of Labette county, Kansas, sitting at Parsons, for trial in said district court, all as provided by law.”
On that finding the court then ordered—
“That the above-entitled cause be and the same is hereby stayed, and that said cause be and the same is hereby certified to the district court of Labette county, Kansas, sitting at Parsons, for trial in said court, all as provided by law.”
A stipulation was then entered into between the parties by which it was agreed — •
“That the testimony heretofore introduced upon the trial of said case before the Hon. W. D. Atkinson, on the 4th day of April, 1928, may be considered by said court and treated as the testimony of the respective parties at any future trial of said case as fully and completely as if same had been introduced by the witnesses themselves at such future trial, and said testimony shall be considered as reintroduced for all the purposes of the case; provided, however, that the respective parties hereby reserve the right to introduce such further testimony as may be or become material to the issues involved, and the right to further argue said case to the court.”
The action was then tried by the district court after it had been certified as above set out. The defendants filed a demurrer to the evidence of the plaintiffs based on the fact that the court had no jurisdiction to try the action, but the record does not show that there was any ruling on that demurrer. After the demurrer was filed the defendants introduced additional evidence. Argument was then made, briefs were filed, and the case was taken under advisement. The court found—
“That the above-named defendants and each of them were and are largely in default of the installment payments under the contract between plaintiff and defendants, which said contract is the basis of this action; that the above-named defendants are in default of the payment of taxes legally assessed against the premises described in the complaint filed herein, . . . that there was and is no debt which the above-named defendants were and are bound to pay to plaintiff by the terms of said contract, and hence no relation proper of debtor and creditor between plaintiff and defendants; that there is no equitable mortgage existing and no relation of mortgagors and mortgagee as between plaintiff and defendants; . . . that because of said defaults on the part of said defendants the above-named plaintiff is entitled to restitution and possession of the real estate described in said complaint.”
Afterward judgment was rendered in favor of the plaintiffs. That judgment provided that if “the unpaid balance on said contract be paid by said defendants to the clerk of this court within said period of ninety days, as herein provided, then said plaintiffs be and they are hereby directed to forthwith deposit with the said clerk of this court their special warranty deed conveying the above-described real estate to the above-named defendants.” From that judgment the defendants appeal.
It is argued that the district court did not have jurisdiction to try the action because it was commenced in a court that did not have authority to try the issues involved. We may concede the action was one that should have been commenced in the district court, where a proper judgment could have been rendered under the pleadings that were filed. The pleadings showed that the action was not strictly one in forcible detention. They contained all the allegations and presented all the issues necessary to enable the district court to have tried and determined the title to the property if the action had been commenced in that court. The defendants objected to the justice of the peace trying the cause on the ground that he did not have jurisdiction, but asked judgment for $250 if it should prove that the justice of the peace did have jurisdiction. The stipulation signed by the plaintiffs and the defendants after the cause had been certified to the district court was in effect a voluntary submission to the district court of all of the issues made by the pleadings and evidence introduced on the trial on the appeal, together with such further evidence as might be introduced on the trial in the district court. The defendants introduced further evidence. They could not object to the jurisdiction of the district court and at the same time voluntarily subihit the cause to that court for judgment. If they had desired to preserve the question of jurisdiction they should not have submitted the cause to the district court for determination. The issues made by the pleadings showed the action to be one properly for the determination of the district court and of which it had jurisdiction, and in which it could render a proper judgment. For the purpose of argument it may be conceded that the action got into the district court irregularly, but after getting there the defendants by stipulation and the introduction of evidence submitted the cause to that court.
It is argued that the title of the plaintiffs was that of mortgagees, and that judgment could not properly be rendered against the defendants except in an action to foreclose the mortgage. They would then have had the right of redemption after sale. The judgment ordered the possession of the real property to be restored to the plaintiffs on or before ninety days thereafter or that the defendants within that time pay to the clerk of the district court for the use and benefit of the plaintiffs the unpaid balance on the con tract for the sale of the property. This involves an examination of the contract, the material parts of which read as follows: . ■
“And the said parties of the second part hereby covenant and agree to pay to said parties of the first part the sum of five hundred seventy-five and 00/100 dollars, in the manner following:
“The sum of seventy-one and 88/100 ($71.88)'dollars on July 13, 1923, and a like sum at the end of each six-month period thereafter until the full sum of five hundred seventy-five and 00/100 ($575) dollars has been paid, with interest at the rate of eight per cent per annum, payable semiannually, on the whole sum remaining from time to time unpaid, and pay all taxes, assessments or impositions that may be legally levied or imposed upon said land subsequent to the year 1922:
“Parties of the first part hereby agree to place a copy of this contract and their special warranty deed conveying the within-described property to parties 'of the second part, in escrow, with the West Side Unión State Bank, of Parsons, Kansas, and said bank is hereby authorized to deliver said deed to second parties at such time as they have made all the payments hereinabove provided for, said payments to be made direct to said bank.
“And in case of the failure of the said parties of the second part to make either of the payments, or perform any of the covenants on their part hereby made and entered into, this contract shall, at the option of the parties of the first part, be forfeited and determined, and the parties of the second part shall forfeit all payments made by them on this contract, and such payments shall be retained by said parties of the first part in full satisfaction and in liquidation of all damages by them sustained, and they shall have the right to reenter and take possession of the premises aforesaid.”
The evidence disclosed that prior to the making of that contract the defendants owned the property in controversy; that the property was then vacant; that they desired to build a house on it; that the plaintiffs were engaged in the sale of lumber and building materials and in building houses for sale; that the defendants went to the plaintiffs to borrow money with which to build a house on the property; that the plaintiffs declined to loan any money to the defendants for that purpose; that it was then agreed that the defendants would deed the property to the plaintiffs, who would build a house on it and give to the defendants a written contract for the sale of it to them; that the defendants deeded the property to the plaintiffs; and that the contract, the material parts of which have been set out, was then signed by the plaintiffs and the defendants. There was also evidence which tended to prove that it was the intention of the parties that the transaction should be an absolute saie of the property by the defendants to the plaintiffs, but there was other evidence which tended to prove that the transaction consti tuted a mortgage to secure the payment of the amount of money it had cost the plaintiffs to build the house. The written instrument on its face does not purport to be a mortgage. It is a contract for the sale of the property by the plaintiffs to the defendants. The oral evidence was conflicting. Under those circumstances it was for the trial court to determine whether or not the contract constituted a sale of the property from the plaintiffs to the defendants or a mortgage of the property from the defendants to the plaintiffs. The court found that it was a sale and not a mortgage. That finding is conclusive. This proposition has often been decided. (Bauman v. Hoffman, 125 Kan. 62, 262 Pac. 545; Cox v. Gibson, 125 Kan. 76, 262 Pac. 1030; Garner v. Williams Oil & Gas Co., 125 Kan. 190, 263 Pac. 778; Peoples State Bank v. Hill, 125 Kan. 308, 310, 263 Pac. 1045; Citizens State Bank v. Wiseman, 125 Kan. 510, 265 Pac. 39; and Ellis-Swonger Motor Co. v. Watt, 125 Kan. 530, 264 Pac. 737.)
The judgment is affirmed, and the motion for a rehearing is denied. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for breach of an express contract of a father relating to the rearing of his children by his brother. Plaintiff recovered, and defendant appeals.
The circumstances out of which the litigation arose are stated in the opinion in the case of In re Kailer, 123 Kan. 229, 255 Pac. 41. In that case George Kailer and his wife Margaret resisted the habeas corpus proceedings brought by David Kailer to obtain custody of his children. George and Margaret contended they had received the children under contract with David that the children would be taken into their home, would be reared as their own, and David would not ask that they be returned to him. The contract was stated in the third finding of fact returned by the trial court, and appears in the opinion of this court in the habeas corpus case. Concerning the contract the trial court stated the following conclusion of law, which was approved by this court in the habeas corpus case:
“ ‘Not having surrendered his rights to the custody in the manner provided by law, the petitioner is not bound by his agreement with respondents that he would not ask for the children to be returned to him.’ ” {In re Kailer, supra, p. 230.)
Defeated in his effort to keep the children, George then sued on the contract stated in the finding of fact referred to, and alleged as breach that David repudiated the contract, demanded return of the children, and obtained custody of them by judgment of the court. At the trial of the present action counsel for plaintiff announced that he stood on an express contract, and did not rely on any implied contract. The court instructed the jury that if they found George made the contract and David breached it, George was entitled to recover damages for the breach. On the issue of express contract presented by the amended petition, and under the instructions submitting that issue to the jury, the jury found for plaintiff.
The court further instructed the jury as follows:
“If you find that a contract was made between George and David Kailer by which George Kailer was to take the children, nevertheless when David Kailer asked for their return to him, he then had the right to take his children, since he was their father, and since George Kailer had not adopted them.”
The instruction was correct, and, as the case was presented, should have been followed by “and your verdict will be for defendant.” The promise sued on was one which the law, because of a settled public policy, does not permit to become contractual, and the breach consisted in doing something which defendant had a right, under the law, to do. (In re Kailer, supra, and authorities cited in the opinion.) There can be no liability in damages for breach of contract when there is no contract and no wrongful breach of contract.
In his brief in this court George abandons the breach-of-contract theory of the action. He says:
“The question involved in this case is: Can the appellee, under the law, recover for services rendered by him in the support of these children, covering a period of some ten years? The general rule of law applicable to the case at bar is that it is the natural duty and obligation of the father to support his minor children, and the courts will enforce this obligation.”
George did not plead any natural, common-law duty of the father to support the children, breach of that duty, and liability to plaintiff predicated on breach of that duty. That kind of an action would begone to enforce an implied contract (quasi contract) obligation, and George sued for and recovered damages for breach of an express contract. George’s brief also contains the following:
“Where a child has resided with relatives who have voluntarily supported it, and demanded neither payment for its support,- nor that the parent take it back, or provide for it elsewhere, such person cannot recover from the parent for past support of the child. . . . So in this case, if the appellee rendered this service voluntarily, being a brother of the appellant, he could not recover. If the service was not rendered voluntarily, then he can recover, and the judgment of the lower court should be sustained.”
George cannot deny that he entered into the pleaded contract voluntarily, because he affirmed it and sued for its breach. What he did pursuant to the contract he did voluntarily, for the benefit and satisfaction to be derived from the rearing of the children as his own. His complaint to the court was that he suffered damages from a breach of the contract which consisted in depriving him of the privilege of continuing to rear the children. Whether he made advancements by way of maintenance of the children as a volunteer was a subject which did not get into the amended petition and upon which the court did not .instruct the jury.
The express contract on which George sued did not include compensation. The contract did not effect a business arrangement for maintenance and education of the children, and by its very nature it excluded compensation. It was conceded that David would not consent to adoption of his children, but George was to take them into his own home and rear them as his own. David did have a money arrangement with Margaret. She testified in substance as follows:
“He also said he felt he was amply able to help us a little, and if there was anything I wanted — little things at the drug store — to get them and he would pay for them. I used to set down and keep account of some things, just the same as I kept account of the household expenses, and he paid them. Those things consisted of malted milk, medicine, bottles, and materials for the first baby clothes. He helped pay the doctor bills. Jack was sick for two or three weeks, and Dorothy for almost three years.”
David testified it was considerable trouble for Margaret to keep track of her expenditures and furnish monthly itemized statements. Her expenditures were from six to seven dollars a month, and after a time he agreed to pay her ten dollars a month, which he did as long as the children were with her. In his petition George gave credit on account for monthly payments of ten dollars each, amounting to $1,150. George contradicted his wife, who personally made the financial arrangement with David, and undoubtedly knew what it was. George testified as follows:
“The Court: What was this $10 paid for? George Kailer: It was never paid; it was gave.
“Who gave it? Why, Dave gave it.
“Who accepted it? We accepted it.”
In any event, compensation for rearing the children was not an element of the contract sued on. In casting about for a measure of damages for breach of an express contract, void as against public policy, of no legal effect, and incapable of supporting a remedy, the court chose the rule applicable to breach of a valid contract to pay for maintenance and education but not specifying amount of compensation. (Rockwood v. Stubenhofer, 119 Kan. 307, 239 Pac. 993.) The instruction to the jury follows:
“When David Kailer asked George Kailer for the return of the children, the contract, if you find that a contract was made, was breached by David Kailer, and the plaintiff is entitled to recover damages. The amount of such damages will be the reasonable cost of maintaining and educating said children from the time when George Kailer took the children until David Kailer asked George Kailer for their return.”
The court’s theory evidently was this: George and Margaret took the children into their home and undertook to rear them as their own, relying on David’s promise that he would not reclaim custody. Their custody was not wrongful, and they discharged the duties toward the children normally attaching to parenthood. David was thus relieved of the financial burden of discharging those duties, and because he resumed custody, he ought to pay something. One flaw in the instruction consisted in giving force to a promise which the law does not recognize as binding, and in calling lawful resumption of custody breach of contract entailing liability in damages. Another flaw consisted in permitting recovery based on reasonable cost of maintenance. Conceding, but not deciding, that George might, in a proper proceeding, recover something for discharging the burden which he assumed when he made the arrangement with David, George and Margaret had the children as their own, and received all the benefit they expected to receive from the arrangement up to the time David resumed custody. Because the promise to leave the children with George and Margaret was one which the law does not tolerate, there could be no damages for disappointed hope, and the damages consist of what George had in fact reasonably and necessarily expended.
In the case of Cheever v. Kelly, 96 Kan. 269, 150 Pac. 529, a mother, made stranger to the father of her child by divorce, sued for expenditures for support of the child. In the opinion the court said:
“Expenditures of this character cannot be recovered in a simple action of debt, because the propriety of all such expenditures depends upon a variety of considerations. The action must in the nature of things be equitable in character. (Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628.) But the fact that such expenditures must be reasonable and just under all the circumstances, to authorize recovery, does not permit recovery of what would be a reasonable sum if it had been advanced, but which was not advanced.” (p. 270.)
In the opinion in the case of Arthurs v. Radloff, 117 Kan. 448, 232 Pac. 243, the court said:
“In suits of this character there should be a definite showing of the sums paid out by plaintiff and the reasonable necessity therefor . . .” (p. 450.)
An angry uncle is not entitled to more money than a distressed mother.
The present action was not prosecuted on the theory just discussed. The amended petition did not plead amount of expenditures, there was no proof of amount of expenditures, and the verdict was based on opinion evidence of what it is worth per week to maintain a child.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
Counsel for appellee, in a motion for rehearing, express the fear that some of the language of our opinion may be construed as overruling previous decisions of this court in malpractice cases. Since the court had no intention of overruling its prior decisions, and would regard such an interpretation of its opinion as being unwarranted, perhaps a few words should be written.
The appeal was from an order sustaining a demurrer to evidence, and this court was compelled to construe the evidence as favorably to plaintiff as could reasonably be done; hence, what was said about the evidence was not a final judgment on what was established by the evidence, but was the view most favorable to plaintiff to be taken of it. What conclusion should be reached on these matters after a completed trial was not before the court, and our opinion did not attempt to deal with that. It is true, as appellee contends, that the evidence on behalf of plaintiff was meager, and it was especially weak in evidence of medical witnesses; after appointing physicians to examine plaintiff the court sustained objections to most of the questions asked them. There were two points in which the evidence, considered as favorably to plaintiff as could reasonably be done, and not being explained or contradicted, tended to show negligence of defendant.
First, the X-ray pictures tended to show a badly dislocated elbow, and plaintiff’s evidence was to the effect that the elbow had not been treated. Appellee argues that the X-ray pictures should not have been taken as establishing anything, for the reason that they were not explained by medical witnesses, and contends that laymen, even courts, are not competent to read an X-ray picture and determine what condition it really discloses. That may be true, of course, as to many X-ray pictures, but as to those dealing with location of the principal bones of the body, such as of the arm, and for the purpose of establishing their relative position, the pictures are of a character that anyone can get at least a tentative idea from them. ' The pictures in this case tended to show a dislocated elbow. That is as far as we attempted to decide the question.
Second, the plaintiff testified that when defendant discharged him as practically cured his arm was in such condition that if it were held horizontally the end would drop with its own weight. This tended to show that the broken bones of the forearm had not knit; hence, the reasonable inference to be drawn from that was that de-" fendant was negligent in this respect. With the evidence tending to show negligence of defendant in these two respects, together with the evidence of a bad result, we thought it error to sustain the demurrer to the evidence under the authorities cited in the opinion. We adhere to that view; but nothing said in our opinion, or here, should be construed as the judgment of this court on the evidence after a completed trial of all the facts.
The motion for rehearing is overruled. | [
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■The opinion of the court was delivered by
Dawson, J.:
This was an action upon a contract defining the rights and liabilities of these litigants on a matter relating to the rehabilitation and completion of an oil well upon which operation had been suspended.
The plaintiff, Allen, owned an oil-and-gas lease on eighty acres in Butler county. In 1922 he had drilled a prospect hole thereon to a depth of 2,744 feet and had encased it with 2,340 feet of 814-inch pipe and 2,744 feet of 6%-inch pipe. Following this he suspended drilling operations until May 12, 1926, at which time he entered into a contract with defendant, the Derby Oil Company, whereby the latter undertook to drill this prospect hole to a greater depth in the hope that it might turn out to be a commercial producer. By the terms of the contract Allen agreed to assign to defendant a three-fourths working interest in the lease and gave it the use of the casing already in the well. Defendant agreed to continue the drilling at its own expense and to furnish all necessary equipment to handle the well if it should turn out to be a producer. Other terms of the contract provided:
“Second party [defendant] further agrees, if said well be a dry hole, to pull the 8¼-inch and 6%-inch casing aforementioned, or so much thereof as can be pulled, and deliver the same on top of the ground at the well to the party of the first part [Allen] free of cost to first party, and it is understood and agreed that all equipment, material and supplies furnished by second party shall be and remain the property of the second party.
“It is further agreed that if said well is completed as a commercial well, second party will purchase from first party on completion thereof an undivided three-fourths interest in said 8%- and 6%-inch casing and pay therefor, in cash, the present market price of similar casing on top of the ground at said location. And first party agrees to purchase from second party an undivided one-fourth interest in the derrick, additional casing, tanks, engine, tubing and pump and all other equipment, material and supplies necessary for producing and saving the oil and gas from said well and to bear his proportionate part of the cost of operating the same, but to pay therefor only out of his part of the proceeds of the oil or gas marketed from said well, and agrees that his portion of said proceeds shall be paid by the purchaser of the oil or gas to second party until the amount payable for said equipment, material and supplies is fully paid, second party to render to first party a full itemized statement of said equipment, material and supplies as soon as practicable after the completion of said well, and to furnish first party, for his inspection, the statement of the pipe-line runs from said well.”
Pursuant to this contract defendant promptly set to work, and'in a few weeks it had drilled the prospect hole down to 3,187 feet, at which level a vein of oil was struck which yielded a few barrels of oil per day, and which continued that yield for nearly two years and had not ceased to do so when this record was made up.
It appears that defendant put a pump on the well, sold the oil and kept the proceeds, but failed to account to plaintiff therefor or to perform any of its obligations toward him as defined in the excerpts of their contract quoted above. Hence this lawsuit.
Issues were joined as to whether the well was a commercial well, whether defendant’s course of dealing with the well and disregard of plaintiff’s contract rights would permit it to deny that it was a commercial well, whether there was a subsequent agreement between the parties which excused defendant from performing its contract duty toward plaintiff if the well were to be regarded as a dry hole, and whether defendant was bound to buy and pay for plaintiff’s pipe according to the terms of the contract.
Jury trial; special findings and general verdict for $3,574.76 in favor of plaintiff; and judgment accordingly.
Defendant assigns and argues certain errors, contending first that the trial court erred in its instructions to the jury that a recovery could be had by plaintiff even though the well was not a commercial well. The evidence showed that defendant dealt with the well as if it were a commercial producer. It installed a pump, erected storage tanks, connected it with an oil-buying pipe-line company, procured from plaintiff an assignment of his proportionate share of the oil runs and collected and pocketed the proceeds of oil sales — an average of 175 barrels or more every two weeks, yielding from $200 to $400 or more, and an aggregate of 6,302.48 barrels, worth $9,-538.28 in 1 year, 8 months and 15 days. At the end of the first eight and one-half months it had realized over $6,000, when, according to a letter from defendant dated May 26, 1927, in response to one of plaintiff’s repeated demands for an accounting, “'the expense of operating the well was almost $5,000.” A probative circumstance inhered in the fact that if the well turned out to be an unproductive “dry hole” defendant’s contract obligation required it to pull the casing and deliver it to plaintiff on the ground and free of cost to him. •Since that was never done and was only to be excused if a commercial well were completed, the probative significance of the defendant’s failure to pull and deliver the casing could not be ignored by the tribunal which was authorized to solve this disputed issue of fact. The contract provided that under alternative conditions defendant should buy a three-fourths interest in plaintiff’s casing pipe or pull that pipe and deliver it to plaintiff piled on the ground. If it were a commercial well it would buy; if not, it would pull. It declined to 'do either. A time comes when people who bind themselves in such a contract must perform in sofne fashion — when they must either fish or cut bait, and the criticism of the trial court’s instructions cannot be sustained.
It is contended, however, that the continued operation of the well notwithstanding its supposedly unprofitable character was pur suant to an agreement that the well should be pumped so as to keep the lease in force while other prospect holes were being drilled in the vicinity. The only agreement to that effect was that defendant’s vice president told Allen the well ought to be kept in operation until some neighboring prospect holes were completed, and Allen said that nothing would be done until after the neighboring “Shriver” and “Rosenthal” wells were completed. The “Shriver” well was completed as a producer in October, 1927. The “Rosenthal” proved to be a dry hole. Defendant’s vice president testified:
“Q. You claim you were holding this casing until such time, until the Rosenthal well and the Shriver well was completed so you could ascertain whether you wanted to continue? A. Yes.
“Q. Yet up to this date you have not offered to pull the casing or pay him for it, either one? A. No, because he brought this suit.”
Allen’s consent to the proposal of defendant that nothing should be done until the result of these neighboring prospect holes was ascertained merely deferred but did not waive his contract right to have defendant “buy or pull” the pipe in the Allen well.
Fault is found with the jury’s answer to this question:
“After the well was put on the pump and before the commencement of this action, did the Derby Oil Company, through its officers and agents, suggest to the plaintiff that this well was not a commercial producer, but that in order to keep the lease alive so that in the event other production and development in the vicinity of the lease might tend to give the lease a greater value, they should continue to pump the well, even though it was not a commercial producer, until such time as these various wells were drilled and tested? A. No.”
It is contended that this question should have been answered in the affirmative. But even so, it would not have compelled a different general verdict nor a different judgment than those rendered in the action. The period during which the well was to be kept on the pump, whether to do so was profitable or not, had terminated some two months before this action was begun. It was no part of the agreement that plaintiff should never be paid for his pipe nor have it pulled and delivered to him merely because of his assent to have the well kept on the pump until the neighboring prospect holes were completed. In May, 1927, defendant wrote to plaintiff saying that the result of the Shriver well would determine the outcome of the Allen well. When the Shriver well was completed and placed on the pump in October, 1927, it was time for defendant to elect whether it would treat the Allen well as a producer and buy three-fourths of the pipe from Allen or consider it a dry hole and pull the pipe and deliver it to him; and the jury’s special finding of fact, although justly subject to criticism, cannot affect this judgment.
The record discloses no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the defendant railroad company from a judgment rendered against it in favor of the administratrix of the estate of a former employee of the defendant, the plaintiff being the widow and dependent of the deceased. The action was under the federal employers’ liability act, the petition alleging negligence of the defendant company in not furnishing reasonably safe equipment and appliances for the supplying of water to its passenger coaches and in not properly inspecting the hose to determine if it was in safe condition for the purpose for which it was intended; that the hose furnished was defectively spliced, and when being used by the deceased on top of passenger coaches to water them and being drawn by him from one coach to another pulied apart and caused the deceased to lose his balance and fall to the pavement, striking the back of his head and shoulders, from which injury it is alleged he died about fourteen months later.
The answer, after a general denial, pleads contributory negligence, assumption of risk, and settlement, setting out a copy of the same as an exhibit. The reply admits the signing of such exhibit but alleges it was executed by reason of a mutual mistake as to the serious and fatal character of the injury, both parties believing at the time that the existing injury was only superficial and not serious. The jury rendered a general verdict for plaintiff for $2,500, designating $1,250 of it for loss of time and pain and suffering of the deceased, and $1,250 for plaintiff’s pecuniary loss as beneficiary, and answered the several questions submitted as follows:
“1. Whose duty was it to inspect the hose which Crouch was using, to ascertain whether the same was in proper condition? A. Any employee using hose.
“2. Did Charley Crouch before receiving his injury on August 11, 1923, carefully inspect the hose and its connections to see that it was in proper condition? A. Just casual inspection.
“3. If Charley Crouch had have inspected the hose before using the same would its condition have been detected? A. No.
“4. Would an inspection by Charley Crouch of the coupling of the hose have disclosed the fact that the hose was liable to pull in two? A; No.
“5. Did Charley Crouch recover from his injury of August 11, 1923? A. No.
"6. After August 11, 1923, do you find that Charley Crouch returned to work for the defendant and worked twenty-four days in the month of October; thirty days in November; thirty-one days in December, 1923, and thirty days in January; twenty-nine days in February; thirty-one days in March; eleven days in April; twenty-seven days in May; and two days in June, 1924? A. Yes, with help of his son.
“7. If you answer the preceding question ‘No,’ then state what portion of the time from October, 1923, to June, 1924, inclusive, did the said Charley Crouch work for the defendant? A.
“8. Was Charley Crouch’s full name, ‘Charles Robert Crouch?’ A. Yes.
“9. Was the death of Charley Crouch on the 24th day of October; 1924, due to ulcers of the stomach? A. No.
“10. If you answer the preceding question ‘No,’ then state what was the cause of the death of said Charley Crouch? A. Injuries resulting from fall from car.
“11. Why did the hose pull apart while Crouch was using it? A. Defective connection.
“12. Was the fall of Charley Crouch from the passenger coach on August 11, 1923, due to the negligent and careless manner in which he handled and pulled upon the water hose? A. No.
“13. What, if any, negligence do you find against the defendant? A. Failure to provide efficient equipment to water cars.
“14. If you find any negligence against the defendant, then state what agent, servant or employee of the defendant was responsible for such negligence. A. Whose ever duty it is to provide equipment.
“16. At the time plaintiff signed the release in question was there a mutual mistake of fact between the plaintiff and the defendant as to the nature and extent of plaintiff’s injury? A. Yes.
“17. If you answer question No. 16 in the affirmative, then state fully of what such mutual mistake of fact consisted. A. Neither party realized seriousness of injury.
“18. If you answer question No. 16 in the affirmative, then state fully what was said by plaintiff and defendant at the time the release was signed that caused or produced a mutual mistake of fact. A. Both parties thought and said that Crouch was able to go back to work in a few days.
“19. At the time plaintiff signed the release in question was he caused to sign the same by reason of any false or fraudulent statements made to him by the defendant? A. No.
“20. If you answer question No. 19 in the affirmative, then state what officer or agent of the defendant company made such false or fraudulent statement. A. No.
“21. If you answer question No. 19 in the affirmative, then state what were the false and fraudulent statements made by the defendant which induced the plaintiff to sign the release. A.”
Defendant insists that its demurrer to the evidence of the plaintiff should have been sustained because of the failure of the evidence to show negligence of the defendant, reasoning that the water hose was a simple tool and that the burden of inspection of it for defects was upon the employee and he assumed the risk, and that it was an inevitable accident. It will be observed in this connection that the testing of the hose was done in the shop when any repairs were made on the hose, by both water pressure and air pressure — a method not available to the car cleaner who was using the hose. After the injury it was observed that the separation of the hose which caused the deceased to lose his balance and fall was at a joint where the hose had been spliced by inserting a piece of gas pipe with a clamp or band around each end of the hose. The witnesses said it “slipped loose” and “pulled in two” at this splice. However simple the tool is, the efficiency of the repair of it where broken or cut may very properly be a matter not readily within the knowledge of a workman who uses it after being repaired, especially when such repairs must be tested by high pressure of air or water. Besides, the deceased was not the only one using this hose; it was used by other car cleaners on the same and other shifts to water passenger coaches, and also by the freight crews to supply their coolers. The defect, if any, in this hose was in the repairing, because it pulled apart at the point of splicing. The assumption of risk by the employee begins after the employer has performed his full duty by providing the workman with safe and reasonably suitable tools, and any failure to furnish such would constitute negligence unless the workman knew of the defective condition or could have known of it by reasonable observation.
“The ordinary risks incident to the business assumed by an employee are those only which occur after the due performance by the master of those duties which the law imposes on him.” (Emporia v. Kowalski, 66 Kan. 64, syl. ¶ 3, 71 Pac. 232.)
The pulling apart at the place where repaired eliminates the theory of its being an inevitable accident, and the evidence tends to show negligence on the part of the defendant and was sufficient to be submitted to the jury. We have no information as to whether there was more or less testimony on this subject offered by the plaintiff on this trial than on the former trial, where this court reached the same conclusion with reference to the demurrer to the evidence. (Crouch v. Missouri Pac. Rld. Co., 124 Kan. 305, 259 Pac. 799.)
It is urged that the court erred in giving and in refusing to give instructions. We see no error in refusing the requested instruction illustrating and applying the unanimity rule to the question of ulcers of the stomach being the cause of the death. The formal instructions are not abstracted, but it will be presumed the jury was generally instructed that unanimity of conclusion was essential on all necessary allegations, and if so instructed it was entirely unnecessary to apply the rule to any one or more items of the evidence or features of the case. (Converse v. Watts, 127 Kan. 673, 275 Pac. 181.)
Appellant calls our attention to inconsistencies between two instructions given concerning the duties of the employer and employee as to the use of simple tools. The first one states the law and the second applies it to furnishing hose and inspecting and repairing the same. The criticism is of the statement of the abstract principle and not of its application. The first, we think, correctly stated the general rule, and whatever apparent difference there is in the application thereof is in favor of the defendant, and possibly goes a little farther than our views on the subject already expressed in this opinion.
“Assumption of risk cannot be declared as a matter of law unless the employee knows, or should know, what the danger is and knowing the danger continues in the performance of his labor.” (Tartar v. Missouri-K.-T. Rld. Co., 119 Kan. 738, 740, 241 Pac. 246. See, also, Railway Co. v. Quinlan, 77 Kan. 126, 93 Pac. 632; Brooks v. Manufacturing Co., 94 Kan. 86, 145 Pac. 840; 39 C. J. 342.)
The failure of the trial court to render judgment for the defendant on the answers to special questions notwithstanding the general verdict is claimed to have been error, because the negligence found by the jury is outside of the issues and proof and because the mutual mistake found by the jury was not a mistake of an existing fact but of some future condition or speculation .as to the final result or effect of the injury. Both these points are good in theory, but we were able to find in the petition allegations as to negligence in failing to furnish reasonably safe equipment for the supplying of water, and that the hose was defectively spliced, which, with a general denial for answer, puts in issue matters to -which the answer as to negligence that it consisted of “failure to provide efficient equipment to water cars” was pertinent. The showing that the hose did pull apart at the splice was some proof of its defective condition. It was clamped at both ends,'but it “slipped doose.”
The appellant suggests the similarity between this case and the case of Powell v. Kansas-Mo. Rly. & T. Co., 121 Kan. 622, 249 Pac. 675, where the jury answered that the mutual mistake was “that they were uncertain as to the result of the injury.” The court there very properly held “that was a future event which neither party knew or attempted to forecast, and neither had any misconception as to that event. It was treated by both as a matter of doubt and -uncertainty, and necessarily there was no mistake of fact which could have influenced the making of the compromise and release.” (p. 627.) The result of the injury is always a future event and ; speculative. The answers to questions 16, 17 and 18 in the case at bar do not deal with the future but with the present, namely, the -time the settlement contract was made and executed. The answers were, “Neither party realized seriousness of injury,” and “Both parties thought and said that Crouch was able to go back to work . in a few days.” Note they thought he was able to go back to work. They did not realize the seriousness of the injury — not the' result of the injury as in the above cited case. How serious was the injury? The injury occurred seven weeks before ‘these conferences, took place. He had been unconscious and blind a part of the intervening time, but now they all thought he was able to go back to work. A further significance of the evidence which doubtless prompted the addition of the words “in a few days” is the purpose of the deceased wanting to do some work at home before going-back. It was not that he will be able to go back to work in a few days, but in effect they thought he was then able to go back to work but wanted to do some work around his home before going back. This certainly refers to a present existing fact — the seriousness of his injury — and the fact that he was able to go back to work.
The facts in this case as to mutual mistake of fact are more nearly like those in the case of Koshka v. Railroad Co., 114 Kan. 126, 217 Pac. 293, where a settlement was made for an injury to the elbow of a workman, and the court affirmed the finding of a mutual mistake with reference to the same, using the following language in the opinion:
“It was also shown that he did not know he was seriously injured. Indeed, a few days after he was injured he returned to his job, and tried to use his arm, and not for some time did he know the extent of his injury. He depended on what the defendant’s doctor told him, ‘that he was all right, he can go back to work,’ and so, apparently, did the defendant’s claim agent who settled with plaintiff.” (p. 128.)
Both parties in the instant case thought the injury was superficial and slight and that he was ready to go back to work, whereas in fact the injury at that time was most serious and one from which the jury found he later died.
We have no difficulty in discriminating between this case and the Powell case in 121 Kansas, above cited, and holding in this case that there was evidence to support the finding of a mutual mistake, and therefore in sustaining the trial court in overruling the motion of defendant to render judgment for defendant on the special findings. Of course, without the finding of mutual mistake the settlement would be valid and binding, fraud having been eliminated by the jury, and under the authorities would have been as binding upon this plaintiff as upon the deceased if he had survived.
We find no prejudicial error in the record.
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The opinion of the court was delivered by
Johnston, C. J.:
Grace Dillon Giacomini, for herself and as next friend of her minor children, brought this action against her father-in-law, Orsino Giacomini, and Italo Giacomini, Hugo Batiste Giacomini, Laurence Lallement, and the De Coursey Cream Company, to restrain the defendants from voting or transferring certain shares of stock in the De Coursey Cream Company, and to require the assignment and transfer of the stock to plaintiffs, and also to recover a judgment against the defendants for $60,788 with the accumulated interest thereon of $8,500. The defendants answered with a general denial and added averments as to the purchase of the creamery by Orsino- for himself and his son, Romeo, the deceased husband of plaintiff, and for his two remaining sons, Italo and Hugo, as well as for his nephew, Laurence Lallement, and the De Courseys. He set forth the organization of a corporation which took over the business of the company, the issue and distribution of the shares of stock among the parties, including the issue of 150 shares to Romeo Giacomini in his lifetime, and by his authority and acquiescence, and also the payment of the shares made by all except Romeo; that Romeo had made a will which was probated in Leavenworth county with the knowledge and consent of the plaintiff, Grace Dillon Giacomini, and that she participated in the proceedings; that she was paid a valuable, fair and just consideration for the shares of stock, which belonged to her husband, and that she had instituted a suit by which she ratified a sale of the stock, and so estopped her to question or to contest the jurisdiction of the probate court to probate the will. A reply was filed by plaintiffs denying in detail the averments of the answer, with some explanations in support of the denials. The case was submitted to the court without a jury upon a vast volume of testimony, and the following is a summary of the findings of fact made by the court:
Orsino Giacomini, it was found, was a native of Italy, who came to Leavenworth county where he accumulated considerable wealth and had raised a family of three sons and one daughter, and also had taken and cared for his nephew, Laurence Lallement, who had lived with the family as one of the sons. Romeo, the deceased husband of the plaintiff, was the eldest and was married to plaintiff in 1916. He had been in ill health for several years and had gone to Colorado for lung trouble in 1914. During the World War Orsino purchased stock in the Schalker Packing Company, and through his acquaintance with army officers was able to secure valuable concessions and contracts at Camp Funston, which made the business very profitable. In the conduct of that business Orsino and his son, Romeo, were particularly active. After the war they sold out their interest in the packing company, and together with the De Coursey brothers purchased the Peerless Cream Company plant, at Wichita, in November, 1919, putting into the business $45,000. Orsino advanced $15,000, and the De Courseys $30,000; $22,500 was the amount which was paid to the trustee in bankruptcy, who sold the plant. The purchase was made by Orsino for the benefit of his three sons and his nephew, Lallement, under an agreement with them that they should repay him for the money advanced. Romeo then moved to Wichita with his family and purchased a residence there. The partnership was named the De Coursey Cream Company, and during November and December, 1919, and the year of 1920, it was operated by the De Courseys and the three sons and nephew of Orsino. The son, Romeo, lived in Wichita only two or three months when he became ill again, and in January, 1920, went to Arizona for his health, accompanied by his father, Orsino. Shortly afterwards the wife and children of Romeo followed and lived with him in Arizona until his death on February 24, 1921. A few days before his death he made a will, which was prepared by Orsino, in which all of his property was given to his wife, and named Orsino as executor-of the will. After Romeo’s death the widow and children returned to Wichita and lived there until sometime in 1923. Orsino had always acted as the head of the family, had looked after the property of all his children. He had the will of Romeo probated in Leavenworth county and the widow of Romeo consulted with him about business affairs, leaving almost everything to his judgment, and when the estate was closed the property of Romeo was all turned over to the widow according to the provisions of the will. When the Peerless Cream Company plant was purchased it was the intention to incorporate the company, and in September, 1920, appli cation for a charter was prepared and sent out to Romeo in Arizona, where he signed it, and in which it was set forth that Romeo was to have 150 shares of stock in the corporation. After the estate was closed and the plaintiff had received all the property of the estate, she still continued to advise with Orsino, who the court finds acted in the utmost good faith in looking after her affairs. Plaintiff wished to sell the 150 shares of stock in the company, and after some negotiations Orsino purchased the stock and paid her therefor the sum of $20,000 or $133.33 per share.
The contention of plaintiff that Romeo, her husband, was entitled to more than 150 shares of stock was rejected by the court.' It found that the 150 shares was all of the stock of the corporation that he was entitled to, and that when it was formed stock was issued to Giacomini’s other two boys and to his nephew. The sum paid plaintiff for the stock was a fair and reasonable price therefor. When Romeo and his father entered into possession of the packing company the money was furnished by Orsino. The four Giacomini boys, including the nephew, relied upon Orsino, and the De Courseys always consulted him. It was understood and agreed between Orsino and the four boys that Orsino should determine and apportion what interest each of the boys should have. When the corporation was organized 150 shares were issued to Romeo and held for him by Orsino, 184 shares of stock were issued to Hugo for the benefit of himself and Italo and Lallement, which were also held by Orsino until it was paid for by the boys, and the boys now own these shares of stock. The will was found to be genuine, duly executed and attested by the witnesses at the request of Romeo, and that alterations in the will were made before the signing and attestation. When it was presented for probate in Leavenworth county the plaintiff appeared in probate court, took part in and encouraged the proceedings, and after assuming and electing to be the sole devisee, voluntarily accepted from Orsino on an accounting $20,000 worth of property of her deceased husband, and later, claiming to be such devisee and legatee, she sued Orsino in the circuit court of Jackson county, knowing all about the contents of the will and the place of domicile of her husband. Orsino was not guilty of any fraud or wrongdoing in reference to the will or the probate thereof, and reaped no benefit therefrom, and knew that at all times he had acted in good faith in the belief that the will was valid and that the probate court of Leavenworth county had juris diction to probate the will and administer the estate. In addition to the $14,000 of life insurance received by plaintiff, $2,000 of which was payable to Romeo’s mother, who waived it in the interest of plaintiff, plaintiff received without complaint the $20,000 accounted for by Orsino, received also $20,000 for the 150 shares of stock, received also some $6,000 in dividends on the stock, and also monthly payments of interest from time to time aggregating $60,000 or more, and that before and after the death of Romeo she insisted that Orsino should administer the estate. After the accounting and the receipt of the $20,000 thereon, the certificate for 150 shares was still in the possession of Orsino. At that time plaintiff refused to allow Orsino to make certain deductions of $45 per share, but said she would take 50 shares of the stock and allow a deduction of only $45 and that Orsino would have to keep the other 100 shares, which being in the hands of Orsino should be divided equally, to which he assented. After the accounting and the receipt of $20,000 thereon, she refused to carry out the understanding as to the 150 shares of stock, and no part of the 100 shares was ever paid for by Romeo or anyone in behalf of them or either of-them. Orsino, the De Courseys, and the other defendants acted in good faith in the transactions of the cream company, there was no fraud or unfair dealing in the premises, and plaintiff was not misled or defrauded, and none of -them had told her that the stock was not worth more than par, or that no dividends would be paid in 1923, or that the prospects of the company were poor or not in good financial condition, and no misrepresentations made to her as to the conditions of the company, or as to the value of the stock at Kansas City. It was found that Orsino honestly accounted to plaintiff for all dividends or moneys or properties belonging to Romeo or the estate and duly made monthly payments to her during the administration of the estate. Orsino, in the exercise of the utmost good faith, relied upon the genuineness of the will, the validity of its execution and probate, and accounted in good faith to plaintiff for the property of the estate. It was found that plaintiff was and is estopped to bring or maintain this action or any of the claims advanced by her; that with full knowledge of the facts she has been guilty of laches in asserting her pretended rights and claims and is barred by the statute of limitations; that Romeo, in his lifetime, knew that there would be and that there was issued in his name and in his possession the 150 shares of stock, and also that 184 shares of stock were issued to Hugo himself and the other boys, and that any cause of action there may have been in the premises would have accrued in Romeo's lifetime, and therefore the estoppel and bar is involved. In reliance on the understanding of all of the parties as to their interest in the enterprise, Hugo, Italo and Lallement went to Wichita, and devoted their time and efforts to the upbuilding and improving; of the business, with the acquiescence of Romeo, while he lived, and of the plaintiff at all times, and Orsino had paid out of his own. pocket as a result of the illness and death of Romeo, about $2,000, for which he made no charge against his son or his estate, and when Romeo died he had in Leavenworth county goods, property and effects which remained there throughout the period of administration in the probate court. In the formation of the company and the issuance of the stock, payments of dividends were handled without fraud both before and after the death of Romeo. There is a further finding that from a preponderance of the evidence Romeo at the time of his death was a resident of Sedgwick county, but it was not so clearly and conclusively shown as to warrant a finding that the probate -of the will of Romeo in Leavenworth county should be set aside. In the income tax returns for the partnership in 1919 it was shown that Romeo was an owner of a four-twelfths interest in the partnership. While Romeo was participating in the partnership he drew as salary from the company $250 per month, and T. H. De Coursey drew a salary of the same amount. After the organization-of the corporation, capital stock was fixed.at $100,000, consisting of 1,000 shares with a par value of $100 each, and was issued to the partners in proportion to their respective ownership-in the partnership business. The certificate for the 150 shares to-Romeo was not delivered into his possession at that time, neither was the certificate for the 184 shares made out to Hugo Giacomini, but was retained in the possession of Orsino until sometime in May, 1921. The division of the 184 shares of stock which stood in the name of Hugo was not determined until after the death of Romeo, and when made it was done at the direction and upon the determination of Orsino. It was never intended by .Orsino nor by Hugo-that he should receive all of the 184 shares. The will of Romeo was never probated in the probate court of Sedgwick county. No guardianship proceedings have ever been had for the minors, and it was-finally found that at the institution of this suit and at the present time there are no unpaid debts of the estate of Romeo. Upon the findings the court concluded that Lallement is the lawful owner and holder of 50 shares, that Hugo was the owner and holder of 84 shares, Orsino is the owner and holder of 50 shares, and that Italo is the lawful owner and holder of 50 shares. The will in question was found to be genuine and valid,, and as to the probate of the will, it is found that while Romeo was a resident of Sedgwick county for a time the probate of the will in Leavenworth county should not be overthrown, and while there was a bare preponderance of the evidence that he resided in Sedgwick county this was deemed insufficient to overcome the presumption and evidence in the case that the probate court of Leavenworth county had jurisdiction, and the probate of the will and the administration of the estate there are found to be valid.
The plaintiff’s appeal and the principal questions raised are that certain findings of the court are not supported by the evidence, which is included in an abstract of plaintiff’s covering 282 printed pages and a counter abstract of defendants’ of 54 pages. The issues in the case are quite well indicated in the preceding summary of the facts obtained from the special findings of the court. We will take up plaintiff’s assignments of error substantially in the order they were presented. A number of the findings are challenged as being without support in the evidence, one of which is that Romeo, under whom plaintiff claims, had acquired a one-third interest in The De Coursey Cream Company, and in a settlement with defendants was entitled to that share. The cream company was operated under a partnership arrangement for a brief time, but from the beginning it was the understanding that it would be organized and operated as a corporation as soon as it could be conveniently done. The court, it is said, has found that during the existence of the partnership Romeo was one of the partners, and that Orsino was not a member of the partnership, and that it was specifically agreed that he should not be a member. It appears that the cream company was purchased and taken over on the basis that the De Courseys would own two-thirds of the plant and the Giacominis the remaining one-third. The negotiations with the De Courseys touching the purchase was carried on largely by Orsino for Kis three sons and his nephew, and he advanced the money for the Giacominis, amounting to $15,000. It was done with the understanding that the Giacomini boys, as they were termed, would each have an interest in the company, and that they would reimburse Orsino for the shares assigned to each of them. While Romeo had assisted Orsino, his father, in carrying on the business at Camp Funston, in which considerable money was made, the testimony tends to show that Romeo never acquired a one-third interest as claimed by plaintiffs, but that when the incorporation of the business was effected he was assigned a certain number of shares agreed upon, viz., 150, and appeared to be satisfied with the allotment made. He did not furnish any part of the $15,000 advanced by his father in the purchase and development of the plant, nor did he ever refund or pay his father any part of the money advanced for the Giacomini interest in the company. There can be little question as to the shares of stock allotted to and actually owned by Romeo. The application for a charter and the charter itself recited that he had 150 shares and the remaining shares, 184, represented the Giacomini interest. They were issued in the name of Hugo, to be later distributed among the Giacomini members when each of them should pay Orsino the amounts which he had advanced for them. It appears that Orsino, the father, had always looked after the interests of the four boys and manifested a desire to start them in business. He not only advanced the money towards that end, but advised and assisted them in starting the enterprise and promoting the business, and on the whole disclosed a great desire to aid in furthering the interest and success of Romeo and the other boys, and actually contributed much towards it.
There is conflict in the evidence, and the credibility of some of the witnesses upon whose evidence the court relied is assailed by plaintiff, but credibility of witnesses was a question for that court. There is an abundance of evidence to support the findings of the court as to the share actually owned by Romeo, and to negative the theory that he held one-third of the stock of the company, either individually or in part as trustee for the other members of the Giacomini family. Romeo knew that the 150 shares were allotted to him, and also of the disposition that was to be made of the remaining 184 shares, and the evidence justified the court in holding that if any cause of action ever existed in favor of Romeo upon this branch of the case, it accrued in his lifetime and that plaintiff’s action was barred by the statute of limitations. The general rule is that the statute of limitations which had commenced to run against a cause of action in the lifetime of a party is not suspended by his death but continues to run until the cause of action or demand is barred. (Green v. Goble, 7 Kan. 297; Davis v. Threlkeld, 58 Kan. 763, 51 Pac. 226; 37 C. J. 1028.) It is not apparent, however, that a cause of action ever arose against defendants in favor of Romeo or of plaintiffs.
Another ground of complaint is that Orsino was guilty of fraud in the purchase of the 150 shares from Grace Dillon Giacomini, the widow of Romeo, in that the stock was worth more than was paid for it. The evidence relating to this subject has been carefully read, and while she trusted Orsino and frequently acted upon his advice in business matters, we fail to find anything approaching fraud in the transaction. The court upon the whole of the evidence has found that the price paid to her, $20,000, being a little more than $133 a share, was a fair and reasonable price for the stock. We conclude from the evidence that the finding was justified.
It is further claimed that testimony on the points mentioned as to communications and transactions with the deceased was improperly received. It appears, however, that the court recognized fully the rule affecting the admission of such communications and transactions and when objections were specifically made and brought to the attention of the court they were sustained. It may be that some evidence crept in that was subject to that objection, but if so it was inadvertently done and the manifest purpose of the court was to exclude and give no consideration to that kind of testimony. The casé was tried without a jury, and the admission of incompetent testimony under those circumstances is not a ground of reversal unless it appears affirmatively that the objectionable evidence affected the result. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748; Collins v. Hayden, 104 Kan. 351, 179 Pac. 308.) It may be assumed that the court gave no force to testimony recognized to be inadmissible and based his findings on that which is competent. From the record it does not appear that such testimony as might be regarded as objectionable could have affected the result.
The validity of the will made by Romeo and the probate of it in Leavenworth county are challenged by plaintiffs. On January 29, 1920, and shortly after the purchase of the cream plant, Romeo became seriously ill with tuberculosis and left for Arizona, accompanied by his father, hoping to obtain an improvement in his condition by the change of climate. No permanent relief was gained by the change and he remained there until February 24, 1921, when he died. Not long before his death he requested that his father, Orsino, visit him and concluded that he had only a short time to live. A will was prepared which was written by Orsino. This will gave all the property of Romeo to his wife, Grace Dillon Giacomini. There is testimony that it was written with her knowledge and was read by her before it was signed. After providing for payment of debts and funeral expenses, it was provided that, “I leave and bequeath to my beloved wife, Grace Giacomini, any and all of my possessions, real or personal, wherever situate.” It contained a paragraph to the effect that the testator requested the appointment of-executor, without bond, leaving a blank for the name of the executor. When Grace Giacomini noticed the blank she inquired about it, and Orsino suggested that she should act in that capacity, but she was unwilling to do so and asked Orsino to act as executor, and after some discussion he agreed to do so, took out his fountain pen and with a different ink filled the blank by inserting his own name. There is credible testimony that the blank was filled before the will was signed by the testator and the pronoun “he” was inserted in blank left where it was provided that the one named should not be required to give a bond. The name of Romeo was attached to the will and there was a statement in the attesting clause that A. N. Mello and Orsino Giacomini both were present when Romeo Giacomini signed the will, and that both saw him affix his name to the will. Grace was present when the will was attested by the witnesses and manifestly knew the nature of the document. Mello, in a deposition filed in this case, stated in effect that he did not see Romeo sign the will and that blanks were not filled when he signed the attestation. The court, upon what appears to be sufficient testimony, held the will to have been duly executed in the presence of witnesses and that the alterations in the will were made before the signing or attestation of it. Much is said -as to the changes and as to the genuineness of the will, especially in respect to the filling of the blanks making Orsino the executor and its consequent illegality. The widow is in the peculiar position of attacking the will and availing herself of its provisions in which she was made the sole beneficiary. The evidence shows that she participated in the probate of the will and also that she elected to take under it, giving her all the property of the estate, rather than taking under the law, under which the children would have had one-half of the estate. She has accepted from the executor at different times, for a number of years, large sums of money, the proceeds of the estate administered by the executor, which aggregated about $60,000. She states that she had not learned of the invalidity of the will nor of the invalidity of the proceedings for its probate until long after-wards, but so far as she is concerned, she is hardly in a position to contend that the will is invalid, where she has accepted and still holds the property obtained pursuant to the terms of the will. (Chaffee v. Kaufman, 113 Kan. 254, 214 Pac. 618.)
There is a further contention that the will was ineffective because the court which probated it was without jurisdiction. This is based upon a claim,that Romeo and his family were residents of Sedgwick county, that the will should have been probated at the place of his residence, and that it was probated in Leavenworth county, where it appears the estate was administered to a final settlement under the directions of that court. Orsino Giacomini and his family, including Romeo, had been residents of Leavenworth county for many years. Romeo had been absent at Camp Funston and had been away in the mountain country for his health at different times. When the cream plant at Wichita was purchased he went there and lived there for two months in a house purchased in Wichita by his father. Then he was taken to Arizona, where he stayed until his death. Some of the evidence tended to show that Romeo was a resident of Sedgwick county, but the probate court of Leavenworth county, in which the proceedings were had, decided upon a showing made that he was a resident of Leavenworth county. Orsino had made and filed an affidavit in the probate court of that county to the effect that the residence of Romeo was in Leavenworth, and there were some grounds for it because of the transient character of his dwelling places, the temporary stays in several places where he went for the benefit of his health and for business purposes, the brief stay at Wichita, the removal to Arizona, doubtless intended at first to be no more than a temporary home, but when he got some relief from his illness in Arizona he stated that if he got well this time, he was going to stay in the desert and make his home down there. Leavenworth had been his fixed place of residence for years, and goods and property of his remained there until after his death. The probate court, which is a court of general jurisdiction in respect to such matters, has determined the question of residence, and that was a matter which the court was competent to decide. If error was com mitted it could have been corrected upon appeal or other direct proceedings. No such steps were taken, but the administration of the estate proceeded for a period of years until final settlement was made and there had been a distribution of the estate in accordance with the provisions of the will. Under the law the proceedings in such a case should be brought in the county where the deceased resided at the time of his death, and the actual place of residence may be shown in a proper proceeding where the jurisdiction of the court to administer the estate is involved. (Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369.) In the cited case, which involved the question whether one or the other of two probate courts which had assumed jurisdiction to appoint administrators and administer an estate, depending on the residence of the deceased at the time of his death, had jurisdiction, it was decided that the matter of jurisdiction of the court was open to collateral attack. In the later case of Robinson v. Railway Co., 96 Kan. 137, 150 Pac. 636, it was stated that the decision in the Mallison case is against the great weight of judicial opinion, and while it and another case were not overruled, the court, through Justice Mason, stated that: “The fact that they are out of harmony with the prevailing view of the law is a reason for confining their application within the narrowest limits.” (p. 143.) The appointment of an executor and the granting of authority to administer an estate are judicial acts, and when in due form are deemed to be prima facie regular and valid. It devolves on one attacking the legality of such an adjudication because of nonresidence to prove clearly and conclusively that the court rendering the decision was without jurisdiction. It has been said that—
“Collateral attacks upon judicial proceedings are never favored; and when such attacks are made, unless it is clearly and conclusively made to appear that the court had no jurisdiction, or that it transcended its jurisdiction, the proceedings will not be held to be void, but will be held to be valid.” (Head v. Daniels, 38 Kan. 1, 15 Pac. 911.)
See, also, Musick v. Beebe, Adm., 17 Kan. 47; Howbert v. Heyle, 47 Kan. 58, 27 Pac. 116; Bradford v. Larkin, 57 Kan. 90, 45 Pac. 69; Harvester Co. v. Algie, 101 Kan. 654, 657, 168 Pac. 876.
In an action to set aside a- will which had been probated it was said that when an executor has secured an adjudication probating a will, and has made the necessary proof of probate, he is not required to call witnesses to establish the will, but may rest on the prima facie case made for him by the order of probate, which stands as an epitome of all the executor was obliged to prove. (Rice v. Munroe, 108 Kan. 526, 196 Pac. 756.) There was testimony tending to show the residence of the deceased in another county which the court spoke of as a preponderance, but it found that it was not sufficient to overcome the adjudication of the probate court and all that was implied in the decision. Evidently the court held that there was not that clear and 'conclusive showing required to avoid the prima facie case to warrant a decision that there was a lack of jurisdiction in the probate court of Leavenworth county. Assuming that the residence of the deceased was open to inquiry, we think that in view of the circumstances that have been mentioned, the participation of Mrs. Giacomini in the probate of the will and the administration of the estate, down to a final settlement and the receipt of the entire assets of the estate, it cannot be held that the proceedings were void.
Since the will must be held to be genuine and valid, and that the proceeding in probating it is not invalid, it follows that the plaintiff, Grace Dillon Giacomini, was entitled to the entire estate as the will provided. This she has received, and since the children named as plaintiffs never acquired any interest in it or any right to maintain an action against the defendants, this action is not a matter of concern to them. The father, Romeo, evidently gave all the property to their mother upon the belief and theory that she would properly provide and care for them.
Some other objections have been urged as to rulings on the admission of evidence, the incredibility and weakness of some that was received, claimed defects in the steps taken toward-the incorporation of the cream company, which, was recognized by plaintiff in the claims made by her under the incorporation, alleged inconsistency in the findings of the court, and the refusal of the motion for a new trial. All of these have been carefully examined, but we find no material error in them nor anything in the case warranting a reversal of the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff brought this action for damages against the defendant railroad company for issuing a bill of lading for the shipment of a carload of milo upon a rate and route not authorized by its tariffs and which, according to plaintiff, was in breach of a specific ruling of the interstate commerce commission.
The material facts were these: Plaintiff shipped a carload of milo to market at Kansas City, Mo., from Tulia, Tex., via the Santa Fe railway and paid freight charges of 32% cents per hundredweight thereon, and received from the carrier inbound paid-freight bills for the amount so paid. These bills were available for credit on the reshipment of this or similar carload of milo to final destination. Some time later plaintiff desired to reconsign from Kansas City to Louisville, Ky., a carload of milo and presented to the Missouri Pacific Railroad Company, defendant herein, its inbound paid-freight bills and requested defendant to issue to it a bill of lading thereon. At the same time plaintiff paid to defendant 14 cents per hundredweight as the balance of the through rate from Tulia, Tex., to Louisville, Ky., via such railroads as had agreed thereto, with approval of the interstate commerce commission. It so happened that the Missouri Pacific Railroad was not a party to any such tariff. There was in effect a rate of 46% cents per hundredweight from Tulia, Tex., to Louisville, Ky., via the Santa Fe to Kansas City, and via the Wabash or Rock Island lines from Kansas City to St. Louis, and thence over the Southern railway to Louisville; but the Missouri Pacific was not a party thereto. Nevertheless, the Missouri Pacific received from plaintiff this shipment and accepted from plaintiff this shipment and accepted from plaintiff its inbound paid-freight bills for 32% cents per hundredweight, and 14 cents per hundredweight in cash, and issued its bill of lading accordingly. The carload went forward to destination, but shortly thereafter defendant discovered that it had no tariff rate which would permit the milo to move to final destination on a 14-cent per hundredweight proportional, and it demanded from plaintiff an amount sufficient to cover defendant's regular published rate from Kansas City to Louisville. This sum plaintiff was obliged.to pay, and for the return of that amount as damages this action was begun.
The trial court made findings of fact about which there was little controversy in the court below and none hére, and gave judgment for plaintiff, holding — -
“It was the duty of the agent of the defendant, when he was presented by the plaintiff with a bill of lading showing that the rate which he expected to pay was the transit rate on bulk milo originating at Tulia, Tex., and passing through Kansas City, where it was unloaded, and thereafter within one year shipped to Louisville, Ky., to notify said plaintiff that said shipment could not be lawfully made at the rate stated in the bill of lading, for- the reason that the defendant did not have a transit rate applying thereto; and the plaintiff thereby was compelled to pay $92.41 more than he could have shipped the milo for over another road, and was thereby damaged to that extent, and is entitled to a judgment for said sum, with interest at 6 per cent per annum frond the date said sum was paid.”
Defendant assigns error on this judgment, and its propriety depends upon the significance which should properly be given to a conference ruling of the interstate commerce commission which reads:
“The obligation lawfully rests upon the carrier’s agent to refrain from executing a bill of lading which contains provisions that cannot lawfully be complied with, or provisions which are contradictory-and therefore impossible of execution. When, therefore, the rate and the route are both' given by the shipper in the shipping instructions and the rate given does not apply via the route designated, it is the duty of the carrier’s agent to ascertain from the shipper whether the rate or the route given in the shipping instructions shall be followed. The carrier will be held responsible for any damages which may result from the failure of the agent to follow this course.” (Conference Rulings Bulletin No. 7, rule 474 [c].)
Does this rule control the situation here presented? Defendant says not, and cites McLean Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 349. In that case, at Birmingham, Ala., the Louisville & Nashville Railroad Company accepted two carloads of lumber for shipment to Gerry’s switch on the Baltimore & Ohio railroad in Philadelphia. The bill of lading which the respondent carrier executed was prepared by the complainant lumber company, directing the route and specifying the rate thus:
“Consigned to F. R. Gerry Co., Gerry’s switch. Destination: Philadelphia, state of Penna. Route: Star Union Line, Phila. & Reading, Penna. [29 cents.]”
The Louisville & Nashville was not a party to any tariff covering the route and rate specified, but there were other routes over which the shipment might have moved to destination at the rate named by the shipper. Other matters including the promulgation of new rates were treated in the opinion of the commission, but on the point analogous to the one involved in the case at bar it was held:
“Where a shipper’s bill of lading contains instructions both as to route and rate, and the rate is not applicable over any route of the receiving carrier, but is applicable over the route of a rival line to which shipper might have delivered the shipment had he so elected, the receiving carrier may forward the shipment over its own line at the rate lawfully applicable, it not being obligated to turn the traffic over to its competitor.” (Syl. ¶ 2.)
In the opinion it was said:
“The commission has ruled that where a shipper, having written specific routing instructions in the bill of lading, also inserts a rate which he expects to have applied, and the rate so entered in the bill of lading does not apply via the route specified, but is lawfully applicable via another route, it is the duty of the carrier to send the shipment via the route over which such rate applies unless a lower rate is applicable via the route specified by shipper. . . . This rule has reference to a situation in which the initial carrier has a discretion or control in the matter of routing. . . . The rule does not contemplate that the initial carrier to whom a shipment has been delivered shall be required to ascertain if a competing line can carry the shipment at a less rate, and in that event turn it over to such line. The route over which the shipments in this case might have been forwarded was a direct one from North Birmingham, and complainant might have availed itself of the lower rate by delivering the shipments to the proper carrier at point of origin. Having delivered them to the Louisville & Nashville, the latter road was under no obligation to deliver them to its competitor.” (pp. 351, 352.)
A similar ruling was made in Chapin & Co. v. C. I. & L. Ry. Co., 38 I. C. C. 611, 613, where it was said:
“The conference ruling referred to applies only to cases in which the initial carrier has a discretion or control in the matter of routing. It does not require that a carrier shall ascertain whether a competing line can transport a shipment at a lower rate and, if so, turn the shipment over to its competitor. (McLean Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 349.)”
In Sunderland Brothers Co. v. Mo. Pac. Ry. Co. et al., 49 I. C. C. 135, a carload of cement was shipped from Independence, Kan., to Sidney, Neb., but reconsigned in transit to Omaha. The shipment was delivered to the Missouri Pacific at Independence and routed via that railroad and the Union Pacific. There was a rate of 10 cents per hundredweight on carload shipments from Independence to Omaha via the Missouri Pacific and the Santa Fe and the Union Pacific, but not over the route on which this shipment moved. The complainant contended that it was the duty of the Union Pacific to advise it of the inconsistency in the rate and route specified. But the commission held:
“In this case the Union Pacific was not a party to any rate lower than that charged on a shipment from Independence to Omaha moving to Kansas City over the Missouri Pacific. . . . There was no duty resting upon the Union Pacific to ascertain whether a competing line could have transported the shipment at a lower rate and, if so, to turn the shipment over to its competitor. (Chapin & Co. v. C. I. & L. Ry. Co., 38 I. C. C. 611.)” (p. 136.)
Again in the recent case of Hodgson-Davis Grain Co. v. C., B. & Q. R. R. Co., 113 I. C. C. 234, two carloads of wheat were shipped from St. Francis, Kan., over the Burlington railway to Kansas City and there stored and later reforwarded to Wausau, Wis., via Council Bluffs, Iowa, and the Chicago & Northwestern beyond. At Kansas City the reshipment was rendered to the Burlington routed “C. & N. W. delivery.” There was a lower rate from Kansas City to destination via the Missouri Pacific or the Wabash and the Chicago & Northwestern than any tariff to which the Burlington was a party. Complainant contended that it was the duty of the Burlington to decline the traffic and turn it over to the Missouri Pacific or Wabash at Kansas City, but the commission ruled:
“Having tendered the shipments to the Burlington, that carrier was under no duty to surrender them to its competitors at that point. (McLean Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 349.)” (p. 235.)
It will thus be seen that for many years the interstate commerce commission has held steadfastly to the doctrine that an intermediate carrier is under no duty either to decline traffic tendered it or to turn that traffic over to a competitor, notwithstanding it cannot transport it according to the route and rate designated by the shipper, and that the conference ruling invoked by the appellee, quoted in full above, No. 474 (c), defines the duty of an initial carrier, not that of an intermediate carrier. Applied to this case, it would mean that if the shipper at Tulia, Tex., had requested the initial carrier, the Santa Fe, to ship that carload of milo to Louisville, Ky., via the Santa Fe to Kansas City and via the Missouri Pacific to St. Louis and thence over the Southern railway to destination at 46% cents per hundredweight, it would have been the duty of the Santa Fe agent at Tulia to call the shipper’s attention to the discrepancy between the designated route and rate, and particularly that the Missouri Pacific was not a party to that rate, and it would then have been the duty of the shipper to elect whether he would pay the higher rate over the route he had chosen or signify his assent that the shipment should be delivered to an intermediate carrier at Kansas City which was a party to the 46%-cent rate such as the Rock Island or the Wabash.
In a sense, of course, the plaintiff here does have a grievance because defendant’s agent did not discover that it had no proportional rate such as plaintiff desired before the bill of lading was executed. As to that matter, however, it has been decided time and again .that such hardships cannot be taken into account to relieve shippers from paying the lawfully published rate nor to relieve carriers from collecting it. (Farrar v. Perkins, 122 Kan. 141, 251 Pac. 440; Strong v. Atchison, T. & S. F. Rly. Co., 123 Kan. 161, 254 Pac. 405; Kansas Electric Power Co. v. Thomas, 123 Kan. 321, 255 Pac. 33.) Moreover, the shipper equally' with the carrier is chargeable with notice of what the correct rate may be, and there is no statute or rule of law which would impose a liability on the carrier for a mistake of fact (the rate) for which the shipper was just as much responsible as the carrier. In Chapin & Co. v. C. I. & L. Ry. Co., 38 I. C. C. 611, it was said:
“It is well settled, however, that the misrepresentation by a carrier of the rates legally applicable will not justify an award of reparation. Both shippers and carriers are charged with notice of tariff provisions, which were specific and clear in this case, and the fact that complainant may have been misled by defendants’ representatives into believing that it was entitled to the benefit of the transit arrangement at Hammond affords no ground for relief. (Atlantic Milling Co. v. L. & N. R. R. Co., 31 I. C. C. 485.)” (p. 612.)
In support of the judgment plaintiff cites and quotes from Mulkey Salt Co. v. Director General, 61 I. C. C. 669; American Hominy Co. v. Director General, 74 I. C. C. 204; Republic of France v. M., K. & T. Ry. Co., 77 I. C. C. 383; Clark Lumber Co. v. A., B. & A. Ry. Co., 102 I. C. C. 252. All these have been examined. They are mostly good examples of the application of conference ruling No. 474 (c) to the duty of an initial carrier to call the shipper’s attention to the descrepancy between the route and rate designated by him ánd to ascertain which is to govern the shipment. None of these cases. nor Selden-Breck Construction Co. v. C. M. & St. P. Ry. Co., 120 I. C. C. 134, also cited, by plaintiff, takes anything from the force of the cases cited above which hold that rule 474 (c) has no concern with the duty or liability of an intermediate carrier.
In view of the foregoing it seems imperative to hold that the judgment of the district court was erroneous and must be set aside; and that conclusion renders it needless to consider another point urged by appellant to the effect that such a controversy as the one at bar was within the exclusive jurisdiction of the interstate commerce commission and not justiciable in a court of general jurisdiction.
The judgment is reversed and the cause remanded, with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one against a bank and certain of its officers, for conversion of funds deposited in the bank which were derived from a public sale of personal property belonging to plaintiff, made by plaintiff’s former tenant. Judgment was rendered in favor of plaintiff and against the bank, and the bank appeals.
Roberts was Gardner’s tenant for four years preceding January, 1926. The lease was of land and live stock furnished by Gardner, which for the last year included hogs. Gardner furnished brood sows, and Roberts was to raise corn to be fed to the live stock. Gardner was to receive certain shares of crops, get his original stock back, and the increase was to be divided. The tenancy came to an end, and landlord and tenant had a settlement. - There were one hundred head of hogs to be divided which were increase of the original stock and were raised on the farm. Roberts intended to have a public sale. Instead of dividing the hogs into two lots of fifty each and putting each lot in a separate pen, Roberts and Gardner agreed to sell the hogs at the sale, and Gardner’s half of the proceeds was to be remitted to him. Roberts advertised the sale as his own, and the sale bills listed one hundred head of full-blood Duroc hogs. The sale was held on January 30, 1926. McCullough, assistant cashier of the defendant, the Farmers State Bank, was clerk of the sale. Payments for purchases were made in cash and by check to Roberts. McCullough took the proceeds of the sale to the bank and deposited them in Roberts’ name. Later the bank applied the money on Roberts’ indebtedness to the bank. The hogs sold for $1,289.24, and Gardner sued for his half of the money.
At the trial the first question was whether Roberts had any interest in the hogs. Roberts and Gardner told what their business relations were. When giving or renewing a note to the bank in December before the sale, Roberts signed a credit statement in which he said he owned one hundred head of hogs. The statement could not bind Gardner with respect to any interest he might have in the hogs which were sold, and the court permitted the statement to be 'read in evidence merely as affecting Roberts’ credibility. The ruling was correct.
The credit statement said Roberts had no partners in his business “only on land with brother-in-law.” Gardner was not related to Roberts. Defendant contended with Roberts while he was on the witness stand, and contended with the court, that Gardner and Roberts were partners in the hog business. The court ruled that the relation between Gardner and Roberts was that of landlord and tenant, and in defendant’s brief complaint is made that defendant was not permitted to show Gardner and Roberts were partners. No rejected evidence of partnership called to the attention of the trial court at the hearing on the motion for new trial is presented here. Whether there was a partnership depends on the description of the arrangement between Gardner and Roberts which they gave. From that description it appears the arrangement was the not infrequent one of lease of a stocked farm, a portion of the rental to consist of a portion of the stock increase. In such cases, due regard being had to the specific terms of the particular lease, the whole rent is regarded as issuing out of the land. (1 Tiffany, Landlord and Tenant, § 169-c.) Suppose, however, Gardner and Roberts were partners. The partnership.was at- an end, the partners had settled, they had agreed on manner of disposition of the hogs, as soon as the hogs were sold Gardner was entitled to half the proceeds, and whether the proceeds were- derived from rent or were partnership profits, Gardner’s share belonged to him. On the face of the record there is not the slightest doubt that half the money derived from sale of the hogs belonged to Gardner. In fact, there never was any substantial doubt about it, and the subject is closed.
The only other question of fact in the case of any importance was whether the bank had notice or knowledge that Gardner had an interest in the proceeds of the sale of the hogs. There was evidence pro and con, the jury found the bank knew of Gardner’s interest in the hogs, and the finding was abundantly sustained by evidence. Defendant contends) however, the finding was induced by an erroneous instruction relating to notice. The court did give an instruction on the subject of notice which was too broad; but in two subsequent instructions the court clearly made liability of the bank depend on its knowledge of Gardner’s interest, and on the whole record the court is unable to say that it affirmatively appears the instruction complained of prejudicially affected the bank’s substantial rights. (R. S. 60-3317.)
Some hay and a farm implement attachment belonging to Gardner were sold at the sale, and the bank appropriated the proceeds ¿long with the hog money. Roberts testified he told McCullough at the sale that half the hogs, the hay, and the attachment belonged to Gardner, and told the auctioneer at the time of sale that half the hogs, the hay, and the attachment belonged to Gardner. McCullough admitted he heard what was publicly said about the hay and the attachment, but testified he did not hear what was said about the hogs. The fact that Gardner owned the hay and the attachment was not disputed, and the court properly rendered judgment against defendant for the proceeds of sale of the hay and attachment, without submitting to the jury the issues respecting them formally raised by the pleadings.
Defendant complains of remarks made by the court in the progress of the trial.
There were just two issues of fact in the case:' Gardner’s interest in the hogs, and the-bank’s innocence in appropriating the proceeds of sale of the hogs. The issues were simple and,, as. indicated, there was no sound basis for denial of. Gardner’s interest. Throughout the trial the court strove to. confine the evidence to material things and get through with the case. Defendant’s verified .answer stated it had. applied the money derived from the sale of live stock to payment of Roberts’ notes. In the course of the trial the. following occurred-:
“By the Court: Then your verified statement here states that you applied the money realized from the sale of the live stock at .the Roberts.sale to the Roberts indebtedness at the defendant bank.
“By Mr. Lamer: Yes, sir; and we further say in that* answer that we sold live stock. Now-hogs — live stock isn’t hdgs exclusively-.' A- great many- things were sold-at that sale in the way of live stock besides hogs; horses, and cattle were-sold at that sale'.'- .. . . . ., . ;
“By the Court: .No, but you don!,t designate. You don’t separate them in this answer.
'“By Mr. Lamer:"' No, it is true I don’t, but the court is trying to make hogs synonymous with live stock.” • ‘
Near the close of the trial counsel for the bank returned to the subject, and the following occurred:
“By the Court : The witness testified as to. what disposition was made of the proceeds, and your answer, verified, shows what he did with the proceeds from the sale.
“By Mr. Lamer: But', if the court please, Gardner doesn’t say anything about live stock. He says hogs. Our answer speaks about the proceeds from the sale of live stock.
“By the Court: Oh, well, listen. You want to split hairs. Let’s don’t make a joke out of this. Anything further?”
Under the circumstances, this court is unable to say that the district court deserves judicial rebuke.
Assignments of error respecting other remarks of the district court, individual liability of officers of the bank against whom no judgment was rendered, and form of verdict, have been considered, and are held not to be well founded.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff sued the defendant milling company for damages because it had erected a number of grain tanks sixty feet high, situated across a public street and across a railway right of way from plaintiff’s residence in Wichita. He alleged that these tall tanks were painted white and refected the light of the afternoon sun on his front porch, to his great annoyance and discomfort, and that his house was thereby rendered unsalable, untenantable and no longer ft for residential purposes, whereby its value was reduced some $1,800, for which sum as damages plaintiff prayed judgment.
Defendant’s demurrer to plaintiff’s petition was overruled and the legal question involved is brought here for review.
In his brief, plaintiff reduces the allegations of his petition to this summarized statement of facts:
“Plaintiff is the owner and in possession of property located on North Santa Fe avenue in the city of Wichita, known as 1221 North Santa Fe; the property faces the east and-immediately in front of the property is a right of way of a railroad track, and across the track and immediately in front of appellee’s residence is located the property of appellant; on appellant’s property and directly in front of appellee’s residence, but across the railroad track, appellant has erected a battei-y of storage tanks which extend from Eleventh street, city of Wichita, north to Twelfth street; the tanks are so constructed as to cut off all light' from the east, and to make a solid and continuous wall. Appellant has painted such battery of storage tanks white. In the afternoons on clear days, and the most of the days in Kansas are clear, when the sun is shining upon the tanks the light is reflected onto and against the property of appellee in such a manner as to blind and hurt the eyes of parties who might occupy the front porch of said property, and by reason of such a condition the property is rendered unsalable and untenantable, and is no longer fit for residential purposes.”
Plaintiff relies on the doctrine stated in the ancient maxim, “Sic utere tuo, ut alienum nan laedas,” which is a perfectly sound doctrine, of course, but it has its limitations; and it would seem that its virtue could hardly carry so far as t<? forbid a milling company to build grain tanks on its own property of whatever height’and color it may choose because at some considerable distance away (the width of a city street plus the width of an ordinary railroad right of way) it might offend the sensibilities of plaintiff in the exercise and enjoyment of his front porch on a sunny afternoon.
The law does not in every instance provide directly for compensation or financial redress for every damnum a man may sustain as a member of an organized community. In White v. Kincaid, 149 N. C. 415, 23 L. R. A., n. s., 1177, 1179, Mr. Justice Hoke said:
“It is a principle well established, that where a person, corporation, or individual is doing a lawful thing in a lawful way, his conduct is not actionable, though it may result in damage to another; for though the damage done is undoubted, no legal right of another is invaded, and hence it is said to be damnum absque injuña.” (p. 419.)
Certain natural rights of persons may be curtailed which the sufferer must sustain without other return therefor than the manifold benefits which inure to him as a citizen privileged to reside in and earn his livelihood in an orderly community of his fellows. Typical of these are the noise of trains or street cars, the rumbling of early morning traffic, the cutting off of ancient lights and the erection of obstructions to his view. „ Such instances of damnum absque injuria could be indefinitely multiplied. (See Lapere v. Luckey, 23 Kan. 534; Anderson v. Bloomheart, 101 Kan. 691, 168 Pac. 901; 1 C. J. 1227-1229; 17 C. J. 1125 and citations; 1 R. C. L. 318; 1 Bouvier, 3d ed. 754.)
Appellee cites various cases where the freedom of an owner to devote his property to a use of his own choosing has been judicially interfered with as a nuisance. Of course, there are many such cases, as where gases from a brick plant destroyed vegetation (Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 Pac. 1052); where smoke, dust and cinders caused substantial injury to neighboring property (Phillips v. Brick Co., 72 Kan. 643, 82 Pac. 787); and where poisonous fumes from an oil refinery passed over neighboring lands (Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208). But there is no substantial analogy between such cases and the action sought to be maintained in the instant case. Plaintiff has no cause of action against defendant and judgment to that effect must be directed.
The judgment is reversed. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant, Philip Toelkes, was convicted of violating the prohibitory law on five counts — three for sales, one for possession, and one for maintaining a nuisance.
The evidence tended to show that defendant and his wife lived on a farm near Plainville, in Rooks county. By the testimony of various witnesses it was shown that during the times charged in the information, from February, 1926, until July, 1927, Toelkes repeatedly sold intoxicating liquors to various persons, that he kept his supply of liquor, or part of it, in his house, and that he permitted divers persons to come upon his premises to purchase liquors and to drink them on his premises. On one occasion certain persons brought their own beer into his house, and according to their testimony he and his wife helped them drink this beer. Toelkes denied drinking the beer, but admitted that they had brought it into his house and drank it there. A considerable plant for the making of liquor, with the usual paraphernalia, including barrels of mash, a still in use and a fire going, and the like, was discovered in a barn at some distance from Toelkes’ premises, but connected therewith by a road from Toelkes’ house, which passed through a corral, a lane and certain pasture fields. The presence of a Ford car in Toelkes’ yard, which was evidently used for the transportation of liquors, and the tracks of that car which went back and forth between Toelkes’ house and this distilling plant, and other evidential incidents, prompted the state to add certain counts to the information charging defendant with the manufacture of liquor and with the possession of paraphernalia for its manufacture, but the jury determined that the evidence was insufficient to identify defendant with the distilling plant, and he was acquitted of the charges pertaining thereto.
From a judgment and aggregate sentences of nineteen months in jail and $1,200 in fines on the counts upon which he was convicted defendant appeals.
The first error assigned pertains to the giving of an instruction relating to the evidence concerning the still and its incidents discovered at some considerable distance from defendant’s house. Defendant does not question the accuracy of the rule of law stated in the instruction, but contends that there was not enough evidence connecting him with the still to warrant the submission of that matter to the jury, and that it prejudiced defendant on the other counts to have the incidents concerning the still magnified by any instruction pertaining thereto. This court cannot indorse that argument. It cannot be said that the circumstances tending to implicate defendant in the operation and possession of the still were insufficient to take that phase of the case to the jury (State v. Lister, 121 Kan. 524, 247 Pac. 846), and consequently it could not be error to give the jury an instruction pertinent thereto.
Defendant also complains of an instruction which declared that there is a presumption of law that the head of a household is in possession of the visible chattels in his house, but that such presumption is not conclusive and .may be rebutted by evidence. The suggested objection to this instruction is that the court assumed that contraband articles, liquor or liquor paraphernalia, actually were found in defendant’s house. This criticism is overdrawn. Moreover, there was no dispute about the fact that beer was brought into defendant’s house. He admitted that fact, but testified he did not drink it. In other words, he in effect acknowledged that he had suffered persons to foregather in his dwelling house for the purpose of drinking intoxicating liquor as a beverage, which had the effect of turning his house into a nuisance under the statutory definition. (R. S. 21-2130.) The court safeguarded the rights of defendant on this point by instruction 15, which read:
“You are instructed that if intoxicating liquor is brought into one’s home and he has no knowledge thereof, he is not responsible if some one else had intoxicating liquor in his home in their immediate possession which did not belong to him.”
It is also contended that the evidence was insufficient to support the verdict of guilty. We have already given an abridged summary of the evidence and consider it unnecessary to state it at greater length or to quote literal excerpts therefrom. (State v. Rose, 124 Kan. 37, 257 Pac. 731, and citations.) Defendant suggests that the evidence to support the conviction on the sales counts “was unreliable and unworthy.” That cannot be discerned from the printed record, and the error based thereon cannot be sustained.
Defendant filed motions for a new trial and in arrest of judgment, but according to the record these were “submitted to the court without argument on either side.” Except in unusual circumstances which do not exist in this case (Beam v. Farmers Union Mutual Hail Ins. Co., 127 Kan. 234, 273 Pac. 440), any matters which should have been but were not urged upon the trial court’s attention in those motions present nothing for appellate review. (Bremen State Bank v. Loffler, 121 Kan. 6, 8, 245 Pac. 742; State v. Shehi, 125 Kan. 110, 263 Pac. 787.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The defendant in this case, who was convicted of perjury as a witness in his own behalf in a narcotic case, appeals, alleging errors in the introduction of evidence as follows: First, that of the justice of the peace who testified as to the complaint filed with him, the arrest, trial, conviction and appeal, and presented the original complaint which was introduced in evidence; second, the introduction of the verdict of conviction in the district, court in the narcotic case, and the remarks of the trial judge in ruling on the objection thereto; and third, the introduction of secondary evidence to show the pendency of the narcotic case in a-court of competent jurisdiction, by permitting the clerk to testify as to the pendency of such case, the trial thereof, and the fact that the defendant testified in that case after having taken the oath as a witness administered to him by the clerk of the court.
The first and third of these errors complained of cannot be seriously considered because there was no objection made to the introduction of the evidence now criticized when it was offered and received at the time of the trial, nor is there anything to show that the trial court’s attention was called to these matters when the motion for new trial was heard. If error was committed in the introduction of such evidence, it was not such as to justify a reviewing court in considering the same without an objection to the introduction or directing the attention of the trial court thereto on the motion for new trial.
There was an objection made to the introduction of the verdict of conviction in the narcotic case, and, strictly speaking, we think it was immaterial and the objection should have been sustained.
Appellant objects to the remarks of the court in overruling the objection and admitting the verdict. When the remarks are segregated two parts of them are objectionable, but when taken all together and also in connection with the instructions we do not think the remarks are particularly misleading or prejudicial. The court does say the verdict is material only to show for what he was tried and convicted, and again that it is competent only for the purpose of showing that he was convicted. In the same remarks he further said: “It is not any evidence of his guilt, so far as that is concerned — it isn’t for the purpose of showing or tending to show guilt in this case.” All that the court in its instructions submitted to the jury along this line was whether or not the defendant was duly tried in the district court, and testified on that trial.
“Evidence admissible to establish one phase of a case and not of another may be received and its application limited by the court in its instructions to the jury to the purpose for which it is competent.” (State v. Cowan, 100 Kan. 180, syl., 164 Pac. 183.)
Of course, appellant urges that the evidence of two former convictions on a narcotic charge, once in the justice of the peace court and later on appeal in the district court, presented him unnecessarily in a bad light before the jury, and to his prejudice in this case. The numerous convictions for narcotic offenses admitted by the defendant in his cross-examination in the narcotic case make this subject of conviction a very offensive one with him. Appellant’s attorney did not try this case in the district court, and still a third attorney tried the narcotic case.
No motion for a new trial was filed in this case. The journal entry shows a motion for new trial was heard and overruled, but we have no intimation as to what, if any, matters were brought clearly to the attention of' the trial court in that connection, so that the court might have recognized the error, if any, and granted or refused a new trial with the alleged errors clearly in mind.
“But apart from that, the rule has frequently been announced by this court and should be applied here, that whenever a litigant has a meritorious proper sition of law which he is seriously pressing upon the attention of the trial court, he must raise that point in such olear and simple language that the trial court can understand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judgment on appeal.” (State v. Bell, 121 Kan. 866, 869, 250 Pac. 281. See, also, State v. Clough, 70 Kan. 510, 79 Pac. 117; State v. Winters, 81 Kan. 414, 105 Pac. 516; State v. O’Brien, 114 Kan. 703, 220 Pac. 208.)
The ruling above quoted applies strictly to the record in this case, and the error complained of is not properly here for review. In the same connection, however, it might be further noted that there was no objection at the time the remarks were made by the trial judge, including the purpose of showing conviction as well as trial. If this matter was purposely left in that way it should remain so on review, but if it was simply overlooked, then, applying the rule as to the substantial rights of the defendant being prejudicially affected thereby, we think such a situation is not shown in this case. •
“Even the violation of an express statutory inhibition will not work a reversal unless the court is able to say, the whole record considered, that a substantial right was prejudicially affected.” (State v. Farrar, 103 Kan. 774, 776, 176 Pac. 987.)
“Under this statute it has been repeatedly held that to cause a reversal of a judgment in a criminal action the error committed must affect a substantial right of the defendant.” (State v. Peterson, 102 Kan. 900, 902, 171 Pac. 1153.)
“Several items of testimony erroneously admitted are considered and' found to be unimportant, and it is held that the substantial rights of the defendant were not affected by the admission of such testimony.” (State v. Hoerr, 88 Kan. 573, syl. ¶ 5, 129 Pac. 153.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
Each of the defendants appeals from a judgment rendered against him for violating the prohibitory liquor laws of the state of Kansas. The defendants were jointly charged with six separate violations of the law. Each of the defendants was found guilty under the fourth, fifth and sixth counts of the information. The fourth count charged the defendants with having intoxicating liquor in their possession; the fifth count charged the sale of liquor to one Luther Pergrem; and the sixth count charged that the defendants kept and maintained a common nuisance.
The contention of the defendants is that the evidence introduced was not sufficient to sustain a conviction. There was evidence which tended to prove that the defendants were operating a filling station on a public highway north of Wellington in Sumner county; that they had in their employ one Elmer Day; that through Elmer Day intoxicating liquor was purchased by Luther Pergrem from each of the defendants; that the liquor sold belonged to the defendants ; that on one occasion liquor was- purchased with a marked bill which was immediately thereafter found on the person of the defendant Kenneth Kerley; that the defendants had instructed Elmer Day as to the manner in which sales should be made and concerning the manner of putting alcohol in beer; that the liquor sold was obtained by Elmer Day from the premises occupied by the defendants or under their control; that each of the defendants sold intoxicating liquor; that the place was raided by officers, and that intoxicating liquor was found. The instructions of the court appear to be regular, and no evidence was introduced except what was proper and competent. There does not appear to have been any error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover money paid in connection with sale by defendant to plaintiffs of a patent right. A demurrer to plaintiffs’ evidence was sustained, and they appeal.
On August 11, 1925, defendant was granted a patent for a new and useful invention in steam washers, the grant being of exclusive right to make, use and vend the invention throughout the United States and its territories for the term of seventeen years. Defendant did business as the “Paramount Steam Washer Co.” The address of the company was 721 Minnesota avenue, Kansas City, Kan.
Plaintiffs met defendant in Chanute, and a contract was executed without observance by defendant of the requirements of R. S. 57-101 to 57-103, relating to sale of patent rights. The contract appointed plaintiffs sole and exclusive dealers to sell the Paramount steam washer in Miami county for the term of one year. Defendant agreed promptly to fill orders from appointed dealers, and guaranteed each Paramount steam washer to be like the sample furnished. ' Plaintiffs paid defendant $1,216.05. Plaintiffs received from defendant books containing 363 Paramount steam washer drafts, each one for $3.35, to be used when ordering Paramount steam washers. An order would be filled when accompanied by one of the drafts and $14.12 in cash. Plaintiffs agreed not to sell or offer for sale the Paramount steam washer for less than the established price of $35. Plaintiffs were granted further privilege of ordering from defendant’s factory and selling 363 more Paramount steam washers, under the same terms and conditions and within the same time and territorial limits. The .contract contained provisions not material here for appointment by plaintiffs of local dealers. Plaintiffs received of defendant six sample machines, and six washing machines for which they paid.
Plaintiffs produced at the trial a piece of metal which Fitzpatrick testified was a handle for use on one of the Paramount steam washers. The handle was marked as follows:
“Paramount Steam Washer Company Kansas City, Kansas.
Pat. Aug. 11, 1925.”
Defendant says there was no evidence establishing connection between the patent-marked piece of metal and the washers mentioned in the contract.
The subject of the contract was an article called by defendant “Paramount steam washer.” Plainly, the steam washer was given the name “Paramount steam washer” to identify it and to distinguish it from other articles of manufacture and sale, whether by defendant or by others. Concordance of name was some evidence of identity of thing. At least plaintiffs were not required to negative existence of other kinds of Paramount steam washers, and ;prima facie, when Fitzpatrick said the handle bearing the patent mark was for use on one of “the Paramount steam washers,” he referred to the steam washers which were the subject of his dealings with defendant.
Defendant says there was no evidence establishing connectiÓn between the washer described in- the patent and the patent-marked Paramount steam washer handle. Patented articles must be marked as such, unpatented articles may not be marked as patented, and the mark must appear somewhere on the article, if possible. (U. S. Rev. St., §§ 4900,4901.) The Paramount steam washer bore on its handle the patent mark, “Pat. Aug. 11, 1925.” The legend above the patent mark, “Paramount Steam Washer Company, Kansas City, Kansas,” indicated who was using the mark. By affixing the mark, defendant asserted it was affixed under a patent of that date. That date is the date of a patent issued to defendant for an improvement in steam washers, and plaintiffs were not obliged to negative existence of some other patent to defendant of the same date pursuant to which defendant was using the patent mark.
Defendant says the contract was merely one for the appointment of an exclusive agent, and was not a contract of sale of a patent right.
The patent did not grant to defendant right to make, use and vend his invention. Assuming the invention was new and useful, defendant could make, use and vend it at pleasure without making application for a- patent. In the days when we had such things, his right to make, use and vend was a “natural right.” What the patent secured to defendant was power to exclude everybody else in the United States and its territories from making, using and vending the invention for a period of seventeen years. Defendant was privileged to remove the disability of others to make, use and vend to such extent and on such terms as defendant might choose. In this instance defendant consented to create an interest in his “patent right” in plaintiffs. They were appointed dealers only. They could not make or use. When they ordered a washer they paid for it. When they received a washer, it was theirs to sell.. When they sold it, they sold it as their own and kept the money. In thus performing the dealer’s function of buying from defendant and selling to others, plaintiffs acted for themselves and not for defendant. The distinguishing mark of the agency relation, acting for and on behalf of a principal and under his direction, was absent, and the appointment contained the words which are characteristic of a sale of a patent right: “We hereby appoint [plaintiffs] our sole and exclusive dealer to sell the Paramount steam washer in the county of Miami, state of Kansas, for the term beginning August 15, 1926, and extending for one year.” (Nyhart v. Kubach, 76 Kan. 154, 90 Pac. 796; Schmoyer v. Van Hosen, 111 Kan. 759, 208 Pac. 554.)
The contract was an integration Of several writings. Part of the consideration to plaintiffs was the draft books, and part was sale of .a patent right. Defendant says plaintiffs should not recover because they did not return or offer to return the draft books. It was not necessary that plaintiffs should do so. There are no equities in this kind of a case. Defendant has $1,216.05 of plaintiffs’ money which he obtained illegally. Because the transaction by which defendant obtained the money was illegal, plaintiffs may recover. They are not regarded as in pari delicto with defendant, and the law leaves defendant where it finds him. (Mason v. McLeod, 57 Kan. 105, 45 Pac. 76.)
The judgment of the district court is reversed, and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This action was a sequel to that of The Continental & C. T. & S. Bank v. Garden City Co., 123 Kan. 659, 256 Pac. 983, where the ownership of an electric transmission line located on a public highway running north from Garden City into Scott county was in dispute.
The line had been constructed by a predecessor in title of the Garden City Company for the purpose of delivering electrical power for the operation of irrigation pumps, but the cost had been found to be prohibitive, and when the line was partially wrecked by a gale in 1922 it was not rebuilt. The storm broke a large number of poles and in places the wires lay on the ground by the roadside. Eventually, in 1926, the Garden City Company decided to remove the line entirely and use it elsewhere, but the Continental and Commercial Trust and Savings Bank claimed a mortgage lien on the line and brought suit to prevent its removal. The bank was defeated in the trial court and appealed to this court, and upon its motion and on the giving of a bond, this court, on October 19, 1926, issued its injunctive order — ■
“That the appellees herein, and each and all of them together with their agents, officers, servants and employees, being enjoined and restrained during the pendency of this appeal from tearing down, dismantling, junking, or removing the transmission line in controversy, in this action, or any part thereof, from its present location, or from removing, taking away, or appropriating to their own use, elsewhere any part or portion of the material of which the same is or was constructed, or from in any way interfering with, harming, altering, or changing the said transmission line, or any of the appurtenances thereunto belonging so that the value of the security covered by appellants’ deed of trust be in any way lessened, decreased, or diminished.”
The bond provided—
“Now, therefore, we, Continental Trust and Savings Bank and William F. Kopf, as trustee, as principal, and the Detroit Fidelity and Surety Company, as surety, hereby undertakes in the sum of $5,000 (five thousand dollars) that the said appellants shall pa/ the said appellees any damages that they may sustain by reason of the issuing of said order if it shall be finally determined that said injunction ought not to be granted.”
This injunction was in effect until the judgment was affirmed June 11, 1927, during which period the line was repeatedly meddled with by thieves, and considerable portions of it were stolen and carried away. At the expenditure of money and effort some of the stolen wire was recovered by the Garden City Company. To recoup itself for the loss and damage occasioned by these larcenies this action was begun against the surety on the injunction bond. The pertinent facts and legal questions were developed by the pleadings. The evidence did not develop much conflict of testimony. Plaintiff’s evidence tended to show thefts of wires, poles, insulators and the like, of the value of $1,641.25, and expenses incurred in “running down the various thieves and recovering part of the loot,” amounting to $59.55. (We were advised in the oral argument that seven of these thieves had been apprehended and convicted and are now in the penitentiary — a felicitous incident-'of which such thoroughgoing advocates of law enforcement as President Hoover and Chief Justice Taft should be apprised.)
The jury returned a verdict for plaintiff in the sum of $800 and answered two special questions:
“Q. 1. If you award plaintiff damages in any amount state what act or acts of the defendant surety company caused the persons who removed or damaged portions pf the transmission line, poles, wires and equipment to do so. A. By not properly protecting the property while under the jurisdiction of the court.
“Q. 2. If you find for the plaintiff, what amount do you credit to defendant for property and materials recovered by plaintiff after the thefts and damage herein complained of? A. $63.03.”
Judgment was entered accordingly and defendant appeals, contending that the loss and damage caused by theft of the property during the time the injunction was in effect were not within the terms of the injunction bond. The argument is advanced that the injunctive order restraining the plaintiff “from tearing down, dismantling, junking or moving the transmission line” did not change the status of the line in any way, and that the order of court only preserved the property in the same condition it had been for more than three years prior to the issuance of the injunction. To support this argument the appellant invokes the well-known rule of law that only such damages are recoverable-as aré the natural and proximate result of the injunction durihg the time it was in force. It is also argued , with considerable ^plausibility that the appellant bondsman ought not to be held liable for the wrongdoing of third parties' — the thieves who pillaged the line — and that the possibility of loss and damage to the line by theft was no greater or different while the injunction was in force than before its issue or after its dissolution.
On the other hand, the nature, situation and condition of the property must be considered. The transmission line for the most part was situated on the public road. It was not practical to safeguard it from thieves except by doing what the plaintiff had set about — taking up the line and removing it to a place of security until needed for use elsewhere. If the line had been on private property it might have been practicable to have prevented trespassers from coming on the premises to meddle with it. On the public road, however, the line in its partially wrecked condition, and composed as it was of highly valuable materials, was a standing temptation to persons of thievish disposition, and the longer it lay in disrepair the stronger was its invitation to such people to steal parts of it. Moreover, it cannot be denied that the injunction completely tied the plaintiff’s hands from doing the only practicable thing which could or would have prevented its spoliation by thieves. True, the injunction did not deprive the plaintiff of actual possession of the line, but it did deprive it for the time being of the usual attributes of possession, by which plaintiff could have prevented the loss and damage which it sustained. It effectively and completely prevented plaintiff from the exercise of the necessary dominion over the property to protect it from theft. The only practicable way to prevent thefts from a partly wrecked power line strung along a public road, composed as it was of costly and valuable wires, insulators and miscellaneous articles incidental thereto, unless it had been worth while to repair it and put it back into service, was to roll it up and take it away to a place of safety. The efficient proximate cause of the loss was the inability of the plaintiff, by reason of its hands being tied by the injunction, to do what was needful to secure it from spoliation.
Some cases pro and con are called to our attention as being somewhat analogous to the one before us. In Gobbi v. Dileo, 58 Ore. 14, 34 L. R. A., n. s., 951, the action was on an injunction bond to secure the plaintiff against damages because of his being temporarily restrained from cutting, removing or disposing of certain cordwood, and during the time the temporary restraining order was in force 171 cords were stolen. The court held that there was no liability on the bond. In the opinion it was said:
“The first question suggested is, In whose possession and at whose risk was the wood after the alleged service of the injunction? . . . And the order signed in this case only restrained defendants from doing certain acts, viz., that they desist from cutting, removing or disposing of the wood. It could not have the effect to transfer the title or possession of the wood to plaintiff. . . . And the possession remained after the alleged service of the writ where it was at that time, unaffected by the writ. The wood was cut from the land, the title to which was in dispute, and practically conceded to be in the possession of defendant in the writ, and the wood remained on the land. Barton v. Fisk, 30 N. Y. 156, cited by plaintiff, is not in point, as the effect of the injunction there was to change the possession of the property from defendant to plaintiff, and the same is true in the case of Alexander v. Colcord, 85 Ill. 323. . . . The wood still remained in defendant’s possession, and, if removed by others, it was not plaintiff’s fault.” (pp. 17, 18.)
In Burley T. G. Co-Op. Ass’n v. Pennebaker Home, 221 Ky. 718, a similar action on an injunction bond for the theft of 2,000 pounds of tobacco while plaintiff was restrained from selling it was unsuccessful, but in that case, as in the Gobbi-Dileo case, the injunction only restrained the plaintiff from disposing of the property. In neither of these cases did the injunctive order change the possession of the property or restrict the possessors’ dominion over the cord-wood or tobacco except to prevent their sale for the time being. Neither of these cases covers the predicament in which the injunction placed this plaintiff in respect to its ability to protect the transmission line in its storm-wrecked condition, situated as it was on a public highway and much of it lying on the ground by the roadside. In both the above-cited cases there was nothing in the terms of the injunction to hinder the plaintiff from safeguarding the cordwood and the tobacco from theft. Here the literal terms of the injunction had that precise effect.
One of our own recent cases, Baker v. Craig, 127 Kan. 811, 817, 275 Pac. 216, among other complicated features, included an action on an injunction bond in which a claim was made for the value of certain well-boring tools which -had been stolen while the injunction was in force. Because other features in the case required extended treatment, this particular point was disposed of without discussion by a simple' ruling that the injunction bond covered the stolen property.
We conclude that the judgment of the district court was'Correct; and it is affirmed.
Hopkins and Hutchison, JJ., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff sued defendant for the statutory minimum allowance of 15 cents per day for conveying his three minor children a distance in excess of three miles to school. Hfe was defeated and appeals.
The facts .were these: Plaintiff is a resident householder of the defendant school district No. 52. He has three children of school age. His home is 3.15 miles from the' schoolhouse. He also owns land in an adjacent district, No. 34, the schoolhouse of which is 3.19 miles from his home — some 490 feet farther away than the schoolhouse in his home district. For reasons that were satisfactory to himself, plaintiff sent his children to school in district No. 34. The school board of district No. 52 refused to pay for their transportation. Hence this lawsuit with the result noted above.
The legal question is simple and governed by statute. By R. S. 72-601 it is provided that the district board may provide for the comfortable transportation of pupils living more than two miles from school and shall provide for the transportation of pupils “who live three or more miles, by the usually traveled road, from the school attended,” or in lieu of providing such transportation—
" . Said board shall allow, as compensation for the conveyance of pupils to and from the school, to the parent or guardian of any pupils living three or more miles from the school attended, a sum not less than fifteen cents per day. . .
By another statute, R. S. 72-702, it is provided:
“. . . That the children of any property owner owning land in any adjoining school district, other than in towns and incorporated cities, may have the privilege of attending school in such adjoining district without extra expense and tuition, when such school is more convenient by reason of distance from the school of the district in which they live.”
It will thus be seen that if plaintiff had conveyed his children to school in his home district the defendant district would have been absolutely bound to compensate him, since there is no intimation that the district itself had made provisions for their transportation. Is plaintiff’s demand for compensation invalid because the schoolhouse in district No. 34 was 490 feet farther from his home than the one in his home district?
The only statutory authority conferring on a parent the right at his own discretion and without extra charge or expense to send his children to school in a district adjacent to that of his residence is R. S. 72-702 quoted above, and it will be noted that such right is dependent upon three conditions — it must be an adjacent rural and not a town district, the parent must be a property owner in such adjacent district, and it must be more convenient by reason of distance for his children to attend such school rather than the one in the parent’s home district. The relative convenience is to be determined by the mere matter of distance — not that of superior roads, or of school facilities, or the personality of the teacher, or the relative scholastic or social advantages offered by school district No. 34, nor for any other reason which might prompt the parent to select such adjacent school for his children to attend rather than the one at home. Here plaintiff did not send his children to school district No. 34 as a matter of unqualified statutory right. He therefore had no lawful demand on his home district for their conveyance, and the judgment of the district court was correct.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appellants in this case seek to have the verdict and judgment rendered in their favor for one dollar set aside and a new trial granted. The trial court overruled their motion to that effect, and they allege error.
The action was for $145 damages to their automobile, which they allege they sustained by reason of the negligence of the defendant driving his truck against their automobile. Defendant filed a general denial and a cross petition, alleging negligence on the part of the plaintiffs which injured his truck to the extent of $26.75. The undisputed evidence as to the amount of damage done to the automobile of the plaintiffs ranged from $72 to $145. The answer does not allege contributory negligence, but charges the plaintiffs with negligence by which defendant’s truck was injured. If both parties were negligent there could be no recovery by either. The verdict for the plaintiffs for one dollar conclusively settled the question of negligence. The plaintiffs were not entitled to recover anything unless they established the negligence of the defendant. The only question remaining is the amount of damages sustained by the plaintiffs. It is not a case where nominal damages would apply; it is for actual damages or none. The damages were of a kind that were capable of being rather accurately ascertained, and very different from those for injured feelings, pain and suffering, humiliation, and the like. The jurors may use the knowledge which they possess in common with others to help them consider the evidence, but not to aid them to disregard it. The lowest estimate of damage given by witnesses was $72. The jury was not limited to this minimum as it was to the maximum. The fact that the jury goes so far aside from the only evidence before it, and without anything in the case to indicate how such an amount could have been reached from a consideration of the evidence, prompts the conclusion that the jury must have been influenced by passion or prejudice. It is natural and usual to so conclude when the amount awarded is so small that it is clearly against the weight of the evidence, as we think it is in this case.
“In a proper case the reviewing court may set aside a verdict on the ground that the amount awarded is inadequate, and this it may do, even though the trial court refused to set aside the verdict. Thus it has been held that the verdict may be set aside if the finding is for such an inadequate amount as to indicate that the jury must have been influenced by passion, prejudice . . . where the verdict is so small as to be clearly against the weight of the evidence.” (4 C. J. 875.)
“In an action by a wife for damages for the alienation of her husband’s affections, where there is evidence which tends to show that as a consequence she suffered great mental anguish and agony, a verdict for the plaintiff for SI is so small and inadequate as to show that the jury was influenced by passion or prejudice.” (Bracken v. Champlin, 114 Kan. 882, syl. ¶ 1, 220 Pac. 1038.)
“While the jury are the exclusive judges of the credibility of the witnesses, they are not authorized arbitrarily or from partiality or caprice to disregard uncontradicted and unimpeached testimony or facts shown beyond question both by testimony and by admission.” (Sundgren v. Stevens, 86 Kan. 154, syl. ¶ 2, 119 Pac. 322.)
It was held in the case of Thompson v. Burtis, 65 Kan. 674, 70 Pac. 603, that where the general verdict involves a plain and material inconsistency it should be set aside and a new trial granted. The verdict should be consistent with and sustained by the evidence, and where the amount named in the evidence is at least 72 times the amount of the verdict it can hardly be said to come within that rule.
“In an action to recover the value of personal services it was not disputed that services of substantial value were rendered, but it was claimed by the defendant that they were to be gratuitous. On this issue the evidence was conflicting, and the jury returned a verdict for the plaintiff, assessing his damages at SI. Held, that the verdict is inconsistent, and that it should have been set aside on the plaintiff’s motion, based upon the ground that the recovery was too small.” (Miller v. Miller, 81 Kan. 397, syl., 105 Pac. 544. See, also, Jackson v. Humboldt, 84 Kan. 445, 113 Pac. 1047; Discount Co. v. Bank, 101 Kan. 253, 166 Pac. 476; Russell v. Newman, 116 Kan. 268, 226 Pac. 752.)
The verdict is not only inconsistent with and not sustained by the undisputed evidence in this case, but it is also so inadequate as compared with the only evidence on the subject as to clearly show that the jury must have been influenced by passion or prejudice, and should therefore be set aside.
The judgment is reversed and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action in tort brought by the bene ficiary named in an application for a life insurance policy, after the death of the applicant, for damages because of the delay of the insurance company in accepting or rejecting the application. She recovered a judgment in the trial court for the amount named in the application, and the insurance company appeals.
There is no intimation of fraud in the case, but the negligence of .the company and its agents is the basis for the right to recover. The answer of the insurance company is a general denial, and special denials as to a cause of action in tort surviving the deceased and as to any duty owing to the deceased or anyone prior to the acceptance of the application, and an allegation of contributory negligence.
The agreed statement of facts shows that Clifford T. Butterfield, a young farmer eighteen years of age, made application for a policy of life insurance with J. W. Dunfield, soliciting agent of the defendant company, on June 15, 1926, naming his mother, the plaintiff herein, as the beneficiary; that the applicant left the application with the agent and arranged with him for-the payment of the first premium; that the agent arranged with the local doctor to m.ake the medical examination and left the blanks with him for that purpose; that on June 19 the doctor made the examination and mailed his report to the company at its home office, but it was never received; that the doctor was not a regularly appointed examining doctor for the company, but had made some examinations for the company, which had been accepted; that the soliciting agent was a subagent appointed by the general agent of the company at Wichita, and had power, and it was his duty, to solicit insurance, take applications, forward same to the home office, and collect first premiums thereon; that the subagent placed the application in his pocketbook and held it until September 14, 1926, which was after the death of the applicant on August 21, 1926, in an automobile accident; that the home office of the insurance company knew nothing of the application or the medical examination or report until after the death of the applicant; that between the time of making the application and the death of the applicant neither the applicant nor the subagent made any effort to procure the issuance of the policy on the application; that no notice of acceptance or rejection of the application was given to the applicant by either the company or the subagent; that at the time the medical examination of the applicant was made he was in good physical condition, free from, disease or physical defects, not engaged in any hazardous occupation, and was recommended as a risk by the medical examiner.
The application and subagent’s receipt for first premium are set out in full in the abstract, and the concluding part of the application contains the following statement of the applicant’s understanding of the situation:
“II is understood and agreed (1) that if the entire amount of the first annual, semiannual, or quarter-annual or monthly premium, as selected by me under the statement numbered ‘7’ on the insurance herein applied for, is not paid at the time of making this application, there shall be no liability on the part of the said company under this application unless nor until a policy shall be issued and manually delivered to me and the entire amount of such first premium thereon actually paid during my lifetime and while I am in good health; and (2) that if the entire amount of such first premium is paid to the said company’s agent at the time of making this application, the insurance (subject to the provisions of the said company’s policy applied for) shall be effective from the date of my medical examination therefor, and such a policy shall be issued and delivered to me or to my legal representative, provided the said company in its judgment shall be satisfied as to my insurability on the date of such medical examination, for the amount and on the plan and form applied for.”
The receipt for the first payment, signed by the' subagent and given the applicant, contained provisions substantially the same as those above quoted from the application.
The questions involved in this case are presented by both parties under three headings: First, the right of the beneficiary to maintain the action and recover; second, the duty of the defendant company with reference to prompt action upon the application; and, third, contributory negligence. The second and third points are in many places and features considered together.
The appellee does not rely upon an implied contract and a breach thereof, but relies wholly upon the tort theory. To recover on account of negligence there must be a breach of some duty. That duty, appellee maintains, was to act promptly upon the application.
“In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant.” (29 Cyc. 419.)
Of course, there is always a moral duty to act promptly in ail business transactions, but that cannot be made the basis of a legal obligation for damages. It must be a legal duty. (Misselhorn v. Mutual Reserve Fund Life Ass’n, 30 Fed. 545.) Then if there is a legal duty there must be a failure or neglect on the part of the defendant to perform that duty.
Instead of considering these subjects in the order in which they were presented in the briefs, let us consider first this question of breach or neglect of duty, for if there should be no neglect or breach of duty on the part of the defendant it would be unimportant as to whether or not the beneficiary named in the application is the proper party to maintain the action, and also whether or not an insurance company is liable in tort for any such failure or neglect. The application in this case stated that the policy should be effective from the date of the medical examination, subject to the provisions of the policy applied for and “provided the said company in its judgment shall be satisfied as to my insurability on the date of such medical examination for the amount and on the plan and form applied for.” The company has never to this date had an opportunity of exercising its judgment with reference to the insurability of the applicant nor as to the amount, the plan or the form of policy applied for, and without any fault on its part, as shown by the stipulation. It cannot be said the examination by the local medical examiner is the exercise of such judgment referred to in the application. He could have nothing to do with amount, form or plan of the policy and the provisions of the policy applied for in connection with the insurability of the applicant. Besides, the stipulation nowhere states or even indicates that the report of the local medical examiner was final or conclusive on that subject or intended to be such. Almost identical provisions were contained in the application involved in the case of Raymond v. National Life Ins. Co., (Wyo.) 273 Pac. 667, where it was recently held:
“Application for insurance, reserving in insurance company right to additionally investigate application after local medical examiner has made his report, and to approve or reject application on further information, held merely offer for insurance on certain terms under which insurance was to be effective from date of medical examination, in event final acceptance occurred.” (Syl, ¶ 4.)
Such provision in an application calls for an exercise of judgment, or at least an opportunity for such exercise of judgment.
“Where a written application for insurance is made out on one of the regular blanks of an insurance company, which provides that no liability shall attach until the application has been approved by the home office, and the application, together with the premium, is delivered to the insurance agent, .and before the application has been approved by the home office the property insured is destroyed by fire, held, that the insurance company is not liable for loss occurring before such approval.” (Pickett v. Insurance Co., 39 Kan. 697, syl., 18 Pac. 903.)
“The effect of a clause that a life insurance policy shall not take effect unless the applicant is in good health at the time of its delivery is to protect the company against a new element of risk through a change in the applicant’s condition arising after the company’s investigation had been made.” (Priest v. Life Insurance Co., 116 Kan. 421, syl. ¶ 5, 227 Pac. 538.)
Now what was the opportunity for the exercise of judgment in this case? and if no opportunity, then whose fault was it? The stipulation states:
“That at about the time of taking application, said Dunfield delivered a blank form for medical report to Dr. G. B. Kierulff and directed him to make a physical examination of said Butterfield and to forward the same by mail to the home office of the Springfield Life Insurance Company at Springfield, Ill.; that Doctor Kierulff was not a regularly appointed examining doctor for the Springfield Life Insurance Company, but had made some examinations for said company, which had been accepted by the company; that on or about the 19th day of June, 1926, said Clifford T. Butterfield went to the office of Doctor Kierulff, and said Doctor Kierulff examined said Clifford T. Butterfield for insurance, found him to be in good health, filled out the form of report for such examination as submitted to him by Dunfield, and recommended Butterfield as a good risk; that thereafter, and on the same day the examination was made, Doctor Kierulff placed said medical examination report which he had filled out in one of his own envelopes, duly stamped and addressed same to the Springfield Life Insurance Company, whose home office is in Springfield, Ill., and placed same in the United States post office at Melvern, Kan., pursuant to instructions given by Dunfield; that this medical report forwarded by Doctor Kierulff was never received at the home office of the Springfield Life Insurance Company; . . . that the home office of said company knew nothing whatever of this application for insurance or of Doctor Kierulff’s medical report until after it had received requests for blank forms for proof of death from the plaintiff; . . . that at the time said application was taken and said medical examination was made, said Butterfield was a young man eighteen years of age, in good physical condition, free from disease or physical defects; that he was not engaged in any hazardous occupation, being a farmer; and that he had been recommended as a risk by said medical examiner.”
Under this stipulation there can be no dispute as to the company itself and the local medical examiner being without fault with reference to failure of opportunity to exercise judgment on the question of the applicant’s insurability and as to the amount, plan and form of the policy applied for. In the case of Lamb v. Mechanics Ins. Co., 122 Kan. 352, 252 Pac. 213, it was held in the syllabus:
“The facts considered in an fiction against an insurance company for a sum of money within the amount of insurance stated in an application for insurance which was taken by a soliciting agent and duly mailed to the company, but which was lost in transit, and held, the company is not liable.”
In the opinion it was said:
“That office had no occasion to communicate with the agent respecting an application which it did not know existed. Its silence was without fault, and did not involve delay. The agent was not guilty of delay in forwarding the application, the home office was not guilty of delay in approving or rejecting the application, and cases dealing with liability consequent upon delay are not helpful.” (p. 354.) .
In the case of Evans v. International Life Ins. Co., 122 Kan. 264, 252 Pac. 266, the insurance company was held not to be negligent where a delay was caused by the making of an incorrect entry by the medical examiner in his report to the company, which report had to be corrected before being approved. See, also, Raymond v. National Life Ins. Co., supra. Under these authorities the stipulation in the case, and the agreement to submit the medical examination to the judgment of the company before the arrangement could be effective, there can be no doubt, as was said in the Lamb case, supra, that the company was “without fault” and was “not guilty of delay.”
But it is urged by the appellee that the soliciting agent was guilty of delay, and- if he had promptly sent in the application, then perhaps, or probably, the company, after waiting awhile for the receipt-of the medical report, would have made an inquiry as to the delay in receiving the medical report. This is too contingent to use as a basis for a tort. The fault or neglect, whatever it is, must be the proximate cause of the injury. Omitting the contingencies, what could the company have done in the way of exercising its judgment as to the insurability of the applicant, as- provided in the application and receipt, if the agent had sent in the application promptly when there was no medical report at hand? It could have done nothing along that line without the medical report. Any further or different answer must be speculative and not a proper basis for a tort. We conclude that the company and the medical examiner were without fault in the matter of affording an opportunity for the exercise of judgment by the company as to the insurability of the applicant, as understood and stated in the application and receipt, and without a breach or neglect of duty there can be no liability in tort.
Having reached this conclusion, there is no purpose in considering the other well-argued and presented features of the case.
The judgment is reversed and the cause remanded with instructions to render judgment for defendant.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in quo warranto, by the state on the relation of the attorney-general for the purpose of testing the legality of the organization of rural high-school district No. 4 in Ottawa county and to enjoin the defendants from taking further steps in conducting the business of such school district. The trial court, after a hearing on the merits, made findings of fact and rendered judgment for defendants. The plaintiff has appealed.
The facts are not seriously controverted and may be thus stated: On February 20, 1928, there was presented to the board of county commissioners of Ottawa county a petition conforming to the statute (R. S. 72-3501 et seq.) to call a special election for the purpose of voting on the proposition of establishing and locating a rural high school at Ada, Kan., to include the territory described in the' petition. These petitions were considered by the board of county commissioners and the boundary lines approved. There was also presented an enumeration of the qualified electors in the proposed district. The board of county commissioners found the petitions and enumeration to be in due form, and set March 29, 1928, as the date for election, named the judges and clerks of the election, and ordered the county clerk to have notice of the election given and to have ballots printed. In the rural high-school district proposed there were five schoolhouses of common-school districts. Notices were regularly posted on the doors of four of the schoolhouses, but on one of them the notice was posted on the side of the building about a foot from the door. The undersheriff, when he went to the schoolhouse to put up the notice, found the door open and thought it was not in use, and that the notice would better serve its purpose by being tacked to the side of the door. The door was in fact in use, and had the notice been tacked on it, it would have remained there as well as on the side of the building.
The notices were that a special election would be held within the proposed high-school district at Ada, in Ottawa county, commencing at 8 a. m. and closing at 6 p. m., March 29, 1928, for the purpose of voting upon a proposition of establishing and locating a rural high-school district, including certain territories, which it described. A similar notice was published in the newspapers. The ballot prepared was with respect to the adoption of the “proposition to establish a rural high-school district in the following described territory” (describing the same). A majority of the votes were cast in favor of the proposition! On April 3, 1928, the county superintendent issued a call for an election to be held April 6, 1928, at Ada, in the rural high-school district, at which election the officers of the school district were elected. On June 30, 1928, the board of the rural high-school district called a special meeting of the electors, to be held on July 17, for the purpose of locating the school'of the district. Notices of that meeting were given. The meeting was held, and at the meeting the' electors located the schoolhouse for the rural high-school district on the west half of a certain block in Ada. The population of Ada is about 175, and there is no town, city or village other than Ada in the territory of the proposed high-school district.
It will be noted from the recital of facts above made that the petitions first presented to the county commissioners asked the commissioners to call a special election for the purpose of voting on the proposition of “establishing and locating a rural high school at Ada, Ottawa county, Kan.,” with certain boundaries, and that the notices of the election posted and published submitted only the proposition of establishing and locating by the boundaries described the rural high-school district and did not mention the location as being at Ada, Kan.
The first point made by appellant is, the notices and ballots for this election should have designated Ada, Kan., as the location of the high-school building. We do not regard the point as being well taken, and think it did not render void the election so far as establishing the district with the designated boundaries was concerned. The 'situation is very much like that presented in the case of Mathews v. Rural High-school District, 120 Kan. 347, 242 Pac. 1016. There the notice of election omitted any mention of the location of the site of the high-school building, although the petition had specified the location as Spring Hill. It was held to be competent for the voters to first determine the single question whether a district should be established and leave to later appropriate action the propositions of location or site of the building and the issuance of bonds to pay for its erection. Earlier cases are there cited. From this it necessarily follows that there was nothing illegal in the election for the establishment of the rural high-school district by reason of the fact that the site of the building to be used for school purposes was not determined at the same election. The site for the building to be used for school purposes was later determined by appropriate action of the district itself. If no site was selected when the district was organized, then the district has the power to select the site for the building. (Reynolds v. High-school District, 101 Kan. 231, 233, 165 Pac. 860.)
Appellant argues that the election establishing the rural high-school district was void for the reason, that the notice was tacked not on the door of one of the schoolhouses, but on the side of the building near the door. There is no showing or intimation that anyone was misled by this fact, or could reasonably have been misled by it, and we regard the point as being without substantial merit. Appellant points out that the cases of Reynolds v. High-school District and Mathews v. High-school District, supra, were actions brought by taxpayers who, under the statute, are not authorized to maintain an action to enjoin official conduct which does not affect their taxes; that this rule does not apply to the situation, for the state, on the relation of the attorney-general or the county attor ney, is the proper party plaintiff to inquire into the regularity of official conduct. The point is well taken, but it avails the plaintiff nothing here, for irregularities here complained of are not of a character which render the action taken illegal or improper.
Finding no error in the case, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The original opinion stated the facts, and contained the following:
“If is plain from the record the defense was that the bond did not cover depreciation in value. That defense is abandoned here, and it is now contended there was no evidence of depreciation.” (Walrus Manufacturing Co. v. Quackenbush, ante, p. 216, 276 Pac. 806.)
Appellants have filed a petition for rehearing, which contains the following:
“In the opinion Justice Burch says that appellant had abandoned this defense. Counsel for appellant certainly did not intend to abandon their contention in this respect, and submit that the question is fairly presented on pages 10 and 11 of appellant’s brief. . . .”
Beginning on page 11 of their brief, appellants also discussed the topic, “Appellee’s theory which prevailed.” The theory which prevailed was that the bond covered depreciation in value, and the discussion concluded as follows:
“Appellee’s theory of law in the instant case is sound and is supported by the above-quoted authorities. . . .”
This accounts for the statement contained in the original opinion relating to abandonment of the defense that the bond did not cover depreciation. The theory of the law which prevailed was sound (24 A. L. R. 1189, annotation), but in view of appellants’ assertion in the petition for rehearing, the statement in the original opinion is withdrawn.
The judgment in the replevin action was for possession of the property, or its value, $440. When the property was returned it was worth very much less than $440. The judgment could not be satisfied, except in hollow appearance, by return of property which had depreciated in value during the time it was withheld by virtue of the bond. The statute contemplates that the property shall be returned in substantially the same condition and of the same value as when taken. (Fair v. Bank, 69 Kan. 353, 76 Pac. 847; Motor Co. v. Kline, 109 Kan. 227, 231, 198 Pac. 949.) The bond for return of the property contemplated such a return, and the court now holds that it covered- depreciation in value.
The petition for rehearing is denied. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, as administrator of the estate of Robert Lockhart, deceased, sued to recover on a beneficiary certificate held by Robert Lockhart in the defendant at the time of his death. The defendant filed a demurrer to the petition. That demurrer was overruled. The defendant appeals.
The petition alleged:
“That Robert Lockhart died intestate, unmarried and without issue on or about the 21st day of August, a. d. 1926; that he did not leave any heirs or relatives living at the time of his death, of whom said plaintiff has been able to learn.”
The petition further alleged that at the time of the death of Robert Lockhart he held a beneficiary certificate in the Ancient Order of United Workmen of Kansas; that his wife, Sarah Lock-hart, named in the certificate as beneficiary, died about October 8, 1914; that Robert Lockhart thereafter continued to pay the assessments levied against him on the certificate; that he never at any time intended to donate to the defendant the payments that had been made on the certificate held by him; and that the defendant had not returned to Lockhart or to the plaintiff any of the payments that had been made. The plaintiff prayed for judgment for the amount of the beneficiary certificate, or if that could not be had, that he recover the payments that had been made by Robert Lock-hart after the death of his wife. The petition did not allege that Robert Lockhart left any heir, or relative, or any person dependent on him, nor that the defendant knew of the death of Sarah Lock-hart or that Robert Lockhart had no heirs, relatives, or dependents.
A copy of the beneficiary certificate was attached to the petition. It provided that—
“The application for beneficiary certificate in the order by said member and any subsequent application of said member for a beneficiary certificate in the order, together with all conditions hereon and the medical examination on which said member was admitted to the order and any and all medical examinations of said member made on any reinstatement or increase of his beneficiary certificate and which examination or examinations are or may be filed in the office of the grand recorder shall constitute the contract between said member and said grand lodge.”
No copy of the by-laws, nor of the medical examination, was attached to the petition. It appears that the beneficiary certificate was issued January 27, 1908.
Section 4303 of the General Statutes of 1909, in force at the time the certificate was issued, provided that—
“The payment of death benefits of such an association shall be to the families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon the member thereof.”
By section 1 of chapter 208 of the Laws of 1917 that language was changed so as to read as follows:
“The payment of death benefits shall be confined to wife, husband, relative by blood to the fourth degree ascending or descending, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption, or to a person.or persons dependent upon the member.”
That part of the law quoted from section 1 of chapter 208 of the Laws of 1917 was in force at the time of the death of Robert Lock-hart and appears in section 40-701 of the Revised Statutes of 1923.
In Olmstead v. Benefit Society, 37 Kan. 93, 97, 14 Pac. 449, this court, in discussing the effect of a will on a certificate held by a member in the Masonic Mutual Benefit Society of Kansas, said:
“In no event was it payable to him, nor could it become a part of his estate; and having no interest in the fund, what was there for him to bequeath?”
In Pilcher v. Puckett, 77 Kan. 284, 288, 94 Pac. 132, the following language was used:
“It is inconsistent with the theory upon which benefit societies are organized "that the proceeds of a benefit certificate should be considered assets of the ■member’s estate. Otherwise it would become liable for his debts and the costs •of administration, something not within the contemplation and purpose for •which such orders are established. The insured member himself has no interest In the fund; he possesses simply a power of appointment, which, if not ex•ercised, becomes inoperative.”
In Boice v. Shepard, 78 Kan. 308, 96 Pac. 485, this court declared that—
“While the beneficiary named in the certificate of a member, of a fraternal ¡benefit society may be changed by the. member, in accordance with the laws <of the society, the insured has no interest in the fund derived from his memibership, nor can such fund become a part of his estate or liable for his debts.”
The petition disclosed that there was no person to whom the certificate could be paid under the law in this state and that Robert Lockhart had not designated a new beneficiary upon the death of his -wife. In this state the proceeds arising from the payment of a certificate cannot become part of the estate of a deceased member in a fraternal insurance organization. If neither the certificate nor the "proceeds arising from it can become a part of the estate of a deceased member, the administrator of his estate cannot successfully prosecute an action to recover on the certificate. If there were any persons to whom the certificate might be paid, the action should be prosecuted in their name and not in the name of the administrator.
Can plaintiff recover the assessments paid by Robert Lockhart .after the death of his wife? The defendant was under contract to pay to Sarah Lockhart on the death of her husband. It was not informed of her death so far as the petition disclosed. The defendant received the money not knowing of the death of Sarah Lockhart and not knowing that Robert Lockhart had no other person to whom the certificate might be made payable under the laws of this state. It received payments believing that it would be liable to some proper person on the certificate. Under such circumstances there is no obligation on the part of the defendant to return any part of the money received by it- on the certificate that had been issued to Robert Lockhart. It follows that the plaintiff cannot recover the payments made by Robert Lockhart after the death of his wife.
The judgment is reversed, and the trial court is directed to sustain the demurrer of the defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
In these actions the state’s relator seeks to stamp out the business of usurers who prey on the poorer classes of laboring folk in Wyandotte county. To that end the aid of the injunctive powers of the district court have been invoked. Demurrers to the plaintiff’s petitions were sustained, and the state appeals.
The petitions allege that each of defendants keeps a place in Wyandotte county where usurious rates of interest ranging from 240 per cent to 520 per cent per annum are extorted from laboring men' whose necessitous circumstances force them to borrow small sums of money. Defendants pretend to take assignments of the weekly or fortnightly wages of these borrowers under colorable sales thereof. The assignments purport to authorize the borrowers to act as agents of defendants to collect the assigned wages and to bring and deliver the same to defendants. Defendants systematically exact the usurious and grossly extortionate rates of interest above mentioned and thereby manage to keep the borrowers indebted to them for long periods of time. Defendants are enabled to do this because the borrowers are employees of industrial corporations which endeavor to avoid being dragged into court in garnishment and similar proceedings by promulgating and enforcing a rule to the effect that any of their employees whose wages are twice subjected to garnishment will be discharged. Defendants take constant advantage of this rule, and enforce their usurious exactions by threatening the borrowers with garnishment proceedings which would cause the latter to lose their’ jobs, and the debtors are thereby constrained to submit to whatever usurious and extortionate rates of interest defendants see fit to■ impose.-.■ '
Plaintiff’s petitions allege:
“That the defendants, in carrying- on their said business, purposely select and intend to select poor and necessitous wage earners as their customers, for the purpose of compelling such poor and necessitous wage earners to renew from pay day to pay day and from month to month their excessively usurious loans to the end that such customers when once obtained by said defendants will for a long period of time be compelled to continue to pay the excessively exorbitant, usurious rates of interest hereinabove described.
“That the number of such poor and necessitous wage earners who are now customers of said business so carried on by the defendants numbers into hundreds. The amounts of loans range from $5 to $50, the average loan being about $15. That only the husbands sign said pretended assignments.
“That these wage earners are in almost every instance compelled, through fear of losing their jobs as a result of possible garnishment proceedings threatened or so brought by defendants, to pay and continue to pay such usurious interest and to repeatedly sign such pretended wage assignments.
“That by threatening to garnish, by garnishing, by threatening to serve notice of assignment, and by serving such notices of assignment, the defendants in the conduct of said business, as herein described, greatly and seriously' disturb the peace of mind of the numerous poor and necessitous wage earners who deal with them, causing such wage earners to return to the place of business of said defendants and there to pay and to continue to pay such excessively usurious interest on the loans taken by them from pay to pay, and from month to month.
“That the defendants in the conduct of their business illegally and unlawfully interfere with the rights of their customers aforesaid in numerous instances by wrongfully garnishing them and by wrongfully serving notice of pretended assignment of wages upon the employers of such poor and necessitous wage earners, thereby jeopardizing the standing of said wage earners in the eyes of their employers and in some instances causing their discharge by such manner of conducting their aforesaid business, thereby depriving said customers of their rights to peacefully follow their respective lawful occupations without annoyance or injury thereto or deprivation thereof.
“That as hereinabove set out, said defendants have been carrying on the loan business within the state of Kansas in a manner repugnant to good conscience and good morals and against public policy. That the methods of doing business employed by said defendants are in conflict with the statutes of Kansas regulating the legal rate of interest to be charged by lenders of money, the rate of interest that lenders of money may contract to charge, and the manner of the payment of interest, as set out in R. S. 41-101 to 41-103.
“That said defendants in engaging in the lending of money at extortionate, usurious and unconscionable rates of interest have not only violated all of the principles of good conscience, good morals and public policy, but have engaged in business in direct violation of the provisions of the statutes of Kansas.” •
Plaintiff’s petitions conclude with prayers for temporary and permanent injunctions restraining defendants from loaning money in small sums to laboring men at rates of interest in excess of ten per cent per annum. Plaintiff also prays for a receiver to take charge of the records and papers pertaining to the usurious loans of defendants, and that defendants’ usurious loan business be wound up by making the proper credits upon the accounts of the borrowers for all usurious interest exacted and for the liquidation of all such borrowings according to law. - . ,
It is a familiar rule of pleading that as against a demurrer all the well-pleaded allegations of a petition are to be liberally construed and accredited as true. Accepting, therefore, the plaintiff’s allegations at their face value, the question intrudes: Has the law no adequate preventive for such a deplorable condition of affairs? Counsel for defendants answers with a confident negative. He says there is for each of the hundreds of borrowers a plain and adequate remedy at law, and that the exaction of usurious interest is no concern of third parties, not even of the state itself. Is that so? We have a statute which limits the contract rate of interest to 10 per cent per annum. This statute provides that any person who contracts for a greater rate of interest than 10 per cent per annum shall forfeit the excess; and in addition thereto shall forfeit a sum of money, to be deducted from the amount due for principal and lawful interest, equal to the amount of interest contracted for in .excess of ten per cent per annum. (R. S. 41-102.) ■
But according to plaintiff’s allegations, the truth of which is conceded by the demurrers, this statute is systematically set at naught by the defendants. Between money lender and borrower, of course, it is altogether ineffective until invoked in some lawsuit. And according to the plaintiff’s allegations, such a lawsuit will not arise once in every hundred times the usurious toll is taken from the wages of his victim. The wage earner has no time to attend court nor means to employ a lawyer to invoke the defense to the usurer’s claim accorded by this statute. He must earn wages every working day to support his family. If garnishment proceedings are instituted which will bring' his employer into court on matters of no concern to that employer, the unfortunate debtor is discharged. This dread consequence to the debtor can only be avoided by continued submission to defendants’ usurious exactions.
It is undeniable that many an isolated oppression is practiced on a debtor by an exacting creditor for which the law furnishes no practical relief. In the situation portrayed by plaintiff it is perfectly obvious that for the hundreds of indigent debtors held in financial peonage by defendants the remedy supplied by law is pitifully inadequate; and the ruling in Pritchett v. Mitchell, 17 Kan. 355, that the exaction of usury is a mere contractual matter of no concern to anybody but the parties themselves is imperatively in need of revision in the light of the complex social and economic conditions brought about by the industrial development in the half century since that doctrine was announced. The long-continued subjection of hundreds of indigent debtors to the usurious exactions of defendants by keeping them in fear of losing their jobs if they should have the temerity to assert the rights accorded them by the beneficent statutes of this commonwealth presents a situation which cannot be tolerated, and one which quite justifies the institution of this litigation by the state itself. In State, ex rel., v. Howat, 109 Kan. 376, 198 Pac. 686, where the right of the state to initiate litigation over matters primarily of private concern but secondarily of far-reaching consequence to the public was thoroughly discussed, an excerpt appears from the supreme court of Illinois worth repeating here:
“ ‘It is one of. the most useful functions of a court of equitjr that it may give complete and adequate relief against acts which will constitute nuisances.
“ ‘. .' . The public authorities have a right to institute the suit where the general public welfare demands -it, and damages to the public are not susceptible of computation. The maintenance of the public health, morals, safety and welfare is on a plane above mere pecuniary damage although not susceptible of measurement in money, and to say that a court of equity may not enjoin a public nuisance because property rights are not involved, would be to say that the state is unable to enforce the law or protect its citizens from public wrongs.’ (pp. 474-477.)” (pp. 387, 388.)
The same principle was well stated in the case of In re Debs, Petitioner, 158 U. S. 564, 39 L. Ed. 1092, where it was said:
“It is obvious from these decisions that while it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its great powers to enforce the rights of one against another, yet whenever the wrongs complained of are such as affect the public at large, and are in respect of matter’s which by the constitution are intrusted to the care of the nation, and concerning which the nation owes the duty to all the citizens, of securing to them their common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties.” (p. 586.)
The courts are not helpless to put a stop to such a nefarious business as that of which plaintiff complains when that business has reached-the widespread prevalence it has attained in the principal industrial communities of the state. What in any case is the justification for equitable 'interference with the multifarious doings of men but the natural reaction of the judicial conscience towards some peculiar evil for which the law. by reason of its universality is inadequate to correct? From, the foundation of our commonwealth it has been a matter of civic pride that one- of this state’s .primary concerns has been that the poor man shall have a fair chance to better his material condition. To that end we'have made the family homestead immune to judicial process in invitum. The household goods of the family, the tools of the workman and the needful agricultural chattels of the husbandman are generously exempted from execution sale. (R. S. 60-3501 et seq.) t So, too, ninety per cent of the current wages of a laborer who is the head of a family are projected from garnishment as prescribed in R. S. 60-3495. .
In Stark v. Bare, 39 Kan. 100, 17 Pac. 826, it was said:
“The policy of our state is exceedingly liberal in providing protection for the families of indigent debtors. Among other exemptions, it is enacted that the personal earnings of a debtor for three months next prefceding the issue of any process against him for the collection of a debt and which earnings are necessary for the support of the debtor’s family, are exempt from such process. This provision has been frequently sustained and enforced. We have gone further, and held that where a citizen of this state attempts by a proceeding in attachment' or garnishment in another state to subject to the payment of his debt personal earnings of the debtor which under our laws are exempt, and thus prevent such debtor from availing himself of the benefit of the exemption laws of the state, an action by injunction restraining the wrongful action may be maintained by the debtor against such wrongdoer. (Zimmerman v. Franke, 34 Kan. 650.)” (p. 103.)
And what are these pretended assignments of the borrowers’ wages and the pretended appointments of the borrowers as agents of ■defendants to receive from the employers the borrowers’ wages but an elaborate camouflage through which the wage-exe!mption statute and the statute prohibiting usury are set at naught? What are these groundless garnishments resorted to and constantly threatened but incidents of a scheme for the circumvention of these laws which the humaneness of our legislature has enacted for the very purpose of protecting the indigent poor from such usurious exactions as those perpetrated by defendants?
Precedents for the particular form of redress sought by plaintiff to suppress the evil complained of are rare, but in State v. Martin, 77 N. J. L. 652, 24 L. R. A., n. s., 507, the New Jersey court of errors and appeals went a good deal further than we are asked to' do in these cases. It held that although the taking'of usurious interest was not a criminal offense in New Jersey, yet interest in excess of six per cent per annum being forbidden under a civil penalty, a loan office where the exaction of such usurious interest was systematically practiced was a disorderly- house for the maintenance of which the usurer could be indicted and punished. .
In the'opinion the court said:
“The title of our statute is ‘An act against usury.’ (Gen Stat. [1895], p. 3703.) The provision of its first section is ‘that no person or corporation shall, upon contract, take directly or indirectly, for loan of any money, wares, merchandise, goods and chattels, above the value of $6 for the forbearance of $100 for a year, and after that rate for a greater or less sum or for longer or shorter time.’ The object disclosed in the title of the act is the prevention of usury; the method by which the, legislature provides for the carrying of that object into effect is by enacting an express prohibition- against taking it. Counsel argues that a violation of this mandate of the statute by a person loaning money does^not constitute an unlawful act, first, for the reason that the statute imposes no penalty upon him for so doing. ...
“The statement that the statute does not impose any penalty upon a person who takes usury is not accurate; for the second section of the act deprives him of the power to enforce the payment of any interest on his loan, and entitles the borrower to have the amount of the usury deducted from' the principal of the loan in case usury has been paid. . . . The fact that the statute imposes no penalty, except the deprivation of the money which the statute prohibits the lender from taking, affords no ground for holding that, the taking of usury is not unlawful.” (p. 654.)
The Kansas statute (R. S. 41-101 et seq.) was enacted under a. title: “An act regulating the rate of interest upon money, prohibiting usury, and providing penalties therefor,” etc. The specific-penalties provided for the breach of our statute read:
“That any person so contracting for a greater rate of interest than ten percent per annum shall forfeit all interest so contracted for in excess of such ten per cent.; and in addition thereto shall forfeit a sum of money, to be deducted from the amount due for principal and lawful interest, equal to the amount-of interest contracted for in excess of ten per cent per annum.” (Laws 1889, ch. 164, § 2, R. S. 41-102.)
“All. payments of money or property made by way of usurious interest or of inducement to contract for more than ten per cent per annum, whether made in advance or not, shall be deemed and taken to be payments made on account of the principal and' ten per cent interest per annum, and the courts shall render judgment 'for no greater- sum than the balance found due after deducting the payments of money or property made as aforesaid: Provided, That no bona fide indorsee of negotiable paper purchased before due shall be affected by any usury exacted by any former holder of such paper, unless he shall have actual notice of the usury.previous to his purchase. But double the amount of such excess, incorporated into negotiable paper, may, in such cases, after payment, be recovered back by action against the party originally exacting the usury, in any court of competent jurisdiction.” (Laws 1889, ch. 164, § 3, R. S. 41-103.)
It will thus be seen that the exaction of usurious interest has been denounced as unlawful and penalized by our legislature although it is not one of the specific offenses enumerated in our crimes act. It is not only illegal, but it is a grievous antisocial iniquity (Marshall v. Beeler, 104 Kan. 32, 178 Pac. 245), and when its practice assumes the proportions and prevalence alleged by the plaintiff a court of equity should not hesitate to suppress it.
We note that the eminent court of appeals in Kentucky, in Commonwealth v. Mutual L. & T. Co., 156 Ky. 299, 50 L. R. A., n. s., 1171, found itself unable to follow the precedent of the New Jersey court of errors and appeals quoted above, but it distinguished the case it had to consider from the New Jersey case thus:
“Sections 2218 and 2219 of the Kentucky statutes provide that 6 per cent shall be the legal rate of interest in this state, and that all contracts for loans at a greater rate shall be void to the extent of the excess over the legal rate; but there is no statute in this state prescribing a penalty for exacting or contracting for a usurious rate of interest. It certainly cannot be contrary to law, in the ordinary sense, to do a thing for which the law prescribes no penalty. ...
“Under our statute it is therefore not contrary to law, in the sense that a penalty is prescribed for its infraction, to maintain a place where money is habitually loaned at usurious rates, but is contrary to law only in the sense that such contracts, are unenforceable to the extent of the usury contracted for. Our statute is directed only to the preservation of the rights of individuals by providing that such contracts shall be unenforceable, while the New Jersey statute in addition provides a punishment by way of forfeiture of all interest.” (p. 300.)
The logic of the Kentucky case clearly puts this state in line with New Jersey. The Kansas statute does prohibit usury and does-prescribe penalties (civil penalties inuring to the. debtor), and the practice of usury being unlawful in this state, upon sufficient aggravation it may be suppressed by injunction. /
The judgment of the district court is reversed and the cause remanded for further proceedings. ' ' | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to recover damages for alleged breaches of contract. The North End State Bank of Wichita determined to liquidate, and entered into a contract which provided that a neighboring bank then acting under the name of the Stockyards State Bank, now called and will be designated as the Industrial State Bank, should take over its institution, including all of its assets, to the building occupied by the Industrial State Bank, through which the liquidation was to be accomplished. The latter was to act only as a liquidating agency and depository for the North End State Bank, and from the proceeds of the assets pay the depositors of that bank. To secure the Industrial State Bank in paying depositors it was stipulated that all of the notes, contracts, drafts, bills and other such assets of the North End State Bank should be placed in and pledged to the Industrial State Bank, which was required to pay the depositors of the other bank from the collections made of the notes, bills and other assets so transferred. There was a stipulation that upon receipt of the assets of the North End State Bank the Industrial State Bank would, besides paying depositors, pay “all float drafts and rediscounts, cashier’s checks, certified checks, as shown by the books of the bank, in full upon the receipt by it of the assets of the North End State Bank,” etc.
Another provision was that when the liabilities of the North End State Bank had been paid in full, all the remainder of the assets should be returned to the North End State Bank. There was an assignment of this contract and its benefits to the plaintiff, George W. Herrman. In January, 1925, J. J. Benjamin sold and delivered to G. W. Herrman seventy-four shares of the capital stock of the Industrial State Bank, to be free and clear of encumbrances, and also some other rights and interests, and in the transfer Benjamin gave the following guaranty:
“It is further agreed that party of the first part [J. J. Benjamin] guarantees all resources and liabilities of the Industrial State Bank to be just as shown on the books by totals at the close of business January 26, 1925. Further guarantees all signatures on all notes to be genuine. Also all accounts on individual and other ledgers to be correct, also guaranteeing all accounts with corresponding banks to be correct, and that there are no other liabilities of said bank further than those shown on the books of said bank at this date except current bills.”
Herrman brought this action against Benjamin, alleging four breaches of the guaranty contract: First, the payment of a certificate of deposit for $235 by the Industrial State Bank, although it was not shown to be a liability upon the books of the bank nor a current bill; second, a certificate of deposit for $100 paid by the Industrial State Bank, which was not shown on the books nor can it be treated as a current bill; third, certain inactive and suspended accounts and deposits which were appropriated by the Industrial State Bank, without the knowledge or consent of the depositors, and that these were obligations not shown on the books nor were they current bills, and that the bank had paid the claims. In each of these transactions plaintiff alleged that he had suffered damages in a stated amount. The fourth cause of action, and the only one upon which there is a contention at this time, was based on a claim that there was an outstanding obligation of the Industrial State Bank not shown on the books nor yet a current.bill of the bank owing to the Citizens State Bank of Lane, and one, J. S. McMahon, the receiver thereof. That the Industrial State Bank was indebted to the Citizens State Bank of Lane in the sum of $6,500, and that the bank made a compromise settlement of that claim with the receiver, paying thereon $5,500, through which plaintiff was damaged to the amount of $2,035, for which judgment was asked. The court rendered judgment for plaintiff on the first and second causes of action. The third was dismissed by plaintiff and the court then adjudged that the plaintiff recover nothing on the fourth cause of action, and from the latter holding the plaintiff appeals.
The right of recovery on the fourth count of the petition is to be measured by the intent of the parties as expressed in the agreement made when the shares of stock in the bank were sold. While it is conceded that the Industrial State Bank paid $5,500 to the receiver of the Citizens State Bank of Lane, it is an admitted fact that this obligation was not shown on the books of the Industrial State Bank, nor was it shown upon the books of the North End State Bank. Under the agreement the defendant guaranteed that all resources and liabilities of the Industrial State Bank were just as shown by the books of that bank at the close of business on January 26,1925, and that there were no other liabilities than were shown by the books. It is argued that, considering the contract in connection with the liquidating agreement and other circumstances, an intent is shown that all of the obligations of the North End State Bank were to be paid. It is said that in several parts of the liquidating agreement statements occurred that payment in full should be made to depositors and full and final payment of certain liabilities should be made, but as between the parties to this action the defendant limited his liability to obligations shown by the books, and the one in question was not so shown and the bank had no knowledge even of the claim of the Lane bank when the guaranty contract was made.
Several months later the Citizens State Bank of Lane obtained a judgment against the North End State Bank, which was subsequently affirmed in this court (Bank v. Bank, 116 Kan. 303, 226 Pac. 998), but this obligation was not included in terms, nor do we think in intent, in the guaranty that was given. It may be said that there was no consolidation of the Industrial State Bank with the North End State Bank, nor was there a purchase of the latter. The former acted as a sort of disbursing agent, taking over the drafts, bills, notes and other assets, and from the proceeds thereof it was to pay the depositors of the North End State Bank and its current bills. Whether its payment of the claim of the Citizens State Bank of Lane was a voluntary gift by the Industrial State Bank or that it felt itself bound to make payment because the bank commissioner required it is not material so far as defendant’s liability is concerned. It was a kind of liability excluded by the guaranty contract. It tends to show that the defendant did not guarantee that the Industrial State Bank would pay all the creditors of the North End State Bank, but only such as were shown on the books of the bank. It was a contract which the parties were competent to make, and it is too specific to be modified or weakened by inferences drawn from other circumstances. The judgment of the Citizens State Bank of Lane does not fall within the limitation of the guaranty and hence the judgment denying a recovery of damages on that ground must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for damages for personal injuries. The court directed a verdict for the defendant, and plaintiff appeals.
The facts are substantially these: The plaintiff was an employee of the Otis Elevator Company, which was engaged in installing the ..elevators in the Jayhawlc hotel. A wheelbarrow of brick, which was 'being hoisted, tipped over. A brick fell, struck the plaintiff on the ihead and severely injured him.
The pertinent question for solution is whether the Otis Elevator Company was installing the elevators under a contract with the defendant, Leeper, or whether the contract was between the Topeka Hotel Company and the Otis Elevator Company. If the contract was between Leeper and the Otis company, the latter a subcontractor, the plaintiff was entitled to compensation under the workmen’s compensation act, but not entitled to recover in an action for damages.
The plaintiff contends that his immediate employer, the Otis lElevator Company, was putting in the elevators as an independent«contractor, its contract being with the Topeka Hotel Company; that Kis injuries were caused by the negligence of workmen in the employ of the defendant, Leeper, who had the general contract for construction of the hotel building, but did not have the contract for installing the elevators; that therefore the plaintiff had the right to proceed against Leeper in a suit for damages, and that his remedy -was not a suit to recover compensation under the workmen’s compensation act. The contention cannot be sustained.
From an examination of the record we are of the opinion that the defendant, Leeper, and Thomas W. Williamson, a Topeka architect, had executed a contract with the Topeka Hotel Company to build the entire Jayhawk hotel building, including the putting in of the elevators; that a subcontract was let by Leeper and Williamson to the Otis Elevator Company for installing the elevators. It necessarily follows that the plaintiff must be treated under the work-omen’s compensation act as an employee direct of Leeper and Williamson, the general contractors, so that recovery for his injuries -would not lie in a suit for damages, but must be in the nature of a -claim for compensation under the workmen’s compensation act. "The general building contract entered into by the defendant and "Williamson with the Topeka Hotel Company for the construction of the building contained the following provision:
“The building to be complete, including the heating, plumbing, electrical and elevator contracts, ready for the furnishings and fixtures to be furnished fby the operator.”
The contract was executed by the Topeka Hotel Company, by O. B. Gufler, president, and by J. M. Leeper, contractor, Thos. W. Williamson, architect, and attested by J. R. Burrow, Jr.
What appears to have given rise to and formed the basis of plaintiff’s claim that the Otis Elevator Company was an independent contractor and not a subcontractor of Leeper and Williamson, was the fact that the proposal of the Otis company to install the elevators and also the acceptance thereof, was signed “The Topeka Hotel Company, by Thos. W. Williamson, architect,” through an inadvertence by Mr. Williamson. However, the evidence showed that bills of the Otis Elevator Company for the total contract price of $30,000 were paid by the defendant Leeper and not by the hotel company. The defendant also testified that:
“When the Otis elevator, people came I directed them where to unload the material and where to start. ... I handled all the subcontracts just the same as the Otis contract.”
J. R. Burrow, Jr., secretary and treasurer and chairman of the building committee of the Topeka Hotel Company, testified substantially that his company contracted with Leeper and Williamson for the construction of the entire building, including the elevators; that it made no contracts of any kind with the Otis Elevator Company and had no dealings or negotiations with the elevator company; that in settling with Leeper and Williamson the hotel company paid them the full contract price, which included the cost of construction of the elevators, and that the hotel company made no payments to and had no dealings with the Otis Elevator Company. Mr. Burrow further testified that the Topeka Hotel Company had never authorized Mr. Williamson to sign any contracts on its behalf for elevators or anything else in the construction of this building; that he did not learn that Mr. Williamson had signed the name of the Topeka Hotel Company to the contract with the Otis Elevator Company until after the suit was brought and just a few days before he was called upon to testify.
The plaintiff contends that he had knowledge of the signature “The Topeka Hotel Co.” on the acceptance of the proposal of the Otis Elevator Company to install the elevators; that he relied thereon and believed that his immediate employer was an independent contractor and not a subcontractor. The evidence fails to support his claim. There was no evidence that he ever saw or knew anything about the form of the contract of his employer, the Otis Elevator Company, for installing the elevators.
The accident occurred in February, 1926. The workmen’s compensation act then in force contained this provision:
“Save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act.” (R. S. 44-501.)
In Echord v. Rush, 122 Kan. 260, 261 Pac. 1112, it was held:
“The remedy afforded by the workmen’s compensation law is exclusive, where the employer and employee are voluntarily operating under its provisions, and the injury to the workman relied upon arose out of and as a result of such employment on the premises.”
The workmen’s compensation act provided substantially that when a party contracting to execute any work let a part of his contract out to subcontractors the principal contractor should be liable to pay any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him. (R. S. 44-503.) This section was construed in Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219, where an oil company was engaged in developing mineral land held under lease and contracted with another for the construction of derricks on the leased ground. An employee of the derrick contractor fell from a derrick and was injured. It was held that — ■ . .
“The work of building the derrick was part of the company’s business, within the meaning of the subcontracting section of the workmen’s compensation act (R. S. 44-503); the accident occurred on premises on which the company had undertaken to execute work, within the meaning of subdivision Id) of the section; and the company was liable to the dependents for compensation, under subdivision (a) of the section.”
In Spencer v. Marshall, 107 Kan. 264, 191 Pac. 468, it was said in the opinion:
“Even if the plaintiff was working for a subcontractor when he was injured, section 5898 of the General Statutes of 1915 fixes on the appellants liability for compensation to the plaintiff.” (p. 267.)
We are convinced the trial court was correct in its conclusion that there was no contract between the Topeka Hotel Company and the Otis Elevator Company; that the Otis Elevator Company was a subcontractor under the defendant and Williamson, and that the plaintiff was limited to a right to compensation and could not sustain an action for damages.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action against Albert A. Colvin by his two brothers and the heirs of a deceased brother to contest the will of Mary F. Colvin, his mother, in which she devised to him all of her undivided interest in a two-hundred-acre improved farm in Elk county, Kansas, estimated to be worth about $12,000, giving the other sons and children of the deceased son $5 each.
The petition charged at considerable length undue influence over the deceased by Albert, who resided with her and farmed the place.
The will was written August 6, 1924, and the testatrix died December 24, 1926. The answer of Albert was a general denial. The administrator of the estate was made a defendant, and he also filed. a general denial. The cause was tried during the September, 1927, term by submitting the question of undue influence to a jury which on September 27, 1927, returned an answer that the will was executed under undue influence. Motions were filed to set aside the finding of the jury and to grant a new trial. These motions were overruled on May 14, 1928, and at the same time the trial court adopted the finding of the jury as the finding of the court and held the will of the deceased to be null and void because of the undue influence of Albert, her son, exercised by him over her at the time the writing was executed. From this ruling the defendants appeal, assigning error in overruling the demurrer to plaintiff’s evidence, in the admission and exclusion of evidence, in approving finding of jury and in overruling motion for a new trial.
There is presented a preliminary question in the form of a motion by the appellees to dismiss the appeal because the appellant, Albert A. Colvin, had prior to taking an appeal voluntarily conveyed to strangers all his right, title and 'interest in the subject matter of the action. The evidence upon the motion shows that on March 27, 1928, he gave a quitclaim deed to his interest in this farm to Guy and Marion Beck; that the deed was placed on record two days later; that the Becks gave a quitclaim deed of the property to one J. F. Spray on June 30, 1928; that Spray on September 18, 1928, gave quitclaim deed of the property to Albert A. Colvin ; that on May 14, 1928, the same day judgment was rendered holding the will null and void, a partition action was commenced against Albert in which he filed answers June 9 and 11, 1928, disclaiming any interest in the land in question; that J. F. Spray was permitted to answer in the partition suit and did so on August 29, 1928, claiming to be the owner of the land. Two notices of appeal were served by appellants on appellees; one on September 14, 1928, the other on November 2, 1928. The appellants filed affidavits made by Albert A. Colvin and J. F. Spray showing that the quitclaim deed to the Becks was given as- security for a loan, that Spray took an assignment of the debt and a quitclaim deed as security therefor and that the quitclaim deed was made by Spray to Colvin the day the indebtedness was paid, viz., September 18, 1928.
From these dates it will be observed that appellant gave the quitclaim deed between the time the jury made its finding and the rendition of judgment thereon by the court, and when appellants served the first notice of appeal Spray was the owner of the land, and when appellant Colvin filed his disclaimers in the partition suit Spray was the owner and he so answered in that ease, but when appellants served the second notice of appeal Albert had a deed from Spray.
This question of the right of a party to appeal after transferring his interest in the property involved in the judgment is a very serious one, and it has been well briefed on both sides, but there is one feature of the case supported by affidavits uncontradicted which changes the effect of the original quitclaim deed from a conveyance of title to a conditional one or mortgage. And while the answers in the partition suit disclaiming interest are somewhat inconsistent with the theory now maintained in the affidavits, the practice of giving a deed as security is very common, and it is very improbable that the grantees would make such an explanation if they were actual purchasers. We accept the uncontradicted statements contained in the affidavits that the quitclaim deed from Albert to the Becks was only a mortgage to secure an indebtedness and the subsequent deed to him was in effect a release thereof. When he served the second notice of appeal, which was within the statutory time, he had the deed or release from Spray. And upon this theory he all the time had a conditional interest in the land, that of mortgagor, and before the service of the second notice of appeal the same interest that he had at the commencement of the action.
“A mortgagor or mortgagee may appeal or sue out a writ of error to reverse a judgment, order, or decree in relation to or affecting the mortgaged property if he is a party, when this is- required by the statute, and if he has an interest and is prejudiced or aggrieved by the judgment, order, or decree, but not otherwise.” (3 C. J. 643.)
On this theory or explanation of the deed given to strangers to the action and with the thought in mind that appeals are to be favored to the extent of affording a reasonable opportunity to review the errors assigned, we have no hesitancy in overruling the motion to dismiss the appeal.
John Colvin, the husband of Mary F. Colvin, was the original owner of the property here involved. He died intestate about 1900, leaving Mary F., his widow, and five sons. When one of the sons died shortly thereafter unmarried and without issue the widow became the owner of an undivided six-tenths of the property. When the husband and father died the land was well improved with fine, large buildings and with no indebtedness except $700, balance for lumber in new barn. He was also possessed of farm equipment, 24 cattle, 18 horses and 12 hogs.
The sons all worked on the farm for a few years, but later one by one they went elsewhere; Albert also going to Illinois for quite a while, but later returned and took charge of the place by oral agreement with the brothers that he stay at home, look after the mother, keep up repairs,' pay the taxes and enjoy the profits, and after the mother’s death the property would be divided. There were at that time 153 hogs, 40 head of cattle and 24 or more horses. Albert soon became financially involved and changed the arrangement with his mother to an annual cash rent of $300, which he failed to meet, and at length gave her a deed to his one-tenth interest in the property because of his inability to pay the rent, but continued in charge of the place, selling off the stock from time to time, and on June 30, 1924, filed a petition in bankruptcy. Before the bankruptcy proceedings one judgment creditor levied execution upon Albert’s one-tenth interest in the farm and the sheriff advertised it for sale. The mother procured an injunction on her verified petition, which set out the relations between herself and Albert concerning his failing to pay rent and attempting to borrow money from her and her finally acceding to his wish by loaning him money and later getting a deed from him for his undivided interest in the farm. One paragraph is especially important to have literally, which follows her statement in the injunction petition of his urging her to make him a loan. It is as follows:
“Plaintiff informed him that she would not accept it or advance any more money to him except upon the distinct condition that his interest in the estate should stand charged as security to her for the payment of said money and interest, because she had never loaned or advanced any money to the other children and she wanted all of them to share alike in the estate when it is ultimately divided; to which .condition the said Albert A. Colvin then and there consented and agreed before the delivery of said note.”
This petition was verified and filed February 22, 1923.
The evidence shows that Albert apparently conducted all the business in connection with the farm; that he signed his mother’s name to the assessment returns, but the administrator reported no personal property whatever as belonging to her; that when a married brother was ill, and frequently requested money, his letters were not answered by Albert. The mother procured a neighbor to write a letter for her to the widow after the son had died. Letters and telegrams requesting information about his mother’s last illness were not answered by Albert, and inquiries had to be made of others. The mother died about ten o’clock in the forenoon and the undertaker testified after his arrival Albert went to town, and the record shows the will was presented by him to the probate judge for probate about one o’clock that day. One instance is given of the mother wanting to help him pay a certain bill shortly before the instituting of the bankruptcy proceedings and his directing her to not do so. They lived alone; they seldom called on any neighbors and the neighbors seldom called on them or either of them. The mother was only seen in town a very few times in the last fifteen years of her life. She is described by witnesses as being “simple, gentle and retiring.” “I never knew of her having any business experience.” “I did not see her in church for a good many years.” “Mrs. Colvin was very quiet and retiring; she was not an aggressive woman; Albert was in charge of the business.” “She was a home-loving woman, very industrious in her home and set in her affections. She never had any controversies with any of the neighbors to my knowledge.” “She was very affectionate toward her children. She never showed any preference or a different affection for any of them as opposed to the others.” She lacked a few days of being seventy-five years old at the time of her death.
Albert was very illiterate, as shown by the letters written to one of his brothers on business, and very emphatic in his positions and severe in his criticism of any deviation from his orders as to the handling of their joint property interest. He was in charge of the farm and lived with his mother for about fifteen years before her death. He is described by some of the witnesses as being “a man of decision,” “was aggressive, active, vigorous and determined in his undertakings,” and “was very determined in his transactions. I would say he was an obstinate man and was inclined to have his own way.” “Albert’s, attitude was not very friendly.” “He was determined in that he wanted to accomplish whatever he set out to do.” “He has a stubborn and set disposition and is very determined.” One witness testified that “Albert said that when he was served with the writ, notifying him to pay up [on the Thompson judgment] his mother felt bad about it and wanted to pay it. He made a motion with his hand and said, ‘You just sit back; I am taking care of this.’ ” He saw no need of sending a telegram to his brother John about his mother’s death.
A number of witnesses testified in defense that Albert was always agreeable, not hard to get along with, treated his mother nicely, that he was not overbearing, tyrannical or domineering and dealings with him were satisfactory and agreeable. A neighbor testified that the deceased asked him to tell the attorney she wanted him to come and write her will, which he did. The attorney testified that he went in response to such request, talked to her alone about the disposition of her property and testified that she said that “she wanted her son Albert to have the farm and the personal property; . . . that the other boys had left home early and that Albert should have the property.” Attorney says he told Albert to get two witnesses, which he did; that he read the will to her and she signed it in his presence and in the presence of the two witnesses. The two witnesses state the same about being brought there for that purpose by Albert and heard the will read to the testatrix by the attorney and saw her sign it in the presence of all three of them. All three say Albert was not present at the conference or signing.
The first assignment of error is in overruling the demurrer to plaintiff’s evidence. It is correctly argued by the appellant that there is no presumption of the exercise of undue influence even when a fiduciary relation exists as in this case, when the evidence affirmatively shows that she had independent counsel to advise her. On the .other hand, the presumption0is in favor of the validity of the will when it has been regularly admitted to probate in the proper court, as this will was admitted. So there is no question in this case as to any presumption being in favor of the plaintiffs, but in fact the presumption is against them and the burden of proof is upon them to establish by a preponderance of the evidence that there was in fact un'due influence exercised over the mother by the son in the execution of the will. No witness has testified directly to the exercise of such influence, and indeed it is not often or natural that such influence is a possible subject of direct testimony. It is usually established by the surrounding circumstances and conditions.
“In. making his proof a contestant is not limited.to the bare facts which he may be able to adduce, but he is entitled to the benefit of all inferences which may be legitimately derived from established facts.” (Ginter v. Ginter, 79 Kan. 721, syl. ¶ 5, 101 Pac. 634.)
“It has been held that in order to establish undue influence sufficient to avoid a will, the circumstances of its execution need not be inconsistent with every other hypothesis. All that is necessary is that the evidence of the party attacking the will of a person of sound mind, on the ground of undue influence, shall preponderate over the evidence adduced and the presumptions prevailing on behalf of the proponents of the will.” (28 R. C. L. 401. See 40 Cyc. 1144.)
There was in the case quite convincing testimony to the effect that the mother.was a quiet, unobtrusive, agreeable, kindly, affectionate old lady, interested in all her children and expressing herself on more than one occasion as desiring to treat them all alike in the disposition of the property. There is also an abundance of testimony as to Albert being determined, set in his way, obstinate .and not very friendly. His own letters to his brother John are the best evidence of his determination along business lines and reflect a disposition of disregard for the judgment or wishes of others. 'The commanding and directing attitude is forcibly shown in his own statement of how he suppressed his mother’s inclination to pay one of his pressing debts. He evidently had then in mind the better way of settling it by bankruptcy proceedings instituted very soon after the incident. The jury and trial judge heard the testimony, saw the witnesses and found Albert had exercised undue influence over his mother in the execution of the will and the only duty of this reviewing court in this particular is to say whether or not there was sufficient evidence to support such a finding. We have no difficulty in this particular in finding in the record more than enough evidence, if believed, to support that finding, and hence in our judgment there was no error in overruling the demurrer to plaintiffs’ evidence.
The next assignment of error is in the admission of evidence. Our attention is especially directed to two items of evidence that should have been excluded as appellant contends. One item was that with reference to an oral arrangement between Albert and his brothers when he took charge of the place, about caring for the mother, keeping up the improvements, paying the taxes and receiving all the profits during the life of the mother, and at her death the property should be divided. It is correctly urged that this arrangement not being in writing is not enforceable. Whether •enforceable or not it goes to show a change of plans on the part of the appellant, for this oral arrangement was not disputed. He •changed his mind on the subject of dividing the property as is evidenced by a number of incidents in his relations to his brothers ■during the last few years of his mother’s life, and the evidence shows by the making of the will she changed her mind as very forcibly •expressed a short time before. For the purpose of showing this change of mind on his part and then on her part, as reflected by the will, this evidence was competent although the contract might not have been an enforceable one. Terms of incomplete or proposed contracts are admissible in evidence if they are germane to the-issue, although not enforceable as a contract. In the same connection was the other item of evidence, viz., the mother’s statements-made shortly before executing the will, one statement in conversation, the other in writing duly verified, that she wanted the property to go to all the children alike. This evidence was admissible for’ the purpose of showing the state of her mind. (See Fairbank v. Fairbank, 92 Kan. 45, 46, 139 Pac. 1011.)
The Pennsylvania case cited by appellant on this subject, being a case almost exactly like this one, does not hold such evidence is incompetent, but the reviewing court reversed that case because-the trial court failed to instruct the jury that such evidence did not go to the question of undue influence. The following is the third paragraph of the syllabus in that case:
“In an issue raised upon the question of fraud and undue influence alone,, though a testator’s declarations cannot have any force whatever in establishing the facts of fraud or undue influence, yet if they are reasonably connected in point of time with the testamentary act, they are admissible as tending to show the state and condition of the testator’s mind.” (Herster v. Herster, 122 Pa. St. 239, syl. ¶ 3.)
This brings us to the consideration of the instructions given in the case at bar. There is an element of uncertainty as to the exact language of the instructions, the original instructions being lost, but regarding those submitted in the abstract as substantially correct, the court so clearly defines undue influence and describes what is necessary to constitute such, that by the very terms of such definition, the evidence to which the appellants object is necessarily excluded from that which shows or tends to show undue influence.
What has been said about the sufficiency of the evidence as against a demurrer under the first assignment of error applies without restatement to the last assignment of error in approving the finding of the jury and in not granting a new trial. We find no error as to either ruling.
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The opinion of the court was delivered by
Marshall, J.:
The defendant was tried for murder in the first degree, was found guilty of murder in the second degree, was sentenced to the penitentiarj»' for life, and appeals.
The defendant argues that the evidence was not sufficient to sustain the verdict. There was evidence which tended to show that Robert L. Barton and the deceased, John L. Pool, were “tramps”; that the defendant, another “tramp,” met Barton and Pool on the M.-K.-T. railroad track in or near the city of Fort Scott; that they sat down near each other on the railroad track and engaged in conversation; that the defendant produced a pistol and a blackjack; that he told the other two something of the story of his life; that Pool reached down to do something with his shoe; that the defend-jumped up, demanded to know what Pool was trying to do, pointed his pistol at him, commanded him to lie down on his belly, and threatened to “plug him”; that Pool requested the defendant not to point the pistol at him, and did not lie down; that the defendant then shot Pool in the head, but did not instantly kill'him; that the defendant then commanded Barton to lie down; that Barton did so; that Pool was lying on the ground moaning; that the defendant then drew his blackjack and went to where Pool was lying; that Barton then jumped up, ran away, and immediately informed the police; and that Pool died about ten days later from the effects of the wound. That evidence, thus summarized, was given by Barton, who was the only eyewitness to the shooting except the person that did it. It is needless to say more than that the evidence amply sustained the verdict.
The defendant urges that the witness Barton was shown to have been of such character that he should not have been believed. He was shown to be a “tramp,” and he was impeached for truth and veracity. If he told the truth the defendant was guilty. It was for the jury to say whether or not he told the truth, not for the supreme court. (State v. Plum, 49 Kan. 679, 31 Pac. 308; Gray v. Delay, 53 Kan. 177, 35 Pac. 1108; Taylor v. Modern Woodmen, 72 Kan. 443, 83 Pac. 1099; State v. Nichols, 117 Kan. 630, 633, 232 Pac. 1058; State v. Cunningham, 120 Kan. 430, 243 Pac. 1006.)
The defendant complains of the admission of the evidence of Marion Logan. His name was not indorsed on the information. He was called in rebuttal. His evidence was admitted on the theory that it was rebuttal. He testified that he was working near the place where the shooting had occurred and that he heard a report like that of a gun about 8:10 o’clock, about the time fixed by the witness Barton for the shooting to have occurred. Even if his evidence was not strictly rebuttal, it was not prejudicial error to admit it.
The third subdivision of section 62-1438 of the Revised Statutes reads:
“The parties may then respectively offer rebutting testimony only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon the original case.” (See, also, State v. Moon, 71 Kan. 349, 80 Pac. 597; State v. Gibbs, 105 Kan. 52, 181 Pac. 569.)
The defendant complains of the court’s permitting the reporter to read to the jury, on the latter’s request, the statement made by counsel for the defendant concerning what a witness, who was called but was not present, would have testified to if he had been present. That statement was as follows:
“Let the record show that the witness J. A. Stanton was called; that if the witness J. A. Stanton was here he would testify that he is the regularly qualified and acting justice of the peace in Fort Scott, Kansas; that subsequent to this alleged shooting, that John L. Pool signed and swore to a complaint before the justice of the peace, naming Orville Haines in the complaint, which complaint charged him with assault with intent to kill.”
After the jury had been deliberating for some time it returned to the court room and requested that the statement be read. The statement was then read, and the following occurred:
“By the Court: This statement that the reporter has read is a statement of which Judge Stanton would have testified to if present, and goes in as Judge Stanton’s testimony.
“By James G. Sheppard, Esq. : But is not any admission on the part of the defendant at all.
“By the Court: Not an admission, of course, by the defendant, of the truth of the statement, but you will consider it the same as the testimony of any other witness. Was that all, gentlemen?
“By a Juror: Yes, sir.
“By the Court: All right, you may return to your jury room for further deliberations.
“James G. Sheppard, Esq. (for the defendant): To which procedure the defendant objects for the reason that such testimony, when admitted, was not-agreed by the defendant to be competent, and is highly prejudicial to the defendant, and related to a proceeding in another case before said justice of the peace, different than the one on which the defendant is on trial, and because it is hearsay testimony, and because it isn’t qualified as the testimony of a deceased person, and for the further reason it is highly prejudicial to the defendant and is incompetent, irrelevant and immaterial.
“By the Court : Overruled.”
The statement was made to the jury by counsel for the defendant during the introduction of evidence. At that time no objection was made to the submission of that evidence to the jury. The defendant, by his counsel, should at that time have objected to the introduction of that evidence. The objection came entirely too late.
The defendant argues that a new trial should have been granted because of newly discovered evidence. The newly discovered evidence was that which tended to prove that about the time the shooting occurred the defendant was on the street in the city of Fort Scott. No diligence to produce the evidence was shown. There was evidence introduced which tended to prove that the defendant was in the city of Fort Scott about the time Pool was shot. In State v. Miller, 90 Kan. 230, 133 Pac. 878, this court declared that—
“Motions for new trial on the ground of newly discovered evidence, when not supported by a sufficient showing of diligence, and when such evidence is cumulative or merely contradictory of that already given, may properly be denied.” (Syl. ¶ 9.)
See, also, State v. Smith, 50 Kan. 69, 31 Pac. 784; State v. Nimerick, 74 Kan. 658, 87 Pac. 722.
In State v. Ice, 127 Kan. 160, 272 Pac. 110, this court used the following language:
“The rule followed that a new trial should not ordinarily be granted because of newly discovered evidence where such evidence appears to be merely cumulative or impeaching.” (Syl. ¶ 3.)
See, also, State v. Rohrer, 34 Kan. 427, 8 Pac. 718; State v. Stickney, 53 Kan. 308, 36 Pac. 714; State v. Nordmark, 84 Kan. 628, 114 Pac. 1068.
The newly discovered evidence was merely cumulative, which, with the fact that no diligence was shown to procure the evidence before the trial, justified the court in refusing a new trial on that ground.
The defendant complains of the introduction in evidence of the record of his conviction of a felony in Missouri at the time sentence was pronounced on him, not at the trial. The defendant was sentenced for life. Section 21-403 of the Revised Statutes provides that one guilty of murder in the second degree shall be punished by confinement and hard labor for not less than ten years.
Section 21-109 of the Revised Statutes reads:
“Whenever any offender is declared by law punishable, upon conviction, by confinement and hard labor for a term not less than any specified number of years, and no limit to the duration of such imprisonment or confinement is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed; but no person shall in any case be sentenced to confinement and hard labor for any term less than one year.”
The defendant argues that chapter 191 of the Laws of 1927, the law which permits the introduction in evidence of a former conviction, is unconstitutional. Section 1 of that chapter reads:
“Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third time, of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner in or out of this state.”
Wherein that law has any effect on the present judgment the court does not at the present, time see. The defendant may have been sentenced for life under section 21-403 of the Revised Statutes without any reference to chapter 191 of the Laws of 1927. However, if that statute does apply, its validity has been sustained, and the introduction of the evidence at the time sentence is pronounced has been held proper. (State v. Woodman, 127 Kan. 166, 272 Pac. 132.)
Another matter complained of was that the jury was permitted to separate over Sunday without guard. This matter is brought on the record by the affidavit of counsel for the defendant, but the record does not show that any objection was made to the separation of the jury, nor that any request was made that it be kept together. Section 62-1446 of the Revised Statutes contemplates that jurors may be permitted to separate after being impaneled. That statute reads as follows:
“When the jurors are permitted to separate after being impaneled, and at each adjournment, they must be admonished by the court that it is their duty not to converse among themselves nor suffer others to converse with them on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them.”
In State v. McNeil, 59 Kan. 599, 53 Pac. 876, this court said:
“After the final submission of a criminal cause the court may permit a separation of the jury for a necessary purpose.” (Syl.)
In that case the defendant was convicted of grand larceny. After the jury had retired for deliberation it was permitted to separate for an hour and a half to procure dinner. In that case the statute permitting the separation of jurors and the statute requiring the bailiff in charge of the jury to be sworn were construed, and it was held that the statute permits the separation of juries.
The affidavit of counsel for the defendant concerning the separation of the jury over Sunday recited:
“That public sentiment was very high and it was prejudicial to the interest of said defendant to permit said jury to separate.”
Other than the foregoing statement, there is nothing to show that there was'any excitement over the killing of Pool or any prejudice against the defendant. Why there should have been is not apparent. The court, in overruling the motion for a new trial, must have found contrary to the contention of the defendant. No prejudice to him appears to have resulted from the separation of the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a bank to establish a preferred claim against the receiver of a failed bank. Plaintiff recovered, and the receiver appeals.
The Peoples State Bank of Le Roy had funds on deposit with the Peoples National Bank of Burlington. The Le Roy bank desired to transfer funds from Burlington National to Commerce Trust Company of Kansas City, Mo., which was the Be Roy bank’s Kansas City correspondent. To effect the transfer, the Be Roy bank drew its draft on Burlington National for $4,000, and sent the draft to Commerce Trust for collection and credit. Commerce Trust sent the draft to the Burlington State Bank, of Burlington, “for returns.” In the same letter other items were sent to Burlington State for re turns. Burlington State presented the draft, with the other items, to Burlington National. Burlington National presented items against Burlington State, and the result of the clearance was a balance of $4,580.27 in favor of Burlington State. Burlington National settled the balance by giving to Burlington State a draft for $4,580.27, drawn on Burlington National’s Kansas City, Mo., correspondent, the Drovers National Bank. Burlington State sent the draft to its Kansas City, Mo., correspondent, the Commercial National Bank, for collection and credit. Drovers National paid the draft, and the proceeds were duly credited by Commercial National to the account of Burlington State.
As indicated, Commerce Trust forwarded to Burlington State for returns other items besides the Le Roy bank’s draft for $4,000. Burlington State remitted to Commerce Trust by Burlington State’s draft for $4,580.27 on Commercial National. The draft was received by Commerce Trust on April 7, 1927. Commerce Trust undertook to clear, but payment was refused by Commercial National. Burlington State suspended at close of business on April 6, and the deputy bank commissioner who took charge had stopped payment.
The first question is whether there was any basis for a “trust” relation warranting a preferred claim in favor of Le Roy bank upon the assets of defunct Burlington State.
Le Roy bank’s draft on Burlington National was sent to Commerce Trust for collection and credit. Manifestly, Commerce Trust was agent for collection. Collection having been made, Commerce Trust would be authorized to keep the proceeds, crediting them to Le Roy bank. In that event the relation of debtor and creditor would exist between Commerce Trust and Le Roy, but that relation was never created.
Commerce Trust sent the draft to Burlington State for returns. Burlington State was manifestly an agent with limited authority— authority to collect and make returns. It had no power to transfer title to the collected fund, and a fiduciary relation existed on which a preferred claim in favor of Le Roy might be based.
The agent for collection made the collection. Burlington National took up the draft on it by draft on Drovers National, which was paid, and the proceeds were credited to the account of Burlington State in Commercial National. At the close of business on April 5 Burlington State’s balance with Commercial National was $11,-221.06. On April 6 the draft on Drovers National was credited on the account, other items were credited, the account was debited with various items, and at the close of business on April 6 the balance to the credit of Burlington State in Commercial National was $8,348.78, more than double the amount of the Le Roy item, and more than sufficient to pay the draft which Burlington State sent to Commerce Trust. The result is, when Burlington State suspended on April 6 it had in its possession a fund which might be considered in discovering a basis for a preferred claim in favor of Le Roy.
Agency of Burlington State to collect, collection, and possession by the agent of the proceeds of collection, fulfilled the primary requirements of a preferred claim in favor of Le Roy. Before such a claim could be recognized, however, it was necessary the fund be traced, in whole or in part, to possession of the receiver of Burlington State.
Burlington State was indebted to Commercial National on bills payable, and the indebtedness was secured by deposit of collateral notes. Commercial National applied the balance due Burlington State on account toward satisfaction of the bills payable, collected collateral notes to satisfy the remainder of the indebtedness, and returned to the receiver collateral notes no longer needed for security. The receiver has collected notes so returned to him in the sum of $7,550.16.
The assets of Burlington State were not increased by deposit of the proceeds of collection of the Le Roy item in Commercial National. Burlington State held those proceeds as agent for return to Commerce Trust, and not as assets available for distribution among creditors, whether the fund were kept in its own vault in Burlington or in custody of its correspondent, Commercial National, in Kansas City. As between Burlington State and Commercial National, Commercial National was privileged to apply the fund in satisfaction of Burlington State’s bills payable. Appropriation of the fund by Commercial National, however, released collateral notes in its hands to the amount of the fund, and the released collateral notes were turned over to the receiver. But for appropriation of Burlington State’s account by Commercial National, the receiver would have gotten back collateral notes to the amount of $3,550.16 only, and the result is, the portion of the estate of the failed bank which came into the hands of the receiver from Commercial National was indisputably augmented by the amount of the collected but unremitted Le Roy item.
It is not necessary to fortify the conclusion that Burlington State was a “trustee” by citation of decided cases. The decision of this court in the case of Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68, is sufficient authority for the conclusion that the estate which came to the receiver was enriched to the extent of the collected Le Roy item.
The receiver contends that Commerce Trust sent the draft on Burlington National to Burlington State for collection pursuant to the banking custom that the money collected was not to be shipped, but Burlington State might use the money, and remit by Kansas City exchange. The fallacy of the contention lies in applying the words “use the money” to a collect-and-remit transaction. The words are applicable to a collect-and-credit transaction, but not to the other kind. Le Roy did authorize Commerce Trust to use the collected money, by forwarding the items for “collection and credit.” As indicated above, had the collected money reached Commerce Trust, the relation between it and Le Roy would have been that of debtor and creditor, and if Commerce Trust had then failed, Le Roy would have been a common creditor. The decision in the case of Colorado & S. Rly. Co. v. Docking, 124 Kan. 48, 257 Pac. 743, is instructive. In that case each forwarding bank authorized its collecting agent to keep the proceeds of collection. The Denver bank and the New England and National Bank did so directly by forwarding the item for collection and credit. The Federal Reserve Bank did so indirectly by forwarding the item to the American State Bank of Wichita for collection and remittance by draft on Kansas City. American State fulfilled its agency to collect by making collection, and it violated no trust by keeping the proceeds of collection. While it violated the instruction with regard to method’ of remittance, whatever method it used it was paying a debt to Federal Reserve. The intention involved, however, in the custom of banks to send items “for collection and remittance,” or “for collection and returns,” or “for returns,” is that whatever method of remittance or return the collecting bank chooses, the method must result in producing cash or the equivalent of cash to the sender. This interpretation is adverted to in the opinion in the Colorado & Southern case, following the quotations from Ruling Case Law and Corpus Juris. There was testimony that, according to banking custom, a sender in the situation of Commerce Trust would expect Burlington State to remit by draft, and not to ship currency; but no banker testified to a custom pursuant to which the sender would expect remittance by draft or other method which would fall short of accomplishing a transfer of funds as effectively as if currency were shipped.
The case of State Bank v. State Bank, 114 Kan. 463, 218 Pac. 1000, should be distinguished here. In that case Commerce Trust sent to Chetopa State Bank checks drawn on several Chetopa banks. Some of them, amounts not disclosed, were drawn on Farmer’s and Merchants State Bank of Chetopa. The checks were cleared, and clearance resulted in a balance due Chetopa State from Fanners and Merchants. Farmers and Merchants settled with its draft on its Kansas City correspondent, Commonwealth National. Before the draft was presented to Commonwealth National, Farmers and Merchants failed, and when the draft was presented payment was refused. An agency function on the part of Chetopa State in collecting the items which it had received did not exist because it paid for the items when it received them and became absolute owner of them. In the opinion it was said:
“In this case the Chetopa State Bank was the holder of checks drawn by various individuals upon the Farmers and Merchants State Bank. It presented these checks at the time of clearing for payment. It was in the same situation as though it had taken the checks direct to the Farmers and Merchants State Bank and there purchased a draft for them, or in the same situation as though it had purchased a draft from the Farmers and Merchants State Bank for cash. The great weight of authority is that under such circumstances the relation of debtor and creditor is created and not that of trustee and cestui que trust." (State Bank v. State Bank, 114 Kan. 463, 467, 218 Pac. 1000.)
In this instance Burlington State did not become owner of the Le Roy draft on Burlington National. Burlington State was merely agent of Commerce Trust to collect and make return.
When the receiver took charge, Burlington State had in its vault the sum of $3,918.42. A first impression might be that if a preferred claim should be allowed, it should extend to the cash on hand only. The equitable remedy involved is theoretically a remedy in rem. In contemplation of equity, the proceeds of the collection made by Burlington State were like gold 'pieces in a bag, and Burlington State was bound to deliver the bag of gold to Commerce Trust. Burlington State’s depositary, Commercial National, used the gold in such a way that it virtually purchased for the benefit of Burlington State some collateral notes which Commercial National held. Those notes came into the hands of the receiver, have produced sufficient cash to pay the preferred claim, and the original realistic conception of a traced res is quite well exemplified.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant was prosecuted for murder in the first degree, charged with killing John E. O’Loughlin. He was con victed of murder in the second degree, sentenced on that conviction, and appeals to this court.
There was evidence which tended to prove that the defendant,. on the evening of January 19, 1928, was visiting at the home of Mabel Dickerson in Hays, Ellis county, Kansas; that the defendant was engaged to be married to Mabel Dickerson; that she had two children, Elnora Dickerson, aged eleven years, and Jeanne Dickerson, aged nine years; that after the defendant, Mabel Dickerson and the two children had partaken of the evening meal at the home of Mabel Dickerson, John E. O’Loughlin, Jr., and Edna Murray, passing under the name of Grace Boyce, appeared at the home ■of Mabel Dickerson and asked permission to come in; that permission was granted; that they entered the home; that after entering the home, John E. O’Loughlin and Edna Murray engaged in a quarrel; that the defendant and John E. O’Loughlin left the house, went to a store in town, procured some near beer, and returned to the home of Mabel Dickerson; that John E. O’Loughlin produced some .alcohol; that alcohol was put into the near beer and all of the party ■except the children drank of it; that John E. O’Loughlin had previously been drinking; that he became intoxicated; that the quarrel between John E. O’Loughlin and Edna Murray was renewed; that he attacked her, struck her, knocked her down, beat her head on the floor, and threatened to kill her; that Mabel Dickerson attempted to pull John E. O’Loughlin off Edna Murray and tried to persuade him from further hitting her; that the defendant then took hold of John E. O’Loughlin and pulled him away from Edna Murray; that John E. O’Loughlin then seized Mabel Dickerson and threw her on to the floor in another room and threatened to kill her; that the defendant had hold of John E. O’Loughlin and was endeavoring to stop his further assaults on Mabel Dickerson; that both Edna Murray and Mabel Dickerson were injured; that John E. O’Loughlin then attacked the defendant and threatened to kill him, Edna Murray and Mabel Dickerson; that John E. O’Loughlin had a revolver in his hand and advanced threateningly toward the ■defendant; that the defendant stepped into another room and procured an automatic pistol which was lying on a bureau and shot three times; and that two shots entered the body of John E. O’Loughlin, one of which entered his heart and caused his death.
The defendant complains of an instruction concerning self-defense given by the court; that instruction read as follows:
“If Furthmyer was a guest in the Dickerson house and that O’Loughlin ■was also a guest, they were on equal footing so far as the law of self-defense was concerned where the conflict or affray was between the two. In such •case the defendant should retreat from the home of another if he can do so with safety rather than kill his assailant; but if such retreat cannot be made with safety to himself at the time, or if O’Loughlin was about to or threatening to commit any felony against any person or persons in such house at .■such time, whether by death or great bodily harm, and if it honestly and reasonably appeared to defendant necessary to shoot O’Loughlin ’to protect the life of Furthmyer or of any occupant within the house at the time,- or to protect Furthmyer or any person therein from great bodily harm then .actually threatened or fairly, honestly and reasonably appearing to Furthmyer to be threatened against any such person and to be imminent, then he had the right to shoot and kill O’Loughlin at such time.”
The following language contained in the instruction does not ¡state the law correctly;
“In such case the defendant should retreat from the home of another if he •can do so with safety rather than kill his assailant.”
The defendant was not compelled to retreat from the home of Mabel Dickerson any more than he would have been compelled to retreat from the street if the attack had been made thereon. The plaintiff cites 30 C. J. 73, where the author says:
“A person who is a guest at the house of another need not retreat when .attacked in the dwelling or within the curtilage by an outsider. But where both deceased and accused are guests at the same house and hence on an equal footing so far as the law of self-defense is concerned, it is the duty of .accused, when assaulted .by deceased, to retreat if he can do so with safety and thus avoid taking the life of his assailant.”
One case, Cole v. State, 16 Ala. App. 55, is cited to support that statement.
We quote from the opening statement in the opinion in that case, .as follows:
“The defendant killed Daniel F. Tillerson and was convicted of murder in the second degree. The evidence shows that both the deceased and defendant were guests of J. R. Tillerson, the father of the deceased and father-in-law of the defendant; that the homicide occurred in the evening between 6 and 7 o’clock in the front yard of J. R. Tillerson’s residence.”
In that case the entire difficulty seems to have been between the deceased and the defendant. In the action now before this court the defendant became involved in the quarrel in an attempt to get John E. O’Loughlin to cease his attacks on Edna Murray and Mabel Dickerson.
The law in this state, in State v. Petteys, 65 Kan. 625, 70 Pac. 588, is declared to be that—
“A person unlawfully attacked by another is not compelled to yield or retreat, no matter what the character of the attack may be. He is justified in standing his ground and repelling force by such reasonable force as may, under all the circumstances of the case, appear necessary successfully to resist the attack made.” (Syl. ¶ 1.)
See, also, State v. Reed, 53 Kan. 767, 768, 778, 37 Pac. 174; State v. Hatch, 57 Kan. 420, 46 Pac. 708; and State v. Chadwell, 94 Kan. 302, 146 Pac. 420.
The defendant had as much right in the home of Mabel Dickerson as John E. O’Loughlin. The defendant and Mabel Dickerson were engaged to be married. He had the right to try to get John E. O’Loughlin to desist from his attack on the women and would have been derelict in his duty if he had not done so.
The court gave an instruction concerning a person who counsels, aids, abets or assists another in the commission of a crime, as follows :
“Any person who counsels, aids, abets and assists another person in the commission of any crime or offense is equally guilty with the person who actually commits the original acts.
“If you find and believe from the evidence beyond reasonable doubt that any person other than defendant Joseph E. Furthirtyer shot and killed John E. O’Loughlin at the time and place and in the manner charged in the information or included therein, and that defendant Joseph E. Furthmyer assisted, aided and abetted in any murder or manslaughter thereby, then you should find defendant guilty of such degree of murder or of manslaughter as you find beyond reasonable doubt from the evidence of this case that such other person was guilty of under the general rules herein as to such crimes, including the rules as to self-defense also, and such as you find beyond reasonable doubt defendant to have aided and assisted such other person in committing if you further find beyond reasonable doubt that defendant was not on his part acting honestly and reasonably under the rules of self-defense already set out in these instructions.”
There was no evidence whatever which tended to prove that any person other than the defendant shot John E. O’Loughlin or even assaulted him. There were only four adult people in the house at the time — the two women, the defendant and John E. O’Loughlin. The two children were in bed. The defendant testified that he shot at John E. O’Loughlin in self-defense, but did not intend to kill him. There was no evidence on which a verdict of guilty could have been based on assisting, aiding or abetting another person in killing John E. O’Loughlin. The evidence conclusively established that the defendant shot John E. O’Loughlin of his own volition. For that rea ,son there was no place for the instruction that was given. It was error to give it.
Another matter complained of is that — ■
“The court erred in overruling appellant’s application for inspection and permission to take copies of the written statements made by appellant while in custody of the sheriff, and also the written statements made by Mabel Dickerson.”
The evidence disclosed that on the night on which John E. O’Loughlin was killed the defendant and Mabel Dickerson made written statements describing the circumstances surrounding the killing. Those statements were placed in the possession of the officers of the state immediately after they were made, and were in their possession and under the control of the state at the time of the trial. Before the trial the defendant made written demand to inspect and make a copy of those papers. That demand was refused. The defendant then made application to the court for an order compelling the state to permit an inspection of those papers, to make copies thereof or that copies thereof be furnished to the defendant. That application was likewise denied. Both the defendant and Mabel Dickerson testified as witnesses. The defendant cites State v. Hinkley, 81 Kan. 838, 106 Pac. 1088, where this court said:
“In order that a defendant in a criminal action may avail himself of the provisions of section 209 of the criminal code and sections 368 and 369 of the civil code (Gen. Stat. 1901, §§ 4816, 4817), providing for an inspection and copy or permission to take a copy of a paper or document under the control of the attorneys for the state, he must, where compliance with the demand is refused, ask for and obtain an order from the court or judge requiring the adverse party to give him, within a specified time, an inspection and copy or permission to take a copy of such paper or document. The mere serving of notice of a demand for an inspection as provided in section 368, without obtaining such order, is not sufficient.
“In this case, held, in common fairness the defendant should have been permitted before going to trial to inspect the transcript of the testimony taken at the coroner’s inquest, it appearing that it contained evideneé material •to his defense, that no transcript or report of the testimony had been filed as the law requires in the office of the county clerk, and that the original transcript of such testimony was in the possession or under the control of the county attorney.” (Syl. ¶¶ 2, 3.)
The application of the defendant was made under section 60-2850 of the Revised Statutes, which reads as follows:
“Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper or document in his possession or under his control containing evidence relating to the merits of the action, or defense therein. Such demand shall be in writing, specifying the book, paper or document with sufficient particularity to enable the other party to distinguish it; and if compliance with the demand within four days be refused, the court or judge, on motion and notice to the adverse party, may in their discretion order the adverse party to give to the other within a specified time an inspection and copy or permission to take a copy of such book, paper, or document; and on failure to comply with such order the court may exclude the paper or document from being given in evidence, or if wanted as evidence by the party applying may direct the jury to presume it to be such as the party by affidavit alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper or document when he is examined as a witness.”
That section of the statute was under consideration in State v. Jeffries, 117 Kan. 742, 232 Pac. 873, where this court said:
"A provision of the civil code (R. S. 60-2850) relating to obtaining an inspection of books, papers, and documents which are to be used in evidence, has not been adopted and made applicable to trials in criminal cases by virtue of the provisions of R. S. 62-1413, and the court has not the power to enforce a demand for the inspection of letters in the custody of the county attorney which he designs to use in the prosecution of the defendant.” (Syl.)
It should be noticed that the document referred to in State v. Hinkley, supra, was the evidence taken at a coroner’s inquest, which under the law was a public document and should have been on file in the office of the county clerk and subject to public inspection. Neither the document signed by the defendant nor the one signed by Mabel Dickerson was introduced in evidence in the present action. If either of those statements had been used as evidence against the defendant it might have been reversible error to deny his application for inspection or copy. They were not introduced in evidence, but the statement signed by the defendant was referred to in both his direct and cross-examination. The penalty provided by section 60-2850 of .the Revised Statutes is the exclusion of the document from evidence when the party having its control fails or refuses’to allow an inspection or to furnish a copy. If the state had attempted to introduce the statements in evidence the court might have properly excluded them. They were not offered. For that reason there is nothing before this court for determination concerning their use as evidence. There was no reversible error in the state’s refusing an inspection or copy of the statements, or in the court’s refusing to compel the state to permit an inspection or to furnish copies of the statements.
Other questions are presented. One of them is misconduct of counsel for the state in his closing argument to the jury. The argument of counsel is a subject of criticism, and if that were the only proposition involved on this appeal it might be sufficient to cause a reversal of the judgment. Counsel for the state should be careful in his argument to the jury and should confine himself-to the evidence and to proper inferences to be drawn therefrom.
Still other questions are presented which might be sufficient to cause a reversal, but each concerns matters that probably will not arise on another trial. Further attention will not be given to any of those matters complained of.
The judgment is reversed, and a new trial is directed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued the defendant to recover for the alienation of the affections of the former’s wife. Trial was had, verdict was returned in favor of the plaintiff, and special questions were answered. A motion for judgment on the answers to the special questions and a motion for a new trial were filed by the defendant. The motion for judgment on the answers to special questions was denied, and the one for a-new trial was sustained. From the ojrder denying the motion for judgment on the answers to the special questions the defendant appeals.
The Peoples Nat’l Bank v. Casey, 127 Kan. 581, 274 Pac. 286, was an action on a promissory note which the plaintiff asked to have corrected by writing into the note a word which had been omitted. Verdict was rendered in favor of one of the defendants. On the motion of the plaintiff a new trial was granted as to that defendant. From the order granting the new trial he appealed. There was evidence to prove that the word sought to be inserted had been omitted by mistake. The plaintiff cross appealed and argued that the court should have made the correction, and that it was error not to do so. In that case this court said:
“The plaintiff who, in an action on a promissory note, alleged that it contained a mistake and asked to have the mistake corrected cannot complain of the failure of the court' to correct the mistake where after verdict against him the court on his motion grants a new trial.” (Syl. ¶ 1.)
“The issues were submitted to the jury, which in answer to a special question found that the word ‘at’ had not been omitted by mistake. In view of the finding of the jury and of the fact that a new trial has been granted on the motion of the plaintiff, its contention that the note should have been corrected cannot be sustained.” (p. 582.)
In Smart v. Mayer, 103 Kan. 366, 175 Pac. 159, the following language is found:
“The jury found a general verdict for the plaintiff and answered four special questions ‘We do not know,’ which answers were in effect adverse to the plaintiff. The defendants on the same day filed a motion for judgment on the findings and a motion for a new trial, and on a later day the former was denied and the latter granted. Held, that there remains no final judgment or order from which the defendants can appeal.” (Syl. ¶ 3.)
When the new trial was granted the verdict of the jury was set aside. That carried with the verdict the answers to the special questions. After the order granting the motion for a new trial had been made, there was no verdict, there were no answers to special questions, and there was no judgment against the defendant. The action stood for trial on the issues made by the pleadings. The defendant could not have both a new trial and judgment in his favor on the answers to the special questions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of replevin brought by the Bankers Investment Company against Clarence A. Butts and Bessie L. Butts, before a justice of the peace, to recover the possession of a motor truck under the provisions of a chattel mortgage given to secure a promissory note of $198.40. No defense was made before the justice of the peace, and on the testimony the plaintiff was adjudged to be entitled to the possession of the truck and damages for its detention. The defendants appealed from the judgment rendered to the district court, where they filed an answer consisting of a general denial, an admission of the execution of the note and mortgage, and a special denial that they were indebted to the plaintiff on the note and mortgage. They set up a counterclaim in which they pleaded that the plaintiff had previously and wrongfully brought a prior action in replevin against the defendants upon the same subject matter as was involved in the present action, and that by the wrongful issuance of a writ of replevin in the former action they were compelled to expend $207 for the fees and expenses of attorneys, the procuring of a redelivery bond, car hire and gas, and also for board in connection with that proceeding. They therefore asked judgment against plaintiff for the sum of $207. Plaintiff filed a demurrer to the counterclaim, alleging that it did not constitute a cause of action against plaintiff nor a defense to its action, and stating further that the present action being an appeal to the district court from the justice of the peace, the court had no jurisdiction of the subject matter of the counterclaim since the damages asked in addition to the value of the property claimed exceeded $300 and there was therefore a lack of jurisdiction in the justice court. The court sustained the demurrer to the counterclaim alleged in the answer.
The question presented on the appeal is whether the counterclaim states a cause of action. There is some question as to whether the ruling made upon the so-called demurrer is other than an ‘intermediate one and therefore not appealable before the entry of judgment. If a defense pleaded is superfluous and irrelevant, a proper way of ridding the pleading of such matter is by a motion to strike. (Seaton v. Chamberlain, 32 Kan. 239, 4 Pac. 89.) It has been decided that:
“A demurrer may not be employed to rid a single cause of action or defense of irrelevant, redundant or improper matter.
“Where a paper designated as a demurrer is treated as the equivalent of a motion to strike out, a decision of the same is no more than an intermediate order, which cannot be reviewed until final judgment is rendered.” (Sparks v. Smeltzer, 77 Kan. 44, syl., 93 Pac. 338.)
Here the counterclaim is set forth as a defense in a second paragraph of the petition, and perhaps might be treated as a separate defense subject to challenge by a demurrer. Passing this question without determination and going directly to the sufficiency of the pleaded defense, it must be held that the damages alleged are not recoverable. The general rule is that counsel fees and expenses of litigation, other than ordinary court costs, are not recoverable in an action for damages in the same or a subsequent action. In Deere v. Spatz, 78 Kan. 786, 99 Pac. 221, the plaintiff commenced a civil action and before trial dismissed it. Afterwards defendant asked damages for counsel fees and expenses incurred in preparing for a defense of the former action. It was held that in the absence of malice, lack of probable cause or bad faith, such damages could not be recovered. Like holdings were made in Winstead v. Hulme, 32 Kan. 568, 4 Pac. 994, and Dendy v. Russell, 84 Kan. 377, 114 Pac. 239. See, also, A. T. & S. F. Rld. Co. v. Stewart, 55 Kan. 667, 41 Pac. 961; Lake v. Hargis, 82 Kan. 711, 109 Pac. 670. In Henry v. Davis, 123 Mass. 345, where a dispute arose between parties as to the boundary line between tracts of land, the matter was submitted to arbitration and an award made. A suit in equity was instituted to set aside the award, which was dismissed with costs. The adverse party sought to recover as damages the expenses which he had incurred in defending the suit to set aside the award. In disposing of the case the court said:
“The theory of the law is that the taxable costs awarded to the prevailing party in a suit furnish a full indemnity to him for all his expenses incurred in the suit. Therefore a defendant, who successfully defends a suit brought against him, has no right of action or claim beyond the amount of the taxable costs against the plaintiff therein.” (p. 346.)
The subject was considered in Salado College v. Davis, 47 Tex. 131, in which it was said:
“To bring an action, though there be no good ground, is not actionable. (Savil v. Roberts, 1 Salk. 14; 1 Ld. Raymond 374; Davies v. Jenkins, 11 M. & W. 754.) An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent. (Parke, B., in Stevenson v. Newnham, 13 Com. B. [76 Eng. Com. L.] 297; 1 Hilliard on Torts, ch. III, sec. 16.)
“In ordinary cases, where no further wrongful act is complained of than the institution of a groundless suit, though done knowingly and with intent to harass, the award of costs is, in contemplation of law, full compensation for the unjust vexation. (Cotterell v. Jones, 73 Eng. Com. L. 727.)
“In such cases the defendant recovers his costs, ‘but no allowance is made for his time, indirect loss, annoyance, or counsel fees.’ (Sedg. on Dam. 38.) He proceeds: ‘Every defendant against whom an action is “unnecessarily” brought, experiences some injury or inconvenience beyond what the costs will compensate him for.’ This injury or inconvenience results from a resort to the legally constituted tribunals; and it seems to be the policy of the law to content itself with meting out something less than our ideas of natural justice would demand, rather than to increase the risks attending and discouraging such a resort, and at the same time add to the difficulties and intricacies of ordinary litigation.” (p. 135. See, also, Young v. Courtney, 64 La. 193.)
If the former action had been maliciously brought there might have been a liability for damages for such expenses, but malice or bad faith was not alleged in the pleading. It is said that the first action, which was brought before a justice of the peace, was for a sum in excess of the jurisdiction of that court, and when that fact was realized the action was discontinued. Since malice was not alleged, the error of bringing the action does not warrant the inference that the plaintiff was actuated by malice in bringing it, and hence the claimed fees and expenses are not recoverable.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin defendant from entering on plaintiff’s land in execution of its design to relocate its route through plaintiff’s and other land in Shawnee county, pursuant to consummated condemnation proceedings. Defendant’s demurrer to the petition was overruled, and defendant appeals. •
The Atchison, Topeka & Santa Fe Railroad. Company was incorporated by special act of .the territorial legislature of 1859. Portions of the act follow:
“Sec. 2. The said company is hereby authorized and empowered to survey, locate, construct, complete1, alter, maintain and operate a railroad, with one or more tracks, from or near Atchison, on the Missouri river, in Kansas territory, to the town of Topeka, in Kansas territory, and to such point on the southern or western boundary of the said territory, in the direction of Santa Fe, in the territory of New Mexico, as may be most convenient and suitable for the construction of such railroad; and, also, to construct a branch of said railroad to any points on the southern boundary of said territory of Kansas; in the direction of the Gulf of Mexico.
“Sec. 3. The said company is hereby authorized, and sháll have the right of way upon, and may appropriate to its sole use and control, for the purposes contemplated herein, land, not exceeding one hundred feet in width, through the entire length of said road, upon such route as may be determined; ’and, for the purposes of depots', sidetracks, cuttings and embankments, for building engine' houses and shops, or wood and water stations, may’ take more land, earth or material, as may be necessary for the construction or completion, operation, preserving and maintaining said road.” (Private Territorial Laws of Kansas, 1859, ch. 47, §§2,'3.)
The authorized capital of the company was $1,500,000. About the year 1869 the company selected its route through Shawnee county, and a right of way was condemned through the land in controversy. A track was laid, and operation of the road through the county commenced about 1872. ' Plaintiff’s brief contains the following:
“The court will take judicial notice of the fact that this is the main line of 'the great Santa Fe system, which runs long trains, pulled by heavy locomotives, over this road.”
Whether or not it is “a notorious and indisputable geographical fact” of which the court takes judicial notice (Worden v. Cole, 74 Kan. 226, 230, 86 Pac. 464), it is a well-known fact that for some miles south of Topeka the,road is crooked, and some of the grades are rather steep.
In 1895 the property and franchises of the railroad company were sold, pursuant to decree of the circuit court of the United States for the district of Kansas, to three individuals, who took title for the purpose of organizing a new corporation under the laws of Kansas. The new corporation was organized under the name “The Atchison, Topeka & Santa Fe Railway Company,” which is the present defendant. The certificate of incorporation recited sale of the property and franchises of the company, and stated- the purposes for which the new corporation was formed, as follows:
“To acquire, construct, own, maintain and operate a railway running from the city of Atchison, on the Missouri river, in the state of Kansas, through Topeka to a point on the western boundary of the state of Kansas, ... . . and also to acquire, own, use and enjoy the railroad and appurtenances, franchises, rights, privileges and immunities, stocks and bonds, and all other'properties acquired by said purchasers at said sale as above recited.” ■
The capital of the new corporation was $233,486,000.
The petition which initiated the condemnation proceeding now involved employed the general language of the eminent-domain statute. The land taken is for a right of way which departs' from the existing right of way through plaintiff’s land,'and the question presented by this appeal’is whether the present company has power to relocate. its' railway through plaintiff’s land. Plaintiff contends power to locate thé road was exhausted by defendant’s predecessor.
The act of 1859 granted to the railroad company power to alter its railroad, and appropriate right of way for that purpose. The word “álter” in the statute has just as much, force as the words .“survey,. locate, and complete,”-.-which, precede it.. The. word-sequence corresponds to the time-sequence in railroad building— survey, location, completion, and after' that, alteration. Topeka was the only definitely fixed point on the line of the projected road. The road was to start on the Missouri river, at or near Atchison, and go to Topeka. From Topeka it w.as to go in the direction of Santa Fe and the Gulf of Mexico. The project was quite experimental, and manifestly alteration after completion, as well as after location, might be necessary. To alter meant then what it means now — to change without destroying identity, to vary without making different — and power to alter was included in the grant.
Alteration of railroad routes was not a new feature of railroad building in 1859. Early railroad charters were granted by special legislative acts. These grants, like the earlier grants to turnpike and toll-gate companies, were very strictly construed. Lines were short, and routes were specified with great particularity. Lord Coke had said that if a person once determines his election, it shall be forever; and when a company was authorized to build a railroad “passing north of the house of Willard Newton, Esq.” (Brigham v. Agricultural Branch Railroad Company, 1 Allen [Mass.] 316), con struction of that road exhausted the company’s power. A grant of power of eminent domain was a “delegation of sovereign power.” There could be no intendment in derogation of sovereignty, any more than when sovereignty was an attribute of royalty. Power of eminent domain existed because public interest must dominate private interest. But when the power was put to work for the public welfare, private interest dominated, and the grant of power was shrunk by interpretation until a railroad charter to locate a' line of road was like the piece of ass’s skin in Balzac’s story, with this difference — the first use made of it destroyed it. Railroad companies were compelled to return to the legislatures for enlargement of power, even do change a filed location, although the railroad had not yet been constructed. Ultimately, general acts were passed permitting change of route for specified purposes, or under specified conditions. Early legislation in Massachusetts is discussed in an interesting manner in the opinion of Chief Justice Shaw, in the case of Boston and Providence Railroad Corporation v. Midland Railroad Company & others, 1 Gray [Mass.] 340:
“Thus construed, with the aid of contemporaneous provisions and of prior acts, the meaning of § 73 appears to us to be this: If the act of incorporation itself has fixed the termini and intermediate stations or local objects described, with the courses and distances between them, it is itself a location, and there is no room for variation. If it has fixed the termini, and any fixed intermediate stations, without courses and distances, this section warrants a variation between the fixed stations, but no further; the intermediate fixed stations, as well as the termini, are limits, and must be observed. But if there be no fixed intermediate stations, these variations may be made anywhere between the termini, subject only to be controlled by such qualifying terms of a general nature as the act may contain, such as north of such a hill, west of such a pond, or near such a town, or over such a meadow, where the meadow is a broad one.” (p. 362, March term, 1854.) ^
When Cyrus K. Holliday and his associates presented his splendid vision to the territorial legislature, the very remarkable charter petitioned for included the privilege known to be of importance to railroad builders of that day, privilege to alter route.
If the foreclosure proceedings which have been referred to had taken place under state law, the new company would have and might exercise the rights, privileges, grants, franchises, immunities and advantages transferred by the foreclosure sale. (R. S. 66-802.) The statute indicates the policy of the state with respect to railway foreclosures and purchases by reorganization committees. In any event, the railway company is a simple successor of the railroad company, or it is a new company whose power of eminent domain has not been exercised. In either case the railway company may alter the existing route.
Some of the states were slow in granting relief from the effects of strict judicial construction of railway charters in the matter of altering route. In New York the decision of the court of appeals in the case of Erie Railroad Co. v. Steward, 170 N. Y. 172 (1902), holding a railway company could not go outside of its established route and condemn land for a cut-off over which to operate freight trains at a saving of about three miles, occasioned amendment of the railway law permitting condemnation for cut-offs, and for shortening or straightening or improving the line or grade of a railway. (Long Island R. R. Co. v. Sherwood, 205 N. Y. 1, 5.) In this state an act was passed in 1864 to enable railway companies to acquire land for railway purposes by applying to the board of county commissioners to lay off route and assess damages. (Laws 1864, ch. CXXIV.) In 1865 a general act was passed for the incorporation of railways. Sections 3 and 11 read as follows:
“Sec. 3. Any corporation formed in pursuance of this act shall be and is hereby authorized to construct and maintain a railroad with single or double track, with such sidetracks, turnouts, offices and depots as it may deem necessary between the points named in the certificate, commencing at or within and extending to or into any town, city or village along the line of said road, or named as the place of the termini of such road, and construct branches from the main line to other towns or places within the limits of any county through which said road may pass.”
“Sec. 11. That whenever any railroad company heretofore incorporated, or which may hereafter be incorporated, shall find it necessary, for the purpose of avoiding annoyance, public travel, or dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations, or for other reasonable causes, to change the location or grade of any portion of their road, whether heretofore made or hereafter to be made, such railroad companies shall be and are hereafter authorized to make such changes of grade and location, not departing from the general route prescribed in the certificate of such company; . . .” (Laws 1865, ch. XLIV.)
In 1866 an act supplemental to the act of 1864 was passed giving a railway company authority to apply to the judge of the district court for appointment of commissioners to assess damages occasioned by location of road. In the general revision of 1868 these statutes, with some revision, were consolidated in an elaborate chapter devoted to the subject of corporations, chapter 23. Article VI was devoted to railway corporations; article VII to macadam and plank-road corporations; article VIII to telegraph corporations; article IX to the subject of appropriation of land for the use of railway, telegraph, macadam, and plank-road corporations. Power of a railway company to survey, lay out and construct was granted in article VI. Method of appropriating land was prescribed in article IX. The statute of 1868, with amendments not material here, and with topics rearranged in a manner also not material, was carried into the revision of 1923. Chapter 23, article VI, section 50, Rev. Stat. 1868, is now R. S. 66-502, and reads as follows:
“The directors of any railway corporation may, by a vote of two-thirds of their whole number, at any time change the roadbed; or road line, or any part thereof, for the purpose of shortening the line, or to overcome natural obstacles ; but such corporation shall not change the general route or terminus of the road.”
Plaintiff’s petition did not negative lawful appropriation of land under this section, and consequently did not state a cause of action for injunction preventing the railway company from enjoying the fruits of condemnation. The petition did say the purpose of the condemnation was simply for relocation of the right of way for convenience and economy of the company, and the condemnation was not necessary for the public welfare or safety. These allegations' did not, however, disclose general change of road or termini', and did not show that condemnation was not instituted pursuant to action of the board of directors for the purpose of changing the roadbed and line, to shorten the line and overcome natural obstacles. The question whether relocation for those purposes will'promote public welfare and safety has been determined by the legislature. Its judgment is entitled to respectful consideration. (State, ex rel., v. Kemp, 124 Kan. 716, 719, 261 Pac. 556.) The judgment of the legislature was manifestly sound in 1868, and the court holds a present taking of private property by a railway company pursuant to the relocation statute is a taking for public use.
Plaintiff says the condemnation petition did not' disclose that the land -Was to be appropriated under the relocation statute. The function .'of the district judge was to appoint commissioners to assess dainages to land to be taken for construction of a proposed road, and it was not a prerequisite to such appointment that the petition show whether the taking were for original location or relocation.
The court is already committed to the doctrine that power of eminent domain is not exhausted by a single exercise.
Section 81, chapter 23, General Statutes of 1868, is now R. S. 66-901, and provided for condemnation of land for right of way, and for sidetracks, depots, etc. Width of right of way was limited to 100 feet. Quantity of land for sidetracks, depots, etc., was limited by the needs of the company. The statute said nothing about subsequent appropriation of land, neither authorizing nor forbidding subsequent appropriation for right of way, or for sidetracks, depots, etc. In 1881 defendant’s predecessor, the Atchison, Topeka & Santa Fe Railroad Company, needed more land for station grounds in the city of Atchison. The district court dissolved a temporary injunction forbidding the appropriation, and on appeal to this court the order of dissolution was affirmed. The syllabus reads:
“The Atchison, Topeka & Santa Fe Railroad Company, having completed the line of road authorized by its charter, and having once condemned land in the city of Atchison for depots, sidetracks, etc., and needing more room in said city for the transaction of its business, instituted proceedings for condemning more land: Held, That such proceedings could be maintained, and that under, the statute the right of eminent domain was not terminated by the completion of the road, nor exhausted by a single exercise of the power.” (C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 26 Kan. 669, syl. ¶ 1.)
Section 87 of the statutes of 1868 provided for assessment by county commissioners of the damages for a proposed road. In 1870 section 87 was amended to read as follows:
“That section 87 be so amended as to read: Section 87. That any railway corporation, instead of applying to the board of county commissioners as hereinbefore provided, or any person or persons through whose land or premises any railroad has been or is being constructed, may apply to the judge of the district court of the county through which any railroad is or is to be built, for the appointment of three commissioners to make the appraisement and assessment of damages instead of the county commissioners. . . .” (Laws 1870, ch. 74, § 2.)
In 1923 this part of the section was amended by a change of phraseology which did not affect meaning. (Laws 1923, ch. 166, §2; R. S. 66-907.)
In the Atchison case the court put sections 81 and 87 together, and read them as follows:
“Any railway corporation may apply to the judge of the district court of the county through which its road is, or is to be built, for the appointment of three commissioners, to lay off a route for such road, and also such land as may be deemed necessary for sidetracks, depots, etc.” (C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 26 Kan. 669, 677.)
Concerning method and result of this interpretation, the court said:
“All legislation must be construed in the light of existing facts, and while a grant like this is doubtless to be strictly construed, yet such rule of construction does not forbid giving just and reasonable force to all the separate provisions of the statute, nor prevent its being interpreted by the actual experiences and necessities of life. . . . Reading the grant in that way, it would seem that the power is given to condemn land for terminal facilities whenever deemed necessary, and that one exercise of the power did not exhaust it.” (p. 677.)
The case involved terminal facilities only. As construed by the court, the statute covers route of road the same as terminal facilities, and the reasoning by which application of the statute to terminal facilities was justified applies to such changes of route as may be necessary to modernize the road.
“Railroads, as all know, are things of growth; they enlarge with the development of the country. Starting as small enterprises doing a trifling business, as the country develops they extend — their business expands — that which in the inception afforded ample facilities becomes inadequate for the increasing business, and the company stands between two difficulties. It must either imperfectly discharge its duties to the public, and thereby expose itself to liability for damages, or must enlarge its facilities, which, if it cannot be done by the power of eminent domain, will expose it to any exorbitant demands for land which business rivals or avaricious individuals may see fit to exact. This defendant’s history fully illustrates this fact. It is but a few years since it commenced building its road. At first it was but a feeble corporation with but a few miles of track, and one whose business needed little rolling stock and very slight terminal facilities. Now it has become a gigantic corporation, owning hundreds of miles of road and part of a transcontinental line. . . .
“Now, is it not reasonable to suppose that it [the legislature] would legislate in harmony with rather than counter to this law of railroad growth? Is it not more reasonable to believe that it intended to give the power to take such land as might be needed, when it should be needed, and thus enable the company fairly and fully to discharge its duties to the public?
“It must be borne in mind that our railroad corporations are now organized under a general law; that a general law makes all the provisions for exercising the right of eminent domain; that no special charters and no special corporate powers are granted. The legislature in its enactments is not determining as to the necessities or probabilities of any particular road, but is laying down a general law for the regulation and control of all railroad companies. Such a general law should be in harmony with the experience of the country as to the necessities and growth of railroad corporations.” (pp. 677, 678, 679.)
This was written by David J. Brewer, in the same year that O. W. Holmes, Jr., published his lectures on “The Common Law,” the first of which contained the statement: “The life of the law has not been logic; it has been experience.” Both men became justices of the supreme court of the United States.
A statute authorized cities of the second class to exercise power of eminent domain for waterworks. In 1883 the city of Winfield exercised the power and constructed a waterworks system. In 1914 the city condemned a water privilege a mile from the original location. The court held the power to condemn was not exhausted by the first exercise. In the opinion it was said:
“All property is held subject to the right of eminent domain whenever the public necessity requires it. It is a continuous sovereign right which cannot be extinguished. The fact that the power delegated by the legislature to the defendant was exercised thirty-three years ago does not argue that the property deemed necessaiy for public use at that time meets the requirements of the present time, nor does it exhaust the power where those intrusted with its exercise determine that additional or other property is necessary to the public convenience or welfare. . . . The power to condemn is given to the city in general terms, and nothing in the language of the act indicates a legislative purpose to limit the exercise of the power to a single instance or to one set of proceedings. ...
“The facilities at the old location may be wholly inadequate at the present time and the conditions that exist there may be such as to demand a change of intake. The city is growing, and it is easy to understand that a plant deemed to be sufficient for the people a third of a century ago would not be sufficient to meet the demands for the greater population or to subserve the present public interest.” (Wallace v. City of Winfield, 98 Kan. 651, 655, 656, 657, 159 Pac. 11.)
In the Winfield case the power was exercised by a municipal corporation. The city, however, sold water to its inhabitants, as defendant sells transportation. The decision was not rested on the ground the grantee of the power of eminent domain was a public corporation exercising governmental power, but on the ground the power of eminent domain is a continuing power, the first exercise of which does not exhaust it.
In view of the decisions in the Atchison and Winfield cases, adoption now by this court of the rule that power of eminent domain is exhausted by the first exercise, and may not be resorted to by a railroad company, subject to express statutory limitations, for the purpose, for example, of eliminating or reducing curves, grades, and detours of its completed road, would be an anachronism.
The petition charges relocation of right of way. The expression is too indefinite to afford information respecting what defendant is actually doing, and the court has used the word “relocate” as conveniently descriptive only.
The judgment of the district. court is reversed, and the cause is remanded with direction to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves a consideration of the respective duties and powers of the attorney-general and .county attorney — the question whether the attorney-general may control a liquor prosecution without the concurrence of, or in opposition to, the county attorney. The defendant imparted information to the attorney-general concerning a violation of the prohibitory liquor law. The information was conveyed to the county attorney, who caused the arrest of one Jerry Brown, who pleaded guilty, and in so^ doing implicated the defendant, against whom the county attorney began this prosecution. The attorney-general appeared and filed, a motion to dismiss. The motion was overruled, and in spite of the efforts of the attorney-general to stop the prosecution the case proceeded to trial at the instance of the county attorney. The defendant was convicted, and appeals.
The facts were substantially these: About ten days before his arrest in this action Galen Finch visited and conversed with the-attorney-general. The substance of Finch’s conversation was that he knew of a still in operation or about to be operated in Topeka,, by Brown. Finch stated that he would advise the attorney-general when liquor was to be run from the still. About 5 o’clock p. m.. on January 23, 1928, Finch came again to the office of the attorney-general and informed him that the still was in operation. The attorney-general tried to reach first the sheriff and then the county attorney, but was unsuccessful. He then called the federal prohibition director, gave him the name and address and asked him to get in touch with local officers and endeavor to make a raid. The prohibition director got in touch with the sheriff. A deputy sheriff conducted a raid that evening at the place suggested by Finch, arresting Brown and seizing the still. Members of the sheriff’s force-informed Brown that Finch “had turned him in.” When that information was given Brown he told the officers that Finch was in partnership with him. Finch was arrested later the same evening.
It would serve no useful purpose to detail the evidence. (See State v. Rose, 124 Kan. 37, 257 Pac. 731.) It is sufficient to say that the information which led to the successful prosecution of Brown was furnished by Finch. It was transmitted by an unbroken chain to the prosecuting officers of Shawnee county. There is no claim of any independent source of information, and it is admitted that the attorney-general told Finch he would be immune from prosecution for the exact offense for which he is now being prosecuted. No formal inquisition was held by the attorney-general, but he agreed that Finch would be immune from prosecution. Such understandings are common with prosecuting officers in cases where conviction of one defendant can be accomplished only through in formation obtained from an accomplice. It is not necessary to consider whether such an agreement would be binding if the prosecutor-later chose to violate it. The attorney-general did not repudiate his understanding with Finch, but used every effort to carry it out.
The legal effect of these circumstances involves a consideration of the respective powers and duties of the attorney-general and county attorney. It is not contemplated by our constitution and statutes that the attorney-general shall appear in every prosecution for crime, though he does frequently appear in the district court. The statute provides that the attorney-general shall consult with and advise county attorneys, when requested by them, in all matters pertaining to their official duties. (R. S. 75-704.) Adequate enforcement of the law involves coordinated action upon the part of these officials as well as all state and local executive officials. In our scheme of government the attorney-general is the chief law officer, subject only to direction of the governor and the legislature.
In State, ex rel., v. Dawson, 86 Kan. 180, 119 Pac. 360, the authority of the governor to direct the attorney-general was considered. It. was held that —
“The provisions of article 1 of the constitution which vests the supreme-executive power in the governor implies that the governor is the highest in authority in the executive department, with such power as will secure a faithful execution of the laws in the manner and by the methods prescribed by the-constitution and statutes in harmony with that instrument. . . . The statute making it the duty of the attorney-general, when required by the governor,, to appear for the state and prosecute in any court or before any officer, in any cause or matter, civil or criminal, in which the state may be a party or interested, is mandatory.” (Syl.)
In the opinion it was said:
“We do not find that the meaning of the phrase, ‘The supreme executive-power,’ as contained in our constitution and the constitutions of many other states of this union, has ever been precisely defined, although the matter is-referred to in some decisions. Perhaps the term itself taken in connection with the context is sufficiently explicit. An executive department is created consisting of a governor and the other officers named, and he is designated as the one having the supreme executive power, that is, the highest' in authority in that' department.” (p. 187.)
In an early Illinois decision it was held:
“When a constitution gives a general power, or enjoins a duty, it' also gives,, by implication, every particular power necessary for the exercise of the one, or the performance of the other. The implication under this rule, however, must be a'necessary, not a conjectural or argumentative one. And it is fur ther modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied as being more effectual or convenient.” (Field, v. The People, 3 Ill. 79, 83.)
Our own statute declares:
“The attorney-general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and shall also, when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any other court, or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested.” (R. S. 75-702.)
And so, while primarily the governor is charged with the execution of the law, next to him the attorney-general is the chief law officer of the state. Some observations concerning the development of the attorney-general’s duties and powers are not amiss. In Massachusetts Law Quarterly (May, 1921, p. 100) it is said:
“The office of the attorney-general is of considerable antiquity. Its early history and growth in England are traced in an article by Mr. Holdsworth, the learned historian of English law, in 13 Ill. Law Rev. 602, wherein its development is shown to have been essentially completed before the main migration of our ancestors to this country.”
In 2 Thornton on Attorneys at Law, 1131, it is said:
“The office of attorney-general is of very early origin in England, though the first patent of appointment which can be found seems to be one dated 1472. At common law the attorney-general was the chief representative of the sovereign in the courts, and it was his duty to appear for and prosecute in behalf of the crown any matters — criminal as well as civil. It was said by Mr. Blackstone: ‘He represents the sovereign, in whose name all criminal processes issue, and his power to prosecute all criminal offenses is unquestioned at common law.’ It would seem, therefore, that the attorney-general may exercise common-law powers unless the constitution" or statute law, either expressly or by reasonable intendment, forbids the exercise thereof; and under the colonial government the attorney-general received his appointment from the governor of the colony, and exercised his duties under the common law. . . . A state attorney-general, in many jurisdictions, may exercise all the common-law powers incident to and inherent in his office, in addition to such authority as may be expressly conferred upon him by the state constitution and general laws. . . . The attorney-general of a state is its principal law officer. His authorhy is coextensive with the public legal affaire of the whole community. ... As the representative of the state, an attorney-general is empowered to bring any action which he deems to be necessary for the protection of the public interests. His authority in this respect is necessarily implied from the nature of his office, and will be presumed to exist, in the absence of evidence to the contrary. . . . And, as a rule, the attorney-general has power, both under the common law and by statute, to make any disposition of the state’s litigation that he deems for its best interest; for instance, he may abandon, discontinue, dismiss, or compromise it. But he cannot enter into any agreement with respect to the conduct of litigation which will bind his successor in office, nor can he empower any other person to do so. . . . The attorney-general may dismiss any suit or proceeding, prosecuted solely in the public interest, regardless of the relator’s wishes. . . . Where the attorney-general is empowered, either generally or specially, to conduct a criminal prosecution, he may do any act which the prosecuting attorney might do in the premises; that is, he can do each and every thing essential to prosecute in accordance with the law of the land, and this includes appearing in proceedings before the grand jury. So an attorney-general, even at common law, had the right to enter a nolle prosequi, although he could not do so during the trial without leave of court.” (pp. 1143, 1149, 1151, 1160, 1161, 1164.)
In 2 R. C. L. 913 it is said :
“Defined generally an attorney-general is the chief law officer of a state or nation, to whom is usually intrusted not only the duty of prosecuting all suits or proceedings wherein the state is concerned, but also the task of advising the chief executive, and other administrative heads of the government, in all legal matters on which they may desire his opinion. . . . The office of prosecuting or district attorney, unlike that of attorney-general, is of modem creation, with its duties chiefly prescribed by statute. The civil and criminal business of the state which once pertained actually, as well as theoretically, to the office of attorney-general has been divided between the two offices for purposes of convenience. In fact, the office of prosecuting attorney has been carved out of that of attorney-general and virtually made an independent office. In the exercise of his common-law powers the attorney-general undoubtedly may advise the prosecuting attorney as he does other officers, since he is regarded as the chief law officer of the state; but in practically all jurisdictions, either the constitution or laws of the state make the two offices separate and distinct, and vest in the prosecuting attorney certain powers, and impose upon him certain duties, which can be neither increased nor decreased by the attorney-general. The sense in which the local officer is subordinate to the general one seems to be that they are engaged in the same branch or department of the public business, which of course makes the relation theoretical rather than practical. ... At common law the duties of the attorney-general, as chief law officer of the realm, were veiy numerous and varied. He was the chief legal adviser of the crown, and was intrusted with the management of all legal affairs and the prosecution of all suits, civil and criminal, in which the crown was interested. He alone could discontinue a criminal prosecution by entering a nolle prosequi therein. ... It is generally acknowledged that the attorney-general is the proper party to determine the necessity and advisability of undertaking or prosecuting actions on the part of the state. Thus it has been held that the discretion of the attorney-general in determining what the public interests require as to bringing an action against a domestic business corporation or its officers is absolute, and cannot be made the subject of inquiry by the courts. In like manner, under a statute imposing upon the attorney-general the duty of enforcing a prohibition law whenever it is not enforced in any county of the state, it is held that he is clearly the sole person to judge of the existence of the statutory grounds calling for intervention on his part. As a rule the character of the duties pertaining to the office are such as call for the exercise of personal judgment based upon the facts and circumstances surrounding each particular question.” (pp. 914, 915, 919.)
In People v. Kramer, 68 N. Y. S. 383, it was said in the opinion:
“The common law of England was the law of our colonial government. The attorney-general, under the colonial government, received his appointment from the governor of the colony, and exercised his duties under the common law. Later on he was commissioned by the crown. The attorney-general, at common law, was the chief legal representative of the sovereign in the courts, and it was his duty to appear for and prosecute in behalf of the crown any matters — criminal as well as civil. It was said by Blackstone (3 Bl. Comm. 27): ‘He represents the sovereign, in whose name all criminal processes issue, and his power to prosecute all criminal offenses is unquestioned at common law.’ ” (p. 386.)
In The People v. Miner, 2 Lans. 397 (N. Y.), it was said:
“As the powers of the attorney-general were not conferred by statute, a' grant by statute of the same or other powers would not operate to deprive him of those belonging to the office at common law, unless the statute, either expressly or by reasonable intendment, forbade the exercise of powers not thus expressly conferred. He must be held, therefore, to have all the powers belonging to the office at common law, and such additional powers as the legislature has seen fit to confer upon him.” (p. 399.)
In State, ex rel. Ford, v. Young et al., 54 Mont. 401, it was said in the opinion:
“It is the general consensus of opinion that in practically every state of this Union whose basis of jurisprudence is the common law, the office of attorney-general, as it existed in England, was adopted as a part of the governmental machinery, and that in the absence of express restrictions, the common-law duties attach themselves to the office so far as they are applicable and in harmony with our system of government. (6 Corpus Juris, 805, 809 ; 2 R. C. L., p. 916; Hunt v. Chicago, H. & D. Ry. Co., 121 Ill. 638, 13 N. E. 176; Ex Parte Young, 209 U. S. 123, 14 Ann. Cas. 764, 13 L. R. A., n. s., 932, 52 L. Ed. 714, 28 Sup. Ct. Rep. 441; State v. Robinson, 101 Minn. 277, 20 L. R. A., n. s. 1127, 112 N. W. 269.)” (p. 403.)
In State, ex rel. Nolan, v. Dist. Court, 22 Mont. 25, it was said in the opinion:
“Enumeration of his duties is made by article VIII, secs. 460 et seq., Political Code. Among other requirements therein mentioned, he is to exercise a supervisory power over county attorneys in all matters pertaining to the duties ■of their offices, and from time to time to require of them reports as to the ■condition of public business intrusted to their charge.
“A duty to exercise supervisory power clearly implies the possession of .supervisory power. There is, therefore, in the attorney-general a right to over■see for direction, to inspect with an authority all matters pertaining to the •duties of the county attorneys of the state, and to direct with superintending oversight the official conduct and acts of such officials; and it is his prescribed ■duty to exercise and perform these acts, and to do whatever may be necessary .and proper to render his power in these respects effective-. Duty to exercise general supervisory power over county attorneys would not, however, necessarily carry with it a duty to actively assist a county attorney in the discharge •of his duties, for supervision might be exerted without actual assistance.” (p. 27.)
See, also, Commonwealth v. Kozlowsky, 238 Mass. 379; State v. Robinson, 101 Minn. 277; Ex Parte Young, 209 U. S. 123; State v. Fisheries Co., 120 Me. 121.
The English common law furnished the basis of American jurisprudence. It was prevalent throughout the territory now known as Kansas from the earliest times down to October 31, 1868, when the present statute was enacted which provides that — ■
“The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the general statutes of this state.” (R. S. 77-109.)
See, also, Sattig v. Small, 1 Kan. 170; Kans. Pacific Rly. Co. v. Nichols, Kennedy & Co., 9 Kan. 235; Clark v. Allaman, 71 Kan. 206, 80 Pac. 571.
We conclude that the attorney-general’s powers are as broad as the •common law unless restricted or modified by statute.
Prohibition of the beverage liquor traffic and the attorney-general’s relation thereto is properly a matter for consideration here. Legal prohibition in Kansas has had a progressive development from the initial regulation of the saloon and tavern (chapters 53, '64, 77, 84, Territorial Laws 1855) down to-and including the bone-dry act enacted in 1917 (R. S. 21-2101) and the anti-still law enacted in 1923 (R. S. 21-2111). By the adoption of the prohibition amendment to our constitution in 1880 (Laws of 1879, ch. 165), and the enactment of the prohibitory law in support thereof (Laws of 1881, ch. 128) Kansas established prohibition as a part of the state’s public policy. In so doing it became a pioneer in the inauguration •of this policy although other courts had long since taken judicial notice of the fact that the beverage liquor traffic had been the domi nant cause of crime, misery and pauperism; that intoxicants, directly or indirectly, had sent more people to jails, penitentiaries and insane asylums than any other cause; that a large percentage of all crimes charged against persons arraigned in the courts was properly attributed to the use of intoxicating liquor. Judicial notice means that courts consider, without evidence, those matters of public concern which are known to all well-informed persons. For instance, the relation of intoxicating liquor to crime was recognized by the supreme court of the United States as far back as 1847. In the License Cases (5 How. 504, 632, 12 Law Ed. 256, 592), then under consideration, it was said by Mr. Justice Grier:
“It is not necessary for the sake of justifying the state legislation now under consideration to array the appalling statistics of misery, pauperism and crime which have their origin in the use or abuse of ardent spirits.”
In Mugler v. Kansas, 123 U. S. 623, Mr. Justice Harlan, writing the opinion for the court, said:
“We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact established by statistics accessible to everyone, that the idleness, disorder, pauperism and crime existing in the country, are, in some degree, at least, traceable to this evil.” (p. 662.)
In Crowley v. Christensen, 137 U. S. 86, it was said:
“By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dram shop. . . . The statistics of every state show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. . . . There is no inherent right in a citizen to sell intoxicating liquors by retail; it is not a privilege of a citizen of the state or of a citizen of the United States.” (p. 91.)
The supreme court of Ohio in Adler v. Whitbeck, 44 Ohio St. 539, said that the liquor traffic is the “acknowledged source of much of the crime and pauperism in the state.” (p. 568.)
The supreme court of Illinois in Schwuchow v. City of Chicago. 68 Ill. 444, characterized the liquor traffic in these words:
“We presume no one would have the hardihood to contend that the retail sale of intoxicating drinks does not tend in a large degree to demoralize the community, to foster vice, produce crime and beggary, want and misery.” (p. 448.)
In State v. Durein, 70 Kan. 1, 80 Pac. 987, this court said:
“Intoxicating liquor is . . . the prolific source of disease, misery, pauperism, vice and crime. Its power to weaken, corrupt, debauch and slay human character and human life is not destroyed or impaired because it may be susceptible of some innocent uses, or may be used with propriety on some occasions. The health, morals, peace and safety of the community at large are still threatened.” (p. 21.)
Organized society always has the right to invade the domain of personal liberty when the safety or general improvement of the community is at stake. This state, having long since learned that the use of alcohol as a beverage is a great physical evil and a standing menace to her people, that beverage alcohol destroys physical and mental vitality and resistance to disease, that it increases poverty and ignorance, that it stimulates vice and crime, determined to exercise its inherent right to prohibit it. Such right is the exercise of police power, a power which the state uses for the protection of society as a whole. The argument that the prohibition law interferes with individual liberty and that the individual has never had his day in court is answered by the decisions of the highest courts, that the individual has no inherent right to do anything which interferes with the general welfare.
The. framework and plan of our intoxicating liquor law contemplates a central law enforcement head. That head is the attorney-general. Under that law he is given authority and power not ordinarily given in other laws. The intoxicating liquor law provides:
“Whenever the county attorney shall be unable or shall neglect or refuse to enforce the provisions of this act in his county, or for any reason whatever the provisions of this act shall not be enforced in any county, it shall be the duty of the attorney-general to enforce the same in such county . . . and he and his assistants shall be authorized to sign, verify and file all such complaints, information, petitions, and papers as the county attorney is authorized to sign, verify or file, and to do and perform any act that the county attorney might lawfully do or perform.” (R. S. 21-2125.)
Under the provisions of this statute there need be no finding or even belief by the attorney-general that the county attorney is corrupt or that he has neglected to enforce the provisions of such law in his county. If the attorney-general believes that the plan or system followed by the county attorney is ineffective he may go in even though he believes the county attorney is acting in entire good faith. In the instant case the attorney-general thought that the prosecution of Finch would be a detriment rather than an aid to the enforcement of the intoxicating liquor law. Under such circumstances it was not only his power but his duty to take charge of that particular prosecution and conduct it according to his best judg ment. He was not required to make any formal or written statement of a finding in determining whether he thought the prohibitory liquor law was or was not being enforced in Shawnee county.
There are three ways in which a criminal prosecution may be carried forward in this state — by private prosecutor in compliance with, certain statutory requirements, by the county attorney, and by the attorney-general. Ordinarily a case is commenced and prosecuted to conclusion by one of the methods enumerated and without conflict between them. In case of conflict the superior officer has control of the prosecution. It is necessary in the prosecution or the defense of any case, civil or criminal, that some one be in charge. It follows that where the attorney-general is lawfully prosecuting in a county he has complete charge of the prosecution. In State v. Bowles, 70 Kan. 821, 79 Pac. 726, it was said:
“When directed by the governor or either branch of the legislature to appear and prosecute criminal proceedings in any county he (the attorney-general) becomes the prosecuting attorney of that county in those proceedings, and has all the rights that any prosecuting officer there may have, including those of appearing before the grand jury, signing indictments, and pursuing cases to final determination.” (p. 827.)
The prosecutor in charge may dismiss a case not instituted by him.
“While the county attorney is not required to take part in a preliminary examination in a felony case unless requested to do so by the magistrate, if he does appear he is entitled to have full charge of the prosecution, and the case should be dismissed if he so directs.” (Foley v. Ham, 102 Kan. 66, syl., 169 Pac. 183.)
The attorney-general is not required to take part in a liquor prosecution, but if he does appear he is entitled to have full charge of the prosecution and the case should be dismissed if he so directs. The denial of the motion of the attorney-general to dismiss in the instant case is assigned as error. In Foley v. Ham, supra, it was said in the opinion:
“Notwithstanding that the county attorney is not required to attend a preliminary examination unless asked to do so, we hold that he may appear if he sees fit, and when he does his authority is as complete as though his presence had been requested. The proceeding, while somewhat informal, is an adversary one. It is accusatory or litigious rather than inquisitorial in character. It has something of the aspect' of a voluntary investigation conducted by the magistrate, while exercising a function somewhat analagous to that of a grand jury, to determine whether or not there is ground for a prosecution. But under our practice it is quite different' from that. It constitutes actual litigation between opposing parties. Testimony taken at such a hearing may be used at the trial in the district court, if the attendance of the witness cannot be had (State v. Chadwell, 94 Kan. 302, 146 Pac. 420 ; 8 R. C. L. 213, 214), a course which could scarcely be justified if the proceedings were not essentially judicial — a trial between opposing parties presided over by a judge. The state is the plaintiff, and the state’s attorney, rather than the complaining witness or any other unofficial person, is entitled to speak in its behalf, and decide upon the course to be pursued in its interest.” (p. 69.)
What was said concerning the power of the county attorney in the Foley case applies in any case conducted by the attorney-general. In Martin v. State, ex rel., 39 Kan. 576, 18 Pac. 472, it was held that the county attorney of Stevens county had no right to institute proceedings in the district court of Shawnee county without the consent and against the objection of the attorney-general.
The enforcement of the prohibitory liquor law involves elements not ordinarily present in the enforcement of other laws. Liquor is easily concealed; the market for it is widely distributed. With the means of transportation now available liquor made in one county is sometimes wholly marketed in another; ordinarily more than one person is involved in its handling or in its production and sale. These conditions sometimes require law-enforcement officers to obtain information from persons who have themselves violated the law. Such a method is not unusual when attempting to strike at the source of the supply and the larger dealers. Such conditions have made it imperative that effective law-enforcement work be carried on more or less generally over the state by one head rather than leaving the task entirely to the efforts of local officers who make arrests for small violations in their own communities. For example, one offender may manufacture liquor in one county and sell and deliver the entire output to his runners (retailers) in another county far distant from the one in which it is made. The retailer is arrested and prosecution commenced in his own county. It would hamper law enforcement if the attorney-general could not control the prosecution and even dismiss the action against a retailer in order to convict the manufacturer or wholesaler of the liquor, if he in good faith believes that the wiser course, and the refusal of the county attorney to cooperate and dismiss the case against the retailer would hamper the enforcement of the law as much as failure and refusal to prosecute generally. The power effectively to control a prosecution involves the power to discontinue, if, and when, in the opinion of the prosecutor in charge this should be done. We are of the opinion the trial court should have sustained the attorney-general’s motion to dismiss in the instant case. This conclusion necessarily disposes of the case and obviates discussion of other points raised in the briefs.
The judgment is reversed and the cause remanded with instructions to dismiss the case.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Fred Gilbreath to recover compensation from the Prairie Oil and Gas Company for injury sustained by him on November 11, 1926, while engaged as a pumper on an oil lease that was operated by the defendant. He alleged his employment, that the defendant was operating under the compensation law and that while attempting to repair the pump of the company his clothing was caught in the gearing of the machinery and he was drawn into it, with the result that his left side, shoulder and arm were lacerated, and that certain other injuries had been suffered. The trial court found the injury to be permanent, that the disability was partial in quality, and awarded him compensation for a short period for total disability and six dollars per week for the remainder of the eight-year period. The defendant in its answer admitted that the plaintiff was in its employment, and that in the course of the employment in the production of oil and gas he suffered accidental injuries, but it denied that the injuries were of the character and to the extent alleged by plaintiff, and further that he did not suffer any permanent partial disability. After alleging due service of a demand for compensation, defendant stated that plaintiff had received compensation at three different times in the amount of $170.78, and that it had incurred and paid in his behalf expenses on account of the injuries, at a hotel to which defendant took the plaintiff and his wife, including medical attention up to the sum of $140, and it then averred that plaintiff was not entitled to any additional compensation. The case came on for trial before the court, without a jury, more than a year after the accident. Elaborate findings of fact were made by the court as to the occurrence of the injuries, the character of the machinery where plaintiff was working, that his clothing was caught in the cog wheels of the machinery, and that he was instantly rendered unconscious; that he regained consciousness and was lying about fifteen feet from the pump, and that all of his clothing above the belt had been torn from his body. It was found that he had a wound upon the upper side of his right arm, and on the left side of his body about three or four inches below his armpit, where there were several bruises and wounds covering a space of six to eight inches long and three to four inches wide, at which place the flesh was badly bruised and mashed. There was a finding that the doctor who cared for him found bits of clothing, grease and particles of glass in the wounds, and that it required twenty-seven stitches to close the wounds. At first there was some infection in the wounds, but they all healed by January 24, 1927, and the doctor did not treat him for his injuries after that date. No claim is made that the plaintiff did not receive proper medical attention. It was found that plaintiff was forty-six years of age, had worked twenty-four years in the oil fields, part of the time as tool dresser, and that in his lifetime he had several slight ailments, but never had a serious sickness or disease. It was further found that complaint had been made by him of his back and hips, and also of his knee, but that these ailments did not appear to be related to or the result of the accident. There is a finding that there are three or four scars on his side from two to six inches long, and that when these healed there remained a great deal of reddish-brown scar tissue called keloid, which stands out about three-fourths of an inch from his body. That the scar tissue is sensitive and the nerve ends remain near the surface of the scars and are sensitive to friction. It was found that there has been little, if any, diminution or change in the tissue in the last year, and that any movement of the left arm rubs against the scar tissue, which causes pain and a burning sensation. It was also found that at no time since the injury has the plaintiff, had complete use of his left arm and shoulder. That he is unable to raise his left arm up and away from his body except to a limited extent, cannot raise it to a horizontal position, and when attempts are made to raise his left arm there is a resistance which causes him pain, and since his injury he has been unable to do any work that requires ordinary strength or exertion in his left arm or shoulder, and further that the movement of that arm against the scar tissue causes pain and irritation. The court found that as a result of the accident the plaintiff had sustained permanent partial disability, manifested by limitation of movement, of pain and tenderness in his left arm, shoulder and side, and that the injuries sustained are ascertainable by an objective examination. The payments alleged to have been made by the defendant were found to be as pleaded. The conclusion was that defendant was not indebted to the plaintiff for doctor bills, medical, surgical or hospital treatment, but plaintiff is entitled to recover for total disability for a period of four weeks at the rate of $15 per week, $60, and to recover permanent partial disability at the rate of $6 per week for a period of 401 weeks or a total of $2,406, for permanent partial disability. The defendant appeals and assigns a number of errors in the rulings of the court.
Some complaint is made of the overruling of a motion to make the plaintiff’s petition more definite and certain in respect to the extent of the injuries suffered by plaintiff, and to set out copies of demands for arbitration. It is evident from the record that no prejudice could have resulted from the refusal of this motion. The facts in the case were quite fully brought out and the matter of the motion was one largely within the discretion of the court.
Error is assigned on the admission of evidence given by Doctor Jeffery, who had made a personal examination of plaintiff the day prior to the commencement of the trial. The witness first stated his experience as a physician, and to the effect that in company with Doctor Janes he had examined the plaintiff after his body had been stripped; that it was done by inspection, palpitation, manipulations and stethoscope; that nothing was found about the heart except perhaps low vitality. That when an attempt was made to lift his left arm there was decided resistance before it reached the horizontal; that he did not discover any bad lesion in the joint itself, as the injury was mostly confined to the soft parts. He also stated that they found a lot of scar tissue where the stitches had been taken which protruded a half inch or more. That the scar tissue was about the size of a hand. He was then asked whether or not, in his opinion, the injury is a disabling one, but the question was not then answered. It was changed to the form that, “Basing your opinion, doctor, upon what you discovered, upon what you could see, and what you could do with the movement of the arm, and from your examination,, tell the court whether that is a disabling injury or not?” Although the answer given is not found in the abstract, the implications in the record are that it was answered. A motion to strike the answer was overruled. Then followed the question: “Doctor, to what extent — percentage—would you say there was in the use of that arm in raising it out from the body?” His answer was: “It is rather difficult to answer a question like that. I suppose you mean a percentage from the lowest to the highest possible motion?” i'Yes, sir.” “Well, it couldn’t be raised to a horizontal position, which would be fifty per cent. I should say between forty and forty-five per cent.” The objections were that the opinion was an invasion of the province of the court; that is, it was the principal question submitted to the court for decision, and also that the basis of his answer had not been previously stated by the witness. Objections were also made to questions relating to the scar tissue, the condition in which it was found and the sensitive effect where nerve endings have grown into it. Motions to strike out the testimony were overruled. Doctor Janes, who. participated in the examination of plaintiff, gave testimony similar to that given by Doctor Jeffery over like objections. Ordinarily a witness may not give an opinion upon the ultimate fact which the court or a jury is to decide, but the testimony here hardly falls within that rule. The doctor made an examination and stated the conditions which he discovered as to the limitations on the arm and as to the scar tissue. The question was not whether the plaintiff was entitled to compensation, but was rather whether the conditions due to the injury were disabling in character. The witness did not state that the injuries discovered constituted temporary, partially permanent or total permanent disability. Afterwards the witness did say in answer to a question that the limitations on the use of the arm measured by the conditions found by him were from forty to forty-five per cent, and this answer appears to have been received without objection; nor was there any motion made to strike it out. If objection had been made it could not be held that the witness had usurped the functions of the jury or that the answer was upon the ultimate fact to be decided. (State v. Lindsay, 85 Kan. 192, 116 Pac. 209; 4 Wigmore on Evidence, 2d ed. § 1920.)
The other objection is that-the facts upon which the witness based his opinion had not been stated by him and it is contended that before such evidence can be received and considered, the facts and circumstances forming the ingredients of the opinion must first be disclosed to the court or to the jury. The witness had experience and skill. He had observed the conditions of the plaintiff after a personal examination and then stated what he found by the examination and the tests made. Based on these he gave his opinion with a view of aiding the court in reaching a judgment. An expert may give an opinion where he has had adequate personal observation of conditions, or upon facts obtained from other witnesses in the case, or upon a hypothetical question covering facts upon which evidence has been produced. Here it is manifest that the witness reached and gave his opinion upon the things which he personally observed in the examination made.. Besides it was not necessary that he should state in advance all the data upon which his opinion was founded. In 4 Wigmore on Evidence, 2d ed., § 1922, it is said:
“In the first place, then, there is no principié and no orthodox practice which requires a witness having personal observation to state in advance his observed data before he states his inferences from them; all that needs to appear in advance is that he had an opportunity to observe and did observe, whereupon it is proper for him tó state his conclusions, leaving the detailed grounds to be drawn out on cross-examination.”
Complaint is made of the admission of testimony given by the wife of plaintiff as to his condition on the day following the accident. She said he was nervous and upset and wanted to be put to bed at once. Asked if she could tell what his apparent condition was as to suffering pain, she replied, “Oh, he was suffering.” On nontechnical questions relating to the appearance of persons and things which cannot well be reproduced or made palpable to a jury, a witness may express an opinion upon data which he has observed. (State v. Baldwin, 36 Kan. 1, 12 Pac. 318; State v. Scott, 117 Kan. 303, 235 Pac. 380; 4 Wigmore on Evidence, 2d ed., § 1974.) There may be some doubt as to whether the witness was competent to give an opinion as to whether plaintiff was suffering pain, but if it be assumed to be inadmissible it cannot be regarded as material. The conceded facts relating to the condition of plaintiff after passing through the mill, with flesh cut and mashed in a way which is not in dispute, made it certain that he was suffering pain, and we wonder why it was deemed necessary to ask such a question.
A further assignment of error is based upon the refusal of the court to require the plaintiff to submit to an ansesthetic in order to determine whether or not there was any limitation of his left arm, and if there was, the extent of such limitation. One of the medical experts testified that there was a test other than those the doctors had made of such limitation. It was to give the person an anaesthetic and when under its effect to manipulate both the injured and the uninjured arms, and to watch the effect. Defendant requested that an anaesthetic be administered to plaintiff and that such test be made. After testimony as to the condition of plaintiff, and the danger of applying such a test, the request was refused. One of the medical witnesses stated that plaintiff had some cold and also had slight temperature, and probably it would not be advisable to apply it, especially at that time, as he might get pneumonia from the aneesthetic. Two other physicians said they did not think the test would cause any ill effects or that the plaintiff would be endangered by such a test. The plaintiff was called to the stand and asked whether he was willing to submit to an anaesthetic, but an objection to the question was sustained. In a compensation case where an injury had resulted in a hernia of an employee the defendant requested that the plaintiff submit to an operation to be performed by a surgeon of his own choosing, and that it might be made at the expense of the defendant, the trial court found that the operation would in all probability result dn a complete removal of the disability, that it would not be attended with danger to plaintiff’s life, and that the refusal of the plaintiff to submit to the operation was unreasonable. Upon a review of the proceedings it was held:
“The unreasonable refusal of an injured employee to permit a surgical operation where the danger to life from the operation would be very small, and the probabilities of a permanent cure very large, justifies a court in refusing compensation under the workmen’s compensation law from and after the trial.” (Strong v. Iron & Metal Co., 109 Kan. 117, syl. ¶ 1, 198 Pac. 182.)
’ A further holding was that—
“The unreasonableness of the refusal of an injured employee who is seeking to recover compensation under the workmen’s compensation act, to permit an operation to be performed, is a question of fact to be determined from the evidence.” (Syl. ¶ 2.)
In a later case, where an injury had produced a hernia and where the defendant was insisting that plaintiff should submit to an operation, at its expense, the arbitrator found that such an operation which plaintiff had refused is successful in a great majority of cases, and that if successful would restore plaintiff to a normal condition, but he awarded compensation. In a review of the award before the district court additional medical testimony was taken, and that court modified the award, and among other things found that the arbitrator exceeded his authority in passing upon the advisability of an operation and further found from the testimony—
“That an operation at plaintiff’s age, in his then physical condition, to remedy his hernia, would endanger plaintiff’s life, and that plaintiff’s refusal to accept the operation tendered by defendant is not unreasonable on the part of plaintiff, and that plaintiff, to secure compensation for the injuries received, should not be compelled to submit to an operation.” (Gilbert v. Independent Construction Co., 121 Kan. 841, 842, 250 Pac. 261.)
On appeal this court held that whether or not the refusal was reasonable was a question of fact to be determined from the evidence in the case, and affirmed the judgment.
Here the court sustained the refusal upon the evidence which has been stated and awarded compensation. It may be noted that the demand for an operation was not made to effect a cure of an ailmént or injury, but was rather to determine whether the plaintiff was a malingerer and whether the testimony of his medical witnesses was worthy of belief. In view of the testimony we cannot say that the refusal of the court to compel the plaintiff to submit to the administration of an anaesthetic for the purpose named is a ground of reversal.
There is complaint of the refusal of the court to make special findings requested by the defendant, but those made by the court cover the issues so fully that no real ground for the complaint is seen. Nor can we sustain the assigned ground of error that the evidence is not sufficient to support the findings. The evidence appears to be ample, at least sufficient to uphold the findings and conclusions of the court.
Another ground of complaint is that the court without authority rendered a lump-sum judgment. It is contended that the injury or the result of it was not ascertainable by objective examination. The statute, among other things, provides:
“The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for periodical payments, as in an award: Provided, In no case shall a lump-sum judgment be rendered for any injury not ascertainable by objective examination, but in such cases the court may order periodical payments during .incapacity of such sums as may be due under the provisions of section 4 of this act,” etc. (R. S. 44-534.)
A reading of the testimony satisfies us that the injury as described by the medical witnesses was ascertainable by objective examination, and that the case comes fairly within the class in which a lump-sum judgment is authorized. (Fronk v. Ajax Drilling Co., 121 Kan. 708, 249 Pac. 680.) It is also said that there is a lack of evidence that plaintiff asked for or consented to an arbitration. This can hardly be regarded as a contested issue in the case. The plaintiff pleaded demand for compensation, that all due and proper notices were given and also of an offer to arbitrate, which was refused by defendant. In its answer defendant admitted that written notice and demand for compensation had been given under the terms as provided in the act. At the opening of the trial counsel for plaintiff made the following statement:
“By Mr. Mosman : This suit, your honor, was originally brought by two counts, the first count being for common-law damages and the second count for compensation. The action is to be tried upon the second count for compensation. The facts, briefly, are that 'Mr. Gilbreath worked for 'the Prairie Oil and Gas Company as :pumper on the lease and-was caught in certain machinery and injured. .1 don’t believe there is any question in the.,case about whether or. not the employer and employee were under the compensation law, or' the fact that notice of that claim had been made. I think the only question, as I'understand it, is as to the’ extent of this man’s injuries and also whether he has been paid full compensation. Some compensation has been 'paid. ; ,
“By Mr. Stevens: I think that’s about all.
“By Mr. Mosman : I think the facts are simple, so that it is not necessary to go into the statement to any extent.”
In view of this statement and acquiescence by counsel for defendant, and the course of the trial, the objection that there was an absence of evidence of a request for arbitration or consent to it, is not available as a ground of reversal.
Finding no prejudicial error, the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Josef Knitig brought this action to recover damages alleged to have been sustained by an assault and battery made upon him by Ambrose Slaven. The incident occurred during a wrangle between them relating to questions growing out of the world war. On a former occasion they had an argument upon the subject, and when they subsequently met at the American Legion hall Knitig came in and took a seat alongside of Slaven. He renewed the discussion, and according to the testimony in the case he said to Slaven that he was not patriotic, and that his son was a slacker. Slaven then jumped to his feet and with an exclamation that, “Boys, I can’t stand that; I am an American citizen,” at once a clash occurred. There was an exchange of vile epithets and some dispute as to who was the aggressor, but there is testimony tending to show and the jury found that Slaven made a pass at Knitig with his fist, which came in contact with Knitig’s head. The jury in answer to special questions found that Slaven struck Knitig on the head, that he did not strike him more than once, that Knitig was in a sitting position when he was struck, that he then slid down in his seat and raised his foot towards Slaven, but made no more resistance than was necessary, and in answer to the question, “Did Knitig suffer any physical hurt or humiliation or mental distress resulting from being so struck by defendant?” the answer was “Yes.” To the question whether or not plaintiff’s head was bruised or wounded by being struck by defendant, the jury answered “No.” And in answer to a question as to what damages were sustained by plaintiff from the encounter, the jury found “No damage to his person, no loss of time, no permanent injury, but that he suffered injury to his feelings and was entitled to damages in the sum of 25 cents.” Judgment was awarded for that amount and Knitig appeals, insisting that the result shows that the jury was influenced by passion and prejudice and its verdict should be set aside.
The jury upon what appears to have been competent evidence found that Knitig suffered no personal injury from the assault and battery. According to the findings the only injury sustained was humiliation or injury to his feelings, a mental suffering which did not result from any physical injury. The general rule is that where an unlawful assault and battery does not result in any appreciable injury the plaintiff may recover nominal damages only. (5 C. J. 701, 702.) There are exceptions to this rule, as in cases of seduction,, slander, malicious prosecution or arrest, and for willful and wanton wrongs done to cause mental distress. (Lonergan v. Small, 81 Kan. 48, 105 Pac. 27.) Plaintiff calls attention to Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322, where a recovery was sought for an assault and battery. The damages assessed were fixed at $1.50 for physical pain and 50 cents for insult and indignity, and that judgment was reversed for inadequacy of the damages. In that case, however, the result of the attack was severe. There was a fracture of the nose, with profuse bleeding, a blackened eye, bruised forehead and a split lip. Here, as we have seen, the jury has found that no bodily injury was suffered. If substantial injury had been inflicted by the defendant, as in the Sundgren case, the rule there declared would have been applicable, but the jury in this case concluded from the testimony that no appreciable injury was sustained by the plaintiff, but because there was an assault nominal damages should be allowed. It appears, too, that the court carefully advised the jury thatr
“Every person has the right to complete and perfect immunity from hostile assault and from threatened danger to his or her person, the right to live in society without being unnecessarily or .wrongfully put in fear of personal harm.”
Other instructions of which there is no complaint were given as to the right to recover damages suffered from an assault and battery. Evidently the jury found that in fact no physical injury was suffered and that in the wrangle which occurred the defendant, although he acted under great provocation, should pay nominal damages for the assault, which would carry the costs of the action.
In view of the fact that no appreciable injury was suffered by plaintiff and that he only suffered injury to his feelings, an award of nominal damages cannot be regarded as ground for reversal. In Shaffer v. Austin, 68 Kan. 234, 74 Pac. 1118, a tenant of a landowner sublet the land to another in violation of a provision of the contract, and a guest of the tenant was removed from the land by the landowner without legal process. This was accomplished by taking the guest by the arm and leading him off the premises, causing him no physical injury. In an action for assault and battery brought by the guest of the subtenant against the landowner it was held that the guest could recover no more than nominal damages.
Complaint -is made of a supplemental instruction given to the jury after it had retired for deliberation in the case. The rule of law stated in the instruction is not questioned, but it is said that as a former instruction upon the subject had been given, that by the amplification of the instruction undue emphasis was placed upon one phase of the charge. There was nothing approaching prejudice in the instruction.
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The opinion of the court was delivered by
Hutchison, J.:
This action is under the federal employers’ liability act to recover from the defendant railroad company for the loss of sight in plaintiff’s right eye, occasioned by the explosion of a torpedo in the engineer’s clothes box upon the locomotive on which plaintiff was working as a brakeman on August 5, 1923. Plaintiff recovered a judgment for $17,500, from which defendant appeals, specifying twelve errors.
The-grounds upon which plaintiff bases his right to recover are that defendant had within a month before the injury commenced using another and different kind of torpedo from that which it had formerly used; carried them in another and different place from where they had usually been carried, namely, in the clothes box of the engineer instead of a rack in the engine cab, and in the same box with fusees and other flagging equipment, of which changes the defendant had failed to inform and advise the plaintiff and of which he had no knowledge prior to the injury; that he had worked for the defendant company at different times and for limited periods during the last nine years before the injury, and was accustomed to and acquainted with the duties of a brakeman; that it was a part of his duty as head brakeman to see if the locomotive was equipped with all the usual and necessary flagging material for signal purposes, consisting of a lantern, a flag, fusees, and torpedoes; that when he failed to find any rack in the cab he asked the fireman where they were kept, and he suggested that he look in the clothes box of the engineer; that when he looked in and could not see the bottom of the box he put his hand in the box and it came in contact with and moved some object which he now believes to have been a fusee with a sharp metal spike in the end of it, which fell to the bottom of the box and against and into one of the long torpedoes therein and caused it to explode, throwing a piece of its lead covering into his right eye, which caused the loss of his sight therein. It is further alleged that the long, round torpedo is very sensitive and more likely to explode under such circumstances than those formerly used, and the defendant was negligent in carrying them in such place with such fusees and not informing the workman of these circumstances. The answer of the defendant is a general denial, followed by allegations of contributory negligence and assumption of risk.
The first two specifications of error involve the sufficiency of the pleadings and the right of the defendant for judgment thereunder, together with the opening statement of the plaintiff and the right of the plaintiff to introduce evidence in support of the allegations of the petition. Attention is called to inaccuracies and inconsistencies in the opening statement, but these ordinarily, and in matters of detail especially, will not disturb or lessen the force and effect of the allegations of the petition, which, in an earlier appeal of this case, were held by this court to have been sufficient to constitute a cause of action. (Wiggins v. Missouri-K.-T. Rld. Co., 122 Kan. 414, 251 Pac. 1095.)
The next assignment of error is with reference to the introduction of evidence, particularly that of one Hendricksen, who was at the time of the injury and some time prior thereto engine inspector in the yards at Parsons, where the injury occurred, and who testified as to a similar explosion of a torpedo of the same kind in the seat box or clothes box of the engineer in the yards at Parsons two or three weeks prior to the time of this injury. He related that he was placing some fusees in such a box and there was an explosion of one of these long, round, lead-covered torpedoes, and upon examining the box thereafter small pieces of lead were found in the box, and that he reported this incident to two of his superior officers within the next few days. It is urged by appellant that proof of one occurrence entirely disconnected with the one involved will not establish the allegations as to another and different incident or accident, which is the general rule; but where the conditions are not only similar but the same, and the evidence goes to illustrate a physical fact, such evidence is relevant and admissible. Where the injury complained of was a defect in the sidewalk, evidence of other accidents having happened at the same place a few days earlier or later was held admissible.
“In an action against a city to recover damages for injuries received from a fall on a defective sidewalk, it is competent for the plaintiff to show that while the walk was in the same condition similar accidents had occurred at the same place.” (City of Topeka v. Sherwood, 39 Kan. 690, syl. ¶ 5, 18 Pac. 933.)
This ruling is cited with approval in Mundell v. Greeley, 76 Kan. 797, 92 Pac. 1117, where it was said in that connection:
“It must be said that upon the same conditions being shown to exist evidence of prior accidents at the same place is relevant in this class of actions.” (p. 798.)
“Evidence of other accidents similar to the one in question in certain particulars which do not establish relevancy are excluded. But where the evidence of similar accidents is given simply to illustrate the physical facts, and the conditions are the same, the evidence is admissible. Such evidence is also held admissible in some cases as tending to show that defendant had notice of the defect claimed to have caused the accident.” (22 C. J. 753.)
“Evidence of similar occurrences is admitted where it appears that all the essential physical -conditions on two occasions were identical for under such circumstances the observed uniformity of nature raises an inference that like causes will produce like results.” (22 C. J. 751.)
The objection also extends to the admission of the testimony of this witness with reference to the experiments he said he made by way of comparison between these different torpedoes, assuming to state facts concerning the experiments rather than opinions. Physical facts concerning an agency in question are generally admissible. Similar experiments and opinions were given later in the case by a recognized expert produced as a witness by the defendant.
The next assignment of error is the failure of the court to prevent the repetition of certain questions and certain remarks by counsel for plaintiff which were claimed to be prejudicial to the defendant. They were where plaintiff’s counsel continued asking witness Hendricksen questions in detail about the injury to one of his fingers at the time of the explosion of the torpedo two or three weeks prior to the injury to plaintiff and about telling the plaintiff’s father of the explosion and the injury he sustained. All these objections were sustained by the trial court, but appellant complains that counsel continued asking the same or very similar questions notwithstanding the sustaining of the objections. If this were an occurrence on the witness stand before the jury it would indeed be very improper, but we observe this evidence was taken by deposition, and plaintiff’s attorney at the time of repeating these many questions did not have the benefit of the court’s ruling and had a right to pursue the inquiry according to his own theory of the case. It is not stated, but inferred, that this part of the deposition was recited in detail before the jury. This should not have been done, but either party could have called the court’s attention to the long list of similar questions following and requested his ruling on the objections thereto, without reading each of them to the jury. The other reference to the conduct of attorney for plaintiff is in referring several times to the rule offered in evidence by the defendant that “employees in accepting employment assume its risks,” as being in contravention to the holdings of the supreme court of the United States. The court sustained plaintiff’s objection, which included this statement. Later, when defendant again offered this rule in evidence, once directly and once through a question asked a witness, the attorney for plaintiff made the same objection, referring to the supreme court of the United States, without naming a case. It was perhaps unnecessary to refer to any court or decision after the court had once sustained the objection, but attorneys generally pursue the same method that has once been favorably received and accepted by the court, and if the defendant wanted again to get a more favorable ruling from the trial court on the admission of this item of evidence it cannot well object to the interposition of the same objection, even if it might have been framed in preferable language.
The next assignment of error is the overruling of the demurrer to plaintiff’s evidence. It is insisted at the close of the abstract and throughout the appellant’s brief that there was no evidence in support of the allegations of the petition. This necessitates our making a brief analysis of the testimony of the plaintiff. There was evidence tending to show that plaintiff was experienced in the duties of ■a brakeman on a railroad, having worked for the defendant company a good deal of the time for the past nine years; that he was thirty-one years of age at the time of the injury; that he had resumed work for the company just two days before the injury; that he was familiar with the old form of torpedoes and fusees and other flagging equipment, with the places where they were usually kept and how they were used; that he had never been informed of the use of the long, lead-covered torpedo prior to the injury; that he had never seen or heard of such torpedo before, which had only been used by the defendant about thirty days before the injury; that he had not been informed of the flagging equipment being carried in the engineer’s seat box or clothes box; that he did not know of the torpedoes and fusees being kept together in the same box; that usually the torpedoes had been kept in a rack in the cab or some separate place by themselves; that it was a part of his duty as head brakeman'to see if the engine was properly equipped with flagging material; that when he failed to find it in the places he was accustomed to seeing it he was advised to look in the engineer’s clothes box; that he could not see the bottom of the box, and put his hand in and it touched something like a fusee, which dropped or fell and the explosion followed, from which he lost the sight of his right eye, from which the physician removed a piece of lead; that an examination of the box immediately thereafter showed a lead-covered torpedo had exploded in the box, and fragments of it were there; that there were removed from the box a number of flat torpedoes and a few long, lead-covered ones and a number of fusees after the explosion; that within two or three weeks prior to this injury a similar explosion of a lead-covered torpedo occurred in the same kind of a box on an engine in the same yard when the engine inspector was supplying the box with some extra fusees; that this incident was related the next day to one of the superior officers of the defendant company and a few days later to another officer. We think the foregoing shows there was some evidence to support all the essential allegations of the petition and that the demurrer to the evidence was properly overruled.
The next error assigned is in the giving of instructions to the jury, especially on the question of assumption of risk. The main criticism of this instruction is not so much the particular language used in the instruction, giving both sides of this very difficult question, but that this feature of the case was submitted to the jury at all. It is urged that “such a matter should not be, submitted to a jury. The law conclusively presumes that he does know such dangers and risks as inhere in the work carried on in the usual and customary manner.” The earnestness of appellant in support of its'theory seems to have impelled the conviction that there was no question of fact to be determined by the jury as to whether the work of the defendant was being carried on in the usual and ordinary manner, or whether the defendant was furnishing the usual and safe instrumentalities for such work, or whether the plaintiff knew or, appreciated the danger, or by the use or exercise of reasonable and ordinary care could have known and appreciated the danger. If these matters are to be conclusively presuméd it is then only a question of giving an imperative instruction or sustaining a demurrer to the evidence. An examination of the authorities cited does not persuade us that there is no question here for the determination of a jury.
It is said the answers to special questions submitted to the jury are not sustained by the evidence. The statement herein of part of the evidence will show there was evidence sufficient to justify the findings made. Of course, there was evidence contradicting some of it, and quite forcibly, but the province of the jury was to determine the credit to be given to that which was conflicting, and we see no error in the trial court refusing to set aside any of these findings as contrary to the evidence; neither are they inconsistent, in our judgment, with the general verdict.
Another assignment of error is that the verdict for $17,500 is excessive. This matter will be considered in connection with the giving of instructions and the motion for new trial. There is nothing in the record that indicates to us that the jury was moved by pas sion or prejudice in arriving at its verdict, and, therefore, if the verdict is deemed by this court to be excessive it is within its province, and it will be its duty, to offer the plaintiff the option of accepting a judgment for a smaller designated sum or submitting to a new trial.
“If there is an absence of passion or prejudice in the jury the court may require the successful party to remit so much of the award as is deemed to be excessive or submit to a new trial.” (Yard v. Gibbons, 95 Kan. 802, syl. ¶ 6, 149 Pac. 422.)
“Where a verdict is excessive this court may offer the plaintiff the option of accepting a judgment for a designated sum or a new trial, which is done in this case.” (Davis v. Railway Co., 81 Kan. 505, syl. ¶ 3, 106 Pac. 288.)
“Upon consideration of the findings and all the circumstances proved the award of exemplary damages is held to be excessive, and the plaintiff is' allowed to remit a part thereof. If he fail to do so, a new trial is ordered.” (Telegraph Co. v. Bodkin, 79 Kan. 792, syl. ¶ 2, 101 Pac. 652.)
“Where a judgment is reversed upon the sole ground that the damages awarded are excessive, this court may indicate the excess, and allow it to be remitted and judgment entered for the remainder.” (Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, syl. ¶ 4, 12 Pac. 352. See, also, Stroup v. Northeast Oklahoma Rld. Co., 122 Kan. 587, 212 Pac. 93.)
The views of this court with reference to the excessive amount of the verdict in this case are along the lines expressed in Argentine v. Bender, 71 Kan. 422, 80 Pac. 935, that “the error of the jury may be attributed to a mistake of judgment, free from unfair intent” (syl.), and that “a sufficient explanation of the course of the jury, without involving the supposition that they were actuated by unfair motives, may be found in the meagerness of the instruction given them as a guide to the amount of recovery.” (p. 425.) The following is the only instruction given in this case on the measure of damages:
“If you find for the plaintiff, you will assess his damages in such sum as will, in your judgment, fairly and adequately compensate him for the injuries sustained by him as the direct and natural consequence of the explosion in question, taking into consideration the nature, extent and probable duration of the plaintiff’s injuries, their effect upon his health, comfort and convenience, his physical pain and mental anguish caused thereby, but in no event can your verdict exceed the sum of $50,000.”
The evidence introduced showed from tables of recognized authority that the plaintiff’s reasonable expectancy was thirty-four years, and calculations were made therefrom on the basis of the average wages plaintiff had been earning, and such results were submitted to the jury by the plaintiff, together with other damages claimed along the following lines, viz., pain and suffering, loss of right eye and great impairment of left eye, permanent loss of pleasure in reading, attending and enjoying picture shows, dancing, fishing, hunting, and automobile driving; also embarrassment and chagrin, restless nights, stumbling and running into things, worry and fret, and loss of promotion. The appellee’s estimate of the amount claimed for each of these items or groups of items, makes a total of $145,645.20. It is not the thought of the court that any financial amount whatever would fully compensate anyone for the loss of an eye. That is not the theory of the law of damages, even in cases under the workmen’s compensation law, as that term indicates, but it is to be such reasonable damages for the¡ loss as can be considered and accepted generally as reasonable and within the possible reach of the employer in this and other fields of employment where such losses most usually occur. Although the appellee’s estimate reaches the sum of $145,000, yet the petition only asked for $50,000 —evidently an exercise of judgment on the part of the plaintiff. Likewise, the jury, with that evidence before it, thought a much smaller sum was more nearly fair and reasonable. We think that if the measure of damages had, in the instructions, been more fully explained to the jury as applied to the various items claimed by the plaintiff, such explanation might have afforded the jury a better guide to the determination of the amount of recovery, which we think should be $5,000 less than the amount found by -the jury. Many cases are cited where verdicts for loss of an eye have been held excessive, but we will refer to only one of them, in the opinion of which there is a review of twenty-three other similar cases and a finding that $6,500 is the average verdict in them for the loss of an eye. (Morris v. Hines, 107 Neb. 788.) The footnotes in 17 C. J. 1116 give a list of cases where awards for the loss of an eye have been held excessive or not excessive. Many of these cases involve the loss of one eye and the impairment of the vision of the other, and other facts very much like those in the case at bar.
In view of these considerations it is held that the verdict is excessive and the judgment of the district court is set aside and a new trial granted unless the plaintiff agrees in writing to accept a judgment of $12,500. If such remittitur is filed the judgment to the extent of $12,500 will be affirmed.
The judgment is affirmed upon condition, and the cause is remanded for further proceedings in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from an order refusing to confirm a sale. An action for partition of 200 acres of land was brought by Cora Seal, Edward W. Scott and Arley C. Scott, against Arthur P. Scott and Pearl Scott, and the Prudential Insurance Company and the Davis-Wellcome Mortgage Company, which held mortgages upon the land, were made parties, and later Charles W. Johnston, a tenant on the land, was made a party. The mortgagees answered, setting up their mortgages. The Scotts and Mrs. Seal adjusted their differences in a stipulation that was filed. On April 7, 1928, the court rendered judgment determining the individual interests in the land, about which there is no dispute, and as to the mortgages it was found that the Prudential Insurance Company held a mortgage on the premises securing an indebtedness of $2,500 which would not mature until September 10, 1932, and also found that the interest had been paid to date. It was alleged there was a mortgage indebtedness to the Davis-Wellcome Mortgage Company of $29.17. Commissioners were then appointed to appraise the land. They found that partition could not be made without mani-. fest injury to the parties, and they appraised one tract of 160 acres at $8,000 and a forty-acre tract at $2,000, being in the aggregate $10,000. No reference was made to the mortgages or- whether or not the land was valued subject to the mortgages. The appraisal was approved by the court, without mention of the mortgages, and it ordered that the parties or any of them would be allowed ten days to elect whether they or any of them would take the land at the appraised value. It was further ordered that in the event none of the parties elected to take the land on that basis the sheriff should advertise and sell the land at not less than two-thirds of its appraised value and to bring the proceeds of the sale into court and await its further order. None of the parties elected to take the land at the appraised value. An order of sale was issued directing the sheriff to proceed and sell the land and apply the proceeds as directed by the court. The notice of sale did not refer to the mortgages on the land, but recited that the property had been appraised at a value of $10,000 and could not be sold for less than two-thirds of that valuation. By inadvertence the order of sale did not bear the signature of the clerk or the impression of the seal. On June 25, 1928, the sheriff returned the order of sale, stating the manner of advertising and that he had sold the land on May 26, 1928, to Edward W. Scott and Arley C. Scott, and Cora Seal, for the sum of $5,500, they being the highest and best bidders for the property. It was also recited that on June 25 the purchasers had assigned their bid and purchase to Bryant W. Curtis. On June 26,1928, the plaintiffs filed a motion asking for the amendment of the sheriff’s return showing that the lands were sold to the plaintiffs for the sum of $40 per acre subject to the $2,500 mortgage. The defendants moved the court that the purchasers or their assigns be required to pay into the court $40 per acre, totaling $8,000, or in the alternative that the sale be set aside and the costs taxed against the plaintiff with directions to readvertise and resell the property. The court found that the sale was advertised and conducted in good faith, that it was sold for the aggregate sum of $5,500, subject to a mortgage of. $2,500, being the equivalent of $40 an acre, with credit for the assumption of the $2,500 mortgage debt. There was a finding —
“That said real estate had theretofore and to wit: on the 7th day of April, 1928, been appraised by Fritz Schultz, Henry Ellis'and L. L. Anderson, the commissioners in partition heretofore appointed by the court, at the aggregate sum of $10,000, without reference to the $2,500 mortgage against the same; .and that the amount realized at said sale in cash, to wit: the sum of $5,500, is less than two-thirds of such appraisal value of said real estate.”
The court further found that by inadvertence there was an omission in the order of sale of the signature and seal of the clerk. Then followed the holding—
“That the court is not satisfied with the regularity of the proceedings under said order of sale, .and finds that it would promote substantial justice to set said sale aside.”
Judgment was accordingly entered, and plaintiffs appeal.
The fact that the clerk inadvertently omitted his signature and the stamping of the seal on the order of sale issued by the clerk which he placed in the hands of the sheriff, cannot be regarded as a serious defect and evidently was not so treated by the court. It is manifest that one of the matters which actuated the court in the refusal to confirm the sale was that the property was appraised at $10,000 and that it was sold for $5,500, much less than two-thirds of the appraised valuation. It is argued that as the sale price plus the $2,500 mortgage lien, which the purchasers must assume, totaled $8,000, it was more than two-thirds of the valuation placed on the property by the appraisers, and that the assumption of the mortgage debt not due until 1932 was the equivalent of cash. It is altogether likely that the mortgage debt is of its face value, but what it will be worth in 1932 is a problem. It is not easy to say that it should be treated as the equivalent of cash. The property was appraised as an entirety without mention of the existence of the mortgages against it. The statute provides that in a partition action the court shall make an order directing the sheriff to sell land in the same manner as in sales of real estate on execution. (R. S. 60-2111.) In execution sales it is provided, among other things:
. . and if any of the lands and tenements of the debtor which may be liable shall be incumbered by mortgage or any other lien or liens, such lands and tenements may be levied upon and appraised and sold subject to such lien or liens, which shall be stated in the appraisement.” (R. S. 60-3408.)
There was no mention of the mortgages upon the land in the appraisement made herein and no appraisal of the equity or interest outside of the mortgages. If the appraisers had given the value of the entire property and the valuation of the property less the amount of the mortgages, which the purchaser would assume, and there had been an order of the court that the land might be sold for at least two-thirds of the latter value, an appraisal and sale in compliance with the order might have been confirmed. From the evidence, however, it appears that due in part to the irregularity mentioned there were doubts and confusion among bidders whether the appraisement made was of the equity or whether it was intended by the appraisers that the amounts of the mortgages were to be de ducted from the valuation as made. This uncertainty and confusion may have affected the bids so that the property-did not bring its market value, and probably led the court to the finding that the setting aside of the sale would promote substantial justice. Enough of irregularity and of uncertainty was shown to warrant the ruling of the court. It evidently was the view of the court that substantial justice required the refusal of confirmation. Under the present statute the court is vested with considerable discretion in confirming and setting aside sales on equitable grounds and may do so even in cases where the proceedings of the sale were regularly taken. (Bank v. Murray, 84 Kan. 524, 114 Pac. 847; Quinton v. Adams, 87 Kan. 112, 123 Pac. 740; Anschutz v. Steinwand, 97 Kan. 89, 154 Pac. 252; Norris v. Evans, 102 Kan. 583, 171 Pac. 606.)
We think no material error was committed in the judgment of the court. It is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to recover damages for personal injuries and for injuries to an automobile growing out of a collision between an automobile and a street car. The jury rendered a verdict for the plaintiff and answered a number of special questions. The court sustained the motion of the defendant street-car company for judgment notwithstanding the verdict, and the plaintiff appeals.
The collision is described in the briefs to have occurred about two o’clock in the afternoon of November 18, .1927, at the intersection of Lewis street and South Main street in the city of Wichita. The street car was moving north on Main street and plaintiff was driving east on Lewis street.
The only question to be determined in the case is the correctness of the trial court’s ruling in sustaining the motion of the defendant for judgment on the special findings. Under such circumstances we will not be concerned as to the evidence, but will accept the findings as being fully supported by the evidence.
“A motion for judgment on the special findings, notwithstanding the general verdict, concedes, for the purpose of the motion, that the findings are sustained by the evidence.” (Commerce Trust Co. v. Pioneer Cattle Loan Co., 120 Kan. 712, syl. ¶ 2, 244 Pac. 840.)
The jury rendered the following verdict and answers to special questions:
“We, the jury, impaneled and sworn in the above-entitled case, do upon our oath find for the plaintiff, J. A. Curry, and against the defendant, Wichita Railroad and Light Company, and assess the amount of plaintiff’s recovery at $500.
“1. Did the plaintiff look for approaching street cars prior to entering the intersection? A. Yes.
"2. If you answer the preceding question in the affirmative, state the location of the plaintiff when he looked. A. Entering of intersection.
“3. After the plaintiff had entered the intersection did he look for approaching street cars? A. No.
“4. If you answer the preceding question in the affirmative, then state whether or not plaintiff saw an approaching street car. A. No.
“5. If you answer the preceding question in the negative, then state what prevented the plaintiff from seeing an approaching street car. A. Didn’t have time.
“6. What negligence do you find as against the defendant company? A. Driving too fast; didn’t use his brakes.
“7. Was the manner in which the automobile was driven the proximate cause of the collision? A. No.
“8. What amount do you allow the plaintiff for (a) personal injuries? A. $240. (b) Damage to automobile? A. $260.
“9. How fast was the plaintiff traveling immediately prior to the collision? A. Twelve miles.
“10. In what distance could the plaintiff have stopped his automobile driven at the rate of speed found by you in the preceding question? A. Twenty feet.”
It is quite apparent from the reading of the answers, as well as the arguments of counsel, that the answers to questions 3, 4 and 5 were regarded as the basis for the ruling of the trial court that the plaintiff should not recover because of contributory negligence. In this connection the reviewing court is very properly reminded by the appellant of the general rule that the answers to special questions should never control or supersede the general verdict unless the inconsistency compels such result (Tarin v. Railway Co., 98 Kan. 605, 158 Pac. 874); that slight inconsistencies in the special findings do not necessarily require the overthrow of the general verdict (Brown v. Utilities Co., 110 Kan. 283, 203 Pac. 907); that the general verdict and special findings should be harmonized, if possible, and every presumption should be indulged in favor’of the general verdict (Moore v. Connelly, 119 Kan. 35, 237 Pac. 900); and that a motion for judgment on such findings should not be sustained unless the findings are so out of harmony with the general verdict that the latter cannot stand (Smith v. Tri-County Light and Power Co., 120 Kan. 123, 241 Pac. 1090; Commerce Trust Co. v. Pioneer Cattle Loan Co., supra; Lesher v. Carbon Coal Co., 127 Kan. 34, 272 Pac. 155).
Will, then, the facts that the plaintiff did not look for approaching street cars after entering the intersection, did not see an approaching street car, and was prevented from seeing it because he didn’t have time, constitute contributory negligence, and are these facts hopelessly inconsistent with the general verdict? One other finding, No. 9, can very properly be considered in connection with that of No. 5; that is, plaintiff was traveling at the rate of twelve miles per hour immediately prior to the collision. He would have had more time to look for an approaching street car if he had been traveling at a lesser rate of speed. The speed with which he approached the street-car track was undoubtedly of his own regulation. Is it not negligence for any one to approach a street-car track, which is known and held to be a place of danger, at such a rate of speed as will not afford him time to look for an approaching street car on such track? He did not look after entering the intersection because he didn’t have time to look, at the rate of speed he was going. Will the fact that he looked before he entered the intersection relieve him of the duty of looking again?
“When a person driving an automobile comes to a street crossing on which there is a street railway line, and sees a street car coming a short distance away, and she proceeds to drive her automobile across the railway track without paying attention to the approaching street car, where if at any time after she entered the street intersection she had looked she would have seen that a collision was inevitable unless she applied her brakes and stopped her car, and where she had sufficient time and distance in which to stop it in .safety but failed to do so, she was guilty of contributory negligence which barred a recovery against the street-car company notwithstanding the general verdict and other findings of the jury.” (Gardner v. Topeka Rly. Co., 123 Kan. 262, syl. ¶ 2, 255 Pac. 83.)
It has been held that neither speed nor other things diverting a driver’s attention will excuse him from the duty of looking for approaching cars.
“Where a pedestrian undertakes to cross a street upon which are two street-car tracks, and while on the second one is struck by a street car which it required sixty feet to stop and which just as he stepped upon the second track was thirty feet away, coming at the rate of twenty miles an hour, his failure to look for an approaching car constitutes, as a matter of law, such contributory negligence as to preclude a recovery on his account against the railway company. This conclusion is not affected by the fact that his attention was drawn to a car approaching from the opposite direction on the other track.” (Ogden v. Wilson, 120 Kan. 269, syl. ¶ 1, 243 Pac. 284.)
This case, very different from the case of Morris v. Kansas City, L. & W. Rly. Co., 118 Kan. 433, 235 Pac. 1047, shows that the rate of speed at which the plaintiff was driving did prevent him from having the opportunity of looking for the approaching car because he “didn’t have time” to look, and in that way it contributed to the injury.
It has for a long time been thoroughly recognized that a street•car track is a warning of danger, and the purpose of looking is to avoid the danger. The time to look is while the result of the observation may be helpful in avoiding collision.
“That a street-car track is a warning of danger, that each track where there are more than one is a warning, that a car may be expected at any time, and that a pedestrian must look and listen before attempting to cross, has been said so many times that a reference to the decided cases is not necessary. The purpose of looking for an oncoming car -is to avoid the danger incident to getting in front of it or so near to it as to cause a collision. The time to do this is while the result of observation may be utilized, and mean's and opportunity still exist to avoid a collision. The place to do this is necessarily a place far enough removed from the path of the car that it cannot strike while the observation is being made. If necessary, prudent and careful means besides looking and listening must be employed to ascertain whether or not a car is coming.” (Galloway v. Interurban Railway Co., 97 Kan. 110, 115, 154 Pac. 238.)
We concur with the trial court in holding that the answers to the special questions compel the conclusion that the appellant was guilty of contributory negligence; that the special findings are hopelessly inconsistent with the general verdict, and therefore the general verdict cannot stand.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopicins, J.:
The action was one against the receiver of a defunct bank to have plaintiff’s demand declared a preferred claim against the bank’s assets. The plaintiff was defeated in establishing a preferred claim, and appeals.
The facts were substantially these: The plaintiff made application for a loan through Clement L. Wilson, to the Bank Savings Life Insurance Company,' of Topeka. The application was in writing and stipulated that the plaintiff employed Wilson to secure the loan. The loan was procured and after the title was approved, the money was sent to E. C. Bray, of Syracuse, who in turn delivered his check to Wilson in the amount of $905.42. The same day Wilson procured-a cashier’s check from the Kansas State Bank in the amount of $847.69, which he mailed to the plaintiff, living at Walton, Neb., together with an itemized statement showing the expenses incurred in securing the loan. The statement showed that Wilson received $57.73 for his work, that amount being the difference between $905.42 and $847.69, the amount of the cashier’s check, and that Bray’s commission was $100. The loan was for $1,000.
Bray, agent for the company, turned the money over to Wilson with the instruction to deduct certain items for taxes, abstracting and recording. It is apparent that the loan could not have been procured until the work done by Wilson was completed. Wilson perfected the title and did everything necessary to secure this loan for the plaintiff. In fact, one of the necessary incidents in securing the loan was to get the title in shape, and for this service Wilson was paid by plaintiff. It cannot be said that Wilson had completed the task of securing the loan until he had remitted to plaintiff. Wilson performed every requirement that the agency embraced. Plaintiff received the cashier’s check, and on the same day deposited it in his bank. When he accepted, indorsed and banked the cashier’s check he placed his stamp of approval on the whole transaction. It was not until after the bank failed that he attempted to repudiate the acts of his agent.
In 2 C. J. 447 it is said:
“If a person desiring a loan makes known that desire to one who applies to a money lender and consummates the loan, the intermediary prima facie is the agent of the borrower, not of the lender, and justifies the lender in paying him the amount of the loan. So if the borrower, in a written application or otherwise, expressly makes the intermediary his agent, if he pays the agent’s commission for negotiating the loan, or if he employs the intermediary for negotiating the loan, or if he employs the intermediary to examine the title to the property offered as security, or to discharge prior encumbrances thereon, these facts, taken collectively or in various lesser combinations, are generally held to justify an inference that the intermediary is the agent of the borrower. So, also, if the lender has given the agent no authority to receive payment for him, and the borrower pays such agent, the debt is not satisfied until the money reaches the lender, for the intermediary is in such case acting as agent of the borrower to receive and transmit the payment.”
In Massey-Harris Harvester Co. v. First State Bank, 122 Kan. 483, 252 Pac. 247, it was said in the opinion:
“When the plaintiff by its representative, having the opportunity to receive in cash the proceeds of the note, chose instead to accept a cashier’s check — doubtless for convenience in transmission — it voluntarily placed itself in the attitude of an ordinary depositor. The situation is substantially the same as though the money had been paid over the counter and the plaintiff had then used it to purchase the cashier’s check.”
We think the facts did not warrant the granting of a preference to the plaintiff over general creditors of the bank.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one under the bulk-sales law by the assignee of certain creditors to recover from the seller, purchaser and succeeding purchasers of a stock of merchandise and store-fixtures. The plaintiff prevailed; and the defendants appeal.
The facts are substantially these: On January 4, 1927, Paul Carter, owner of a general store at Zenda, and Callie Carter, his wife, entered into a contract with the Community Investment Corporation by the terms of which the Carters were to sell and the corporation was to buy the merchandise and fixtures in exchange for ■certain property in Wichita. An indebtedness of seven hundred •dollars due certain of the creditors was assumed by the corporation. The Carters were to furnish all necessary affidavits to meet the requirements of the bulk-sales law. Deeds to the Wichita property and a bill of sale to the store were to be held in escrow for ten days.
Paul Carter made an affidavit listing seven creditors. A bill of sale covering the merchandise and fixtures was executed to J. J. Jones, secretary of the corporation. The corporation executed deeds to the property it was to convey, naming Callie Carter as grantee. The deeds and bill of sale were placed in escrow. Immediately thereafter the corporation, by its secretary, wrote five of the creditors named in the affidavit, advising them of the sale. The same day after the execution of the contract of exchange Jones, as representative of the corporation, took possession of the store and, assisted by the Carters, began a special sale for the purpose of raising the seven hundred dollars to pay the seven named creditors of Carter. This amount was raised and on January 17, 1927, deposited to the credit of Callie Carter and was by her paid to the creditors named in the Carter affidavit. On January 17, 1927, the corporation sold and transferred the remaining merchandise and fixtures to defendant Rail, who subsequently sold and transferred the merchandise to defendant Twyman and the fixtures to defendant Townsend. The original deeds to the Wichita property and the bill of sale remained in escrow.
This action was brought by the plaintiff as assignee of creditors •of Carter, most of them not named in the Carter affidavit above mentioned.
The defendants say the only question involved here is whether the bulk-sales statute requires the vendor to retain possession and the vendee to withhold payment in case of a sale, or whether it is sufficient if either one of these conditions is complied with. They contend that the conditions imposed by the statute are disjunctive; that a purchaser of goods in bulk may safely take possession thereof immediately upon coming to an agreement with the vendor as to the terms of sale if he withholds payment until after seven days’ notice has been given. The statute reads:
“The sale or disposal of any part or the whole of a stock of merchandise or the fixtures pertaining thereto, otherwise than in the ordinary course of his trade or business, shall be void as against the creditor's of the seller, unless the purchaser receives from the seller a list of names and addresses of the creditors of the seller certified by the seller under oath to be a complete and accurate list of his creditors, and unless the purchaser shall, at least seven days before taking possession of the property, or before paying therefor, notify in person or by registered mail, every creditor whose name and address is stated in said list, or of whom he has knowledge, of the proposed sale.” (R. S. 58-101.)
The affidavit by the Carters stated that—
“They are the legal owners of one certain stock of merchandise and fixtures, located in the Townsend building, in Zenda, Kingman county, Kansas, upon which they are this day entering into exchange contract with the Community Investment Corporation, of Wichita, Kan., and that the full and complete list of all wholesalers and creditors interested in said stock of goods is to the best of their knowledge and belief as follows: . . . [naming seven].”
The affidavit, in our opinion, failed to comply with the provisions of the quoted statute. It did not purport to be a complete and accurate list and was not so certified. It stated simply “that a full and complete list of all wholesalers and creditors interested in said stock of goods is to the best of their knowledge and belief,” etc. It did not positively state in accordance with the requirements of the statute that the list given was a complete and accurate list, but only according to the affiant’s “knowledge and belief.” We think under the circumstances the investment corporation had no right to rely on the affidavit or to regard the list as complete and accurate. A somewhat similar statement was considered in the recent case of Lemen v. Leffringhouse, 127 Kan. 501, 274 Pac. 215, where it was held that the statement was. insufficient and not a compliance with the statute.
The letter by the corporation, which was sent to five of the creditors named in the affidavit, was likewise insufficient under the quoted statute. The letter reads:
“The Community Investment Corporation has just become the possessor •of the stock of merchandise and fixtures formerly owned by Paul Carter, located in the Townsend building at Zenda, Kingman county, Kansas.
“Please advise us by return mail the amount of merchandise unpaid' for which you have on your books against this business, giving dates of invoices, discounts due, when invoices are due, etc., and very greatly oblige. . . .”
The statute provides the kind of notice required and the informa tion it must contain- — -“Notify in person or by registered mail . . . of the proposed sale.” The letter mailed by the corporation advised simply that- it had become the possessor of the Paul Carter store and requested to be informed of the amount of merchandise unpaid for which the addressee had against the business. This letter contained no advice of a proposed sale or on what day possession would be taken or the purchase price paid or even that a sale had actually been made. It was not sufficient to put a creditor on guard or lead him to infer that he had seven days or any length of time within which he must act to save his claim. Nor was the letter registered as required by the statute. A registered letter suggests its importance. It suggests to a wholesaler at least that a sale in bulk is to be made. In Lemen v. Leffringhouse, supra, the creditor was in the store on the evening of the day on which the invoice was taken and saw the purchaser in possession of the store and was advised by the purchaser that he had bought out the debtor. This was held not to be a sufficient notice within the meaning of the statute. We conclude, therefore, that the letter was not a sufficient compliance with the statute.
The defendants argue that by withholding payment until notice has been given, the purpose of the statute is fulfilled; that both retention by the vendor of possession and retention by the vendee of the purchase price is not necessary. That one or the other would be sufficient. We doubt the soundness of this contention. A more reasonable construction of the language of the statute is that the transaction should remain in abeyance for seven days, during which time the creditors may take such action as they desire against the goods; that during the seven days the goods must remain in statu quo. What would result if the defendants’ contention were put into effect in the instant case would be that plaintiff would be compelled to resort to the property placed by the parties in escrow. Such a result would in our opinion be contrary to the purposes of the statute.
In Block v. Brackett et al., 214 Ill. App. 488, it was said:
“The bulk-sales law will not admit of a construction which would permit a party owning stock worth many thousand dollars, which had not been paid for, to make a bill of sale reciting merely a nominal consideration, to be held by a third party in escrow, to which alone creditors would have recourse.
“The provision of the bulk-sales law declaring in substance sales of a stock of merchandise, etc., fraudulent and void as against creditors unless the vendee shall in good faith, at least five days before the consummation of the sale, receive from the vendor a correct list of his creditors, and at least five days before taking possession and the payment or delivery of the purchase price deliver notice to such creditors of the proposed purchase, manifestly intended to afford creditors the opportunity of taking such steps with reference to the goods as they might desire to protect themselves; and during the five days the sale is in suspense pending the action of creditors, and nothing that the vendor or vendee can do will deprive the creditors of their right against the property.” (Syl. ¶¶ 2,3.)
Judgment against the defendants, Rail, Twyman and Townsend, for the value and amount of merchandise which they each received was proper. Apparently no attempt was made to comply with the bulk-sales law in the sale to these defendants. The property passed to the Community Investment Corporation subject to the rights of the creditors whose claims are now owned by the plaintiff. The investment corporation could pass no better title to the other defendants than it possessed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.;
This was an action for breach of a special bailment contract. Defendant prevailed, and plaintiff appeals.
The material facts were these:. Plaintiff conducted an establishment in Lawrence for the letting of automobiles for hire. On November 29, 1926, defendant hired one of plaintiff’s cars on the terms of a written contract which defined the obligation of the borrower touching the care of the car and his liability for loss or damage, and which expressly provided that failure to lock the steering wheel would render defendant responsible in case of theft.
Defendant signed the contract, took possession of the car, and drove it about the city. He called on a young woman at her place of abode and together they drove to a down-town theater, where he parked the car without locking the steering wheel. The car was stolen and discovered at Paul’s Valley, Okla., a month afterwards. For the loss and damage, according to the items of plaintiff’s account and which were not controverted, plaintiff sued for $198.41.
The action originated before a justice of the peace, and was appealed to the district court. The only defense relied on, and one which was successful below, was to this effect: Defendant testified that when he and his companion parked the car on the street near the theater he discovered that the key to the steering wheel was broken off in the lock so that it would not function. The young woman who accompanied him testified to the same effect. The trial court instructed the jury that if they believed that evidence, it would then devolve on the jury to determine whether the defendant acted reasonably in leaving the car unlocked on the street or whether reasonable diligence on his part required him to take the car back to the garage, which was only a block away. The instructions, in part, continued thus:
"Of course, if the. key was broken he probably couldn’t lock the car, yet he still owes some duty toward the person from whom he rented the car and being confronted with that condition it is for you to say whether or not he exercised this degree of care that a person should have exercised in the condition that he found himself confronted with, whether or not he was warranted in going off and leaving the car there unlocked or whether he should under the situation, have gone back down to the Rent-a-Ford, which was about a block away, and advised these people that he could not comply with the provisions in this contract with reference to locking the car because the key was broken, and that probably is the principal question of fact that you have to determine, whether or not Mr. Mathes acted as a reasonably prudent ordinary person would, being confronted with the situation that he was confronted with when he got there in front of that theater.
“If he did act in a proper manner and you don’t think he should have gone back down there and advised Geis, then probably there shouldn’t be any recovery on Geis’ part. On the other hand, if he did not act the way he should have acted with reference to the care of the car, then Geis ought to recover.”
The jury’s verdict was in favor of defendant and judgment was entered in his behalf.
Plaintiff assigns error, contending that the rights of the parties were expressly defined by the terms of the written contract, and since the evidence developed no vital dispute of fact he was entitled to judgment. The trial court’s instruction quoted above was a very fair statement of the general law of bailments as applied to the facts of this case if there had been no express contract — if plaintiff had been content to let his automobile for hire according to the general principles of law which govern the scope of one man’s obligation while in possession of another man’s property. But this particular bailment was not left to the governance of these general principles of the law of bailments. In Berry on Automobiles, 5th ed., §.1505, it is said:
“If there is a special contract providing for the degree of care .to be exercised by the hirer in the use and care of the automobile, he will be required to use such care as the contract prescribes. Thus, where a person hired a horse and buggy to drive to a certain town, and agreed to put the horse and buggy in a livery stable while there, but hitched the horse with the buggy to a public hitching rack and they were stolen, he was held liable in damages therefor.”
The terms of the bailment contract which we have to consider were in writing, and the pertinent law of this case is simply the enforcement of the contract to which defendant set his hand, and particularly that clause of it, printed in capitals, which reads:
“Failure to lock steering wheel makes me responsible in case of theft.
(Signed) “Ralph Mathes.”
A plausible argument is made in behalf of defendant that because the key was broken off in the lock it was impossible for him to comply with the obligation which he had undertaken, and consequently his responsibility to take the requisite precaution to prevent the theft of the car was discharged. But having contracted to be responsible for theft if he left the steering wheel unlocked he assumed the risk of theft by not equipping himself to lock it. It is quite true that by the ordinary principles of the law of bailments the bailee is not responsible for loss of the bailed property by theft. But here, we must repeat, the ordinary rules of bailment law were superseded by the special contract; and it is not at all uncommon for bailees to be held liable for loss of the bailed property by theft. Such is the familiar responsibility of common carriers and like-insurers of the safety of other men’s goods. The defendant must be held to the obligation which he undertook, and the judgment of the district court is therefore reversed and the cause remanded with instructions to enter judgment in plaintiff’s behalf.
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The opinion of the court was delivered by
Burch, J.:
The form of the-action is mandamus. The purpose is to obtain a declaratory judgment determining whether the drainage district or the board of county commissioners shall bear the expense of certain bridge work rendered necessary by certain drainage work. The case is stated by defendant as follows:
“The proceeding is brought to compel the defendant, the board of county commissioners of Sedgwick county, to do two things: First, to build new bridges at certain points where the drainage ditches cross the public highways; second, to remove, relocate, and reconstruct certain bridges at points where the drains and ditches of plaintiff cross the public highways.”
“The drainage district, plaintiff herein, has heretofore, by proper and lawful procedure, decided upon the digging of certain extensive drainage ditches. These ditches in some places constitute a widening and straightening of existing watercourses, and in other places they diverge entirely from existing streams or watercourses. ... So the facts before this court are that a drainage ditch is being dug to cross certain highways, and where it crosses those highways new bridges must be built at the expense either of the district constructing the ditches or of the county in which the district is located.”
The drainage district was incorporated under the provisions of chapter 163 of the Laws of 1925. (See State, ex rel., v. North Wichita Drainage District, 127 Kan. 207, 272 Pac. 177.) That act contained the following provisions:
“Sec. 5. When and after a charter of incorporation shall have been granted to a drainage district as herein provided, all future duties, powers, rights, authority, limitations and restrictions of the powers of said drainage district shall be fixed and determined by the provisions of article 4, chapter 24, of the Revised Statutes of the state of Kansas, 1923. ...”
Article 4 of chapter 24, R. S. 1923, grants to drainage districts very extensive powers, but power to bridge altered and diverted watercourses, and power to bridge canals, ditches and drains is not conferred. Indeed, the county board frankly concedes plaintiff was not granted express power to build or to relocate or reconstruct highway bridges. The county board suggests, however, that since drainage work results in special benefit to the drainage district doing the work, public policy requires that the district should bear the expense, and consequently that power to do the bridge work rendered necessary by drainage work should be implied. The legislature fixes the public policy of the state in respect to drainage, highways and bridges, and in this instance the relation of drainage work to highways and bridges was not overlooked:
“Fifth. To prescribe, regulate and fix the height of the superstructures above the water, the length of all spans, and the location of the piers of all bridges across watercourses situated in the district.
“Seventh. To fix, regulate and change the grade or elevation of all public highways, railroads and street railroads at points where any levee may cross or intersect the same.
“Ninth. To enjoin the placing or maintenance in any natural watercourse of any unauthorized bridge, embankment, pier, or other work or structure constituting to any extent whatever an obstruction to the flow of the water.” (R. S. 24-407, eh. 24, art. 4.)
There are other provisions in article 4, and in other articles of chapter 24, giving drainage districts authority to regulate bridges, but not to construct or reconstruct them. Something of the policy of the legislature is indicated by the grant of power to drainage districts organized under the provisions of article 5:
“Every drainage district incorporated under the provisions of this act shall have power: . . . Sixth, to require that all bridges across such watercourses shall be of sufficient length or that they shall be provided with sufficient trestle-work to permit the unobstructed flow of the waters at flood time. Seventh, to construct cut-offs, spillways, and auxiliary channels across railways and highways, to compel the adequate bridging of the same, and to compel the raising of the grades of such railways and highways as hereinafter provided.” (R. S. 24-512.)
The same policy is indicated in R. S. 68-1401.
The financial powers of drainage districts organized under the provisions of article 4 are limited to levy of taxes, assessments and special taxes, and the issuance of bonds, for drainage purposes, and not for highway and bridge purposes. Subdivisions twelfth and thirteenth of R. S. 24-407 speak of improvements by drainage districts that may be conducive to the public' health, convenience and welfare. It would conduce to public convenience and welfare to construct bridges across ditches and changed watercourses, but other provisions of the statute show the public welfare referred to consists in benefits resulting from handling water. Drainage districts are concerned with ways and means of protecting against and disposing of surplus water. The board of county commissioners is given plenary jurisdiction over the subjects of highways and bridges. (R. S. 1923, ch. 68:)
R. S. 24-407 is section 7 of chapter 215 of the Laws of 1905. The section was modified in 1920 to embrace a provision relating to dams, and was revised in 1923 to eliminate reference in the statute of 1920 to the court of industrial relations. In other respects the section stands as the general grant of power to the drainage district. In 1916, in the opinion in the case of Jefferson County v. Drainage District, 97 Kan. 302, 155 Pac. 54, the court interpreted the section in an action by a county to recover from a drainage district the cost of constructing highway bridges over the drainage district’s ditches. The syllabus reads:
“A drainage district organized under chapter 215 of the Laws of 1805 is a public corporation created by the legislature to perform public functions. Neither by common law nor by statute is any duty imposed upon the drainage district to build or maintain bridges where its ditches cross a public highway, and therefore the board of county commissioners cannot maintain an action against the district to recover the expense of constructing such bridges.”
In the opinion it was said:
“The fact that the construction of the drains and ditches was intended to and does improve and render more valuable the lands of private individuals, who alone are charged with the cost of the improvement, makes the corporation noné the less a quasi public one. Nor does that fact in any sense relieve the county from its duty to maintain and keep the public highways in fit condition for travel. In the act authorizing the creation of the drainage dis trict the legislature made no provision for the payment by the district of the expense of erecting these bridges. No authority is given the district to levy a tax or assessment upon the lands benefited by the drainage system to pay for bridges. . . .” (p. 304.)
The declaration must be that the drainage district has no power to do the bridge work rendered necessary by execution of the drainage project, and the work of constructing, removing, relocating and reconstructing the bfidges should be done by the board of county commissioners.
JULY TERM, 1929. PRESENT: Hon. WILLIAM A. JOHNSTON, Chief Justice. Hon. Hon. Hon. Hon. Hon. Hon. ROUSSEAU A. BURCH, JOHN MARSHALL, JOHN S. DAWSON, W. W. HARVEY, RICHARD J. HOPKINS, WM. EASTON HUTCHISON, >- Justices. | [
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The opinion of the court was delivered by
Johnston, C. J.;
This action was brought by Humphreys & Day to recover from the Commerce Trust Company compensation for legal services rendered by plaintiffs in a controversy with the United States as to the amount of income tax due from the heirs of Cyrus Leland, Jr., who died on or about August 30, 1917. He left a large estate, one-fifth of which was devised and bequeathed to his son, William F. Leland, and the remainder to four other children, each to receive one-fifth of the estate. William F. Leland was killed during a battle of the world war, and left surviving him two minor children, William F. Leland, Jr., and Kathryn Leland. The Commerce Trust Company was appointed and later qualified as guardian of the two minor children of William F. Leland. The commissioner of internal revenue made a demand of the heirs of Cyrus Leland, Jr., for payment of income tax in the amount of $9,624.25, which was regarded as excessive and was resisted by the heirs.
A suit was brought in behalf of the government in the United States district court of Kansas to recover the taxes claimed to be due. It was alleged by plaintiffs that they were employed by the several heirs to represent them in that action, that the portion of the estate which descended to the two minors exceeded $10,000 in value, and that to the extent thereof it was subject to the payment of the income taxes assessed against the estate; that on the -- day of November, 1923, the Commerce Trust Company, through its authorized agent', Sheffield Ingalls, verbally employed the plaintiffs to defend against the assessments, and that it agreed to pay plaintiffs the reasonable value of their services. Plaintiffs further alleged that they had performed the services, with the result that the total taxes of $9,624.25 were abated to the extent of $8,245.53, leaving $1,378.72 to be paid, and plaintiffs claimed that their services were worth twenty per cent of the amount of the reduction, and therefore asked judgment for the whole amount against the wards of the defendant.
The defendant answered first with a general denial. It admitted that it had been appointed as guardian for the minors, that Cyrus Leland, Jr., had died and had left one-fifth of his estate to his son, William F. Leland, and the other four-fifths to other, children of Cyrus Leland, Jr., each of whom was given one-fifth of the estate, and that each share exceeded in value $10,000. It was admitted that the action of the United States court was brought against all the heirs of the estate, and that defendant had retained the plaintiffs to protect the minor wards, and that the ratable proportion or share of the tax illegally assessed was $1,924.87; that the defendant never agreed with plaintiffs nor was it understood that they should do more than protect the interest of the defendant’s wards against the exactions of the federal authorities, and that all the other heirs, defendants in the tax suit, were solvent and able to pay their proportion of the amount due to the government, and that the defendant was not liable to pay more than one-fifth thereof.
There is an admission that plaintiffs were employed on a contingent basis; that is, to receive twenty per cent of the amount saved. It was further alleged that there was a compromise of the' tax suit, whereby the amount due was adjusted at $1,378.72, and that that amount was ratably paid by ¿11 the heirs, this defendant paying one-fifth of the same. It is conceded that defendant is liable to the plaintiffs for $329.82, and no more, and defendant asks that this amount be adjudged to be the extent of its liability and that it recover all costs that may accrue hereafter.
The defendant demanded a jury trial, which was denied, and that raises the only question involved in this appeal. Errors were assigned on the refusal of the court to receive offered testimony, but no motion for a new trial was made and these rulings are not open to consideration on this appeal.
It is argued by plaintiffs that a motion for a new trial was necessary for a review of the ruling denying a jury trial. That ruling raised only a question of law. The trial court, it appears, proceeded upon the theory that there was no issue of fact to be tried and practically held that under the pleadings only a question of law was raised, and upon that theory no motion for a new trial was necessary. The situation when the jury was refused was substantially the same as if the plaintiffs had asked for judgment on the pleadings and it had been granted. That being the attitude, it is clear that “a motion for a new trial was not necessary to a review of the ruling refusing a jury trial.
The action, as has been seen, was brought for the recovery of money. Defendant was entitled to a jury trial if a question of fact was raised by the answer of defendant. Each of the heirs had the right to contract with plaintiffs respecting the defense to be made against the assessments of the government for taxes and to limit the extent of his liability on the employment. The defendant in effect pleaded that plaintiffs were employed by it to protect the interest of its wards, not to protect the entire estate nor of all of the heirs, and the answer negatives plaintiffs’ claim by alleging that it was never agreed or understood that plaintiffs were employed by defendant to do more than to protect the interest of its wards or to be liable for protection beyond their ratable proportion of the tax assessed. The guardian of the wards had no right to bind them or their inheritance for the obligations of other heirs or to protect the interests of persons other than the wards themselves. If that was the contract .made with plaintiffs, the defendant is not liable for more than a fee of twenty per cent of the ratable proportion secured by plaintiffs; that is, one-fifth of the amount saved by their services. It is urged by plaintiffs that the action of the government was brought upon a joint and several liability and that under the federal rules the entire amount due may be collected from any one of the heirs or distributees. However that may be, this controversj’is not between the United States and the defendant, but is an action based on contract with plaintiffs and must be determined on the basis of the agreement made between them and the defendant. If the agreement was that defendant should pay only for the ratable protection furnished and only for the proportion of the fees chargeable to the wards, that agreement must control. That was the real issue raised by defendant’s answer. It was an issue for trial by a jury where one is demanded. That demand and refusal raised only a question of law and a motion for a new trial was not necessary to preserve the question for a review upon an appeal. If defendant had stopped at the stage of the trial when the jury was refused, it would hardly be contended that a motion for a new trial would have been necessary, and the fact that defendant subsequently made offers of testimony, which were not received, does not make the refusal of a jury other than a question of law.
There was error in refusing the jury trial upon the demand of defendant, and for that reason- the judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to quiet title. The court found generally for defendant, and plaintiff appeals.
The action was the statutory action authorized by the civil code (R. S. 60-1801). The petition alleged plaintiff was owner and in possession of described land; alleged that defendant claimed some right or interest therein which was without authority in law, and which constituted a cloud on plaintiff’s superior title; and prayed judgment quieting plaintiff’s title. The purpose and meaning of the code section were expounded by Chief Justice Kingman in the opinion in the case of Eaton v. Giles, 5 Kan. 24 (1869). The possession essential to maintenance of the statutory action is actual possession by the owner himself or by his tenant. This interpretation of the statute has not been departed from.
In this instance the real estate comprised the north fifty feet of what had once been a city block. Plaintiff abstracts no testimony whatever relating to the subject of possession. Defendant abstracts testimony showing he was in actual possession when plaintiff purchased, and has been in actual possession ever since. The only claim to possession made by plaintiff at'the trial was that his agent had authorized a circus and a carnival company to use the whole block. There was no evidence that the circus or the carnival company was a tenant within the meaning of the statute. There was evidence that the fifty-foot strip of land was not actually used by either the circus or the carnival company, and there was no evidence that when the action was commenced plaintiff was in possession of any part of the block by circus, by carnival company, or by any other occupant.
Plaintiff contends defendant claimed ownership and possession, and that the court was authorized to determine title pursuant to the decision in the case of Reitz v. Cooper, 123 Kan. 755, 256 Pac. 813. In the cited case plaintiff commenced the statutory action. Defendant converted the action into one to quiet his own title by proper allegations of possession and title and prayer for affirmative relief. The result was, the question whether plaintiff or defendant was in actual possession became immaterial. In this case defendant answered by general denial. The answer in form denied defendant claimed any interest in the land, and it was necessary he should amend. He did so by excepting his claim as follows:
“Comes now the above-named defendant, and for his answer to the petition of the plaintiff herein filed, denies each and every allegation therein contained, éxcept that defendant claims to be the owner of said property and in possession of said property.”
The amended answer did not pray for affirmative relief. The result was, plaintiff could not succeed unless he proved actual possession by himself or by his tenant.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The issue involved in this appeal is whether the written instrument attached to the bill of particulars as the basis of this action is a subscription to the capital stock of a newly formed corporation or a note promising to pay the purchase price of such stock.
The defendant in his answer admitted the execution of the instrument, but alleged it was a note given in payment for five shares of dividend-paying stock of the plaintiff corporation, the Dickinson County Memorial Hospital Company, a corporation completely organized and for profit, and that the note was given in full payment of the stock and not a subscription therefor; that he has paid on such note the sum of $145.84; that the plaintiff company has failed and refused to issue the stock to him, and the by-laws of the corporation have been changed to make it one not for profit. The answer contains a general denial and concludes with a prayer for a judgment for the amount paid on the note with interest.
In the district court a demurrer to the answer was sustained and an amended answer was filed, to which a reply was filed and at the same time a motion for judgment on the pleadings. The amended answer was substantially the same as the answer. The trial court sustained the motion for judgment on the pleadings and rendered judgment for plaintiff for the balance due on the subscription with interest and costs, from which the defendant appeals.
The following is a copy of the instrument upon which the action is based:
“The Dickinson County Hospital Company.
“$250. May 7, 1920.
“In consideration of the mutual promises of others, and for the purpose of securing funds for buying ground and building for the Dickinson County Memorial Hospital, I promise to pay, for value received, to the treasurer of the Dickinson County Memorial Hospital Company, the sum of two' hundred fifty dollars in payment for five shares of stock at $50 per share.
“Payments to be made as follows: One-third when contract for building is let; second third when under roof; and balance when building is completed.
“Name: Ben Kessinger.
“Address:
“(Indorsements on back):
Pd. 9-19-21.............. $83.34
Pd. 3-23-23 .............. 62.50
$145.84”
Appellant’s logic ánd reasoning is sound on most of the points raised by him, provided this instrument is a note, as he maintains, but not otherwise. In the first place, the consideration is not alone the procuring of the five shares of stock, but it is “the mutual promises of others, and for the purpose of securing funds for buying ground and building for the Dickinson County Memorial Hospital.” This has all the elements of a subscription, which is usually a mutual agreement, either individually or collectively, to take and pay for shares of stock, in which agreements the nature, object and terms of the company are to, some extent indicated, whereas a purchase is an individual transaction with the company, independent of others or the amount they buy. •
“Subscribers,to, the capital stockof ,,a. corporation are, properly speaking, those who on the formation of the corporation or afterward mutually agree to take and pay for the shares of its capital stock. A purchase of stock, on the other hand, is where an individual, after the organization of the corporation is completed, makes an independent agreement with the corporation itself to purchase shares of stock from it at a stipulated price.” (14 C. J. 508.)
“Anyone who in some form or another agrees to take • original, unissued stock of a company seems to partake of the character- of a subscriber, as contradistinguished from a purchaser of corporate stock. . . . The delivery of a stock certificate is not needed to perfect a subscription, and its nondelivery will not prevent a recovery by the assignee of the company for the unpaid installments. . . . Whether the contract is one or the other is ordinarily a question of construction.” (7 R. C. L. 222.)
Appellant insists that as a condition precedent the stock must be issued and tendered, and now since the change of the by-laws the appellee cannot comply by issuing to him dividend-paying stock. But at the very threshold of this contention he is met with the positive rule that in the absence of fraud or mutual-mistake parol evidence cannot be used to vary, alter or contradict the terms of a written instrument. The agreement contains no such provision, and no other writing is pleaded as modifying the one above set out. Besides, no such precedent applies to a, subscription, and not regularly or necessarily to the purchase of stock.
“Ordinarily payment, whether in money, property, construction work, or the performance of services, in accordance with the terms of the contract, is a condition precedent to the issuing of the certificate, and until such payment he is not entitled to it.” (14 C. J. 482.)
“Subscription contracts in writing are to be construed as are other written contracts. In the absence of fraud or mutual mistake parol evidence will not be received to vary their terms.” (American Legion v. Thompson, 121 Kan. 124, syl., 245 Pac. 744.)
The appellant contends that the motion for judgment on the pleadings performs substantially the same function as the demurrer to the answer, that the reply does not change the situation, and that the general denial in the amended answer constituted a defense to the plaintiff’s cause of action such as should have prevented the sustaining of a motion for judgment on the pleadings. Conceding for the purposes of this case that the reply did not change or modify the issues made by the bill of particulars, and the amended answer and the rule as expressed in McBroom v. Wilgus, 108 Kan. 14, 193 Pac. 1068, that “in determining the propriety of a motion for judgment on the pleadings, a most liberal construction is to be given to the pleadings against which the motion is leveled,” yet in the same opinion it is declared:
“That defendant also pleaded a general denial is of no consequence since its effect was entirely overthrown by the subsequent statements in the answer, which pleaded all the requisite and material facts on which to base a judgment.” (p. 16.)
“Ordinarily a judgment on the pleadings in favor of the plaintiff cannot be ordered in a case where issue is joined upon a general denial and .other defenses, unless the general denial is overthrown by other statements in the answer.” (Cobe v. Coughlin, 83 Kan. 522, syl. ¶ 1, 112 Pac. 115.)
“Rule followed that in the absence of pleading and proof of some species of fraud or mutual mistake a plain and unambiguous written contract must be enforced according to its terms; and neither pleading nor proof of a parol understanding at variance with the written contract can be considered.” (Hazelton v. Chaffin, 109 Kan. 175, syl. ¶ 1, 197 Pac. 870.)
The effect of the general denial in the amended answer in this case is entirely overthrown by the subsequent allegations which fail to state a defense to the plaintiff’s cause of action. In the first place, the document is a subscription and cannot be made a note by calling it such. See A., C. & P. Rld. Co. v. Comm’rs of Phillips Co., 25 Kan. 261. In the second place, the change of the by.-laws will not relieve a subscriber from the payment of the promise he has made.
“Irregularities in adopting by-laws for a private corporation, or in the election of its officers, where all the stockholders and officers of such corporation recognize and treat such by-laws and such election as legal and valid, will not relieve a stockholder, who is afterwards sued by the corporation for the amount of his subscription to the capital stock of the corporation, from paying the amount of such subscription.” (Ginrich v. Patrons’ Mill Co., 21 Kan. 61, syl. ¶ 2.)
And in the third place, none of the other circumstances alleged will be sufficient to change the terms of his written subscription or relieve him from such liability. See Sarbach v. Fiscal Agency Co., 86 Kan. 734, 122 Pac. 113; Brokerage Co. v. Dunn, 91 Kan. 64, 136 Pac. 939; Street Railway Co. v. Railroad Co., 100 Kan. 83, 163 Pac. 1067.
We conclude there was no error in sustaining the demurrer to the answer and, after the filing of the amended answer, in sustaining the motion for judgment for plaintiff on the pleadings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The state prosecutes this action to enjoin the defendants from repairing and reconstructing a building on lots numbered 182, 184, 186 and 188 in Horne’s addition and located at numbers 1212, 1214 and 1216 West Eighth avenue in the city of Topeka, across the street north from the governor’s mansion. Judgment was rendered in favor of the defendants, and the state appeals. The petition alleged that defendant Wade was the owner of the property; that defendant Armstrong was a contractor engaged in the business of constructing houses and, at the time the petition was filed, was engaged in repairing and reconstructing the building situated on the lots above described; that, on March 14, 1925, the building situated on the lots was damaged and destroyed by fire; that the defendants threaten to build, repair, and reconstruct a two-story building on the above-described lots to be used as a garage and for apartments to be rented to the transient public; that the building, when reconstructed and so used, will constitute a nuisance in the neighborhood and vicinity on account of the use of oils and gases, the noise and odors that will arise therefrom, and the hours at which the business will be operated; that in 1923 the city of Topeka enacted a zoning ordinance by which the property above described was placed in a residence district from which business of the character to which it is intended to devote the building when reconstructed is excluded; that defendant Wade filed a petition with the city commissioners for permission to repair and reconstruct the building, which application was by the city commissioners denied; that the building as it now stands has been repeatedly condemned; that upon his application being denied, the defendant Wade filed an action in the district court asking that the city authorities be enjoined from interfering with him in the repair and reconstruction of the building; that at the time the present action was commenced the action commenced by Wade had not been determined; that on April 19, 1927, defendant Wade presented a new application for a permit to'repair and reconstruct the building, which was denied by the building inspector and fire marshal of the city of Topeka; that on appeal to the city commission permit to so repair and reconstruct the building was granted; that the city commission, in granting such permit, acted in violation of the zoning ordinance of the city of Topeka; and that for that reason the action of the city commission was illegal- and void.
The defendant Wade answered, setting up his ownership of the property, and alleged that he had desired to repair and reconstruct the building and that he had been granted a permit so to do. The action was tried by the district court, and extensive findings of fact and conclusions of law were made. The findings of fact consisted of a résumé of the evidence on which the conclusions of law were based.
The fifteenth finding of fact was as follows:
“In March, 1925, and before the .defendant’s building was destroyed by fire, his property, including the real estate and the [building] situated thereon, was of the fair and reasonable value of $22,000, of which the value of the lots was $5,000 and the value of the building $17,000.”
The conclusions of law were as follows:
“I. Neither the denial of the fire marshal and building inspector of defendant’s first application for a permit to repair and rebuild his building, nor the action of the city commissioners in refusing defendant’s appeal from the order of such fire marshal, had the effect of legally preventing the defendant from again applying for a permit, nor of preventing the board of commissioners from sustaining his second appeal.
“II. The pendency of the action brought by defendant as plaintiff against the fire marshal, city commissioners and city attorney did not affect defendant’s legal right to again make application to repair and rebuild his building, nor did it affect the jurisdiction and legal right of the board of commissioners from considering and granting defendant’s second appeal.
“HI. The fact that defendant’s second application and appeal were made more than one year after the damage to his building by fire, did not affect the legal right of defendant to again make application to repair and rebuild his building, nor affect the jurisdiction and legal right of the board of commissioners to consider and grant defendant’s second appeal.
“IV. The fact that defendant did not apply for a certificate of occupancy at the time he applied for the second permit did not deprive the city commissioners of jurisdiction to hear and pass upon defendant’s second appeal or invalidate the permit of defendant to repair and rebuild his building required by the fire marshal as the result of the granting of defendant’s second appeal by the city commissioners.
“V. The city commissioners of Topeka had jurisdiction to consider and act upon defendant’s second appeal and grant the same, and to reverse the decision of the fire marshal and building inspector and denying defendant’s second application.
“V. Having jurisdiction to consider and determine defendant’s second appeal, and the proceedings of the commission in the consideration of such appeal being free from fraud and not arbitrary or capricious, the decision of such board upon such appeal is final and cannot be inquired into in this action.
“VI. The permit granted the defendant by the fire marshal and building inspector of Topeka, as a result of the city commissioners granting defendant’s second appeal, is valid under the zoning ordinances of Topeka, and cannot be annulled and set aside in this action.
"VII. The building of defendant, if repaired and rebuilt as contemplated, will not constitute either a public or private nuisance.
“VIII. The use of defendant’s building, if repaired and rebuilt as contemplated as a public garage, will not constitute a nuisance per se.
“IX. The use of defendant’s building, if repaired and rebuilt as contemplated as a public garage, would not constitute a public nuisance.
“X. The use of defendant’s building, if repaired and rebuilt as contemplated as a public garage, will not constitute a private nuisance to plaintiff.”
Conclusions of law numbered 7, 8, 9 and 10 are findings of the ultimate facts on which the judgment was based.
The state argues that the building, after being rebuilt and occupied as intended, would be a nuisance and that the court should have so found. In Donaldson v. Powell, 123 Kan. 232, 254 Pac. 1033, this court, in affirming a judgment enjoining the operation of a filling station in the city of Emporia, quoted the conclusion reached by the trial court as follows:
“That the operation and maintenance of said filling station by the defendant at the place in question and in the manner in which it is operated at the place aforesaid constitutes and is a menace, annoyance and disturbance of the peace of the plaintiff and other resident property owners adjacent and in the near vicinity; and is a nuisance.” (p. 233.)
The judgment in that case was affirmed because the trial court, from the evidence, found that the establishment of a filling station would be a nuisance.
In Phillips v. Brick Co., 72 Kan. 643, 82 Pac. 787, a judgment enjoining the operation of a brick plant on account of its injury to the neighboring premises was affirmed where the trial court had found that its operation would constitute a nuisance.
In Courtney v. Smelting Co., 104 Kan. 362, 179 Pac. 342, the judgment allowing damages caused by smoke, fumes and gases from the operation of a smelter was affirmed.
In State, ex rel., v. Stilwell, 114 Kan. 808, 220 Pac. 1058, a judgment abating a nuisance was affirmed.
In Remsberg v. Cement Co., 73 Kan. 66, 84 Pac. 548, this court said:
“Whether the storing of dynamite, conceded to be a lawful business, is a nuisance per se by reason of inappropriate location is, in this case, a question of fact as to whether persons and property in proximity thereto would be exposed to danger that is unavoidable and inherent in the business when properly conducted.” (Syl. ¶ 1.)
From these cases, and from other cases of like character in this state, the rule can be deduced that whether or not a certain place constitutes a nuisance is a question of fact to be determined from the evidence. If there is evidence sufficient to support the finding that a nuisance exists, that finding will not be disturbed; if the finding is that the place is not a nuisance, the finding will stand. In the present action, the trial court found that the use of the building as a garage, when repaired and reconstructed, would not constitute a nuisance. That finding.was supported by evidence and is conclusive in this court.
The state attacks the permit under which the defendants are seeking to reconstruct the building. When the trial court found that the building would not be a nuisance, the nuisance phase of the case disappeared. Nothing is left except the attack by the state on the permit. The state argues that it has the right to prosecute this action to enjoin the defendants from repairing and reconstructing the building, without regard to whether or not the building will be a nuisance after its reconstruction, because the permit was illegally issued and is void.
The defendant Wade owned the property on March 15, 1925, and had owned it for about a year prior thereto. At that time there was located on the property a two-story building which was occupied by a public garage and which was on that day partially destroyed by fire. On September 4, 1925, Wade filed an application with the fire marshal and building inspector of the city of Topeka for a permit to repair and reconstruct the building. That application was denied. Wade appealed to the city commission, which sustained the ruling of the fire marshal. On September 16, 1925, defendant Wade commenced the action in the district court of Shawnee county to have the order of the city commission denying him a permit declared unreasonable. That action was dismissed on January 12, 1929. On June 14, 1927, a permit to remodel the building to be used as a public garage was issued to defendant Wade. The present action was commenced on June 16, 1927, and judgment was rendered on April 13, 1929. The zoning ordinance prohibited the erection of a garage at the place in question, but under certain conditions permitted the repair and continued existence of one that had been in operation as such before the passage of the zoning ordinance. That ordinance provided that if a building used for a prohibited business should be destroyed by fire to an extent of not more than fifty per cent of its assessed valuation, a permit for its reconstruction could be granted if applied for within twelve months after its destruction. From the time defendant Wade filed application for a permit to reconstruct the building until he was finally given a permit, he was continually using every possible effort to obtain such permit. He was not guilty of laches. If the statute of limitations has any parallel, he was not barred, because within the proper time he commenced proceedings to obtain a permit and never ceased until he received it.
The city commission of the city of Topeka had power to change its attitude toward granting to the defendant Wade a permit to reconstruct the building.
In Salt Co. v. Hutchinson, 72 Kan. 99, 82 Pac. 721, this court said:
“A petition to the mayor and council of a city of the second class under section 1068 of the General Statutes of 1901 confers upon that tribunal exclusive power to cause such special improvements to be constructed and to determine the kind and quality thereof. In the exercise of that power they may enact, amend or repeal any ordinance relating to the special improvements under consideration, if the vested rights of third persons be not injuriously affected thereby.” (Syl. ¶ 1.)
Did the action of D. N. Wade against the city asking that the order denying his first application for a permit be declared unreasonable preclude him from thereafter making additional applications for permission to erect the building? The commissioners in passing on the appeal of D. N. Wade did not act in a judicial capacity ; they acted in an administrative or legislative capacity. The determination of the commission to deny Wade permission to erect the building did not preclude him from thereafter making other applications for such permission, nor preclude the commission from thereafter granting such permission.
The plaintiff argues that defendant Wade by his action in the district court was barred from thereafter making subsequent ap plications, and cites section 13-1106 of the Revised Statutes. That section reads:
“That any ordinance or regulation provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance or regulation determined by bringing an action, in the district court of the county in which such city is situated, against the governing body of said city.”
If judgment had been rendered against Wade in the action commenced by him to have declared unreasonable the order made by the city commissioners, that judgment would have precluded him from thereafter acting on that application; but no judgment was rendered in the action; it was dismissed. Judgment, if it had been rendered, would not have barred Wade from thereafter making new applications to the city commissioners for permission to repair and reconstruct the building that had been destroyed.
The state contends that the fire damaged the building more than fifty per cent of its assessed valuation. The city commission found that the building had been damaged less than fifty per cent of its assessed valuation. That finding must have been based on evidence. For that reason it is conclusive unless it be shown that the finding was fraudulently or corruptly arrived at. On the trial of the present action there was no evidence to show any fraud.or corruption on the part of the city commission. There was evidence on the trial which tended to prove that the building had been damaged more than fifty per cent of its assessed valuation, but there was evidence introduced which tended to prove the contrary. It should be noted that neither the city nor any one of its officers is a party to this action.
In Lownsberry v. Rakestraw, 14 Kan. 151, it was declared that—
“Where the determination of any question involving discretion is committed to any officer or tribunal within the limits of the jurisdiction conferred,,his or their decision is conclusive thereof, and can be attacked collaterally only for fraud.” (Syl. jf 2.)
In Stafford v. Lauver, 49 Kan. 690, 31 Pac. 302, this court said:
“The presumption of law, in the absence of evidence to the contrary, is that public officers perform the duties devolving upon them.” (Syl. ¶ 3.)
In Photo Play Corporation v. Board of Review, 102 Kan. 356,169 Pac. 1154, it was declared that—
“Under the act relating to motion-picture films (chapter 308 of the Laws of 1917) the Kansas state board of review is given full power and discretion to determine whether films and reels offered for its examination and decision are moral and proper for exhibition, and its determination is conclusive and not open to review or interference by the courts unless its action is fraudulent, arbitrary, or in excess of its authority.” (Syl. ¶ 1.)
“There have been repeated holdings that the decisions of a board or other tribunal upon which the legislature has conferred the exercise of nonjudicial power, if made in good faith, are not open to judicial control or review, and that in such a case a court may go no farther than to prevent the abuse of the power so vested. In respect to the powers conferred on a municipal body it has been said that ‘the courts have no supervisory power over the policy of municipal legislation. They can only interfere to curb action which is ultra vires because of some constitutional impediment or lack of antecedent legislative authority, or because the action is so arbitrary, capricious, unreasonable, and subversive of private right as to indicate a clear abuse rather than a bona fide exercise of power.’ ” (p. 359.)
In Razor Co. v. Guymon, 110 Kan. 745, 205 Pac. 635, this court again declared that rule in the following language:
“In the absence of evidence to the contrary, it will be presumed that the action of the state charter board was regularly and legally taken.” (Syl. ¶ 3.)
Many other cases might be cited, but it is unnecessary to do so.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a son to set aside a division of property made by his mother a month before her death. He was defeated, and appeals.
Louise Stunkel was the widow of Henry Stunkel, who died in 1916. They had seven children: Lewis Stunkel, Edward Stunkel, George Stunkel, Maud Stahlhut, Macy Watson, Myrtle Hurst and Minnie Carl. Henry Stunkel left a will, but after his death his property was partitioned by agreement among his widow and children, the widow taking a child’s share only, and the children of George taking what would have been his share but for his death. Louise Stunkel died on August 22, 1922. On July 24 and 25, 1922, she divided a large part of her property as nearly equally as possible among Edward, Maud, Macy, Myrtle, Minnie, and the children of George, who were given one share. Two of the children were minors, and were represented in the division transaction by their mother, Ruth, who was their guardian. The property divided consisted chiefly of government bonds and other bonds, bank stock and other corporate stock, and real-estate mortgages and other securities. As a portion of his share, Edward received real estate valued at $2,000, which was conveyed by deed duly executed and acknowledged by Mrs. Stunkel. She duly indorsed and assigned instruments requiring indorsement and assignment as a means of transfer. Lewis was not given anything.
Lewis applied for letters of administration on his mother’s estate, and discovered that his sister Maud had been appointed administratrix and had filed an inventory of property to the amount of $3,123.95. Lewis then applied to the probate court for an order requiring an additional inventory. The application was denied, but on appeal to the district court that court required the administratrix to file an additional inventory embracing, property to which adverse claims were made. This was done. An itemized statement of the property received by each person as the result of the division was returned under oath, and the adverse claims were indicated. Presumably the order was made and complied with pursuant to the practice discussed in the case of Hartwig v. Flynn, 79 Kan. 595, 100 Pac. 642, and kindred cases.
After the supplemental inventory was filed, Lewis commenced an action against the administratrix and his coheirs to set aside the division and to restore the divided property to the estate for administration in the probate court. The petition pleaded death of Louise Stunkel, intestacy, and succession of heirs whose interests were stated; appointment of Maud Stahlhut as administratrix, and the fact that the estate was in course of probate; inventory by the administratrix, and supplemental inventory returned under order of court; grounds of invalidity of the division of property whereby Lewis was excluded from sharing his mother’s estate; and refusal of the administratrix to bring a proper action to restore the divided property to the estate. The petition concluded with the following prayer:
“Wherefore and by reason of the foregoing, plaintiff prays that the purported division of the property and effects of the said Louise Stunkel, deceased, be set aside and held for naught; that all of said property be by the court decreed to be the property of the estate of the said Louise Stunkel, deceased, and that it be administered as such;, that- said estate be by the court ordered to be administered according to law, and that this plaintiff be decreed to be entitled to an equal one-seventh interest therein; that- the defendants be ordered to forthwith deliver up all of the estate property or the value thereof, to be administered according to law; that the purported warranty deed hereinbefore referred to in connection with said purported division be forever set aside and held for naught, and that said plaintiff be by the court decreed to be the owner of an undivided one-seventh interest therein.
“That, in the event it be found and determined by the court that said real property cannot be recovered as a part of the assets of the estate, and division thereof made, it be ordered and decreed that the value thereof, to wit, two thousand dollars ($2,000), be charged against the distributive share of Edward Stunkel.”
Answers were filed, a trial was had, and a jury returned answers to special questions to the effect that when Louise Stunkel divided her property she was not mentally capable of understanding the nature and effect of the transaction, was not free from undue influence, and made no gifts of her property. On motion of defendants the court set aside the findings of the jury and ordered a new trial. Defendants filed an amended answer and the case again came on for trial. Plaintiff demanded a jury. The matter of calling a jury in an advisory capacity was discussed. Counsel for plaintiff stated a jury in that capacity was not desired, and insisted on a jury trial as a matter of right. The court ruled it would hear and determine the issues without a jury. At the conclusion of the.evidence the court found generally for defendants, and returned special findings of fact and conclusions of law on which judgment was rendered for defendants.
Plaintiff complains because he was denied a jury trial. The civil code contains the following provision:
“Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code.” (R. S. 60-2903.)
So far as the action was one to set aside the deed to Edward Stunkel, or to charge his distributive share of the estate with the sum of $2,000, the action was purely equitable. Plaintiff neither alleged nor prayed for damages, and could not do so. If the division of personal property was ineffective, Louise Stunkel died seized of all the property, title to all of it vested at her death in her administratrix, and the administratrix would be charged with it and held accountable for it. On settlement of the estate, plaintiff would be entitled to his distributive share, but not to damages for conversion. Plaintiff did not sue for and could not recover any specific article of pérsonal property. All the articles belonged to the administratrix for purpose of administering the estate. On distribution the probate court might make division in kind, but until distribution plaintiff had no enforceable claim to any specific article. All this is elementary, and the action was the familiar one in which an heir interposes to secure due administration of the decedent’s estate because the administrator neglects or refuses to reduce assets to possession, or otherwise fails to discharge official duty. Similar suits are permitted to shareholders in corporations, beneficiaries of trusts, and others.
Exclusive jurisdiction to administer the estate was vested in the probate court. The district court, however, had ancillary equitable jurisdiction to remove an obstruction to administration of the estate by the probate court, the obstruction consisting of a disposition of property by the decedent in fact ineffectual but recognized as effective by the administratrix. The subject is fully discussed and authorities are quoted and cited in the opinion on rehearing in the case of Hillman v. Young, 64 Ore. 85, a case in which heirs sued to set aside a gift of property by their ancestor. In the opinion the court said:
"Subject to the exception to be mentioned, the general rule is that only the executor or administrator can litigate for the recovery of the property belonging to his decedent’s estate. The title to such property inuring to the heir must come through the personal representative of the deceased owner. An exception, however, exists when the representative himself by collusion with the debtor or otherwise obstructs the natural course which the law establishes for the transmission of the estate to the heir. Under such circumstances, the latter may join as defendants both the personal representative of his ancestor and the person from whom is due the debt or duty to the estate, and by a suit in equity reduce to the possession of the person administering the estate the assets thus outstanding, so that they may be included in the process of winding up the affairs of the decedent. Such litigation is in aid and not in derogation of the operation of the law of descents and distribution. In other words, while the personal representative, if he will, may exercise exclusively the power of reducing to possession the effects of the estate, yet, if he will not act, that prerogative may for the time being pass from him to the heir to be used for the benefit of the estate, to the end that the lawful course of descent and distribution may not be hindered or impeded.” (p. 89.)
In actions of this character it makes no difference that title to property is involved, or that title depends on presence or absence of mental incapacity or undue influence. The essential character of the action controls, and the nature of the action is such that plaintiff can recover nothing. What he obtains is a decree establishing a condition of the estate which would have existed had the administrator exercised his power with respect to assets. The decree is framed to accomplish the desired result. It may cancel instruments of title, may require delivery of property, and may require payment of money. (Rowell v. Rowell, 122 Wis. 1, 10.) But it is a decree of a court of equity, and not a judgment of a court of law in an action triable by jury as a matter of right.
Plaintiff contends that, although a new trial was granted, no new trial was permitted. The contention sticks in the bark of phrase and form, and does not penetrate to substance. When the findings of the jury were set aside, the case was still in court for further proceedings. When the court determined to dispose of the case without a jury, there was no need or reason for putting witnesses back on the stand to repeat their stories, for reintroduction of documentary evidence, or for otherwise reproducing what was already in the record. So the court said it would not be necessary to reintroduce evidence which had been introduced, but the parties might make such additional proof as they desired. Plaintiff had no additional proof to offer. Defendants did introduce additional evidence. Plaintiff introduced evidence in rebuttal, and rested, and he makes no contention now that his whole case was not before the court. The result is, the court is to be commended for its sensible, practical, time-saving and expense-saving method of reaching a submission of the cause.
Plaintiff contends the court misplaced the burden of proof. The division of property was challenged on the ground of mental incapacity of the donor, and undue influence practiced upon her, especially by Maud Stahlhut, who had looked after Louise Stunkel’s business affairs for a considerable period before her death. Of course, plaintiff was obliged to go forward first in the offer of proof. The court concluded an instruction to the jury relating to undue influence with the statement that the burden rested on the one urging it to prove it by a preponderance of the evidence. The instruction was correct as far as it went. But the court, refused to give a requested instruction that when a person who enjoys a confidential relation to a grantor who is old, sick, and infirm, receives a gift from the grantor, the burden rests on the recipient to show the gift was made without undue influence. Plaintiff contends, there fore, that when the court decided the case, it did so under a misconception of burden of proof. The findings of fact show the decision was made without regard to states of evidence involving shifting of burden of proof. Plaintiff was not defeated because the court considered he failed to produce sufficient evidence to show undue influence. The court found affirmatively from the evidence that Louise Stunkel was a woman of mental power, good business ability, strong opinions, sound mind, and alert mentality; and that, knowing and understanding the nature and effect of what she was doing, she was not influenced in disposing of her property, but made the disposition because of her desire to do so, and made delivery of the necessary papers transferring title in accordance with her own desire and intention.
This is what occurred: Louise Stunkel concluded she would not make a will, but would divide her property before her death. She also concluded, for good x-easons disclosed by the testimony, that Lewis should not share in the division. The property was to be divided equally among the other children, Edwax’d to have the home place. Mrs. Stunkel was afflicted with cancer of the stomach. On a Friday the doctor told her she could not recover, and if she had any business matters to arrange it would be well to do so. She immediately sent for one of her daughters, and on Friday evening told the daughter to have her children coxne home on the next Sunday, that she wanted to divide her property and fix her business, and she wanted to divide up the property right away. On Sunday afternoon members of the Stunkel clan gathered at the bedside of Mrs. Stunkel. There were two beds in her room. She lay on one. A suitcase of documents was emptied on the other, and the business of dividing the property was commenced. It was a difficult task to make division of securities of different kinds and amounts into six fairly equal parts, and the division was not completed on Sunday. On Monday the interested parties returned, and the business was finished as far as possible. For example, a certificate for forty-eight shares of bank stock was subsequently turned in and six certificates for eight shares each were procured and distributed. On Monday the banker of a near-by town was bx-ought out, who did the necessary notarial work and witnessed Mrs. Stunkel’s signatures. Household goods were not divided.
Lewis was not present on Sunday and Monday, July 24 and 25. In March his house burned and he moved over to his mother’s. She was in a hospital in Wichita, recovering from an operation. She was brought home on April 12. On the morning of June 12, his mother having gotten worse in the meantime, Lewis put his family in an automobile and left for Texas without bidding his mother goodbye. Afterwards he made a trip to Kansas and to the neighborhood, and did not go to see his mother, although he was told she was very low.
Plaintiff picks out circumstances which have been important in undue influence cases, and urges them as conclusive here. For example; Ed Stunkel brought the notary from town and took him back. The testimony of one of plaintiff’s witnesses disclosed that the notary was chosen by the group in the course of the division transaction.
Plaintiff says it did not appear that Mrs. Stunkel had independent advice. The statute relating to independent advice concerning wills applies to the single case of a will written or prepared by a beneficiary in confidential relation to the testator, who is given the whole or the chief part of the estate devised. If several beneficiaries receive fairly equal portions, the statute does not apply, and the validity of the will is to be determined by -the ordifiary rules relating to fraud and undue influence. (Sellaras v. Kirby, 82 Kan. 291, 108 Pac. 73; Kelty v. Burgess, 84 Kan. 678, 115 Pac. 583.) Treating the disposition of property made by Mrs. Stunkel as a virtual substitute for a will (Madden v. Glathart, 125 Kan. 466, 473, 265 Pac. 42), the principle of the statute does not apply. While Maud Stahlhut looked after her mother’s business affairs, she was treated as other children who did not occupy a fiduciary relation to their mother, and against whom no charge of dominating constraint could be made; and under the conditions disclosed by the evidence, lack of independent advice was not an important circumstance. Besides that, Mrs. Stunkel had independent advice on the very subject of consequences of her proposed action, advice shown to have been competent by subsequent events. Her sister, Minnie Westerhold, who resided in Illinois, visited her on July 14, 1922, and remained nearly two weeks. Mrs. Stunkel told her sister she would not make a will; she intended to divide her property. Mrs. Westerhold said not to leave Lewis out; he might make trouble.
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The opinion of the court was delivered by
Marshall, J.:
In each of these actions the plaintiff seeks to recover for electrical machinery rented to the defendant for use in the mine operated by it and destroyed by fire while in its possession and being used by it. Judgment in each action was rendered in favor of the defendant, and each of the plaintiffs appeals.
The facts are so nearly identical that it is unnecessary to state them in but one of the cases. They are shown in the findings of fact and conclusions of law made in Machinery and Supply Corp. v. Euterpe Mining Co., as follows:
“1. The court finds from the evidence herein that the plaintiff at all times mentioned herein was a corporation engaged in the rental and sale of, among other things, electrical machinery, and that the defendant at all times mentioned herein was a corporation engaged in mining lead and zinc ores near Baxter Springs, Kansas, in C-herokee county, -Kansas, and was operating a mine known as' the E'uterpe mine in that locality; that the southern part of Cherokee county, Kansas, and that portion of Cherokee county, Kansas, in which the Euterpe mine is located is commonly known and designated as a part of the Tri-state mining district or Tri-state mining field, which said field is made up of portions of Missouri, Oklahoma and Kansas.
“2. That on or about the 6th day of January, 1925, the defendant verbally rented from the plaintiff herein one 100 H. P. G. E. motor, 3 phase, 25 cycle, 220 volt, 720 R. P. M., serial No. 576591; one 60-75 H. P. 6 G. E. starting compensator, type N. R. 2705 J 3-p-1, and one potential transformer No. 462172, which said machinery was then of the reasonable market value of $1,145, and agreed to pay $60 per month for the rental thereof. That said machinery was installed at the mill of the defendant near Baxter Springs, Kan., and that the transportation expense from the place of business of the machinery and supply corporation to the Euterpe mine and the cost of installment of the machine was paid for by the Euterpe Mining Company.
“3. That on or about the 11th day of February, 1925, the mill of the defendant at the Euterpe mine in which said machine had theretofore been installed was destroyed by fire of unknown origin, together with the bailed machinery which is the subject of this action, and that said fire occurred without fault or negligence on the part of the defendant.
“4. That there was -at the time of the bailment aforesaid a custom and usage in what is commonly known as the Tri-state mining district, which included that portion of Cherokee county in which the Euterpe mine is situated,-between persons and corporations engaged in the same business that plaintiff and defendant were engaged in, that like property rented under the same or similar circumstances should be returned and delivered to the place of business of the rentor in as good condition as when rented, save usual, ordinary wear and tear, and that the rentee should pay for damages to such machinery other than ordinary wear and tear, and that in case of and upon destruction of such machinery that the rentee should pay the fair and reasonable value of such machinery, and that said custom and usage aforesaid further required the rentee to pay the freight and cartage both ways, and that said custom and usage aforesaid was a well-known and defined custom and usage and was so understood by the dealers and mine operators engaged in the same business as plaintiff and. defendant were engaged in at the said time.
“5. That in the bailment contract aforesaid between the plaintiff and defendant hereto there was nothing said about and no agreement as to who should be responsible for the machinery aforesaid in case of its destruction by fire or any other cause.
“And the court further, upon the evidence aforesaid, makes the following
“Conclusions op Law.
“1. That it is a well-settled rule of law that where a bailment is for mutual benefit the bailee in the absence of special contract is held to the exercise of ordinary care of the subject matter thereof, and is responsible only for ordinary negligence, and is not held as an insurer of the chattel which is the subject of the bailment.
“2. Who should be responsible for the loss of the motor in case of fire was entirely collateral to the bailment contract. It was not necessary to agree upon that in order to make effective the contract for the renting of the motor. This being collateral, it necessarily follows that evidence of custom is incompetent and cannot be considered in the determination of this case.
“3. The well-settled rule of law of bailments governs in this case and in absence of a special contract concerning the liability in case of loss, the plaintiff, in order to recover, must show that the-loss of the motor was caused by the negligent act of the defendant.
“4. That the defendant should take judgment in this action.
“It is therefore by the court considered, ordered and adjudged that the plaintiff take nothing, and that the defendant recover of and from the plaintiff herein its costs herein.” .
In Joplin Armature Works v. Euterpe Mining Co. there was another finding of fact concerning a letter written to the defendant, but which is not necessary to be considered in arriving at a conclusion concerning the matters presented on these appeals.
The cases turn on the following question: Does the existence of the custom concerning payment for machinery destroyed while being used and in the possession of the person to whom it has been rented control?
In 6 C. J. 1121 the rule is stated to be that—
“Where a bailment is for mutual benefit, the bailee, in the absence of special contract, is held to the exercise of ordinary care in relation to the subject matter thereof and is responsible only for ordinary negligence. In the absence of special agreement the bailee is not an insurer of the chattel intrusted to his care, and is not responsible for losses resulting from dangers necessarily incident to its use, from infirmity of the article itself or the act or negligence of a third person, or from accident, without negligence on his part.”
The plaintiff argues that the custom prevailing in the Tri-state district controls instead of the rule of the common law as stated in Corpus Juris.
In Henderson v. Petroleum Co., 104 Kan. 653, 180 Pac. 228, the court declared that —
“In an action to recover for the value of well-drilling tools which were destroyed by fire, it was shown that plaintiffs agreed to drill an oil-and-gas well for the defendant and were to receive $1.75 a foot, and $60 a day for day work, which included underreaming, pulling the pipes, cleaning out, and work of that kind. Nothing was said about the responsibility of either party for losses of tools by fire or otherwise. Held, that in such an action it is incompetent to prove an alleged general usage and local custom throughout the oil fields of Kansas that when drillers are working for and under the direction of the owner of the well being drilled, the latter is responsible for losses of the driller’s tools resulting from fires.” (Syl.)
In the opinion of that case this court said:
“Well-known principles of law governed the rights of the parties in the present case. In the absence of a special contract covering the ndatter, the plaintiffs, in order to recover against defendant, would have been obliged to show that the injury or destruction of the tools was caused by some negligent act of the defendant. They could not by proof of a local custom or usage impose upon the defendant a liability arising out of a collateral matter wholly outside of the contract.” (p. 656.)
See the quotation from Blackstone’s Commentaries set out in the opinion in Manufacturing Co. v. Merriam, 104 Kan. 646, 652, 180 Pac. 224. See, also, U. P. R. W. Co. v. Rollins, 5 Kan. 167, 175; Smythe v. Parsons, 37 Kan. 79, 82, 14 Pac. 444; Clark v. Allaman, 71 Kan. 206, 232, 80 Pac. 571; Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579; Hezlep v. Oil & Gas Co., 112 Kan. 661, 665, 212 Pac. 881; Bellport v. Harrison, 123 Kan. 310, 315, 255 Pac. 52.
Custom without specific contract cannot overturn rules of law.
The judgments are affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of statutory rape, and appeals.
Briefly and substantially, there was evidence showing that the complaining witness, Anna Desmond, an orphan girl, was only fourteen years of age at the time of the trial; that some years previously she had come to live at the home of the defendant; that the defendant on numerous occasions had sexual intercourse with her; that he threatened her to prevent her from telling others of his treatment of her, and that he did actually whip and beat her. It would serve no good purpose to detail the evidence.
It is contended chiefly that the court erred in overruling a special plea in abatement. Basis for the complaint is that the state elected to rely for conviction upon an act of intercourse concerning which no testimony was produced at the defendant’s preliminary hearing. The record shows he was given a preliminary hearing and bound over to the district court, the magistrate (justice of the peace) finding that—
“After hearing the evidence the court finds that the offense of rape by having sexual intercourse with one Anna Desmond, a female under the age of eighteen years, within the last two years, has been committed in Sheridan county, Kansas, and there is probable cause to believe that the defendant, C. N. Wagoner, is guilty of the commission of said offense.”
Upon the trial the state was permitted, over the objection of the defendant, to show several alleged acts of intercourse by the defendant with the prosecutrix. After the state had introduced its evidence and rested, the defendant filed a motion requesting the court to require the state to elect upon which act of intercourse it would rely for a conviction. The court sustained the motion and the state made the following election:
“To stand for the conviction of the defendant in this case upon the act of intercourse testified to in this case, and that occurred on the trip that was made from the defendant C. N. Wagoner’s home over to John Pratt’s, or from John Pratt’s back to Wagoner’s, on the road between these two houses.”
In support of his plea in abatement the defendant tendered the original complaint, warrant, transcript and findings of the justice of the peace before whom the preliminary was heard; also the testimony taken at the preliminary hearing. The act in question was not shown at the preliminary hearing. The state says that it was only through an inadvertent mistake that it elected to stand for conviction upon an act not specifically shown at the preliminary hearing, but that no reversible error was committed inasmuch as the defendant was not prejudiced thereby.
The information reads:
“State of Kansas, Sheridan county, ss.
“I, C. L. Thompson, the undersigned county attorney of said county, in the name and by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed, that within two years last past prior to September 9, 1927, in said county of Sheridan and state of Kansas, one C. N. Wagoner did then and there unlawfully, feloniously commit the crime of rape by then and there unlawfully, feloniously and carnally knowing one Anna Desmond, she, the said Anna Desmond, then and there being a female person under the age of eighteen years, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas. “C. L. Thompson,
“Filed October 4, 1927. “County Attorney.”
The object of a preliminary hearing is to inform the defendant of the nature and character of the crime charged against him. It is one of the steps in the proceeding leading up to his trial in the district court. He may not be put upon trial without a finding of the examining magistrate that there is probable cause for believing he is guilty of the crime charged, and until a preliminary hearing has ripened into such a finding and a consequent binding over to the district court the state has no authority to file an information against him. The defendant was not' charged with any particular act, but substantially that within two years prior to September 9, 1927, he had unlawfully had intercourse with the prosecutrix. It is of course necessary that the defendant should be given a fair opportunity to know by a proffered preliminary examination the general character and outlines of the offense charged against him, but it is not necessary that every detail be given, and error cannot be predicated upon the state’s failure in this regard unless it is shown, that prejudice resulted therefrom. In the instant case the defendant had a full opportunity to know the general character of the offense charged against him. In State v. Wellman, 114 Kan. 671, 220 Pac. 271, it was said:
“The validity of a preliminary examination and whether defendant has been sufficiently advised as to the charge upon which he is to be tried, depends not only upon the testimony adduced at such examination, but also upon the information disclosed- by the complaint and warrant, and all other matters of procedure before the magistrate of which the defendant has notice.” (Syl. ¶ 1.)
The complaint having charged defendant with the' crime of rape within two years past was notice to him that any charge or act within the time limited might be introduced in evidence against him and that he might be tried for any act within that time. No claim is made that the defendant was prejudiced by the election made, or that he did not have a chance to make a defense to the act upon which the state elected to rely, which in point of- time occurred between the first and last times testified to by the complaining witness in the preliminary examination.
Other alleged errors are complained of. For instance, that the court erred in denying a change of venue, but no showing is made of any prejudice resulting from the denial. It is argued that the papers published articles reflecting upon the character of the defendant, and that an action in the juvenile court to remove the prosecutrix from the home of the defendant was made known generally to the inhabitants of the county. These matters do not of themselves show an abuse of discretion on the part of the court in refusing to grant a change of venue.
A complaint that the court erred in permitting the justice of the peace to amend his findings by adding the words “as charged in the complaint and warrant” is without substantial merit. It is contended that error was committed in permitting the state to ask suggestive and leading questions of the prosecutrix. In answer to this complaint the state directs attention to the fact that the complaining witness was only fourteen years of age and was under developed mentally. We are of the opinion that there was no abuse of the court’s discretion in permitting the examination as conducted.
It is argued that the story told by the complaining witness was improbable and unreasonable. We think the evidence was abundantly sufficient to sustain the verdict and judgment.
Other complaints have been considered, but on the whole the •.record discloses no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an original action in quo warranto which questions the authority of the board of education of the city of Pittsburg to annex to its school district certain territory from the school district of the city of Frontenac. It is presented to us on an agreed statement of facts, the material portion of which may be stated as follows: The city of Pittsburg is a city of the first class, with a population of more than 20,000, and the board of education of that city is a body corporate and politic under the laws of the state and is known and designated as school district No. 49 in Crawford county. A mile and a half north of the north city limits of Pittsburg is the south city limits of the city of Frontenac, a city of the second class, with about 3,000 population. There are two or more cities of the second class in Crawford county. The board of education of the city of Frontenac is a body corporate and politic under the laws of the state and is known and designated as school district No. 47 in Crawford county. A part of the territory north of the city of Pittsburg is in school district 49. A part of it is in school district 47. Each board of education maintains an accredited high school. In September, 1926, a majority of the electors of the territory in question in this case petitioned the board of education of the city of Pittsburg for their territory to be attached to school district 49. The board of education of the city of Pittsburg, on consideration of the petition, made an order attaching the territory in question to school district 49 for school purposes, and notified the county clerk of its action in wilting. On the 14th of February, 1927, the board of education of the city of Frontenac passed a resolution and order reattaching this territory to school district 47, and notified the county clerk and county superintendent of that action. About February 6,.1928, another petition, signed by a majority of the electors of the territory in question, was presented to the board of education of the city of Pittsburg asking that the territory be attached to district 49 for school purposes, and the board of education of the city of Pittsburg, having considered the petition, made an order attaching the territory to school district 49, and duly notified the county clerk in writing of its action. Since that time the board of education of the city of Pittsburg has contended that the territory in question is a part of school district 49 and the taxes collected thereon should be paid to such school district. The territory in question does not touch the boundary line of the city of Pitts-burg at any point. The closest point the territory comes to the boundary line of the city is about a mile, and the furthest point is two miles. It does, however, touch the boundary line of school district 49, and if and when attached to school district 49 becomes a continuous compact territory with the other territory of such district. The territory in question does, however, touch the boundary line of the city of Frontenac, and all of it is within one and one-half miles of the city limits.
The statutes necessary to be considered are as follows: Section 1, chapter 228, Laws of 1925 (amending R. S. 72-1725):
“That territory outside the city limits of any city of the first class, having a population of less than 120,000, but adjacent thereto, may be attached to such city for school purposes, upon the application being made to the board of education of such city by a majority of the electors of such adjacent territory. And upon the application being made to the board of education they shall, if they deem it proper and to the best interest of the school of said ciry and territory seeking to be attached, issue an order attaching such territory to such city for school purposes and to enter the same upon their journal, and such territory shall, from the date of such order, be and compose a part of such city for school purposes only, and the taxable property of such adjacent territory shall be subject to taxation and bear its full proportion of all expenses incurred in the erection of school buildings and in maintaining the schools of said city. . . .”
Section 1 of chapter 222 of the Laws of 1925, which reads as follows:
“That territory outside the city limits of any city of the second class, but adjacent to the school district of such city, may be attached to said city for school purposes, upon application to the board of education of such city by a majority of the electors of such adjacent territory: Provided further, That territory outside the city limits of any city of the second class in a county in which there are situated two or more cities of the second class, but adjacent to the school district of such city, and within one and one-half miles of said city limits, may be attached to such city for school purposes only, whenever in the judgment of the board of education of such city it will be to the best interests of the schools of said city and said territory. . . .”
And section 1 of chapter 261 of the Laws of 1927 (repealing chapter 222 of the Laws of 1925), by its title relating to schools in cities of the second class, which reads:
“Territory outside the city limits, but adjacent thereto, may be attached to said city for school purposes, upon application to the board of education of said city by a majority of the electors of such adjacent territory; and upon the application being made to the board of education, they shall, if they deem it proper, and to the best interests of the schools of said city and territory seeking to be attached, issue an order attaching such territory to such city for school purposes, and to enter the same upon their journal; and such territory shall from the date of such order be and compose a part of such city for school purposes only, and the taxable property of such adjacent territory shall be subject to taxation, and shall bear its full proportion of all expenses incurred in the erection of school buildings and in maintaining the schools of the city. . . .”
It will be noted that the action taken by the board of education of the city of Pittsburg in September, 1926, was under section 1 of chapter 228 of the Laws of 1925; that is, there was a petition signed by a majority of the electors in the territory in question presented to the board of education praying that the territory be annexed to. school district 49 for school purposes. The action of the board of education of the city of Frontenac in February, 1927, was under chapter 222 of the Laws of 1925, which required no petition by electors or other action on their part, since there were two cities of the second class in Crawford county and the territory in question was within a mile and a half of the corporate limits of the city. Hénce there was simply a resolution by the board of education of the city of Frontenac taking the territory from school district 49 and adding it to school district 47. In other words, the action was taken without regard to the wishes of the people within the territory. The statute authorizing such a change to be made without a petition signed by a majority of the electors in the territory was repealed in 1927, but since the city of Frontenac has not attempted to act under the statute of 1927 this statute is referred to only as indicating the legislative history and intent. The action of the board of education of the city of Pittsburg on February 6, 1928, was under section 1, chapter 228 of the Laws of 1925, hereinbefore set out.
Turning to the legal questions presented, plaintiff argues, first, that the facts did not exist which gave the board of education of the city of Pittsburg authority to attach the territory in question. The statute (Laws of 1925, ch. 228, § 1) provides that “upon the application being made to the board of education they shall, if they deem it proper and to the best interest of the school of said city and territory seeking to be attached, issue an order attaching such territory to such city for school-purposes.” The point is made that the order of the board of education of the city of Pittsburg made February 14, 1927, does not specifically find that the board deemed “it proper and to the best interest of the school of said city and territory seeking to be attached.” The order recites that it was moved and seconded that the board issue an order to have the described territory annexed to school district 49 for school purposes, and, after describing the territory, continues:
"The above action was taken after consideration of a petition which had been presented with forty-eight signatures, which, constitutes a majority of the electors in the adjacent territory described above located north of Pittsburg.”
The point sought to be made by plaintiff is quite technical and we do not regard it as having substantial merit. It is confined to the wording, or phraseology, of the order. Under the statute the board of education could make the order only in the event it deemed it to be to the best interest of the school district and of the territory. The board did make the order after a consideration of the petition presented to it, from which it necessarily follows that the board did deem it to be to the best interest of the school district and the territory. While it might have been better for the order to have been made in the phraseology of the statute, there can be no doubt, from the order made and in view of the statute, that the board did deem it to be to the best interest of the school district and of the territory. The case of School District v. Board of Education, 100 Kan. 59, 163 Pac. 800, cited by plaintiff, was a case in which conduct amounting to fraud had been indulged in to secure the signatures on the petition. There is no such situation here, nor intimation of it, hence the case is not in point.
Plaintiff next argues that the board of education of a city of the first class has no authority to take territory outside of the corporate limits of the city for school purposes from territory already attached to a city of the second class for school purposes. It is argued that the legislature did not intend to authorize such action by a city of the first class. There is nothing in the statute from which this conclusion can be reached. If territory be added to the school district of a city of the first class it must of necessity be taken from some other school district, and the statute makes no distinction prohibiting the' taking of territory from the school district of a city of the second class. If a city of the second class were so close to a city of the first class that a majority of the electors in the school district of the city of the second class desired to be annexed to a city of the first class' for school purposes, there does not appear to be anything in the statute that would prohibit the .electors from so petitioning, or that would prohibit the board of education of the city of the first class from acting on such a petition and annexing the entire territory of the city of the second class to the school district of the city of the first class.
Lastly it is argued that the territory in question is not “adjacent” to the city of Pittsburg, but this point lacks merit. Adjacent means “near to,” “within the vicinity of,” and does not necessarily mean touching or bordering upon. The question has been so thoroughly analyzed in former opinions that it is necessary only to cite them. (Board of Education v. Jacobus, 83 Kan. 778, 112 Pac. 612; Bun ning v. Rural High-school District, 105 Kan. 320, 322,182 Pac. 387; Martin v. Down, 111 Kan. 752, 753, 208 Pac. 565.)
Plaintiff’s real contention is that since the territory in question is near the city of Frontenac, and therefore adjacent thereto, it cannot be adjacent to the city of Pittsburg, but no reason suggests itself why a place may not be adj acent to two or more other places. Degrees of adjacency are not dealt with by the statute.
Judgment is entered for defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to foreclose a subcontractor’s mechanic’s lien. Plaintiff recovered judgment against Terry, the contractor, for the price of lumber sold and delivered to. Terry which Terry used in building a house for Matney, and recovered judgment against Matney for foreclosure of mechanic’s lien. Both defendants appeal.
The contract between Terry and Matney was in writing, and was dated September 30, 1925. Apparently the date should have been September 29, but the mistake is not material. The contract provided that Terry would furnish material and labor to build and complete a house according to annexed plans and specifications, and contained the following recital:
“For the faithful performance of the above, the party of the second part [Matney] agrees to pay to the party of the first part [Terry] the sum of four thousand five hundred ($4,500) — $2,000 at the signing of this contract, . . .”
Matney gave Terry a check for the cash payment of $2,000, receipt of which was acknowledged in the contract. The check was presented and paid, and for a portion of the amount Terry took a cashier’s check for $1,000, dated September 29, 1925, and payable to his order. Terry was already indebted to the lumber company in a sum in excess of $1,000 for lumber previously purchased, and on the day he received the cashier’s check he indorsed it and delivered it to the lumber company. The lumber company applied the check on Terry’s existing indebtedness. Construction of Matney’s house was not begun until the latter part of October. The first material was furnished on October 21.
A jury was impaneled. The petition contained an itemized account of the material sold to Terry for the Matney house, the answer was unverified, and as the trial proceeded defendants admitted the account was correct. On further consideration of the case the court-discharged the jury, and on the pleadings and the evidence found the lumber company was entitled to recover from the contractor the balance due on the account, with interest.
Terry’s answer said H. B. McCray, president of the lumber company, knowing Terry’s embarrassed financial condition, persuaded and induced Terry to advance to the lumber company $1,000 of the Matney money, which McCray knew was paid to Terry to buy lumber for Matney’s house—
“Telling this defendant that when this defendant realized on the building he was constructing at 1400 South Twenty-sixth street, Argentine, Kan., as aforesaid, he could replace the $1,000 to the Matney fund that he had advanced to the McCray Lumber Company, as requested to relieve the strain of said McCray Lumber Company, which it was represented at said time by said H. B. McCray was pressed for money.”
The building contract was introduced in evidence. It disclosed that the $2,000, part of which Terry used in purchasing the cashier’s check, was not given “to buy lumber.” The purpose for which the check was given was stated in the contract. It was given generally for performance of the contract, and the court properly declined to permit a condition to be attached to the contract by parol evidence which would limit the use the contractor could make of the money, and which would follow the money into the hands of any creditor of the contractor who had notice of the source from which it was derived.
It will be observed the answer did not assert that Terry loaned $1,000 to the lumber company. The lumber company was not to replace the money. Terry was to replace the money in his “Matney fund” when he realized on another contract. The answer did not assert that there was any agreement between Terry and McCray to make future application of the money to indebtedness which might arise on account of future purchase of material for the Matney house. Of course the -answer did not assert that Terry directed application of the cashier’s check when he delivered it, and his attorneys admitted at the trial he gave no direction as to how it should be applied. The result was that, so far as the answer was concerned, the lumber company was at liberty to apply the check on Terry’s existing indebtedness.
Terry was permitted to tell about delivery of the cashier’s check to the lumber company. In some of his testimony he enlarged on his answer. He said he loaned the $1,000 to McCray; he gave McCray the money as a friend; he let McCray have $1,000 to relieve him temporarily, “and apply it further on.” In other portions of his testimony Terry acknowledged he paid the $1,000 on lumber he had purchased from the lumber company:
“Q. Now, then, on the same date that you got this cheek from Mr. Matney, September 30, 1925— A. Yes, sir.
“Q. You then paid to the McCray Lumber Company $1,000 on lumber you had bought from them; A. Yes.
“Q. That is the cashier’s check you delivered to the H. B. McCray Lumber Company? A. I delivered to them, evidently, it is signed by me.
“Q. That went to pay for some lumber you owed them? A. Evidently.”
Terry also said he was under the impression that when McCray got the cashier’s check he applied it on a certain bill amounting to more than $800, and he said the cashier’s check did not pay all the bills he owed the lumber company. It was the province of the trial court to deal with testimony of this character, and on the pleadings and the evidence the trial court sustained the lien for the full amount claimed.
Terry’s answer contained the following:
“That as a condition precedent to defendant advancing the $1,000 of the Matney money, H. B. McCray promised this defendant that in any event the McCray Lumber Company, plaintiff herein, would take care of this defendant, which this defendant understood to mean that if he was unable to-realize his funds, tied up, in the building located at 1400 South Twenty-sixth street, Argentine, Kansas, so that he could replace the $1,000 from the Matney fund and advanced to H. B. McCray Lumber Company and credited on other accounts that this defendant owed said plaintiff, that no liens would be claimed or filed against the property of George H. Matney, . . .”
The court properly held the answer did not plead any agreement of the lumber company with Terry or for Matney’s benefit not to file a lien on the house which Terry contemplated building in the future for Matney. Before any evidence was introduced, the court indicated that an agreement to waive lien would be of consequence, but no proof tending to show such an agreement was offered.
Matney's answer to the petition was that, to enable Terry to pay cash for lumber to be used in building Matney’s house, Matney advanced $2,000 to Terry. The answer further stated that Matney was informed by Terry and was told in the presence of McCray that the lumber company received $1,000 of the money, knowing it was advanced by Matney, and knowing the purpose for which it was to be used.
Matney was allowed to testify concerning his negotiations with Terry resulting in execution of the contract and payment to Terry of $2,000. When asked if McCray was present when the conversation occurred, Matney said McCray never heard of it. The testimony follows :
“A. He told me, if I would give him $2,000 right there, he would go ahead and buy the material for me and have it on the job and everything ready to build the house. And he said if I would give him that $2,000 he would go buy the lumber for me and get the material on the ground and buy as he went along. . , .
“Q. Was there anything said with reference to buying lumber cheaper by paying cash? A. Yes, that is what he said; you let me have $2,000, and I can go ahead with cash, and I can go and buy lumber cheaper than I can on ■credit. He would get a reduction or something, I don’t know how it was. Anyway, I went to work and made out a check for the $2,000, so that I could get my house started. ...”
The court ruled it would be governed by the terms of the building contract. The contract was an ordinary building contract, and parol evidence was not admissible to change it into one of agency on the part of Terry to buy lumber for Matney, or to change it in any other respect. Matney chose to pay $2,000 on the contract when it was signed, and the payment was at his own risk, so far as subsequent subcontractors were concerned. (R. S. 60-1403.)
There are two typographical errors in the section just cited, which should read:
“Provided, That the owner of any land affected by such lien shall not thereby become liable to any claimant for a greater amount than he contracted to pay the original contractor; but the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days hereinbefore specified, ...” (R. S. 60-1403.)
The sixty days’ time referred to is the period mentioned earlier in the section within which lien may be filed after the last date on which material was furnished.
The very purpose of the statute was to prevent the cutting off of subcontractors’ liens by early payments to the contractor. (Shellabarger & Leidigh v. Thayer, 15 Kan. 619. Payment of $800 when contract was signed on contract price of $1,300.) In this instance Terry could have applied the cashier’s check on his existing indebtedness. Not having done so, the lumber company was privileged to apply it and, under the plain letter of the statute, it was not material that the lumber company knew the source from which the money was derived. It was Terry’s money, and Matney’s predicament results from the fact he did not require Terry to give bond.
Defendants stated they desired to make some offers of proof. The court said the offers were in the answers, they would be considered as in the record, and they were rejected. The ruling was sound, because when the building contract was introduced in evidence, the case was ripe for judgment on that evidence and the pleadings.
Terry complains because judgment was rendered against him on his unverified answer and his admission that the itemized account was correct. The contention is he was not precluded from making defenses to the account, even though it were correct. As indicated, he had no defense provable under his answer.
Defendants answered the petition, went to trial on their answers, made no application to amend, and were defeated. In Terry’s affidavit in support of his motion for new trial he proposed a new defense — agreement by the lumber company to waive lien. He also proposed a set-off — discounts on purchases of lumber from the lumber company extending over a period of years, which on an accounting would amount to more than $700. Matney made an affidavit in support of his motion for new trial that although he had used all possible diligence to discover the evidence, he had just found out about Terry’s set-off. The motions for new trial were properly denied.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by the county commissioners to collect a forfeiture from the county attorney for failure to keep his office open during business hours. A demurrer to the petition was sustained, and the commissioners appeal.
While 'the reasons for the county -attorney’s office being closed are not stated in the petition, it is stated in the briefs and not denied that the county attorney was married the early part of August, 1927, decided to take a trip with his wife and made arrangements with another local attorney to attend to the business of the county attorney’s office during his absence. That upon the return • of the county attorney he was advised that a voucher for his salary, in the amount computed by the number of days of absence, would be denied. The county attorney appealed the matter to the district court. He was then informed by the commissioners that unless he withdrew his appeal they would file suit against him for the penalty provided by R. S. 19-2601. He refused to dismiss the appeal, and hence this suit.
The commissioners contend that the statute imposing a forfeiture of $5 per day is clear and that the board of county commissioners is the proper party to recover such forfeiture. The statute under which the commissioners sought to recover the penalty reads, in part, as follows:
“Every county officer shall keep his office at the seat of justice of his county, and in the office provided by the county, if any such has been provided; and if there be none established, then at such place as shall be fixed by special provisions of law; or if there be no such provisions, then at such place as the board of county commissioners shall direct, and they shall each keep the same open during the usual business hours of- each day (Sundays excepted) ; and all books and papers required to be in their offices shall be open, for the examination of any person; and if any of said officers shall neglect to comply with the provisions of this section, he shall forfeit for each day he so-neglects, the sum of five dollars.” (R. S. 19-2601.)
The defendant contends that the county commissioners have no-capacity to sue for the collection of such a forfeiture or fine. It may be observed that the statute does not provide to whom such forfeiture shall be paid. However, another section of the statute provides:
“All fines and penalties imposed and all forfeitures incurred in any county shall be paid into the treasury thereof, to be applied to the support of the common schools.” (R. S. 62-1908.)
Since money collected under the section last quoted shall be paid into the common-school fund it appears that the county commissioners have no particular interest in it nor authority in its collection.
In A. T. & S. F. Rld. Co. v. State, 22 Kan. 1, it was said, substantially, that public- actions must be instituted by one having authority to use the name of the state for that purpose and cannot be maintained by one having no interest in the subject matter of the action different from that of the rest of the community.
The same theory was followed and adhered to in State v. Shafford, 77 Kan. 263, 94 Pac. 137. In Weigand v. City of Wichita, 111 Kan. 455, 207 Pac. 651, it was said:
“An action to compel public officials to perform their duty should be brought in the name of the state on the relation of the county attorney or attorney-general and such action cannot ordinarily be maintained by a private citizen.” (Syl. See, also, State, ex rel., v. Labette County, 114 Kan. 726, 220 Pac. 275; Wellman v. City of Burr Oak, 124 Kan. 780, 262 Pac. 607; Collingwood v. Schmidt, 125 Kan. 81, 262 Pac. 556.)
We are of the opinion that the county attorney stands in a different position to the public from the other county officers and is not amenable to the provisions of R. S. 19-2601. The county attorney’s duties concerning the enforcement of law frequently require him to be absent from his office, attending court, or investi gating infractions of the law in various parts of the county; and in many of the counties the law does not make any provision for clerk hire for him, so of necessity the proper discharge of his duties will often require him to lock his office while he attends to them. Moreover, one purpose of the statute in requiring county officers to keep their offices open on week days is that the public may have “all books and papers” therein open to public inspection. The county attorney has no books and papers of that sort. His books and papers are his quasi private data, which are of no concern to anybody but himself unless or until it is proper, in his discretion, to reveal their contents in court — all of which goes to show that the county attorney is not one of the public officers to be penalized for not keeping his office open every business day. And indeed there may be other reasons why the plaintiffs cannot recover in the instant case, which need not be elucidated. The judgment of the trial court in sustaining the demurrer to plaintiffs’ petition was proper.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff brought this proceeding against his employer, the Missouri Pacific Railroad Company, for an injury sustained in the course of his employment while lifting a rail from the side of a switch track in the defendant’s cypress yards in Kansas City. The rail had been removed from the switch track and thrown upon the side of the railway embankment, where it lay for several days. The accidental injury to plaintiff occurred by overexertion when he and some fellow workmen were lifting the discarded rail to place it on a push car so that it could be carried to a junk pile.
Plaintiff claimed compensation under the Kansas statute. The only defense of present concern was that at the time of the accident plaintiff and defendant were engaged in interstate commerce, that the track from which the rail was taken was used for interstate traffic, that the removal of the rail from the side of the switch track to the junk pile was an incident of that traffic, and consequently the rights of plaintiff and the liability of defendant, if any, should be governed by the federal employers’ liability act and not by the workmen’s compensation act.
An examiner, acting under our local statute, found the facts of the injury to be as alleged by plaintiff, and made an award in his behalf in the sum of $10.94 per week for temporary total disability, which award was to continue until the further order of the public service commission, but not in any event to exceed 415 weeks.
The railway company appealed to the district court, where the award was sustained. The accident itself and all the statutory and judicial proceedings which ensued therefrom transpired in the interim when this court was without appellate jurisdiction in workmen’s compensation cases under the rule announced in Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233. Defendant does not question the soundnéss of that decision, but contends as it has consistently done from the inception of this controversy that the federal employers’ liability act, and not the state statute governing workmen’s compensation, controls. In other words, the defendant raises the point that neither the public service commission nor its examiner had jurisdiction of the subject matter, and that the award of the commission was a nullity which gained no virtue from its approval by the district court. This, of course, presents a judicial question of which this court must take cognizance. (Civ. Code, § 566; R. S. 60-3303.)
Counsel for the appellee resist the appeal on the ground that this court will not disturb a finding of fact based on competent evidence, and that the commissioner of compensation under the statute (Laws 1927, ch. 232, § 33 et seq.) made a finding which was sustained by the district court to the effect that in “piling rails on a push car to be taken to the junk pile the. claimant was not engaged in interstate commerce.”
That finding, however, is not a finding of fact, but a conclusion deduced correctly or incorrectly from the facts which in themselves were not in dispute. The plaintiff’s testimony was to this effect:
“That on or about May 7, 1928, I was instructed to help take a rail that was lying along the tracks in the cypress yards at Kansas City, Kan., to the scrap pile. . . . The rail was lying out on the edge of the bank extending in the same direction as the track ext.ends. This switch track beside which the rail was lying is the track used for the indiscriminate switching of cars and storing of cars. The rail came out of one of the tracks, but I could not say which one now. We were taking up rails nearly every day, sometimes one, sometimes two, but it was a broke rail we had taken out of the track ourselves some place and didn’t take it out of the yards right at that time, but throwed it out on the bank and left it there until we could come after it. This rail had come out of one of the tracks in the yards. Took it out, 0, maybe two or three days before. . . . This rail was to go back by the tool house south of the scrap pile.”
Defendant’s foreman testified:
“These yards are used for transfer of cars from foreign roads to the Missouri Pacific and the other roads take their cars from these tracks. The Union Pacific and the Rock Island bring cars there and they are transferred. Some go to Union Pacific, some to Rock Island, different places. Union Pacific brings transfer loads from the east bottoms to the yards. The east-bottom yards are located in Kansas City, Mo., across the river in Missouri. . Mike Begley was a member of my gang. He left the service of the company the afternoon of May 8. ... It would be dangerous to leave the rails taken out of the tracks in the yards, because somebody might fall on them, and the purpose for taking'them from the yard is to clear the. yards and make it safe. All of these yards are used as transfer yards.
“It was lying on the edge of the bank; the bank was east of the rail; the track was used for indiscriminate switching and storing of cars. That it was .a broken rail that had been taken out of the track by themselves some days ■before and thrown on the bank and left there to be taken away later; that a new rail had been changed for it; that sometimes a rail would lay there for a week or two. . . .
“Mr. Hunter testified: ‘If they (the rails) are no good we take them to the scrap pile until they accumulate together a carload.’ ”
What is the proper conclusion to be drawn from the foregoing undisputed facts? Counsel for the litigants have had no trouble finding plenty of decisions, all more or less analogous to the case at bar, to support their respective contentions. These decisions cannot be harmonized. In general it might be said of them that in the older decisions the state courts did not readily yield to the view nor did the federal supreme court insist on the view that the indirect incidents pertaining to the operation of an interstate railroad were themselves a part of the interstate commerce of the country to the extent that the rights or parties thereunder should no longer be governed by local law. Twenty years ago, when the federal employers’ liability law was enacted, April 22, 1908 (U. S. Comp. Stat., 1916, § 8657), it is quite unlikely that our national lawmakers realized they were legislating to the effect that in carrying a sack of bolts for the repair of a bridge in Hoboken a workman should be deemed to have been engaged in interstate commerce, yet a judicial holding to that effect followed when it was considered that the bridge tvas used for interstate traffic (as well as intrastate) and that its maintenance was requisite to that traffic, and of course the bolts which the workmen carried were necessary to keep it in repair. (Pedersen v. Del Lack & West. R. R., 229 U. S. 146, 57 L. Ed. 1125.) In that case the court said:
“Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘any defect or insufficiency . '. . in its cars, engines, appliances, machinery, track, roadbed, works) boats, wharves, or other equipment’ used in interstate commerce. But independently of the statute we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it.”
This test has been invoked with varying results in later cases decided by the federal supreme court. Thus it has been held that a flagman stationed at a public crossing to signal interstate and intrastate trains, without regard to the character — intrastate or interstate- — of the particular train he was flagging when he was killed, was engaged in interstate commerce so as to exclude the operation of a state workmen’s compensation law. (Phila. & Read. Co. v. Di Donato, 256 U. S. 327, 65 L. Ed. 955.)
In one of our own cases, Coil v. Payne, Director General, 114 Kan. 636, 220 Pac. 172, in deference to the rule announced in the Pedersen case, supra, it was held that the right of redress for a workman injured while working as a track laborer on a small intrastate railroad whose lines were confined to two or three counties in central Kansas was governed by the federal employers’ liability act because a substantial part of the railroad’s traffic was interstate in character.
On the other hand, it has been authoritatively held that a machinist’s helper who was injured in a roundhouse while making repairs on a railway engine was not engaged in interstate commerce although it had been used in interstate commerce three days prior to the accident and was again put to work in that commerce immediately after the accident. (Minneapolis & St. Louis R. R. Co. v. Winters, 242 U. S. 353, 61 L. Ed. 358.) Our own court reached a similar conclusion in Defenbaugh v. Railroad Co., 102 Kan. 569, 171 Pac. 647, where it was held that a workman who was blown from the top of a freight car while it was undergoing repairs at the regular shop of the railway company was not engaged in interstate commerce as the car itself was not then being used in any sort of commerce, state or interstate, although it had frequently been used in interstate commerce theretofore and doubtless would be put to such use after being repaired.
- There is practically no limit'to the number of cases involving the question whether injured railway employees were or were not engaged in interstate commerce when their injuries were received. Instructive reviews of many such cases will be found in Bumstead v. Railway Co., 99 Kan. 589, 162 Pac. 347, and in the very recent case of Hensley v. Chicago, St. P., M. & O. Ry. Co., [Neb.] 226 N. W. 421.
In 2 Roberts Federal Liabilities of Carriers (2d ed., 1929), § 779, it is said:
“The status of the employees of the interstate carriers, in handling rails along tracks constituting interstate highways, depends upon the closeness of the relation of the work to interstate commerce; for, if the particular employment at the time of an injury is not such as to constitute, in a practicable sense, a part of interstate transportation, the federal act does not apply. The general rule is that an employee is engaged in interstate commerce if the labor of handling the rails is so closely connected with interstate commerce as to be, in legal contemplation, a part of it. Employees engaged in taking out old rails from a track over which interstate traffic is regularly conveyed, or in replacing them with new rails, are, beyond any question, within the federal statute. To this extent there is unanimity of opinion among the courts since the decision of the national court in the Pedersen case, supra.
“But the character of the employment of a laborer picking up old rails-piled along the right of way or storing or piling new rails for future use, has not been specifically adjudicated by the national supreme court, and there is apparently a conflict of opinion in the decisions of other courts. Some courts, under the influence of the doctrines announced in the Shanks (239 U. S. 556, 60 L. Ed. 436), Yurkonis (238 U. S. 439, 59 L. Ed. 1397), Harrington (241 U. S. 177, 60 L. Ed. 941), Winters (242 U. S. 353, 61 L. Ed. 358) and other cases applied to different facts, have held that employees in so handling rails are not engaged in work which is a part of interstate commerce. For example, a trackman in the employ of a railroad company, at the time he was injured, was placing new rails into a pit between two tracks where the rails wei’e to be-stored until they were required for track repairing in the future. His employment, while so engaged, it was held, was no part of interstate commerce. Similarly, a section hand while loading, upon a flat car, unused rails which had theretofore been removed from the track, and had been left on the right of way, it was held in another case, was not employed in interstate commerce. But, on the other hand, in apparent conflict with at least the foregoing Kentucky cases cited, the federal circuit court of appeals for the third district held that an assistant foreman of a track gang while engaged in removing old rails from where they had been left between the tracks after being taken out a few days before, was engaged in interstate commerce. A similar conclusion was ■reached by the circuit court of appeals for the first circuit, but in that case-there was this additional factor; the work train upon which the rails were being loaded was in transit, subject to the delays of the work, from a point in Maine to a point in Canada. An employee assisting in loading rails on a flat car was held not to be within the protection of the federal act, but nothing was shown whether the rails were old or new, where they came from, where-they were taken, or where the car was to be when loaded. ... A section gang composed of about thirty men was employed in taking up old rails and replacing them with new ones on a railroad running from a point in Utah to- Omaha, Neb. The old rails were first placed along the side of the track and then removed on push cars to scrap piles about thirty yards from where they were picked up. A member of the gang who was employed, exclusively, in moving the old rails from where they were thrown along the side of the track to the scrap pile, was held not to be engaged in interstate commerce. (Perez v. Union P. R. Co., 52 Utah 286.) The decision of the court in this case does not seem to be sound, for Perez’s work was but a part of the larger task of repairing an interstate line and the removal of the old rails, as the work proceeded, to the scrap pile was but an incident thereof.”
Before concluding our examination of analogous cases, which has included all those which the diligence of counsel has called to our attention and a good many others as well, counsel for appellant urge that we examine particularly the closely analogous case of Kusturin v. C. & A. R. R. Co., 287 Ill. 306, where it was held that a workman who' was injured in loading old rails on a flat car which had been taken out of an interstate railway track and left for two weeks by the side of the track was engaged in interstate commerce and his right of redress against his employer was governed and limited by the federal employers’ liability act. The case of Cherpeski v. Great Northern Ry. Co., 128 Minn. 360, was almost identical as to the facts and was decided the same way. On the other hand, the .latest case on the subject is Hensley v. Chicago, St. P., M. & O. Ry. Co., decided by the supreme court of Nebraska July 2, 1929, 226 N. W. 421, but not yet officially reported, wherein it was held that a workman who was injured while removing from an interstate railway numerous items of iron and steel which had been rejected as unfit for use when the railway track had been repaired was not engaged in interstate commerce, and his right of redress against his employer was not governed by the interstate commerce act. We must therefore lay to one side these many conflicting precedents and come back to the test which the federal supreme •court applied in the Pedersen and similar cases: Was the employee, at the time of the injury, engaged in work so closely related to interstate commerce as to be practically a part of it? Under all the ■evidence, about which there is no dispute, the rail had been taken from the track in the cypress yards and thrown on the side of the railway embankment some days prior to the day plaintiff was injured. Its usefulness as a rail was at an end. It was a matter of no consequence to the use of the yard track for either interstate or intrastate commerce whether the rail was ever taken to the junk pile or not. Paraphrasing the language of the Pedersen case, it was ■“a matter of indifference so far as that [interstate] commerce was concerned” whether the rail was taken to the junk pile or left where it lay. The work which plaintiff was doing when injured had nothing substantial to do with interstate commerce, nor was his labor so closely connected therewith as to permit us to hold that it was a part of it. In consequence the federal employers’ liability act did not apply, and the rights and liabilities of these litigants were properly deterlminable under the workmen’s compensation act, and the judgment of the district court to that effect must be affirmed. In other respects, since the accident and injury and all proceedings pertaining thereto arose and were despatched while this court was without jurisdiction of appellate review in compensation cases, this appeal should be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages by a tenant against his landlady because of injuries sustained through the negligent failure of the latter to properly fix and secure a window sash in a skylight of a two-story brick building, whereby the sash was blown out of its setting and fell on the head of the plaintiff tenant, and knocked him off a ladder on which he was standing while attempting to close the skylight. .
Plaintiff alleged the pertinent facts, narrated his injuries in detail, and the negligence of defendant in these particulars;
“That on or about the last day of July, 1925, this plaintiff discovered that said windows were not working, and that on said day he notified his landlady, Mary Morguies, that said windows would not open.
“That on the same day the said Mary Morguies came to said building and examined said windows, hinges and apparatus for operating the same. That one of the hinges that opened the window on the west side was defective in that it was rusted and partly broken. That said landlady carelessly and negligently attempted to fix said window and notified this, plaintiff that said windows and hinges and apparatus for operating the same were in good repair. That the landlady carelessly and negligently failed to fix said windows. That said Mary Morguies knew or could have known by the use of ordinary care that said hinge was defective. That when said work was finished said landlady notified this plaintiff that' everything was in working order and that said windows and hinges and apparatus for adjusting the same were in good condition and in good working order. That said landlady carelessly and negligently failed to replace said broken hinge on said window in the west side of said cupola.”
Defendant’s demurrer to plaintiff’s petition was sustained. Hence this appeal.
To uphold the judgment defendant argues that the negligent repair work on the window and its hinges was not the proximate cause of the injury and damage sustained by plaintiff. That matter, however, is not so clear that the court could so declare as a matter of law. Ordinarily the question-of proximate cause is a question for a jury. In the recent analogous case of Crow v. Colson, 123 Kan. 702, 256 Pac. 971, this court took the view that the proximate cause of injuries sustained by a person on the sidewalk by the falling of a window screen negligently attached to an upper-story window presented a fair question for a jury to decide, and that it was error to rule to the contrary as a matter of law. The modern tendency is to extend the legal responsibilities attaching to ownership of real property, with or without the owner’s fault. And where the lessor of property has undertaken to make repairs and makes them negligently, liability attaches to the lessor. In the A. L. I. Restatement, Torts T., No. 4, section 232 provides:
“A lessor of land who, by purporting to make repairs thereon while the land is in the possession of his lessee or by the negligent manner in which he has made such repairs has, as the lessee neither knows nor should know, made the land more dangerous for use, is subject to liability for bodily harm caused thereby to the lessee and others upon the land in the right of the lessee.”
This rule is quite in accord with Murrell v. Crawford, 102 Kan. 118, 121, 169 Pac. 561, where it was said:
“It has frequently been decided that where a landlord attempts to make repairs on property, but' only does so in an imperfect or ineffectual manner, and where the tenant, relying upon such attempts to repair, continues his tenancy and is injured thereby, an action for such injuries will lie in his behalf against the landlord.”
Counsel for the appellee cites a number of familiar and interesting cases like Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, where this court said as a matter of law that the wind and not the negligent piling of the grain doors near the railway track was the proximate cause of the railway fireman’s death. That decision was correct, of course; but the court might also have declared that the piling of the grain doors near the track was not negligence of any sort, either remote or proximate. Be that as it may, the “grain doors" case is not sufficiently close by analogy to control the case at bar. We have also reexamined the other cases cited by appellee to uphold the judgment: Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605; Stephenson v. Corder, 71 Kan. 475, 80 Pac. 938; Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488; Simon v. Telephone Co., 97 Kan. 42, 154 Pac. 242; Norris v. Ross Township, 98 Kan. 394, 161 Pac. 582; Lambel v. City of Florence, 115 Kan. 111, 222 Pac. 64; and Beldon v. Hooper, 115 Kan. 678, 224 Pac. 34. These are all good examples of cases where the .proximate cause was manifestly so clear that there was nothing for a jury to weigh, debate or consider. The law books are full of such cases, but they are also full of cases where human negligence and some force of nature have concurred to produce an accident and injury, and where the contributing factor of natural force — lightning, wind, or the like — has been held to be no excuse for the concurrent human negligence. Typical of the latter sort of cases, and one which bears some analogy to the case at bar, was Richards v. Kansas Electric Power Co., 126 Kan. 521, 268 Pac. 847, where it was said:
“Of course, the problem of proximate cause is commonly a question for a jury; but where plaintiff tendered an issue and evidence as t'o the cause of Richards’ death and defendant joined issue thereon, it was the function of the jury to decide that issue. . . . Furthermore, even if Richards’ death had been caused by a bolt of lightning, and its deadly work had only been possible because of defendant’s negligent failure t'o install ground wires at the transformers, defendant’s liability would have been absolute nevertheless. A defendant is not relieved of liability for negligence on the excuse that the ‘proximate cause’ was some act of God like a stroke of lightning where the act of God would not have wrought' the injury but for the human negligence which contributed thereto.” (p. 524.)
And so here. If the skylight had been properly repaired and fastened, mayhap the wind would not have blown it in so that it fell on plaintiff’s head and knocked him off the ladder. At all events, it must be held that the cause of action pleaded by plaintiff was good against the demurrer lodged against it, and the judgment of the district court is therefore reversed and the cause remanded for further proceedings. | [
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.The opinion of the court was delivered by '
Hopkins, J.:
This controversy presents the question whether the plaintiff is entitled to a preferred claim against the assets of an insolvent bank. The plaintiff was defeated and appeals.
The facts are told in the court’s findings substantially to the effect that the plaintiff on May 28, 1925, entered into a written contract with James Conrad, executor, for the purchase of certain real estate at an agreed price of $6,400. An amount of $500 was paid down and $5,900 was to be paid on or before March 1, 1926. The court further found that—
“The contract was executed in duplicate and by its terms one copy was left in escrow at the Farmers State Bank of Esbon. On March 1, 1926, plaintiff came to Esbon for the purpose of completing said real estate contract; he went to the Farmers State Bank of Esbon and was informed by Guy O. Seaton, the cashier, that the abstract had not been completed and the deal could not be closed, but it would probably be there in a day or two. Plaintiff came to the bank the 2d of March, or the next day, and was informed by Seaton that the abstract had not yet arrived. James Conrad was present at this time. Guy O. Seaton suggested that plaintiff leave $2,900, represented by a cashier’s check on a bank in Hoxie, at the Farmers State Bank, and that Seaton would pay it over to Conrad when the real-estate deal was completed. Both Conrad and the plaintiff consented to this and plaintiff signed over the cashier’s check. Guy O. Seaton, the cashier of the Farmers State Bank, gave plaintiff a general deposit slip, but did not give him any bank book or check book. The plaintiff lived at Hoxie and had never transacted any business with the Farmers State Bank, and this is the only transaction he had with it. Guy O. Seaton was to procure a loan of $3,000 for the plaintiff on the land in question which with the $2,900 before mentioned was to constitute the balance of the purchase price of said land. The Farmers State Bank closed and went into the hands of a receiver June 1, 1926. The $2,900 in question in this suit went into the funds of the bank and was used in the transaction of its business. The amount of the assets in cash and sight exchange that passed into the hands of the received on June 1, 1926, was $2,700.
“The court further finds that there passed into the hands of the receiver at said time assets amounting to $182,000 with record liabilities of $168,000, and that the actual value of said assets are estimated at thirty per cent of their face value.
“The court further finds that the $2,900 was deposited with the Farmers State Bank of Esbon, Kan., for the definite purpose of being paid upon the real-estate contract between plaintiff and James Conrad, executor, and further finds that the evidence does not show that the specific $2,900 ever came into the hands of the receiver of the Farmers State Bank of Esbon, Kan.”
The court later made an additional finding as follows:
“Upon the agreed statement of facts filed herein, that the said sum of $2,900 was by said bank commingled with its general funds and used by said bank in the honoring of checks, making of loans and carrying on the general business of the bank.”.
The court concluded that the plaintiff was not' entitled to a preferred claim against the receiver but was entitled only to a common claim of $2,900.
The plaintiff contends that since the court found that the $2,900 was deposited by him with the bank for the definite purpose of being paid upon the real-estate contract, the first requirement necessary to establish a preferred claim against the bank was made, and that the evidence was sufficient to establish the fact that the money in some form became a part of the assets of the bank which came into the hands of the receiver.
The defendants, on the other hand, contend that the facts were not sufficient to characterize the deposit as one impressed with a trust, nor that the deposit came into the hands of the receiver. The rule was laid down in Chetopa State Bank v. State Bank, 114 Kan. 463, 218 Pac. 1000, that—
“Before a claim can be allowed as a preferred claim against the receiver of an insolvent' bank it is necessary to establish first, that the claim in question is a trust fund, and second, that the fund in some form was a part of the assets of the bank which passed into the hands of the receiver.” (Syl. ¶ 1.)
Did the circumstances in the instant case create the relation between the bank and-the plaintiff of trustee and a cestui que trust,. or the relation of debtor and creditor? The cashier told the plaintiff he could leave the money at the bank and he (the cashier) would ‘ make the payments on the contract. The plaintiff left the money and received the ordinary duplicate deposit slip showing a deposit of $2,900. Of course he placed the money in the bank for the express purpose of having it paid on the contract, but he did not request that it be kept in a separate fund for that purpose. He did not request that it be segregated from other funds.
In El Dorado Nat’l Bank v. Butler County State Bank, 120 Kan. 109, 242 Pac. 475, it was held in effect that such an assurance as given by the cashier was promissory rather than immediately effective and was not sufficient to constitute the deposit as a trust fund. Honer v. State Bank, 114 Kan. 123, 216 Pac. 822, was a case where the plaintiff and his wife sold some land, the transaction taking place in the defendant bank. The purchase .money was deposited in the bank and the plaintiff instructed the bank’s president “to apply the proceeds of the purchase price, first, in the payment of two mortgages on the land . . . second, in the payment of certain debts of the plaintiff to the bank, and then to transmit the remainder to Trevett, Mattis & Baker Company to be by them applied on a mortgage on other land.” (p. 124.) The trial court found “that the said sum is not impressed with a trust character and is not a preferred claim and that the said plaintiff is simply a general creditor of said defendant bank.” This determination was upheld on appeal.
In Kirby v. Wait, 120 Kan. 400, 243 Pac. 1058, the issue was whether money received by a bank was a trust fund or merely an ordinary account. The plaintiff established that the bank had agreed with him that the money was to be put in a special account and treated as a trust fund. Of course the bank was bound by the agreement. Here the deposit in question was carried on the books of the bank as a general deposit and the money was commingled with the bank’s general funds and was used by it in the honoring of checks, the making of loans and the carrying on of its general business, not through conversion or misappropriation by the bank but with the consent of the plaintiff. He received a duplicate deposit slip evidencing a general deposit. Such deposit was subject to his check. While he had the assurance that the deposit would be applied on the contract the assurance added nothing to the ordinary undertaking of the bank. There was no showing that in carrying it as a general deposit and mingling it with its general funds the bank was guilty of a conversion or other misappropriation. The relationship established by the plaintiff and the bank was that of a debtor and creditor, not that of principal and agent nor trustee and cestui que trust.
The plaintiff cites and relies upon Secrest v. Ladd, 112 Kan. 23, 209 Pac. 824. It may be observed that the court in speaking of the deposit there said:
; “It wag not to go into a general account and had none of the characteristics of a general deposit. . . . Instead of holding the fund for the specified purpose and application, the bank converted and mingled it with its general funds, using it to honor checks, make loans and as a part of its cash and sight exchange.” (p. 24.)
In the instant case the deposit did have the characteristics of a general deposit. Some of the more recent cases bearing upon this question are: Nelson v. Paxton, 113 Kan. 394, 214 Pac. 784; First Nat’l Bank v. Farmers State Bank, 120 Kan. 706, 244 Pac. 1039; Guymon-Petro Mercantile Co. v. Farmers State Bank, 120 Kan. 233, 243 Pac. 321; Miller v. Viola State Bank, 121 Kan. 193, 246 Pac. 517.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The question presented here is whether an automobile is exempt property to a farmer under the provisions of R. S. 60-3504. The plaintiff owned a Buick roadster which had been levied upon, and brought this action in replevin for its recovery. He was defeated and appeals.
The court found substantially that the plaintiff was a married man, a resident of Jackson county, the head of a family, and by occupation a farmer; that the automobile in question was of the value of $125; that the plaintiff had other and the usual farm implements, including a truck wagon, altogether not exceeding in value $175; that he used the automobile for hauling cream, eggs and other farm products to town; that he also used the automobile for hauling from town to his home groceries and other provisions for his family and stock when it did not exceed in weight 250 pounds, and that the automobile was an implement to carry on his farming as it is now conducted.
The statute, among other things, provides that—
“Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: . . . Sixth. . . . One wagon, cart or dray; two plows, one drag and other farm utensils, including harness and tackle for teams, not exceeding in value three hundred dollars. . . . Eighth. The necessary tools and implements of any mechanic, miner or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value.” (R. S. 60-3504.)
In Dowd v. Heuson, 122 Kan. 278, 252 Pac. 260, it was said in the opinion:
“In construing exemption statutes, a number of courts have held an automobile is a ‘carnage’ and exempt as such (Parker v. Sweet, 60 Tex. Civ. App. 10, 127 S. W. 881; Peevehouse v. Smith, [Tex. Civ. App.] 152 S. W. 1196); that it is exempt as a wagon ‘or other vehicle’ under the Iowa statute (Lames v. Armstrong, 162 Ia. 327, 49 L. R. A., n.s., 691); and even in our own case of Wickham v. Bank, 95 Kan. 657, 149 Pac. 433, this court more than ten years ago took notice of the fact that the automobile was rapidly and certainly superseding the ‘wagon’ which was specifically exempted from seizure on execution under the statute of 1868.” (p. 281.)
In a note in 123 A. S. R. 143 cases are cited construing the term “wagon,” in which it is said:
“The word ‘wagon’ as used in exemption statutes is given a liberal interpretation and made to embrace many vehicles that do not come within the strict definition of the term.”
The same question is also discussed in extended notes in 28 A. L. R. 74, 36 A. L. R. 670, and 52 A. L. R. 828. The last citation deals primarily with the statutes in which the descriptive term is used and cites some of the Kansas cases.
In Lames v. Armstrong, 162 Ia. 327, it was said in substance:
“Under Code 4008, granting an exemption of a team and wagon or other vehicle, an automobile is exempt, being a vehicle and falling within the purview of the statute, even though moving by its own motive power.” (144 N. W. 1, headnote.)
The Iowa statute is slightly different from ours. It provides for the exemption of “two yoke of cattle, and the wagon or other vehicle, with the proper harness or tackle.” In the opinion in the Armstrong case the court said:
“An automobile is a vehicle within this law. It serves the purpose of a wagon or other vehicle. That it is a vehicle there can be no doubt, and that the motive power is gasoline instead of a horse or horses is not material under the exemption law.” (p. 331.)
We believe, also, that the automobile is exempt under the clause “other farm utensils.” .
This court has held that an automobile comes within the descriptive term of “tools and implements.” (Dowd. v. Heuson, supra; Federal Agency Investment Co. v. Baker, 122 Kan. 460, 252 Pac. 262.) The author of the exemption statute had no conception of an automobile. He could not possibly have foreseen that it would be included as an exemption under the terms “tools and implements.” Neither could he have foreseen that it would be included under the term “wagon or farm utensil.” We think it is as properly within the latter term as the former. Since mechanics, miners and other persons may have exempt to them an automobile because of the descriptive term, there is no reason why the same right and privilege should not be extended to the farmer. We are of the opinion the automobile in question comes within the provision of the statute and is exempt.
The judgment is reversed and the cause remanded with instructions to enter judgment for the plaintiff. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The H. D. Lee Mercantile Company brought this action against the Mercantile Company and Robert Pringle upon two promissory notes, one of which was executed May 1, 1924, for $577.16, and the other on January 22, 1925, for $547. The names of both defendants were signed on the face of the notes as makers and the execution of them was admitted. The Mercantile Company admitted that it owed the amount of the first note, but alleged that it was entitled to a credit on the second note of $238.10. The defendant, Pringle, answered that the Mercantile Company had given plaintiff several notes as collateral security on the first note, but the plaintiff had sent one of the collateral notes amounting to $238.10 to his codefendant, the Mercantile Company, for collection; that the Mercantile Company collected the note, but failed to send the proceeds thereof to plaintiff, and Pringle claimed that he was entitled to a credit of that amount on the first note. As to the second note he admitted signing it, but alleged that he signed it as surety after its execution by his codefendant, in the belief that it was a renewal of the first one; that he signed it as surety, and that the plaintiff gave up nothing of value in consideration of his signing that note. He also alleged that the second note was given to take up an open account, and" that there was included in it an item of $238.85 which was not due and that he was entitled to a credit for that amount. After the plaintiff had introduced the notes in evidence the defendants assumed the burden of proving the defenses pleaded, and when the evidence was completed the plaintiff filed a demurrer to defendants’ evidence and asked for judgment upon the ground that no defense had been established. The motion was sustained and judgment was rendered for the amount of the notes less the item mentioned of $238.10, which plaintiff admitted was erroneously included in the second note.
Defendants first complain of the exclusion of offered testimony, but it appears that the proposed testimony of witnesses was not produced in evidential form on the motion for a new trial, and hence the rulings are not open to review here. (State v. Ball, 110 Kan. 428, 204 Pac. 701.) It is said that a review of a ruling on a demurrer to evidence may be had without a motion for a new trial, as the demurrer raises only a question of law. A review of the ruling upon the demurrer may of course be had without such a motion upon the evidence admitted by the court. If a review of rulings upon rejected testimony is asked, it is essential that it be produced so that the court should have an opportunity to learn what the testimony of the proposed witnesses would have been, and this could have been disclosed in a motion for a new trial. Such a motion was made by the defendants, but they did not produce the evidence by affidavit, deposition or otherwise, and are not in a position to complain of the ruling. (State Bank v. McBride, 115 Kan. 51, 222 Pac. 141.) The defendant Pringle says that he signed the note as surety, but it appears that he signed it as a maker. He was primarily liable under the negotiable-instruments law. Whatever may have been his relation to his comaker, he appended his name to the instrument without indicating by any appropriate words that he was signing in any special capacity, and as to the holder of the paper he cannot show liability in any other capachy. (Bank v. Jeltz, 101 Kan. 537, 167 Pac. 1067; Bank v. Hoyt, 103 Kan. 44, 172 Pac. 994; Lonnon v. Batchman, 103 Kan. 266, 173 Pac. 415.) Being primarily liable he is not in a position to complain of the misuse of collateral security by his comaker. The plaintiff, it appears, sent the collateral note to the Mercantile Company, his comaker, for collection. That company collected it and sent its worthless check to the plaintiff, and Pringle is asking for a credit when in fact no payment had been made. Neither of the makers can claim a credit on that score. (Trust Co. v. Danforth, 103 Kan. 860, 177 Pac. 357. See, also, Spire v. Spire, 104 Kan. 501, 180 Pac. 209.)
The claim made in the. answers of defendants that an item of $238.10 was included in the second note, which should not have been included, was given consideration by the court. It was conceded by plaintiff that this item of the account for which in part the note was given was an error, and the court in rendering judgment gave the defendants credit for that amount and reduced the judgment to that extent. This credit leaves the defendant no substantial grounds of complaint.
We find no error in the record, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The action, one in forcible detention of real property after lawful entry, was commenced before a justice of the peace. The complaint alleged that the real property had been sold by the plaintiffs to the defendants for a stipulated price payable in installments, which had not-been paid; that the contract had been forfeited, and that notice to vacate the premises had been given. The action was tried before the justice of the peace, resulting in a judgment in favor of the plaintiffs, from which the defendants appealed to the district court. There they filed a lengthy answer in which they alleged:
“That there was a contract purporting to be a purchase of said realty by defendants from plaintiffs, and there was a deed signed by defendants purporting to convey absolutely said realty to plaintiffs, both of which did not express the true, contract relations between plaintiffs and defendants, but if they did said contracts were never legally forfeited by the serving of a reasonable notice of opinion [option] to forfeit upon defendants.
“That a justice of the peace nor the district court upon appeal therefrom has no jurisdiction to forfeit contracts of sale for realty where the title is in dispute and the ‘question of title is the determining matter to be tried in the case. ...”
Evidence was introduced in the district court on the trial of that appeal. It then appeared to the court- — ■
“That the title to the real estate in controversy or dispute is involved in the issues in the case at bar; that plaintiff claims title, ownership and right of possession under a contract and under a deed from defendants; that defendants claim title on the ground that the deed from defendants to plaintiff is in legal effect a mortgage; that said cause is here on appeal from the justice court, and by reason thereof said action should be stayed and certified for trial to the district court of Labette county, Kansas, sitting at Parsons, for trial in said .district court, all as provided by law.”
On that finding the court then ordered—
“That the above entitled cause be and the same is hereby stayed, and that said cause be and the same is hereby certified to the district court of Labette county, Kansas, sitting at Parsons, for trial in said court, all as provided by law.”
A stipulation was then entered into between the parties by which it was agreed:
“That the testimony heretofore introduced upon the trial of said case before the Honorable W. L. Atkinson, on the 4th day of April, 1928, may be considered by said court and treated as the testimony of the respective parties at any future trial of said case as fully and completely as if same had been introduced by the witnesses themselves at such future trial, and said testimony shall be considered as reintroduced for all the purposes of the case.”
The district court then found — ■
“That the aboye-named defendants and each of them were and are largely in default of the installment payments under the contract between plaintiff and defendants, which said contract is the basis of this action; that the above-named ' defendants are in default of the payment of taxes legally assessed against the premises described in the complaint filed herein . . . that there was and is no debt which the above-named defendants were and are bound to pay to plaintiff by the terms of said contract, and hence no relation proper of debtor and creditor between plaintiff and defendants; that there is no equitable mortgage existing and no relation of mortgagors and mortgagee as between plaintiff and defendants. . . . That because of said defaults on the part of said defendants, the above-named plaintiff is entitled to restitution and possession of the real estate described in said complaint.”
Judgment was rendered in favor of the plaintiffs, from which the defendants appeal.
It is argued that the district court did not have jurisdiction to try the action because it was commenced in a court that did no1 have authority to try the issues involved. This question involves an examination of section 61-107 of the Revised Statutes. That sectio;* reads as follows:
“If in any action commenced before a justice it appears to the satisfacticEof the justice that the title or boundary of land is in dispute in such action, said action shall be stayed before said justice, and said justice shall within ten days thereafter certify said case and transmit all papers and process therein to the clerk of the district court of his county, ánd said case shall be docketed and thereafter proceeded with in the district court as if originally commenced therein. The justice before whom said action is commenced shall require of the defendant setting up said title or boundary, to set forth in his answer or bill of particulars a full and specific statement of the facts constituting his defense of said title or boundary brought in question; and the defendant shall be required to make affidavit of the truthfulness of the statements in his said answer or bill of particulars contained, and that said defense is bona fide and not made for vexation or delay, but for the promotion of justice.”
It does not appear that the defendants made the affidavit required by the last part of that section or questioned the jurisdiction of the justice of the peace before the case was appealed to the district court. On the trial of the appeal in the district court, that court had the same jurisdiction and authority as the justice of the peace. (Wagstaff v. Challis, 31 Kan. 212, 1 Pac. 631; Milling Co. v. Stevens, 94 Kan. 745, 748, 147 Pac. 815; Woodworth v. Maddox, 115 Kan. 445, 449, 223 Pac. 275.) The justice of the peace, if the required affidavit had been made, should have certified the case to the district court, which would then have had jurisdiction to try the action. When it appeared on appeal that the title to the property was in dispute, the district court, sitting as a justice of the peace, had the power to certify the action to the district court sitting as such, and then determine the issues involved and render judgment accordingly. It follows that the district court had jurisdiction to try the action.
It is argued that the title of the plaintiffs was that of mortgagees, and judgment could not properly be rendered against the defendants except in an action to foreclose the mortgage. They would then have, had the right of redemption after sale. The judgment ordered the possession of the real property to be restored to the plaintiffs on or before ninety days thereafter, or that the defendants within that time pay to the clerk of the district court for the use and benefit of the plaintiffs the unpaid balance on the contract for the sale of the property. This involves an examination of the contract, the material parts of which read as follows:
“Articles of agreement, made this 13th day of January, a. d. 1923, Paul McConnell and Mae McConnell, husband and wife, parties of the first part, and Anthony Rhone and Virginia Rhone, parties of the second part, witnessethr That the said parties of the first part hereby covenant and agree that if the parties of the second part shall make the payments and perform the covenants hereinafter mentioned in this instrument, the said parties of the first part will convey and assure to the parties of the second part, clear of all incumbranceswhatsoever, by a good and sufficient special deed, and in and to the following lot, piece or parcel of ground, viz.: . . .
“It is hereby agreed by and between the parties hereto that the parties of the first part shall not be required to furnish an abstract of title to parties of the second part, and that parties of the second part shall keep the improvements on said property insured at their own expense in the sum of $575, same made payable to first parties, as their interest may appear.
“And the said parties of the second part' hereby covenant and agree to pay to said parties of the first part the sum of five hundred seventy-five and 00/100 dollars, in the manner following:
"The sum of seventy-one and 88/100 ($71.88) dollars on July 13, 1923, and a like sum at the end of each six-month period thereafter until the full sum of five hundred seventy-five and 00/100 ($575) dollars has been paid, with interest at the rate of eight per cent per annum, payable semiannually on the whole sum remaining from time to time unpaid, and pay all taxes, assessments or impositions that may be legally levied or imposed upon said land subsequent to the year 1922.
“Parties of the first part hereby agree to place a copy of this contract and their special warranty deed conveying the within-described property to parties of the second part, in escrow, with the West Side Union State Bank of Parsons, Kan., and said bank is hereby authorized to deliver said deed to second parties at such time as they have made all the payments hereinabove provided for, said payments to be made direct to said bank.
“And in case of the failure of the said parties of the second part to make either of the payments, or perform any of the covenants on their part hereby made and entered into, this contract shall, at the option of the parties of the first part, be forfeited and determined, and the parties of the second part shall forfeit all payments made by them on this contract, and such payments shall be retained by said parties of the first- part in full satisfaction and in liquidation of all damages by them sustained, and they shall have the right to reenter and take possession of the premises aforesaid.”
The evidence disclosed that prior to the making of that contract the defendants owned the property in controversy; that the property was then vacant; that they desired to build a house on it; that the plaintiffs were engaged in the sale of lumber and building materials and in building houses for sale; that the defendants went to the plaintiffs to borrow money with which to build a house on the property; that the plaintiffs declined to loan any money to the defendants for that purpose; that it was then agreed that the defendants would deed the property to the plaintiffs, who would build a house on it and give to the defendants a written contract for the sale of it to them; that the defendants deeded the property to the plaintiffs, and that the contract, the material parts of which have been set out, was then signed by the plaintiffs and the defendants. There was also evidence which tended to prove that it was the intention of the parties that the transaction should be an absolute sale of the property by the defendants to the plaintiffs, but there was other evidence which tended to prove that the transaction constituted a mortgage to secure the payment of the amount of money it had cost the plaintiffs to build the house. The written instrument on its face does not purport to be a mortgage. It is a contract for the sale of the property by the plaintiffs to the defendants. The oral evidence was conflicting. Under those circumstances it was for the trial court to determine whether or not the contract under consideration constituted a sale of the property from the plaintiffs to the defendants or a mortgage of the property from the defendants to the plaintiffs. The court found that it was a sale and not a mortgage. That finding is conclusive. This proposition has often been decided. (Bauman v. Hoffman, 125 Kan. 62, 262 Pac. 545; Cox v. Gibson, 125 Kan. 76, 262 Pac. 1030; Gartner v. Williams Oil & Gas Co., 125 Kan. 199, 263 Pac. 778; Peoples State Bank v. Hill, 125 Kan. 308, 310, 263 Pac. 1045; Citizens State Bank v. Wiseman, 125 Kan. 510, 265 Pac. 39; Ellis-Swonger Motor Co. v. Watt, 125 Kan. 530, 264 Pac. 737.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action between two lumber companies growing out of the sale by one and purchase by the other of lumber and the shipment of one car of it which the purchaser had sold to a third lumber company, which had sold it to a manufacturing company. The action was initiated by A. L. Houghton filing in the city court at Kansas City a bill of particulars which alleged, in substance, that about January 20, 1926, plaintiff purchased from defendant, the Sabine Lumber Company, certain lumber which defendant agreed to supply of certain grade and lengths; that the contract was fully performed by plaintiff, but that defendant failed and refused to perform the contract on its part, and that by reason thereof plaintiff had been damaged in the sum of $220.92. How plaintiff determined this figure is shown by a statement attached to the bill of particulars, in which plaintiff charges himself with the invoice of the car of lumber, $834.98, and takes credit for cash payment on contract, $382.50; allowance for overshipment of three-foot stock, $98.38, unloading charge, $60; storage, $25; allowance for off-grade per inspection report, $76.46; demurrage and switching charge, $93; freight, $218.97; interest, $8.95; arbitration fee, $17.64; profit, $1 per thousand for 75,000, $75; making total credits claimed of $1,055.90, which, less the invoice, left a balance claimed to be due of $220.92. It seems that the claim for the arbitration fee was later abandoned, leaving the net balance claimed due of $202.28.
Defendant filed an answer which contained a general denial, but admitted that it had sold lumber to plaintiff and shipped the one ear in question; and further, and by a cross petition, averred that there had been an overshipment of 269 feet of lumber, which would change the original invoice to $859.73. Credit was given for the cash paid, $382.50; freight, $218.97; allowance on overshipment of three-foot material, $92.75; allowance for off-grade per inspection report, $74.44; making total credits of $768.66, leaving a balance which defendant claimed to be due it on account of $91.07. These pleadings put in issue the damages claimed by plaintiff for demur-rage, storage, unloading and loss of profit. In the city court there was judgment for plaintiff. Defendant appealed to the district court, where there was a trial de novo to a jury, which answered special questions and returned a general verdict for plaintiff for $203.28. The defendant has appealed.
The business between plaintiff and defendant was conducted by correspondence. Only two witnesses were called to testify at the trial — the plaintiff hrhis own behalf and one witness for defendant. Their testimony was confined in the main to the identification of correspondence and the general matters relating to the business of the parties. There is therefore no substantial controversy as to the facts, the material portions of which may be thus stated: Plaintiff is, and for many years has been, engaged in the lumber business under the name of A. L. Houghton & Co., with his office at Kansas City, Mo. Defendant appears to be a manufacturer of lumber, having its office in St. Louis, Mo., and having mills at several points in the lumber district of Texas. It appears that J. L. Porter, doing 'business as the J. L. Porter Lumber Company, with an office in the same building with plaintiff at Kansas City, was a sales agent for defendant. At any rate, sometime in January, 1926, Porter went to plaintiff’s office and stated that defendant had for sale certain grades and quantities of lumber, among which was a quantity of short leaf yellow pine finish, kiln dried, of the quality of B&Better, priced at $37 per thousand delivered. Plaintiff then sent out a letter offering lumber of this kind and quality for sale. In response to one of these letters he received an order from the Edward Eiler Lumber Company, Pittsburgh, Pa., to be shipped to Erie, Pa., for—
“Short leaf yellow pine finish K. D. Approximately, 75,000 ft. 1x6-3'0 B&Btr S4S % x 5%. 3'6" ditto. And 4' ditto. Price, $38.00 per thousand. Principally 4-foot bundled. Not over ten per cent 3 ft. Less freight. Per your acceptance wire. Must be bright stock, 'well manufactured.”
Plaintiff wired the Eiler Lumber Company accepting the order, and two days later, through the J. L. Porter Lumber Company, placed with defendant an order for this same lumber at $37 per thousand. Defendant acknowledged this order by its letter to plaintiff of February 8, 1926, as follows:
“We have your order given to us through the J. L. Porter -Lumber Company, which we take pleasure in entering per acknowledgment herewith. Kindly check over the inclosed acknowledgment and advise immediately if not in accordance with your understanding.”
Pertinent extracts from the acknowledgment are as follows:
“Notice: Our lumber is sold on the basis of grading rules and specifications of the Southern Pine Association, and in the event of a claim will be subject to its official inspection. . . . Approximately: 75,000' — 1 x 6 — S'—3'6"— 4' B&B S4S K. D. to ^Axó-W- $37.00. Not to exceed 10 per cent 3' Ship one car as quickly as possible. Hold second car until report on first car. The third oar to be shipped when accumulated. Amount may vary not to exceed 10 per cent. Terms: Cash advance of 20 per cent on net f. o. b. mill value. . . . Shipment will be made in accordance with this copy and, unless advised immediately of any error or discrepancy, this will constitute contract between us. ...”
In compliance with the terms of this acknowledgment defendant sent plaintiff his check for $382.50 for the cash advanced. Plaintiff did not advise defendant of any error or discrepancy -in this acknowledgment. It is conceded that this order required three cars for shipment. The first car was loaded and shipped about March 5, 1926. Defendant sent plaintiff an' invoice of the car, which disclosed that it contained 6,729 feet of three-foot lengths. Plaintiff advised the Edward Eiler Lumber Company of the quantity and kinds of lumber in the cars, which company immediately complained that more than ten per cent of the three-foot lengths was loaded in one car. Plaintiff replied that the other cars would go forward with so little three-foot lumber that the entire quantity of that length would not exceed ten per cent of the amount sold. This was not satisfactory to the Edward Eiler Lumber Company. There was much correspondence between plaintiff and that company and also between plaintiff and defendant, with the final result that the Edward Eiler Lumber Company agreed to accept the three-foot-length lumber in that car at $18 per thousand and cancel the balance of the order. Plaintiff communicated this proposition to defendant and asked defendant to accede to it, which the defendant did. This concession removed that controversy and ended the contract as between defendant and plaintiff as to the balance of the original order. We therefore pass that question without giving it further attention more than to say that under the contract between the parties there seems to be no sound basis for the objection made by the Edward Eiler Lumber Company and the requested concession which plaintiff asked defendant-to make, and which it did make; that is to say, the contract appears to be for the entire approximate 75,000 feet which had to be shipped in three cars. • There was no agreement that not more than ten per cent of the three-foot length would be shipped in each car, and in fact no request for such an agreement. This controversy and modification of the original contract was all made before the lumber reached its destination at Erie, Pa.
When the car of lumber reached Erie, Pa., the Edward Eiler Lumber Company complained to plaintiff of the grade of the lum ber. Plaintiff advised defendant of that complaint. Defendant called plaintiff’s attention to the fact that the sale was made on the basis of the grading rules and specifications of the Southern Pine Association. These rules and specifications provide, among other things:
“In case of complaint regarding grade but not involving measurement (tally), the buyer is required to accept that portion of a shipment of lumber of standard grade or standard or extra standard size which is up to grade or of standard or extra standard size, as the case may be, holding intact that portion thereof the grade or size of which is in dispute, for official association inspection; the action on the part of the buyer in accepting and using such portion of the shipment shall not be construed as his acceptance of the entire shipment; further, the buyer shall pay in accordance with the terms of sale for that portion which he accepts, but acceptance by the buyer of a part of a shipment does not prejudice his just claim on account of any unused material that is alleged by him to be below standard grade or not of standard or extra standard size. The complainant buyer shall hold disputed material intact, properly protected, for not exceeding sixty days, and shall file complaint with seller within ten days from receipt of shipment.”
Plaintiff was familiar with these rules and testified that the Edward Eiler Lumber Company was also familiar with them. Defendant requested of plaintiff a compliance with these rules and regulations and asked for an inspection of the lumber by a representative of the Southern Pine Association. It seems that the Edward Eiler Lumber Company had sold this car of lumber to the Baldwin Brothers, and that this company declined to receive the car, or unload it, or permit an inspection, or be bound by the inspection. The correspondence continued for some time. Finally the car was unloaded. The lumber was inspected by an inspector of the Southern Pine Association. About eight per cent of it was found not to come up to the grade of B&B. Defendant then prepared a revised invoice conforming to the inspection and forwarded it to plaintiff. This showed a balance due it from plaintiff of $91.07. This was the basis of its counterclaim.
The Edward Eiler Lumber Company paid the demurrage and extra switching charge, the unloading and storage charges, and charged those up to plaintiff, who seeks to collect them, and a claimed profit on the entire shipment from the defendant in this action as damages.
Appellant complains of the refusal of the court to give requested instructions to the effect that the contract between plaintiff and defendant was made under the rules and regulations of the Southern Pine Association; that it was the duty of plaintiff, or the firm to which he sold, to carry out the contract in accordance with such rules and regulations, and if the jury should find that the plaintiff, or the firm to which he sold, violated such rules and regulations, then the verdict should be for defendant. The court gave this instruction in substance, but told the jury that both parties were bound to a substantial compliance with the rules and regulations of the association; that the party failing to observe such regulations would not be entitled to recover from the other, and if the failure of one party to comply with the rules and regulations was the proximate cause of loss or damage to the other, the one suffering such loss or damage as a natural and probable result of such failure would be entitled to recover from the other for the damage or loss so sustained. Appellant complains of this part of the instruction. It did tend to confuse the issues before the jury for the reason that the defendant was not seeking damages. He was seeking, by his cross petition, to recover a sum due him under his contract. The court also gave this instruction:
“You are instructed that if you find from the evidence that the defendant failed to substantially comply with the conditions of said contract, as disclosed in the evidence, then you are instructed that the plaintiff would be entitled to recover from defendant any damages which resulted to him as the natural and probable result of such breach of contract.”
Appellant complains of this instruction. While not objectionable as an abstract statement of the law, it is erroneous when applied to this case, for the reason that the record discloses no evidence tending to show that the defendant failed to comply with the conditions of the contract on its part.
In answer to special questions the jury found that plaintiff entered into a written contract with the defendant for the purchase of approximately 75.000 feet of lumber, as shown by defendant’s acknowledgment of plaintiff’s order, the substance of which is hereinbefore given; that the plaintiff made a written contract to sell the lumber to the Edward Eiler Lumber Company; that the Edward Eiler Lumber Company, or its consignee, refused the car on account of the grade of the lumber; that such refusal was communicated by the plaintiff to the defendant; that defendant inquired of plaintiff whether the car had been unloaded' after it arrived; that the plaintiff did not instruct the Edward Eiler Lumber Company, or its 'consignee, to unload the car; that the Edward Eiler Lumber Company, or its consignee, refused to unload the car and submit the same for inspection; that the defendant ordered an inspection made under the rules of the.Southern Pine Association and paid for the inspection, and that the defendant, on June 6, 1926, sent to plaintiff a corrected invoice based on the official inspection. The jury also found that the parties had agreed' to reduce the price of the three-foot-length lumber to $18 per thousand and to cancel the contract for the purchase of the balance of the lumber previously ordered. Defendant moved for a judgment in its favor on the answers to the special questions notwithstanding the general verdict. This motion was considered by the court and overruled. Appellant complains of that ruling. We think it was error. The jury in fact found evpry element necessary for a judgment for defendant; that the sale .by defendant to plaintiff w$s, made under the rufas and regulations of the Southern Pine Association. These rules provided..that if.a question was raised as to the grade of the lumber by the,,consignee it should, nevertheless, be unloaded, and the seller was .entitled to have it inspected by an inspector of the association, and the .purchaser was.required to take all that came up to the specifications. The jury, found .that the plaintiff never ordered this car to.jbe./un;loaded, and-that the. Edward Eiler Lumber Company, or its consignee, refused to unload it. It was the duty of the buyer, the plaintiff in this case,Mo see that the car was promptly unloaded, hence he can have no charge against the defendant for unloading it. Had it been promptly unloaded there would have been no demur-rage, hence he can have no claim against the defendant for demur-rage. If the matter had been handled in- accordance with the' rules and regulations of the Southern Pine Association there would have been no proper charge for storage,.hence the plaintiff cannot recover that item from defendant. The findings disclosed that, as between the plaintiff and defendant, plaintiff is the one who broke the contract, hence he is not entitled to the claimed item for profit. . Hence from the findings of the jury from the contract, which was in writing .and was necessary to be construed by the court, there was no basis for recovery by the plaintiff against the defendant. The jury also found that the defendant ordered and paid for the inspection of the lumber by an official of the Southern Pine Association, and that defendant then sent to plaintiff a corrected invoice made out in accordance with the inspector’s report. This invoice, made June 6, 1926, the'uncontradicted evidence disclosed, showed a balance due defendant from plaintiff of $91.07, hence from, the answers to the special questions defendant should have recovered from plaintiff.
The judgment of the court below is reversed, with directions to enter judgment for defendant against plaintiff for $91.07; with interest thereon at six per cent since June 6, 1926. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The First National Bank of Lyndon brought an action against Ada J. Barnholdt to recover the balance due upon a note for $3,150 executed by defendant and her husband on January 9, 1922, payable three years after date with interest at seven per cent, payable annually, and in the mortgage it was stipulated that both interest and principal would bear ten per cent interest after due, and also to foreclose a mortgage given to secure its payment.
Among other things the plaintiff asked for the cancellation of a release of the mortgage mentioned which it had previously signed and placed of record. A summary of the facts upon which the bank based its right of recovery is that when the second installment of interest on the mortgage note became due the makers were unable to pay it. That upon agreement of the parties F. H. Barnholdt executed a promissory note for the amount of the unpaid interest, $220, payable six months after date with interest at eight per cent per annum. It was alleged that the understanding of the parties was that the note should not be considered as an interest payment, but rather as additional evidence thereof, and that the makers should not receive credit on the note secured by the mortgage until the interest note was paid in full. The interest note was not paid when it became due, and it was renewed by making and delivering a new note for the sum of $231.63, being the amount of principal and interest due on that note. Plaintiff states that this last interest note was not given by Barnholdt nor received by plaintiff in payment of the interest due on the mortgage, but merely to extend the time of payment of the indebtedness secured by the mortgage.
It was further alleged that when the mortgage note matured the Barnholdts procured a loan from the Union Central Life Insurance Company for $3,150, the amount of the principal due to the bank; that the proceeds of the loan were not sufficient to pay the entire indebtedness, and it being necessary that this insurance company loan should be a first mortgage, F. H. Barnholdt orally promised that he and his wife would execute and deliver their promissory note for $231.63, and give plaintiff a second mortgage on the land to secure its payment, if the plaintiff would release the mortgage so that the new mortgage to the insurance company would become a first lien on the land, and that plaintiff believed and relied on these statements and was thereby induced to make and record a written release of the principal mortgage and did deliver the original note to the defendant. It is further alleged that the statements and representations were falsely and fraudulently made by Barnholdt to the bank for the purpose of defrauding it, well knowing at the time that he and his wife would not give a second mortgage, and thereafter they fraudulently failed and refused to give the new note to pay the interest due on the principal mortgage. The plaintiff therefore asked for judgment against Ada J. Barnholdt for $231.63 with interest, and that the release given of the principal mortgage be canceled and set aside and the plaintiff awarded a lien on the land subject to that held by the insurance company.
In connection with the general denial the defense was that the note for $231.63 was accepted as a substitute for the installment of interest due and that it operated to discharge the interest obligation; that the note had not been signed by the defendant Ada J. Barnholdt, and that the notes signed by her husband were accepted by the plaintiff as a payment of the interest due, and further that the interest had been paid. She further insisted that if any representations were made as to giving a second mortgage, none were made by her, and further that the claim and cause of action of the plaintiff, based as they were upon alleged fraudulent representations, were barred by the statute of limitations. The trial was by the court without a jury and the judgment was that the plaintiff recover nothing and that defendant recover her costs. No special findings were asked for or made and nothing is found in the record to indicate the grounds of the judgment.
It appears that F. H. Barnholdt died sometime before this action was instituted. There is no dispute that the first installment of interest on the mortgage was paid nor that a note for the second installment of interest was given by F. H. Barnholdt, and that at the end of six months this note was renewed by the giving and acceptance of another for $231.63. It is also conceded that the third installment of interest was paid when the new mortgage was made to the insurance company for $3,150. The evidence tended to show that the bank declined to release its mortgage of record until the third installment of interest was paid, and when that was done it released the mortgage and made an entry on its discount record that the mortgage debt of $3,150 had been paid.
The plaintiff alleged and gave testimony to the effect that the note for the second installment of interest was not to be regarded as a payment of the interest, and would not be so treated until the note was paid. It was also claimed by the plaintiff that the mort gage was released of record upon a promise of F. H. Bamholdt that he would give the bank a second mortgage on the land to secure the payment of this note. On the part of the defendant she testified first that the note had been paid, but the medium of payment'was not stated. She further insisted that she had never signed the note nor had she made any promises or representations respecting payment or the giving of security for payment, and further that the bank had accepted her husband’s note as a substitute for and a payment of the interest installment.
Whether the interest note given and accepted by plaintiff was a novation or a substitution of a new obligation for the old one which extinguished the latter depends upon the intention of the parties. The general rule is that the mere acceptance of a new obligation for an older one does not operate as a payment unless it is intended that the new should extinguish the old. The president of the bank said that it was understood that the note should not be regarded as a payment of the interest until the note itself was paid. There were circumstances tending to show an intention to substitute the new for the old obligation. The original note for $3,150 bore interest at the rate of seven per cent, and it was stipulated that if it was not paid when due both principal and interest were to bear interest at the rate of ten per cent. The note given for the unpaid interest, as we have seen, stipulated for a rate of eight per cent until it was paid. The note was dated January 9, 1924, was payable six months after date, and when it was due on September 9, 1924, the plaintiff took the new note from F. H. Bamholdt alone for the amount of the note and interest, $231.63, running six months from date, bearing interest at eight per cent, and plaintiff then surrendered the first note. In this action the plaintiff did not ask for judgment for the amount of interest due on the mortgage note, which amounted to $220 with interest thereon at ten per cent, the rate stated in the mortgage if payment was not made when due, but it took a note for eight per cent, which tends to show that the interest note was a new contract independent of the mortgage note and a substitute for it. When the mortgage was executed to the insurance company, the third and last installment of interest on the plaintiff’s mortgage had not been paid, and plaintiff then insisted that it must be paid before it would release the mortgage of record. Negotiations were delayed until the defendant could borrow the money for the pay ment of that installment, and when it was paid plaintiff at once executed and filed of record the release of its mortgage. Plaintiff did not make the same requirement as to the second installment for which the note in suit was given, and in this way indicated to some extent that the note was an independent and substitute contract. More than that, the plaintiff on July 1,1925, brought a suit against F. H. Barnholdt on the interest note for $231.63, before a justice of the peace, and recovered a judgment thereon which, it appears, has never been satisfied; that suit was not on the original obligation but on the substituted one, which, as we have seen, differed from the original indebtedness so far as the interest rate was concerned. These and some other circumstances, including the deliberate release of the mortgage and the entry of payment in plaintiff’s books, tended to show an intended novation, a substitute of the new for the old obligation which would operate as a discharge of the old. In Insurance Co. v. Benner, 78 Kan. 511, 97 Pac. 438, it was decided—
“To support the claim of a novation the assent of the parties that the new obligation shall be accepted in extinguishment of an old one is an essential element, but the substitution may be accomplished by either an express or an implied agreement. Whether the parties gave assent and intended a novation is a question of fact for the jury, and may be determined upon inferential as well as direct evidence.” (Syl. ¶¶ 1, 2. See, also, Badders v. Checker Cab Co., 118 Kan. 125, 234 Pac. 41.)
Upon the question that the action was barred by the statute of limitations, it is contended that being one for relief on the ground of fraud, it could only be brought within the two-year period. The installment of interest on the original mortgage, for which plaintiff claimed the interest note was given, not as payment but as evidence of the debt, became due on January 9, 1924, and the second or renewal note was dated September 9, 1924. A suit on the latter note was brought before the justice of the peace by plaintiff on July 1, 1925, and the present action was not brought until July 25, 1927. Plaintiff alleged that on January 19, 1925, F. H. Barnholdt agreed to pay and also promised to secure the payment of the note, and that plaintiff believed and relied on the promise and representations made, and further states that they were false and fraudulently made for the purpose of defrauding plaintiff, and that it was never the intention of Barnholdt to give a new note for the $231.63 obligation, and that they have never since paid the debt. That note was due on January 9, 1925, and the alleged false representations and promises were made on January 19, 1925. This action was not brought until July 25, 1927, which was more than two years and six months after the note became due and unpaid, and more than two years after the alleged false promises and representations were made. The action for fraud, of course, would not accrue until the plaintiff can be deemed to have discovered the fraud. Mr. Barnholdt had not complied with the false promises in the period from January to July of 1925, and it appeared and must be held that plaintiff fully understood and realized the fraud when it brought the action upon the note before the justice of the peace on July 1, 1925. That was more than two years before this action was brought. It follows that the bar of the statute had fallen before relief was sought by plaintiff. It may be added that it was not alleged, proven, nor even is it claimed at this time, that the defendant signed the note, made any representations as to securing it or authorized her husband or anyone else to make any promises or representations for her respecting the note or the security for its payment. Neither was it shown that she was present when the negotiations were had nor that she had in any way acquiesced in any arrangement made between Barnholdt and the plaintiff. There is no basis in the record, therefore, for the contention that she was guilty of fraud. "Whatever may have been the controlling reason of the trial court in making the general finding in favor of the defendant, we are unable to discover any reversible error in the record as presented, and hence the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a hail insurance policy covering a growing crop. The verdict and judgment were for plaintiff, and defendant appeals. The assignments of error-which are stressed are that the court erred in its ruling respecting-admission of evidence, that the evidence was insufficient to establish the making of proof of loss, and that a new trial was denied.
The petition pleaded the policy, the loss, notice of loss, proof of' loss, and nonpayment by the company. The answer was a general; denial. The policy contained a provision that the company should' not be liable for damage by hail if the crop were otherwise injured, to such an extent it was not worth harvesting. In the opening statement to the jury defendant said it had two defenses: First, that the crop dried up, and without the hailstorm would not have paid' harvesting expenses; and second, that plaintiff suffered no hail loss if there was a crop to be injured.
On cross-examination of plaintiff, defendant asked a question, leading up to the first defense stated to the jury. Objection was made on the ground the defense ‘was not pleaded. The objection was good, but the court sustained it on another ground. The court held the provision of the policy on which the defense was based', was void. Conceding, but not deciding, the reason which the court, gave for its ruling was unsound, the ruling was correct.
When defendant reached its side of the case, it made an offer of' evidence to sustain the first defense stated to the jury. Objection, was made that the evidence was not pertinent to any issue made by-the pleadings, and the objection was sustained. It is not now material whether the objection was properly sustained. The offered evidence was not produced at the hearing on the motion for new trial. Defendant’s attorney-made an affidavit stating what the-testimony of his witnesses would have been, but that did not satisfy - the requirements of the statute. (R. S. 60-3004.)
Plaintiff testified positively he sent proofs of loss as required by-the policy. Afterward he said his opinion was he sent proofs of loss. When pressed to answer whether he knew he sent proofs of' loss, he said: “Well, my recollection is that I did; I hate to say-positively.” The evidence was sufficient prima jade to show proof' of loss was furnished, and defendant closed its case without offering any evidence that proof of loss had not been received.
The motion for new trial was properly denied, and the judgment, of the district court is affirmed. | [
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The opinion of the court was delivered by
Btjrch, J.;
The action was one of mandamus to compel the mayor and council of the city of South Hutchinson, a city of the third class, to enact an ordinance pursuant to an initiating petition, or to submit the ordinance to vote at a special election for adoption or rejection by the people. The proposed ordinance related to the routing through the city of state highway No. 17, which was to be hard surfaced by federal aid. The question was whether the subject of the ordinance was within the legislative power of the city, and as a consequence a subject for direct legislation under the provisions of chapter 104 of the Laws 1927.. The relief prayed for was denied, and the state appeals.
Highway K-17 was paved northward from the north portion of the city, and southward from the south boundary of the city. Acting under the provisions of chapter 211 of the Laws 1925 the governing body of the city applied to the board of county commissioners' of the county for aid in improving the connecting road. Three routes were suggested. A federal inspector approved a different route. This route was satisfactory to the state highway commission, was agreed to by the city, and federal, state and county aid -was allotted accordingly. The remainder of the cost of the improvement was to be paid for by a benefit district created, as authorized by law, by the board of county commissioners and consisting of the city. Dissatisfied residents petitioned the governing '.body of the city -to enact, or to submit to vote of the people, a .formulated ordinance disapproving a portion of the selected route, .•substituting a route for the disapproved portion, and leaving it to -federal and state authorities to locate the remainder of the route as -they desired. The petition was ignored, and the state sought to -compel action upon it by the means indicated. Pending the proceeding, improvement of the highway has been prevented by stay -orders.
At first, road-improvement legislation in this state was quite -experimental. It has progressed, through education in the hard ;school of experience, until now the people of the state may felicitate themselves on adoption of a scheme of road improvement of great ■promise for the future. In 1925 the legislature took note of the undesirable situations resulting from gaps in improved state highways, such as the South Hutchinson gap in K-17. Provision was made for connecting roads to be improved under the supervision and ■direction of the state highway commission, as provided for in the law relating to improvement of other roads in the county. The state "highway commission was authorized to cooperate with the governing bodies of cities through which improvements would extend, and 'the statute took its place among cognate statutes relating to road improvement. It was not a statute relating to government of cities. ^Locating the route of a highway is essentially, an engineering detail in the execution of a highway project. • The governing body of a •city is one of the administrative instrumentalities for fixing the route of a connecting road. In proposing and finally determining -upon a route the governing body of a city acts in the same capacity ..as the highway commission and the federal authorities with whom it must cooperate- — -that is, in an administrative capacity. The ■initiative and referendum statute applies to legislation by ordinance.
The stay heretofore granted by this court is set aside, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one under the federal employers’ liability act by a widow, as administratrix, to recover for the death of her husband. Plaintiff prevailed, and defendant appeals.
The facts were substantially these: M. G. Toops had been in the employ of the defendant railway company since 1913. Eor several years prior to August 12, 1926, he had been in passenger service running out of Kansas City. The middle of August of that year he was transferred to Dodge City as freight conductor from Dodge City to Elkhart. (He had not run on this line for some thirteen years.) On August 12, 1926, with a crew consisting of himself as conductor; Nolan, head brakeman; Hemphill, rear brakeman; Hall, engineer, and Phillips, fireman, he ran from Dodge City to Elkhart. They passed through Rolla in the afternoon, but did not stop. They started on the return trip from Elkhart about eleven o’clock the night of August 12, picked up four empty cars at Wilburton, and arrived at Rolla between 12:30 and 12:45 the morning of August 13. The train consisted of about thirty cars.
The main line of the defendant railway company through Rolla runs approximately east and west. There was a passing track north of the main-line track, 1,600 or 1,700 feet in length, and another passing track, 800 feet in length, south of the main-line track and south of the depot, which was also south of the main-line track. South of the last-mentioned passing track was a third track which ran to two elevators, which were south and west of the depot. For convenience we will denominate this the elevator track. Crossing all the tracks west of the depot and passing between the elevators was a public road.
Upon arrival at Rolla the train stopped, with the engine just west of the depot. Hemphill and Toops, who were riding in the caboose, got out and walked toward the front of the train, one on either side. They had orders to pick up five loaded grain cars which were at the elevators on the elevator track and to take fifteen empty grain cars from the north passing track and spot them at the elevators on the elevator track. Nolan, who had been riding the front of the train, took the engine with the four empty cars picked up at Wilburton, went east on the main line, backed on to the elevator track and picked up the five loaded grain cars. Hemphill went across to the elevator track and assisted Nolan in connecting up the loaded grain cars. Having done so, they went on east, got on the mainline track and then backed west to a coupling with the train, Toops making the connection with the air hose. Nolan, Hemphill, and Toops met on the station platform and went over the switch list together.
The grain cars on the north passing track were in two sections, four or five of them west of the public road crossing. East of the grain cars on the passing track were twelve stock cars. There was a cross-over switch from this north passing track to the main line about 900 feet east of the depot. The stock cars were foul of the cross-over switch, and in order for the engine to get on the north passing track to connect up with the empty grain cars it was necessary for it to go to the east end of the passing track, back into the stock cars, push them back and couple om to the grain cars. Nolan went east with the engine, backed in on the north passing track and coupled into the east end of the stock cars.
Hemphill left Toops, went from the main line north to the passing track and coupled up the stock cars with the grain cars. Toops remained on the station platform, going through his switch list. After coupling with the grain and stock cars they all (except Toops) proceeded east on the north passing track out on the main line. Nolan last saw Toops alive on the platform at the time the grain cars were pulled out on to the main line. Hemphill last saw him alive on the east end of the platform with his lantern on a truck and his train book in his hand, looking through his switch list. He was run over and killed at a derail on the elevator track about 300 feet east of the depot by the grain cars which were “kicked in” on such track by the train crew. There was a rather sharp curve in the elevator track where it left the main line. It went through a cut, the bank of which on the south side was close to the elevator track and eight or ten feet high. A person on the elevator track at the derail mentioned could not be seen by the engine or train crew at the point where the “kick in” was made.
The principal question for our consideration is whether under all the facts and circumstances there was sufficient evidence to take the case to the jury and tp sustain the jury’s finding that the defendant was negligent in the manner in which it “kicked in” the cars.
The jury answered special questions as follows:
“1. Was M. G. Toops, the deceased, in charge of the train and switching operations at and before the time he was killed? A. Yes.
“2a. Was M. G. Toops killed by coming into contact with the fifteen grain cars that were being placed on the elevator track?
“2b. If you answer the preceding question ‘yes,’ state which car, if any, struck Toops. A. The first car on west end of the fifteen grain cars.
“3. Were there any marks of blood on the rear car of the fifteen grain cars? A. There was no direct evidence to show there was or was not.
“4. Were there marks of blood on the south wheels of all the other grain cars except the rear car? A. Yes.
“5. Did Toops know of the coming on the elevator track of the fifteen grain cars? A. He knew they were to come.
“6. Was Conductor Toops supplied with a good lantern? A. He had a good lantern.
“7. If you answer Q. No. 6 in the affirmative, then state if he could have by the aid of said lantern seen the approaching cars. A. No.
“8. Had not Toops formerly worked on the Elkhart branch from Dodge City to Elkhart? A. Yes.
“9. Had the yards at Rolla, Han., been materially changed since he worked on said line? A. We don’t know.
'TO. State fully in what the negligence of the defendant consisted, if any. A. First, in not protecting rear end of fifteen grain cars. Second, in engineer not sounding signal when starting to back cars around curve and through cut. Third, poor condition of the track at the derail switch.”
The defendant contends that the plaintiff failed to show many essential facts necessary to entitle her to go to the jury on the issues. To determine the correctness of this contention requires a careful review of what evidence had been adduced. The facts narrated above are not in dispute and need not be repeated.
A book of rules prepared by the defendant and issued to trainmen for their government in handling of trains was introduced in evidence. Some of these rules are pertinent here. And it is perfectly clear they were not followed.
“Station. — A place designated on the time-table by name, at which a train may stop for traffic; or to enter or leave the main track; or from which fixed signals are operated.
“Yard. — A system of tracks within defined limits provided for the making up of trains, storing of cars and other purposes, over which movements not authorized by time-table, or by train order, may be made, subject to prescribed signals and regulations.”
Under the evidence Rolla is a “station.”
“Sec. 102. When cars are pushed by an engine (except when shifting in making up trains in yards) a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need.
“Sec. 320. Trainmen and yardmen, before switching or moving cars at stations, must ascertain that there are no persons or property on or about the same that might be injured or damaged by so doing.
"Rule 381. Conductors of freight trains are required to do their work thoroughly at stations, bearing in mind that trains are run to do the business of the road and not merely to make time over it. Trains, however, are expected to run with regularity and as nearly on time as the prompt performance of work and rules will permit.
“Rule 396. They must do such switching as shall be necessary in taking cars for their own trains or in leaving cars from the same. Local freight trains are generally to do necessary switching at stations, but any freight train may, in case of necessity, be called upon by station agents to do such work, and the same will be performed. Conductors when at stations doing work will attend personally to the switching unless engaged in checking the unloading way freight as provided in rule 389, when they may allow brakeman, if competent, to do the switching.
“Rule 483. They will take into consideration that the lives of passengers and trainmen, as well as the property of the company, are intrusted to their care, and it is fully expected and required that they will not only attend to all signals and instructions, but also that they will, on all occasions, be vigilant, and cautious themselves, not trusting alone to signals or rules for safety. Whenever it becomes necessary to protect rear of train, enginemen will promptly signal flagman as per rule 14 (c).
“Sec. 473. They will, in rounding all curves where the view is obscured, sound the whistle, using the signal prescribed in rule 14. (Rule 14 provides for two distinct whistles.)
“Sec. 478. They will use great care in backing up to take a train or backing into a siding to take or leave cars, and will approach so slowly that couplings can be made without injury to persons or property.
“Sec. 24. When cars are pushed by an engine (except when shifting or making up trains in yards) a white light must be displayed on the front of the leading car by night.”
Under the rules it was the duty of Conductor Toops to assist in the switching operations; it was his duty personally to see that the cars were spotted at the respective elevators as called for by the switch list which he was examining when last seen by Nolan and Hemphill; to see that there were no obstructions on the track; that the road crossing west of the depot was left open; that the brakes were properly set to hold the cars at each one of the elevators. The performance of these duties required him to be on the south side of the elevator track, the elevators being on that side, and also the engineer’s side of the train. There was a path on the south side of the main line eastward from the depot. It is the theory of the plaintiff that Conductor Toops followed that path to a point north of the derail and then started south to cross over the elevator track.
The elevator track at the derail was skeletonized. A witness stated there was possibly a “gallon” of dirt between the ties. Thistles and weeds had- grown up between the ties and obscured the actual condition of the track. The route suggested by the plaintiff is the nearest and most practical one from the depot platform where Toops was last seen to where his body was found. No eyewitness saw him meet his death. His body was found between the rails of the elevator track at the derail. His shoulders were upon, and jammed against, the derail, his body lying diagonally across the track between the rails, with his feet to the north and east toward the north rail. His head and right arm were mashed off, and with his hat were lying south of the south rail of the elevator track near the derail. His lantern and lead pencil were lying near together, south of the elevator track about two or three feet away from the south rail of the track, his lead pencil lying between his lantern and the south rail. His train book was found lying in the center of the track between the rails. The surface of the track between the rails showed clearly that the body was dragged westward two or three feet until his shoulders were jammed against the derail. Three or four cars passed over his body and were standing west of the derail where they stopped from lack of momentum.
As before noted, the train crew, except Toops, had “gone east on the main line with the train. The night was so dark that during the switching operations the men could not be seen any considerable distance. Their respective positions were discernible only by the light from their lanterns. Neither the enginemen nor brakemen, from their positions, could' be seen around the curve on the elevator track on account of the cut and the bank above mentioned. Hemp-hill gave the kick-in signal to Nolan and the enginemen. An attempt at a kick-in was made but was not successful because the condition of the road was such that Nolan was unable to get on the train and cut the grain cars from the stock cars. Nolan testified:
“I was slow about getting on and I missed the pin. I was slow on account of the condition of the track. There were weeds there and the tracks were skeletonized and bad footing along there.”
Here it is contended that the crew was derelict in its duty. Nolan gave a second kiclc-in signal. The cut was successfully made. Instead of one of the brakemen riding the kicked-in grain cars, according to the rules, both remained with the engine and the stock cars. The kick-in sent the fifteen grain cars west down the mainline track and on to the elevator track with no one on them to control them or stop them in case of danger. No light was on the front end of the moving cars; no kick-in or push signal was given by the engineer by blowing the whistle nor was the bell rung as a warning to any person who might be on the elevator track or anyone who might be crossing the tracks. Each of these omissions was a flagrant breach of the rules devised by defendant itself for the protection of its train crews.
It is argued that the deceased was in charge of the train crew; that he planned out the switching operations, which were carried forward under his orders; that he told Hemphill he would watch out for the grain cars, and therefore it is not reasonable to suppose that he would expect a kick-in signal or that one of the trainmen would ride in the kicked-in cars, or place a lantern at the rear car to indicate the cars were coming; that since the stock cars were to be returned to the north passing track after the grain cars were kicked-in, Toops knew that neither bralceman would ride the grain cars. ' The contention is not sound. In the first place, there is nothing in the record to indicate by reasonable inference or otherwise that the deceased expected the crew to do its work other than in accordance with the company’s rules. Second, there is nothing upon which to base the assumption that the deceased had any reason to believe that one of the brakemen would not ride the kicked-in grain cars. Nor is there any evidence to show that Toops knew the stock cars were foul of the cross-over switch. It was too dark for him to see them or note their position. Had they been east of the cross-over switch the engine would have backed in and coupled with the grain cars. Testimony by Hemphill concerning the conversation follows:
“The last time I saw Mr. Toops before his death, he was standing at the east end of the platform station on the platform. I, did not at that time have any talk with him. Before that I had talked with him. He was coupling up the air hose on these four or five cars that we picked up that were coupled on to the train; he was coupling the air hose up on them, and I walked down the south side of the passing track to, this crossing to make that joint, and while Mr. McHenry was bringing the engine through the stock track I was standing at the crossing on the north side of the main line talking to Mr. Toops; he was on the south side of the main line, and he asked me if these fifteen cars were all in one cut and I told him they were, and that I would kick them all into the elevator track. He said, ‘All right, I will look out for them.’ ”
The fact that Toops knew the cars were coming does not, in our opinion, relieve the defendant of liability for the negligent manner in which the cars were sent in on to the elevator track. He did not know that they would be kicked in without a signal from the engineer; he did not know that they would come silently down upon him without a white light on the leading car; he did not know that they would come down upon him without a brakeman in control thereof and in a position on the end of the car where he could see persons upon the track and protect them from the danger. It must be assumed that Toops was familiar with the rules and likewise had a right to believe that his brakemen and enginemen were familiar with them; he had a right to believe that the rules would be observed by each one of his trainmen; it was but natural for him to make the attempt to cross over the track because no warning of any kind had been given that the cars were approaching. He had a right to rely upon the requirements of rule 473 (supra) which provided that in rounding all curves where the view is obscured, a whistle shall be sounded twice, notifying him that the cars had been lcicked-in on the elevator track. Engineer Hall testified:
“It is usual for the engineer to give a signal when he is starting up a train on a kick signal.”
The deceased was not familiar with the elevator track; he approached it in the dark from the north for the first time in thirteen years. He is presumed to have been exercising due care and it may therefore be assumed that when he arrived at the track and attempted to cross it he listened for signals and heard none; that he looked for approaching cars with a light and saw none and that he-stepped upon the defective track for the purpose of crossing over and instantly became aware that the kicked-in cars were upon him, but on account of the defective condition of the track it was impossible for him to escape; that in making an effort to escape he-was knocked down, and as he fell forward his hat, lantern and pencil were propelled to the south side of the track. On account of the curve in the track his lighted lantern (which was thrown' or fell out of his hand while falling) could not be seen by the crew. The position of the body indicates that he was knocked down by the west end of the moving grain cars. His train book containing thirty-four or thirty-five bills dropped into the center of the track between the rails and was lying two or three feet east of his body.
McMullen v. Railway Co., 107 Kan. 274, 191 Pac. 306, was in many respects similar to the instant case. McMullen was a brakeman for the Santa Fe, and was working at the yards at Emporia, helping make up a freight train. It was his duty, when the train was made up, to go to the rear end of the train and close the stop cock and couple up the air hose. The evidence showed that it was customary for trainmen in making up trains in yards to have recourse to the method of lcicking-in cars. McMullen knew of these things. He was found dead. No one 'saw the accident. The jury found the-train crew guilty of negligence. A verdict was rendered for plaintiff and affirmed by this court. It was a no-eyewitness case. Conductor Toops is presumed to have been exercising reasonable care. There-is no evidence to the contrary. He is presumed t'o have been acting in the line of his duty which required him at some time or other to. be in the position where he was found. In the McMullen case (supra) it was said in the opinion (pp. 280, 281):
“Counsel for the defendant in their brief say:
“ ‘There was no eyewitness to the accident nor was there any testimony as to how it occurred. It may be assumed, however, that very shortly after the conductor and brakeman left the way car, he left the car and closed the angle cock and at that time the cars were kicked in on track 4, and by the impact, while he was between the rails on track 4, and at the rear end of the way car, was knocked down and run over. This assumption is based entirely on the situation appearing after the' accident. . . . The duty of the conductor and brakeman of the train crew was to examine the seals and check the cars in the train, and that of McMullen was to close the angle cock, hang up the tail hose, and couple up the air hose in the train. This was usually done after the train was made’ up and just before or after the road engine was attached to the train. Although from what he told Doctor Eckdall, it was not the proper time to do so, he thought it had to be done and he would perform that duty while the train was being made up.’
“From all this testimony and the rules of the company referred to, and the condition of affairs assumed by counsel for defendant, it seems unreasonable to hold that McMullen was not engaged in the performance of his duty when injured, or that he was not located and engaged as the switch crew knew he or some other brakeman ought to be.
“While it may not have been the duty of the switch crew to keep a lookout under ordinary circumstances for a member of the train crew attending to the air couplings, the violent collision caused by the wrong signal and its effects were such as to make it a question for the jury whether such operation was negligent or not. (Saar v. Railway Co., 97 Kan. 441, 155 Pac. 954.)
“But it is urged that the negligence on which the jury based the verdict was other than that alleged in the petition. We hold, however, the charge that the switch engine and cars were shoved at a dangerous rate of speed and run with great force and violence without warning against the other cars of the train, causing the way car suddenly and violently to move backwards over the body of McMullen, fairly includes the cause of such alleged violence, which was the transmission of the wrong signal. (Linker v. Railroad Co., 82 Kan. 580, 109 Pac. 678.)
“It is also urged that the deceased assumed the risk, thereby exonerating the defendant. In Spinden v. Railway Co., 95 Kan. 474, 148 Pac. 747, we held that in an action under the federal employer’s liability act it was error to instruct that the assumption of risk could only be established by showing that its, danger was so glaring that a person of ordinary prudence would not have attempted it. In the opinion it was said:
“ ‘The employee is not regarded as assuming unknown or unappreciated risks arising from his employer’s neglect, unless they are so obvious that an ordinarily prudent person would observe and appreciate them.’ (p. 476.)
“The federal supreme court in Seaboard Air Line v. Horton, 233 U. S. 492, held that congress in enacting this legislation based the action upon negligence only, and excluded responsibility of the carrier to its employees for defects not attributable to negligence. Touching risks not naturally incident to the occupation it was said:
“ ‘These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the ciroumstances would have observed and appreciated them.’ (p. 504.)”
(See, also, Reese v. Phila. & Reading Ry., 239 U. S. 463; Ches. & Ohio Ry. v. De Atley, 241 U. S. 310; Ches. & Ohio Ry. v. Proffit, 241 U. S. 462; Chicago, R. I. & P. Ry. Co. v. Ward, 252 U. S. 18.)
It is contended that the deceased “assumed the risk involved in the operation.” We believe that the condition of the track and the manner in which the train crew kicked-in the fifteen cars were not risks which Toops assumed. There was no evidence that he knew it was a custom of this train crew or of any train crew to kick-in cars at stations in the manner in which these were kicked-in. There was some testimony that it was the custom to kick-in cars in making up trains, but we believe the inference can fairly be drawn that that had reference to the making up of trains in yards and not to switching operations at way stations. As before noted, the evidence was that Rolla was not a yard. The defendant’s rules specify that when cars are pushed by an engine (except when shifting or making up trains in yards) a white light must be displayed on the leading car at night (rule 24) or a flagman must be on the front of the leading car by day. (Rule 102.)
In 39 C. J. 692 it is said:
“Risks which arise from the negligence of the master or those representing him are not ‘ordinary risks’ incident to the employment, but are ‘extraordinary risks.’ Hence, under the general rale as to extraordinary risks, but subject to the limitations hereinafter considered, risks which result from the negligence of the master, that is to say, those risks which are avoidable by reasonable care on his part, are not assumed by the servant'. The master, in the proper performance of his duties as such, is bound to exercise care and prudence to prevent his employees from being subjected to unreasonable risks or dangers, and to agree by implication of law not to subject a servant employed by him to extraordinary or unusual perils, and the servant has the right' to assume that the master will perform his duty in this respect, except to the extent that the rule may be modified as to risks that' are so open and obvious that a man of ordinary prudence would see and appreciate them; and it is very generally declared that the risk assumed commences only after the master has exercised due care in the performance of the duties which the law casts upon him.” (See, also, 18 R. C. L. 676, 677.)
The defendant cites and relies on Salisbury v. Atchison, T. & S. F. Rly. Co., 125 Kan. 131, 263 Pac. 791. The facts in that case are entirely different from #hose in the instant case. The plaintiff there testified:
“ T was struck in the back by the train. I don’t know what part of the train struck me. . . . Something that stood out past the cars hit me. I do not know what it was. The train kept going on after it hit me. I didn’t know what it was that hit me. I did not see the thing that struck me.’ ” (p. 133.)
In the Salisbury case the court quoted from Douglas v. Mitchell’s Ex’rs, 35 Pa. 443, as follows:
“ ‘As proof of a fact the law permits inferences from other fact's, but does not allow presumptions of fact from presumptions. A fact being established, other facts may be, and often are, ascertained by just inferences. Not so with a mere presumption of fact. No presumption can with safety be drawn from a presumption; there being no fixed or ascertained fact from which an inference of fact might be’ drawn, none is drawn.’ ” (p. 135.)
Here several physical facts established by the evidence clearly show how Conductor Toops met his death. It is proper, therefore, to draw inferences from those physical facts. The fact that the track was skeletonized and dangerous, especially in the nighttime unless great care was used by the person crossing over it to avoid falling; the fact that the lantern was lying in the weeds three or four feet south of the track and the conductor’s lead pencil was between it and the south rail; the fact that his head, arm and hat were on the south side of the track; the fact that his train book with thirty-four or thirty-five bills in it was lying in the center of the track about three feet away from his body; the fact that his body had been dragged down the center of the track two or three feet until the shoulders were j ammed against the derail, are all physical facts from which proper inferences may be drawn as to how the death occurred.
In the Salisbury case, swpra, it was observed that — •
“With the presumption that the injured employee used due care goes the correlative presumption that the employer used due care. This presumption must be overcome by evidence. When circumstantial evidence is relied on to prove a fact, the circumstances must be proved. The circumstances must not themselves be presumed, and one presumption cannot be built upon another.” (p. 134.)
The presumption that the defendant employer in the instant case used due care was overcome by the evidence.
It is argued that there was no evidence to support the claim that the deceased was struck by the west end of the fifteen moving grain cars, but that he must have attempted to climb to the top of the train and somehow or other have fallen between the first and second moving cars. The argument is not reasonable. The physical facts from which a reasonable inference must follow indicate that the de ceased was struck by the west end of the cars. For instance, the position in which his lantern, hat and pencil were found. He was right-handed. Inasmuch as he had come south to cross the track it is natural to conclude that when he was struck his pencil and lantern were thrown out and away from the track. His train book, with the bills in it, was found in the center of the track between the rails and east of his body, indicating that he was carrying the train book in his left hand at the time he was struck, and dropped it in the center of the track. Had he attempted to climb on the train and fallen off, the train book would undoubtedly have been found in his pocket. His body was dragged between the rails for a distance of two or three feet. It is argued with much emphasis that the deceased could not have been struck by the first car because there was no blood on the wheels of that car. The contention does not appeal to us for several reasons. First, there was testimony by a physician showing that “in a crushing injury where a railroad car wheel or engine mashes off a member it mashes up the tissue so badly, including the blood vessels, that there is no bleeding immediately following, like there would be if it was cut off with a sharp instrument.” Second, the position in which the body was lying, with shoulders on the derail, breast up, legs and feet extending north across the track and a little to the east, the head and right arm having been mashed off and the arm found west of the head; the scraping of the dirt and gravel in the roadway, showing that the body had been dragged, considered altogether, give evidence of the fact that the deceased was struck, knocked down and dragged or rolled by the first car, but that the wheels of the second car were the first to actually run over the body. On the. other hand, if he had attempted to climb on the moving train and had fallen, he would naturally have fallen outside the rails. His body would not have been inside the rails and lying across the roadbed.
The defendant argues that it was not the custom and practice to have a brakeman at the rear end of the cars which the crew were moving in switching operations, but it says that “the protection of the public is a very different proposition, and with regard to the public the rule probably is that in switching at night there should be a brakeman or flagman on the rear car with a light; but in this case the cars were not approaching a public crossing nor any like place.” The last statement disregards the fact that there was a public road crossing over all of the tracks just west of the depot and running between the elevators where the grain cars were to be spotted.
A number of cases are cited by the defendant in support of the theory that the giving of signals by the ringing of a bell or blowing of a whistle would cause confusion and is therefore not required. The difficulty with defendant’s contention in this regard is that this accident happened at a station and not within a “railroad yard.” The defendant’s argument is entirely correct so far as it applies to railroad yards. In the instant case the very signals, the lack of which is claimed as negligence, might, if given, have prevented the tragedy. The ringing of the engine bell or whistling from the engine could not have been confusing because there was no other engine moving at the station. A proper whistle would have apprised the deceased that the cars were “kicked” back.
The main contention of the defendant is that there was no prima facie case for a jury, a contention we cannot sustain. This is not one of those cases where we can say as a cold-blooded matter of law that there was no negligence and no liability. The physical facts, the evidence and the fair and reasonable inferences to be drawn therefrom were, in our opinion, sufficient to justify the conclusion reached.
The defendant contends that the verdict ($22,750) was excessive, a contention with which we might be inclined to agree but for the fact that the defendant appears to be in no position at this time to raise the question. No complaint of the amount of the verdict was made by the defendant in its motion for new trial nor in its specifications of error. Under the oft-repeated rule that alleged errors not presented to the trial court cannot be considered here, we are unable to go into this phase of the controversy.
Complaint of the instructions and that the plaintiff was not properly appointed administratrix by the probate court of Douglas county have been considered but cannot be sustained. Nor is it necessary to add discussion of those questions to an already lengthy opinion.
The judgment is affirmed.
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The opinion of the court was delivered by
Davis, J.:
Daubin Paul was convicted in 2005 of one count of sale of methamphetamine and one count of possession of drug paraphernalia. The trial court determined that his sale of methamphetamine conviction was a severity level 1 drug felony under K.S.A. 2006 Supp. 65-4161(c) based upon two similar convictions finalized in 1999. Paul argued that the two 1999 offenses qualified as only one prior offense because both convictions occurred on the same date. The Court of Appeals affirmed in a per curiam opinion. State v. Paul, No. 95,105, unpublished opinion filed January 12, 2007. We granted Paul’s petition for review.
Facts
On. May 13, 2005, Paul was convicted in Saline County of one count of sale of methamphetamine and one count of possession of drug paraphernalia based upon conduct that occurred on July 20, 2004. Defendant acknowledges, and the record establishes, that defendant was twice convicted in 1999 of felony drug convictions “under this section,” as specified in K.S.A. 65-4161: an August 30, .1999, conviction for sale of a stimulant (Saline County Case No. .99 CRM 602) and an August 30, 1999 conviction for possession of a stimulant with intent to sell, deliver, or distribute (Saline County Case No. 99 CRM 613). Although the two convictions were finalized on the same day, those convictions resulted from separate conduct occurring on separate days in 1999 and were charged in separate complaints.
. The. trial court determined that the defendant’s present drug conviction was a severity level 1 drug felony under K.S.A. 2006 Supp. 65-4161(c) based upon his two similar convictions finalized in 1999. Paul unsuccessfully argued that his present drug conviction could only be a severity level 2 felony drug conviction under K.S.A. 2006 Supp. 6.5-4161(b), because the two prior convictions occurred on the same day and may therefore only be counted as one prior conviction. Paul relied upon State v. Wilson, 6 Kan. App. 2d 302, 627 P.2d 1185, affd 230 Kan. 287, 634 P. 2d 1078 (1981), a decision by the Court of Appeals and affirmed by this court interpreting the provisions of the Kansas Habitual Criminal Act (HCA), K.S.A. 21-4504(2), as it existed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA).
Paul raised several additional claims of error before the Court of Appeals. However, his petition for review from the Court of Appeals’ decision affirming his convictions and sentence identifies only the issue of the appropriate severity level for his conviction for sale of methamphetamine. In addition to his argument on this issue before the Court of Appeals, Paul claims that the decision in his case is inconsistent with another published decision of the Court of Appeals, State v. Ruiz-Reyes, 37 Kan. App. 2d 75, 149 P.3d 521 (2007), which was decided on the same day. We granted review in Ruiz-Reyes and decide it together with this case on this day. Our decision in Ruiz-Reyes demonstrates that no such inconsistency exists between the cases, as the decisions in both cases are based on the applicable plain language of 65-4161. See State v. Ruiz-Reyes, 285 Kan. 650,175 P.3d 849 (2008).
Standard of Review
Resolution of this case turns on our interpretation of K.S.A. 2006 Supp. 65-4161, a self-contained habitual criminal statute that sets forth the conditions under which the criminal severity level of a conviction will be enhanced at sentencing. “The interpretation of a statute is a question of law over which this court has unlimited review.” State v. Bryan, 281 Kan, 157,159, 130 P.3d 85 (2006).
When called upon to interpret a statute, the intent of the legislature expressed through the language in the statute governs. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. Bryan, 281 Kan. at 159.
Where the statutory provision or language is ambiguous, that is, where the statute contains provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language, and leaves us generally uncertain which one of two or more meanings is the proper meaning, we must resort to maxims of construction. See Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84 (1996). “The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.” Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). In addition, courts called on to construe the meaning of ambiguous criminal statutes must consider “ ‘[t]he general rule . . . that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.’ ” State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). Nevertheless, this rule relating to strict construction of criminal statues “ ‘is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.’ [Citation omitted.]” 279 Kan. at 121.
Finally, we have noted that “[i]n construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]” Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001).
KS.A. 2006 Supp. 65-4161
K.S.A. 2006 Supp. 65-4161 provides in relevant part:
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; or dispense any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto. Except as provided in subsections (b), (c) and (d), any person who violates this subsection shall be guilty of a drug severity level 3 felony.
“(b) If any person who violates this section has one prior conviction under this section or a conviction for a substantially similar offense from another jurisdiction, then that person shall be guilty of a drug severity level 2 felony.
“(c) If any person who violates this section has two or more prior convictions under this section or substantially similar offenses under the laws of another jurisdiction, then such person shall be guilty of a drug severity level 1 felony.” (Emphasis added.)
See K.S.A. 65-4161(a), (b), and (c) (language is same).
Application of the plain language of the above statute to the facts of this case yields the following results: Paul is a person who violated K.S.A. 2006 Supp. 65-4161(a) by reason of his 2005 conviction in Saline County of one count of sale of methamphetamine. In 1999 (that is, prior to the time he committed the offense underlying his 2005 conviction), Paul was twice convicted of felony drug charges that qualified “under this section,” as set forth in K.S.A. 2006 Supp. 65-4161(c). See State v. Crank, 262 Kan. 449, 455-58, 939 P.2d 890 (1997) (holding that the phrase “prior conviction under this section” should be read broadly to include any prior conviction under the Kansas Uniform Controlled Substances Act, K.S.A. 65-4101 et seq., or other analogous municipal or foreign provisions). These two 1999 convictions were charged separately and involved different events on separate days in 1999. The inescapable conclusion is that Paul’s previous convictions comport perfectly with the plain language of K.S.A. 2006 Supp. 65-4161(a) and (c) and that Paul is therefore “guilty of a drug severity level 1 felony” under K.S.A. 2006 Supp. 65-4161(c).
Based upon the plain language of the statute, we affirm the decision of the Court of Appeals affirming the district court. However, we recognize that defendant’s primary argument—that his two prior convictions occurring on the same date required the trial court to treat them as one prior conviction—has created some confusion and should be fully addressed in our opinion. At the same time, we note that to credit Paul’s argument, we would have to read into the language of K.S.A. 2006 Supp. 65-4161 an additional sequencing requirement.
Paul attempts to create ambiguity not by pointing to the language of K.S.A. 2006 Supp. 65-4161, but by asking us to interpret K.S.A. 2006 Supp. 65-4161 in the same way that this court and the Court of Appeals interpreted the HCA, K.S.A. 21-4504, a self-contained sentencing enhancement law that preexisted the enactment of the modern sentencing guidelines. See Wilson, 230 Kan. 287; Wilson, 6 Kan. App. 2d 302.
In order to more fully understand Paul’s argument, it is helpful to provide a brief review of the habitual criminal statutes and the interpretation of those statutes by the courts of this state. The HCA was adopted by the Kansas Legislature “in the hope of bringing about a reformation of criminals by an increased penalty for a second offense and when that hope of reformation had passed then the increased punishment should be meted out for the third offense.” State v. Murray, 200 Kan. 526, 530, 437 P.2d 816 (1968). In State v. Lohrbach, 217 Kan. 588, 591, 538 P.2d 678 (1975), this court similarly explained:
“The basic philosophy underlying recidivist statutes might be expressed in this fashion: where the punishment imposed against an offender for violating the law has failed to deter him from further infractions, a harsher and more severe penalty is justified, the idea being, hopefully, that the greater punishment may serve as an object lesson and cause him to accomplish his reformation, where the lesser penalty had failed in that respect.”
To effectuate this purpose, this court held that under the HCA, “a convict must be subject to sentence for a second felony conviction before he can be sentenced for a third felony conviction.” Murray, 200 Kan. at 531.
The Court of Appeals in Wilson considered almost the identical issue under the HCA that we now consider in Paul’s case under the KSGA. The question in Wilson was whether a conviction could be treated as a third offense under the HCA (and the term of the sentence increased accordingly) based on two convictions for offenses committed on different days that were obtained prior to the commission of the current offense but on the same day as one another. Wilson concluded that prior convictions obtained on the same day could only be used as a single conviction for purposes of increasing a sentence under the HCA:
“Our case law has pronounced that where there are convictions for multiple offenses growing out of a single act or transaction, or where there are multiple convictions obtained on the same date for offenses committed at different times or places, the multiple convictions can be used only as a single conviction for the purpose of sentence enhancement. . . . The common denominator of these rules is that sentence enhancement requires conviction prior to commission of the subsequent offense, the requirement we have noted as legislatively and judicially made applicable to enhancement of sentence of a defendant as a second offender. Recognition of judicial expressions of the puipose, objective and philosophy of our habitual criminal statute, K.S.A. 1980 Supp. 21-4504 and its pred ecessors, and logic compel application of the sequential relation requirement to the enhanced sentencing of defendants as third-time offenders.” 6 Kan. App. 2d at 306.
This court adopted the reasoning of Wilson and affirmed the holding. 230 Kan. at 287-88.
We acknowledge that there were sound reasons for our interpretation of the HCA, not the least of which involved a “[recognition of judicial expressions of the purpose, objective and philosophy of our habitual criminal statute, K.S.A. 1980 Supp. 21-4504 and its predecessors.” Wilson, 6 Kan. App. 2d at 306. However, the purposes, objectives, and philosophy of criminal sentencing in Kansas have been radically altered with enactment of the KSGA in 1992. We now look to those guidelines for resolution of sentencing questions, not to “judicial expressions” of historical sentencing philosophy. The interpretations of the HCA have no place in our interpretation of the KSGA or the provisions of K.S.A. 2006 Supp. 65-4161.
The Kansas Sentencing Guidelines Act (KSGA)
Paul’s argument ignores not only the plain language of K.S.A. 2006 Supp. 65-4161, but also the profound changes that occurred when the Kansas Legislature enacted the KSGA, effective July 1, 1993, currently K.S.A. 21-4701 et seq. See generally L. 1992, ch. 239. In contrast to the pre-KSGA sentencing scheme, which depended largely on the sentencing court’s determination of the appropriate sentence on a case-by-case basis, the KSGA established a grid with presumptive sentencing ranges for convictions based on an offender’s criminal histoiy and the severity level of the crime. Compare K.S.A. 21-4501 (sentencing for crimes committed prior to July 1, 1993) with K.S.A. 2006 Supp. 21-4705(a) (sentencing for drug crimes committed on or after July 1, 1993). Moreover, at the time of the enactment of the KSGA, the legislature explicitly stated that the HCA “shall not be applicable to . . . any felony committed on or after July 1,1993.” K.S.A. 21-4504(e)(3); see L. 1992, ch; 239, sec. 235.
Particularly with regard to drug crimes, the KSGA provides that the sentencing guidelines grid in K.S.A. 2006 Supp. 21-4705(a) “will apply for the purpose of sentencing violations of the uniform controlled substances act except as otherwise provided by law.” K.S.A. 2006 Supp. 21-4705(b). Each grid box is defined by the intersection of an offender s criminal history score with the severity level of the offense committed. See K.S.A. 2006 Supp. 21-4705(a). As this court noted in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002), criminal history and crime severity level are distinct factors that together determine a person’s sentence under the KSGA. A prior conviction may be used to enhance a conviction’s severity level or in a calculation of a person’s criminal history, but not both. See K.S.A. 21-4710(d)(ll).
Most important for the resolution of this case, the definition of “prior conviction” provided by the KSGA is much broader than that previously discussed by the Kansas courts under the HCA. Although the KSGA in K.S.A. 21-4710(a) deals with a defendant’s criminal histoiy, the general definition of prior conviction contained in that section makes no reference to criminal histoiy. Prior conviction is defined in that section as
“any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.” (Emphasis added.) K.S.A. 21-4710(a).
Nothing in the definition of prior conviction or in the plain language of K.S.A. 2006 Supp. 65-4161 prevented the trial court from considering each of Paul’s prior convictions for enhancement purposes. Indeed, to interpret K.S.A. 2006 Supp. 65-4161 otherwise would be to ignore the plain language of both statutes.
Kansas Case Law After 1993
This court first considered the effect of the adoption of the KSGA on self-contained habitual criminal statutes in its decision in Crank. There, we were called on to interpret K.S.A. 1996 Supp. 65-4162, which at that time contained similar language to the habitual criminal provisions currently contained in K.S.A. 2006 Supp. 65-4161, and held that the phrase “prior conviction under this sec tion” should be read broadly to include any prior conviction under the Kansas Controlled Substances Act or other analogous municipal or foreign provisions. 262 Kan. at 455-58. We explained:
“In reaching this result, we have examined legislative intent as expressed throughout the Uniform Controlled Substances Act, the Sentencing Guidelines Act, and records of the House and Senate Judiciary Committee sessions. The legislature has clearly expressed an intent to use prior convictions to enhance the severity level of drug crimes.” 262 Kan. at 455-56.
We did not specifically determine in Crank whether the sequential analysis previously used by the Kansas courts under the HCA would continue under habitual criminal statutes governed by the KSGA because the question was not before us.
However, in State v. Bandy, 25 Kan. App. 2d 696, 971 P.2d 749 (1998), rev. denied 266 Kan. 1110 (1999), the Court of Appeals considered the precise question of whether the HCA sequential analysis in Wilson applied under the KSGA. Bandy turned on the interpretation of a self-contained habitual criminal statute involving a third offense for driving with a suspended license. See K.S.A. 1997 Supp. 8-262(a)(l)(C); 25 Kan. App. 2d at 697-99. The defendant in that case was convicted for a third offense of driving with a suspended license but claimed on appeal that because he did not have a conviction for his second offense before he committed his third offense, he should not have been sentenced as a three time offender.
Bandy considered the legislative history of both the HCA and the KSGA and concluded that “[t]he KSGA has all but ehminated the HCA and, thus, the accompanying Wilson rule.” 25 Kan. App. 2d at 699- Quoting this court’s decision in State v. Spain, 263 Kan. 708, 711, 953 P.2d 1004 (1998), Bandy noted that “ ‘ “[W]hen the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” ’ [Citation omitted.]” 25 Kan. App. 2d at 699. In addition, Bandy noted that “[t]he objectives of the KSGA are broader than those of the HCA in that the guidelines were intended to standardize sentences so that similarly situated offenders would be treated the same, thus limiting the effects of racial and geographic bias. [Citations omitted.]” 25 Kan. App. 2d at 699.
Bandy considered the language in K.S.A. 21-4710 that defines “prior conviction” within the context of criminal history scores, concluding that “the legislature in determining a defendant’s criminal history in the KSGA is to allow all prior convictions regardless of the timing of the previous offense(s).” 25 Kan. App. 2d at 700. Citing this court’s decision in State v. Roderick, 259 Kan. 107, Syl. ¶ 2, 911 P.2d 159 (1996), Bandy held as follows:
“The intent of the legislature in determining a defendant’s criminal history in the KSGA is to allow all prior convictions regardless of the timing of the previous offense(s). We extend by analogy this intention and apply it to other self-contained habitual violator statutes, such as the driving with a suspended license statute, K.S.A. 1997 Supp. 8-262(a)(l). This provides a harmonious application of all habitual violator statutes regardless of whether an individual statute is silent as to the timing of prior offenses.” 25 Kan. App. 2d at 700.
As such, Bandy found that “the KSGA is the ‘new’ and ultimate habitual violator statute.” 25 Kan. App. 2d at 699. However, our previous discussion in this case illustrates that Bandy s holding that the definition of prior conviction in K.S.A. 21-4710(a) should be applied to all other self-contained habitual violator statutes is overbroad; instead, our interpretation in each case must center on the plain language of the particular statute. See Bandy, 25 Kan. App. 2d at 700.
In Thompson v. State, 32 Kan. App. 2d 1259, 1267, 96 P.3d 1115 (2004), rev. denied 278 Kan. 852 (2005), the Court of Appeals similarly considered whether the district court erred by finding that the defendant’s conviction under K.S.A. 65-4160(a) was a severity level 1 drug felony under the habitual criminal provisions of that statute. K.S.A. 65-4160 has since been amended to exclude habitual criminal provisions. See L. 2003, ch. 135, sec. 7. However, at the time that Thompson was decided, K.S.A. 65-4160 contained language almost identical to the enhancement provisions of K.S.A. 2006 Supp. 65-4161 at issue in this case. Compare K.S.A. 65-4160 with K.S.A. 2006 Supp. 65-4161.
The Thompson court noted a conflict between the earlier HCA jurisprudence under Wilson and the later definition of a prior conviction under the KSGA, as discussed by the Court of Appeals in Bandy: On the one hand, under the Wilson rule “there must be the commission and conviction of a first offense, followed by the commission and conviction of a second offense, followed by the commission and conviction of a third offense.” Thompson, 32 Kan. App. 2d at 1264. On the other hand, the KSGA states that “all prior convictions are considered, regardless of the timing of the previous offenses.” 32 Kan. App. 2d at 1264; see K.S.A. 21-4710(a).
Thompson reasoned that the sweeping holding of Bandy appeared to be in conflict with the plain language of K.S.A. 65-4160, which required “that prior convictions used to enhance the severity level of the current offense must have occurred before the date of the crime.” 32 Kan. App. 2d at 1264. However, Thompson noted that this potential conflict was not an issue in the case currently before the court because both of the defendant’s convictions occurred before he committed the current offense. 32 Kan. App. 2d at 1264.
Thompson, however, did not resolve what it considered to be a potential conflict between the HCA and KSGA because the defendant’s prior convictions “fit under both of these rules”; the defendant’s prior convictions followed an offense-conviction-offense-conviction format. 32 Kan. App. 2d at 1264-65.
Finally, in Ruiz-Reyes, the defendant was sentenced as a severity level 2 drug offender pursuant to K.S.A. 65-4161(b). The defendant appealed, arguing that the prior conviction on which the court relied for the severity level enhancement was not obtained until after he committed the current offense and thus could not be used to enhance the severity level of the current offense under the self-contained habitual criminal provisions of that statute.
The Court of Appeals agreed, reversed the defendant’s sentence, and remanded for resentencing. 37 Kan. App. 2d at 80. In particular, the court noted that the KSGA defines “prior conviction[s]” for purposes of determining a defendant’s criminal history so as to include all convictions finalized prior to sentencing. 37 Kan. App. 2d at 78. The Court of Appeals correctly noted that because the plain language in K.S.A. 65-4161(b) “contemplate[d] a violation committed by an individual who ‘has’ at least one prior conviction at the time the individual ‘violates’ the law,” then “the severity level of the defendant’s instant offense may not be enhanced based upon a prior conviction that did not occur until after commission of the instant offense.” 37 Kan. App. 2d at 79-80. We granted the State’s petition for review in Ruiz-Reyes and affirm the Court of Appeals in a decision rendered on this same date. Ruiz-Reyes, 285 Kan. 650. Our decision in Ruiz-Reyes, like our decision in this case, is based upon the plain language of K.S.A. 65-4161(b) (language same as K.S.A. 2006 Supp. 65-4161[b]).
Paul advances two additional arguments for why this court should continue to apply our prior analysis under HCA to KSGA sentences. First, he argues that “[i]t is foreseeable that prosecutors can withhold the filing of charges and skip from a level four (4) to a level one (1) [severity level] without the pre-requisite of the defendant ever seeing a level two (2) sentence.” Contrary to the defendant’s argument, nothing in K.S.A. 2006 Supp. 65-4161 or in the KSGA indicates that the severity levels of a person’s subsequent convictions can only increase incrementally. Rather, as the Court of Appeals explained in Thompson:
“The plain language of [K.S.A. 2006 Supp. 65-4161] does not require that a defendant be sentenced first to a severity level 4 offense, then to a severity level 2 offense, and then to a severity level 1 offense. The [severity] level of the offense is dependent solely on the number of previous convictions.” 32 Kan. App. 2d at 1267.
Finally, Paul contends that because his 1999 convictions were not used to enhance the severity levels of those crimes, the court should not in turn use those convictions to enhance the severity level of his current crime of conviction. In making this claim, Paul again fails to comprehend the plain language of K.S.A. 2006 Supp. 65-4161(c). See Ruiz-Reyes, 285 Kan. at 656-57. Moreover, in making this argument, Paul does not cite to any portion of the record that would support his claim and therefore fails in his duty to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails. State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006).
Conclusion
The plain language of K.S.A. 2006 Supp. 65-4161(c) governs the disposition of this appeal. For offenses committed on or after July 1, 1993—and thus subject to the KSGA and not the HCA—the definition of “prior conviction” included in the KSGA in the context of criminal histoiy also applies to determination of an offense’s criminal severity level unless the legislature specifically indicates a contrary intent.
The plain language of K.S.A. 2006 Supp. 65-4161(c) provides that if at the time a person violates that section he or she has two or more prior convictions under the Kansas Uniform Controlled Substances Act, K.S.A. 65-4101 et seq., that person shall be “guilty of a drug severity level 1 felony.” The statute does not provide any other requirement with regard to the timing of the previous convictions in relation to one another.
Affirmed.
Johnson, J., not participating.
Hill, J., assigned. | [
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On April 21, 2000, Petitioner Thomas J. Leising was indefinitely suspended from the practice of law in Kansas. In re Leising, 269 Kan. 162, 4 P.3d 586 (2000).
On July 19, 2006, Mr. Leising filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219 (2007 Kan. Ct. R. Annot. 350). On May 24, 2007, a hearing was held before the Kansas Board for Discipline of Attorneys to consider Mr. Leising’s request for reinstatement.
On August 27, 2007, the panel filed its report setting out the circumstances leading to Mr. Leising’s suspension, a summary of the evidence presented, and its findings and recommendations. The panel unanimously recommended that Mr. Leising’s petition for reinstatement to the practice of law in Kansas be granted. The panel further recommended the following:
1. Upon reinstatement, the Petitioner shall attempt to obtain professional liability insurance. The Petitioner shall provide monthly updates to the Disciplinary Administrator regarding his attempts to obtain professional liability insurance until such time that he obtains insurance.
2. The Petitioner shall comply with the monitoring agreement entered into with the Kansas Impaired Lawyers Assistance Program. After one year, the Petitioner shall meet with the monitor appointed by the Kansas Impaired Lawyers Assistance Program and discuss whether the monitoring agreement should be extended. The Petitioner shall comply with any requirements made by the monitor.
3. The Petitioner shall comply with the recommendations made by Duane Olberding in the alcohol and drug evaluation prepared by Mr. Olberding.
Effective this 16th day of January, 2008.
4. The Petitioner shall establish a mentor/mentee relationship with an established member of the Topeka Bar. Prior to establishing the relationship, the Petitioner shall seek and obtain the approval of the mentor by the Disciplinaiy Administrator.
Since the panel report recommends reinstatement, no response is required by the Petitioner and pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by the court.
The court, after carefully considering the record, accepts the findings and recommendations of the panel. The petitioner is hereby reinstated to the practice of law in Kansas.
It Is Therefore Ordered that Thomas J. Leising be reinstated to the practice of law in the state of Kansas, and the Clerk of the Appellate Courts is directed to enter the Petitioner’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order of reinstatement for Thomas J. Leising, shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Rosen, J.:
The State brings an interlocutory appeal in this criminal proceeding, questioning the district court’s decision regarding a stipulation to a prior offense. The prior offense was a necessary element to establish that defendant Mario Larenzo Mitchell illegally possessed a firearm in violation of K.S.A. 21-4204(a)(2).
Mitchell was charged with one count of first-degree, premeditated murder or, in the alternative, one count of felony murder based on the underlying felony of aggravated assault; two counts of aggravated assault; and one count of unlawfully possessing a firearm for acts that occurred on or about January 8, 2005. At his first trial in September 2005, Mitchell stipulated that he had previously been adjudicated as a juvenile offender for discharging a firearm at an occupied vehicle. The district court determined that the jury was unduly prejudiced by the stipulation and ordered a mistrial on September 15, 2005.
Mitchell was shot the same day the district court declared a mistrial. As a result of his injuries, Mitchell waived his right to a speedy trial and continued his trial date until March 26, 2007.
Jury selection began on March 26,2007, as scheduled. On March 27, 2007, the district court held a hearing to finalize the stipulation for Mitchell’s status as a prior offender prohibited from owning or possessing a firearm. Mitchell offered to stipulate that he had been adjudicated a juvenile offender in Wyandotte County District Court in April 2004 and that this adjudication prohibited him from owning or possessing a firearm on January 8, 2005. The State op posed Mitchell’s stipulation, requesting the following language for its proposed stipulation:
“1. That die defendant, Mario Lorenzo [sic] Mitchell, is the same person who was adjudicated a juvenile offender in the District Court of Wyandotte County, Kansas, Juvenile Department in case no. 2004-JV-0006, on a finding that he committed an act that if done by an adult would constitute the commission of a person felony, and was found to have been in possession of a firearm at the time of the commission of such preceding offense.
“2. That the aforementioned act was committed in December 2003. The aforementioned adjudication happened on April 1,2004. The defendant held the status of juvenile offender stemming from the aforementioned case at all times on January 8, 2005.”
The district court denied the State’s request and ordered two separate stipulations, one for the jury and one for the court. The district court ordered the stipulation for the jury to follow Mitchell’s proposed stipulation, which did not include any information about the nature of Mitchell’s prior juvenile adjudication. However, the district court ordered the stipulation for the court to include the information about the nature of Mitchell’s prior juvenile adjudication to establish for the record that he had been adjudicated for an act that, if done by an adult, would constitute a person felony and that he was in possession of a firearm at the time of the commission of the act. The district court further barred the State from submitting any evidence to the jury regarding Mitchell’s adjudication for a person felony while in possession of a firearm.
In response to the district court’s order, the State filed a notice of interlocutory appeal to the Court of Appeals. The district court then suspended the proceedings pending the State’s appeal and dismissed the jury. Mitchell requested to be released on bond. The district court set Mitchell’s bond at $125,000. On March 28, 2007, Mitchell filed an objection to the State’s interlocutory appeal, claiming that it was without statutory support and reasserting his right to a speedy trial. Although the State’s interlocutory appeal was docketed with the Court of Appeals, we transferred the matter to this court on our own motion pursuant to K.S.A. 20-3018(c).
Analysis
The State contends that the district court erroneously suppressed evidence of Mitchell’s prior juvenile adjudication, thereby preventing the State from proving all of the elements for the crime of unlawfully possessing a firearm. Mitchell asserts that this court does not have jurisdiction over the State’s interlocutory appeal.
The right to appeal is entirely statutory. The right is not included in the United States Constitution or the Kansas Constitution. This court’s jurisdiction over an appeal is controlled by statute. State v. Ji, 255 Kan. 101, 102-03, 872 P.2d 748 (1994). When the record reveals a lack of jurisdiction, this court has a duty to dismiss the appeal. Whether appellate jurisdiction exists is a question of law subject to unlimited review. State v. Thomas, 283 Kan. 796, 805, 156 P.3d 1261 (2007).
Mitchell relies on K.S.A. 22-3603, which limits the State’s right to an interlocutory appeal, providing:
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.”
This court has interpreted K.S.A. 22-3603 broadly to include any of the district court’s evidentiary rulings that would substantially impair the State’s ability to prosecute the case. State v. Kleypas, 282 Kan. 560, 563-65, 147 P.3d 1058 (2006); State v. Gnffin, 246 Kan. 320, 323, 787 P.2d 701 (1990).
The district court ordered the State to enter into the following stipulation with Mitchell for presentation to the jury:
“COMES NOW the Defendant Mario Lorenzo [sic] Mitchell, personally, and by and through his attorney William P. Mahoney, to stipulate for the purpose of admission into evidence at the jury trial in the above-captioned case as follows:
“That the Defendant Mario Lorenzo [sic] Mitchell was adjudicated a juvenile offender in Wyandotte County District Court on April 2004, and that this adjudication prohibited him from owning and possessing a firearm on January 8, 2005."
The district court ordered Mitchell to stipulate to the court for the purposes of the record that the prior conviction was one which if committed by an adult would have constituted a person felony and that Mitchell was in possession of a gun at the time of the prior offense.
The State argues that the district court’s ruling prevents it from presenting sufficient evidence to prove beyond a reasonable doubt all of the elements of criminal in possession of a firearm in violation of K.S.A. 21-4204(a)(2). When reviewing the district court’s decision regarding the admission or exclusion of evidence, an appellate court must first consider whether the evidence is relevant to any material fact. State v. Patton, 280 Kan. 146, 156, 120 P.3d 760 (2005). All relevant evidence is admissible unless otherwise precluded by statute. K.S.A. 60-407(1). Relevant evidence is “evidence having any tendency in reason to prove any material' fact.” K.S.A. 60-401(b). Because Mitchell was charged with unlawfully possessing a firearm in violation of K.S.A. 21-4204, his status as a juvenile offender with an adjudication for a person felony while in possession of a firearm is relevant to prove an element of the crime.
After determining that the evidence is relevant, an appellate court must apply the rules of evidence either as a matter of law or in the district court’s discretion to determine whether the evidence is admissible. Patton, 280 Kan. at 156. There are no evidentiary rules specifically addressing the admission of stipulations. Consequendy, the only applicable rule is K.S.A. 60-445, which gives the district court discretion to exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice. State v. Trotter, 280 Kan. 800, 810, 127 P.3d 972 (2006); see State v. Lee, 266 Kan. 804, 813, 977 P.2d 263 (1999). Under this statute, an appellate court reviews the district court’s decision using an abuse of discretion standard. Trotter, 280 Kan. at 810.
In Lee, this court established tire following rules regarding die admission of evidence to prove the predicate felony for unlawfully possessing a firearm:
“(1) When requested by a defendant in a criminal possession of a firearm case, tire district court must approve a stipulation whereby the parties acknowledge that the defendant is, without further elaboration, a prior convicted felon. (2) At the same time, the State may place into the record, at its discretion, the actual judgments) and sentence(s) of the prior felony conviction(s). (3) Neither these documents nor the number and nature of the prior convictions should be disclosed to the trial juiy. (4) Out of the jury’s presence and after consultation with counsel, the defendant should be required to personally acknowledge the stipulation and his or her voluntary waiver of his or her right to have the State otherwise prove the convicted felon status element beyond a reasonable doubt. (5) The defendant’s stipulation of convicted felon status satisfies the prosecution’s burden of proof for that element of the crime. (6) If the element of convicted felon’ is established by stipulation, ‘the judge may thereafter instruct the jury that it can consider the convicted felon status of tire crime as proven by agreement of the parties in the form of a stipulation.’ [Citation omitted.]” Lee, 266 Kan. at 815-16 (adopting analysis of Brown v. State, 719 So. 2d 882, 889 [Fla. 1998]).
The facts in Lee are very similar to the facts at issue in this case. Lee was charged with murder and unlawfully possessing a firearm. Lee offered to stipulate that he had been convicted of a felony within 10 years of allegedly possessing the firearm at issue and that the felony had not been expunged or pardoned. The district court denied Lee’s request for a stipulation and allowed the State to admit the journal entry of judgment, which showed that Lee had previously been convicted of aggravated battery. Although the prior case law in Kansas allowed the State to submit independent proof of the conviction even if the defendant stipulated to the prior felony, the Lee court overruled the prior case law and adopted the United State Supreme Court’s persuasive reasoning in Old Chief v. United States, 529 U.S. 172, 191, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997). The Old Chief Court had concluded that the prejudicial effect of admitting the record of a prior conviction substantially outweighed its discounted probative value when the defendant was willing to stipulate to his or her status as a felon. See Lee, 266 Kan. at 810-11, 814-16. Three justices dissented in Lee, reasoning that Old Chief is not binding authority and that the federal rule of evidence applied in Old Chief was distinguishable from the Kansas rule in K.S.A. 60-445 because it did not include the phrase “unfair prejudice.” Lee, 266 Kan. at 816-18 (Larson, J., dissenting, joined by McFarland, C.J., and Lockett, J.). The dissenting justices further reasoned that the legislature must have intended for the name and nature of the prior felony to be an element of the State’s proof. 266 Kan. at 818.
Although Lee appears to be on point, the State distinguishes Lee by focusing on the applicable subsection of K.S.A. 21-4204. Lee was charged with violating K.S.A. 21-4204(a)(4), which lists specific offenses as predicate felonies. Mitchell was charged with unlawfully possessing a firearm in violation of K.S.A. 21~4204(a)(2), which provides:
“(a) Criminal possession of a firearm is:
“(2) possession of any firearm by a person who has been convicted of a person felony or a violation of any provision of the uniform controlled substances act under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony or violation, or was adjudicated a juvenile offender because of the commission of an act which if done by an adult would constitute the commission of a person felony or a violation of any provision of the uniform controEed substances act, and was found to have been in possession of a firearm at the time of the commission of the offense.”
The State argues that under K.S.A. 21-4204(a)(4), it is only required to prove the defendant’s status as a felon, but that under K.S.A. 21-4204(a)(2), it must also prove that the defendant was previously convicted of possessing a firearm while committing a person felony. The State relies on State v. Folley, No. 89,368, unpublished opinion filed July 30, 2004. In Folley, the defendant was charged with violating K.S.A. 21-4204(a)(2). The defendant stipulated to the existence of a. prior person felony, but the stipulation did not address whether the prior person felony was committed while he was in possession of a firearm. On appeal, the defendant claimed that the State had failed to prove every element of the crime. The Folley court noted that there was no evidence presented to establish that the defendant was in possession of a firearm during the prior felony. Agreeing with the defendant, the Folley court refused to find invited error because the defendant is not required to prove every element of a crime. Rather, it is the State’s burden to prove each and every element of the crime beyond a reasonable doubt. Slip op at 3-4.
Under the facts presented, the State is arguing a distinction without a difference. Violating either K.S.A. 21-4204(a)(2) or K.S.A. 21-4204(a)(4) is a severity level 8 nonperson felony. K.S.A. 21-4204(d). The difference between the subsections concerns the length of time that a prior felon or juvenile offender is precluded from owning or possessing a firearm. Under K.S.A. 21-4204(a)(2), a person convicted or adjudicated of a prior person felony that was committed while in possession of a firearm may never lawfully possess a firearm. His or her status as a person precluded from owning or possessing a firearm never changes. However, under K.S.A. 21-4204(a)(4) the status of a person convicted or adjudicated of the listed felonies or a nonperson felony that was committed while in possession of a firearm changes after 10 years. In other words, persons that fall within the elements of K.S.A. 21-4204(a)(4) are only precluded from owning or possessing a firearm for 10 years. The length of time that an offender is prohibited from owning or possessing a firearm is not probative in determining whether he or she actually possessed one at the time the State alleges. If the defendant is willing to stipulate to his or her status as a person prohibited from owning or possessing a firearm at the time they are alleged to have unlawfully possessed one, the State need not prove the elements of the defendant’s status to the jury.
Likewise, Folley does not support the State’s argument that the elements of the defendant’s status must be proven to the jury even if the defendant stipulates to such elements. The Folley court noted that there was nothing in the record to establish that the defendant had possessed a firearm during the commission of the predicate felony. Consequently, the State had failed to establish the defendant’s status under K.S.A. 21-4204(a)(2). Folley, slip op. at 3. That is not the case here. The district court required a separate stipulation to the court to establish all of the elements of Mitchell’s status under K.S.A. 21-4204(a)(2) for the record. Contrary to the State’s interpretation of the Folley decision, the Folley court did not say that the State was required to present evidence to thejury regarding the defendant’s possession of a firearm during the predicate felony. Such a conclusion would contradict this court’s directive in Lee, which specifically requires the district court to admit the actual judgment(s) and sentence(s) of the prior felony conviction^) into the record without disclosing them to the jury, thereby protecting the State’s interest in proving all of the elements of the defendant’s status. 266 Kan. at 815.
In addition to distinguishing Lee, the State argues that this court should overturn Lee and reinstate the prior case law, which allowed the State to admit evidence of the defendant’s prior conviction(s) regardless of whether the defendant stipulated to his or her status under K.S.A. 21-4204. The State relies on State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), citing it for the proposition that evidence of other crimes is admissible when relevant to prove a disputed material fact. The State asserts that under Gunby, evidence of a prior crime is admissible as a matter of law when it is relevant to prove an element of the crime. This argument misstates the holding in Gunby. In Gunby, we held that evidence of prior crimes was admissible when relevant to prove a disputed material fact if the evidence was more probative than prejudicial. 282 Kan. at 57. When a defendant stipulates to his or her status as a prior offender prohibited from owning or possessing a firearm pursuant to K.S.A. 21-4204, evidence of the prior crime is no longer relevant to prove a disputed material fact because the fact of the defendant’s status is not disputed. Furthermore, under the second step in the Gunby analysis, the evidence of the defendant’s prior crime is more prejudicial than probative if the defendant is willing to stipulate to his or her status. See Old Chief, 519 U.S. at 191; United States v. Wacker, 72 F.3d 1453, 1472-73 (10th Cir. 1995); Lee, 266 Kan. at 815. Contrary to the State’s argument, Gunby supports our reasoning in Lee.
The State further relies on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), for the proposition that the State is required to present evidence on each and every element of the crime, including the defendant’s status as a prior felon or juvenile offender prohibited from owning or possessing a firearm. According to the State, Apprendi prevents the defendant from being sentenced based on judicial factfinding. If the defendant stipulates to his or her status and the jury is not provided with independent evidence to prove the defendant’s status, the State argues that the judge becomes the factfinder and the resulting sentence violates Apprendi. This argument confuses the purpose of a stipulation. When a party stipulates to a fact, there is no factual dispute for a factfinder to resolve.
The State has failed to assert any meritorious arguments to distinguish or overturn Lee. Consequently, this court must consider the district court’s decision in light of the requirements set forth in Lee, which required the district court in this case to (1) approve Mitchell’s stipulation that he was prohibited from owning or possessing a firearm by his status as a prior offender; (2) allow the State to place the actual judgment and sentence of Mitchell’s prior juvenile adjudication into the record; (3) refuse to disclose the nature and number of Mitchell’s prior adjudications to the jury; (4) consult with Mitchell and his attorney outside the presence of the jury to allow Mitchell to personally acknowledge the stipulation and his voluntary waiver of the right to have the State otherwise prove his status beyond a reasonable doubt to the jury; (5) acknowledge that Mitchell’s stipulation to his status as a prior juvenile offender prohibited from owning or possessing a firearm on the date in question satisfies the prosecution’s burden of proof for that element of the crime; and (6) instruct the jury that it can consider Mitchell’s status as a juvenile offender prohibited from owning or possessing a firearm as proven by agreement of the parties in the form of a stipulation. See Lee, 266 Kan. at 815-16.
The district court’s order complies with Lee by approving Mitchell’s stipulation to the jury, protecting the State’s interest in providing a record that establishes each and every element of Mitchell’s status as set forth in K.S.A. 21-4204, and refusing to disclose the number and nature of Mitchell’s prior offenses to the jury. Although the district court’s order did not specifically permit the State to admit the journal entry of judgment from Mitchell’s prior juvenile adjudication and sentence into the record, the court’s requirement that Mitchell provide a separate stipulation to the court establishing each of the status elements specified in K.S.A. 21-4204 adequately protects the record for appeal.
Pursuant to Lee, the State is required to accept Mitchell’s stipulation as to his status and is precluded from admitting independent evidence to the jury to establish the elements of Mitchell’s status. The State has failed to demonstrate that the district court’s decision is erroneous and not in compliance with Kansas law. Thus, the State cannot demonstrate that the exclusion of its proposed stipulation of the prior juvenile adjudication substantially impairs its ability to prosecute the case. If the exclusion of evidence does not substantially impair the State’s ability to prosecute the case, the State cannot raise the issue as an interlocutory appeal. As a result, we do not have jurisdiction to address the State’s appeal. See State v. Kleypas, 282 Kan. 560, 563-65, 147 P.3d 1058 (2006); State v. Griffin, 246 Kan. 320, 323, 787 P.2d 701 (1990).
In addition to arguing that we have no jurisdiction for the State’s appeal, Mitchell argues that the time for the appeal must be charged to the State for purposes of speedy trial. Mitchell asserts that he has been in custody during the pendency of the appeal and, as a result, his statutory right to a speedy trial has been violated. The question of whether there was a violation of the statutory right to a speedy trial is a matter of law, and we review it using a de novo standard of review. State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007).
The statutory right to a speedy trial is set forth in K.S.A. 22-3402, which provides in pertinent part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 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 (5).
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless tire 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 (5).
“(6) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.”
Mitchell’s first trial ended in a mistrial on September 15, 2005. Mitchell was shot later that same day. In February 2006, the district court held a status conference where Mitchell orally moved to continue his trial to an unspecified date because his gunshot wounds made him unfit for the rigors of trial. Although Mitchell’s juiy trial was later scheduled for December 11,2006, the State and Mitchell filed a joint motion to continue the trial. The district court noted that Mitchell had previously waived his right to a speedy trial and had personally agreed to the continuance. Granting the joint motion, the district court set Mitchell’s trial for March 26, 2007. On March 26, 2007, the parties selected a juiy. However, when the State filed its notice of an interlocutory appeal, the district court suspended the proceedings and discharged the juiy. On March 28, 2007, Mitchell filed an objection to the State’s interlocutoiy appeal and reasserted his right to a speedy trial, stating that he was in custody.
The State is authorized to file an interlocutory appeal in a criminal action when the district court suppresses evidence. K.S.A. 22-3603. However, because the State’s interlocutoiy appeal was not authorized by K.S.A. 22-3603, Mitchell argues that the time for the appeal must be charged to the State. Mitchell relies on State v. Unruh, 263 Kan. 185, 191, 946 P.2d 1369 (1997). In Unruh, the State filed an interlocutory appeal. The Unruh court dismissed the State’s appeal as an unauthorized appeal and held that the State violated the defendant’s statutory right to a speedy trial, charging the time associated with the State’s interlocutory appeal against the State. 263 Kan. at 191. The Unruh court reasoned:
“In this case, nothing prevented the State from trying the defendant on the original charges once the district court invalidated the plea agreement. The only reason for the attempted interlocutory appeal was to avoid a possiblé waste of time in trying the case. The State should have proceeded to trial on the original charges rather than attempting an appeal that was not clearly authorized by any express statutory provision. While it is true that the State did not conclusively know its interlocutory appeal was without, jurisdiction until our opinion, under Hess, [180 Kan. 472, 304 P.2d 474 (1956),] and Grimes, [229 Kan. 143, 622 P.2d 143 (1981),] and the statutes regarding criminal appeals by the State, considerations of expediency can have no weight in the face of the preemptory commands of the Kansas Constitution Bill of Rights and K.S.A. 22-3402(1).” 263 Kan. at 191.
Before applying Unruh to this case, we must first determine whether Mitchell had permanently waived his statutory right to a speedy trial. In State v. Smallwood, 264 Kan. 69, 75, 955 P.2d 1209 (1998), this court rejected the defendant’s claim that the State vi olated his statutory right to a speedy trial. When Smallwood appeared for trial approximately 17 months after his initial trial date, the district judge advised him off the record that the State was not going to trial that day. In response, Smallwood orally advised the judge off the record that he was asserting his right to a speedy trial but neither withdrew his waiver nor filed a notice that he was reasserting his right to a speedy trial. Noting that Smallwood had unconditionally waived his right to a speedy trial, the Smallwood court concluded that Smallwood’s claim of a conditional waiver was not supported by the record and held that the State had not violated Smallwood’s statutory right to a speedy trial. 264 Kan. at 74-75.
The Court of Appeals reached the opposite result in City of Shawnee v. Patch, 33 Kan. App. 2d 560, 562-63, 105 P.3d 727 (2005). The Patch court noted that the defendant’s waiver was conditioned upon a specific court date. Because the City failed to begin the trial on that specific court date, the Patch court held that the defendant’s right to a speedy trial was violated. The Patch court reasoned that the City was required to exercise due diligence in bringing the defendant to trial when the defendant exercised his right to withdraw his waiver. 33 Kan. App. 2d at 563.
In State v. Bloom, 273 Kan. 291, 310, 44 P.3d 305 (2002), this court rejected the defendant’s claim that his statutory right to a speedy trial had been violated, noting that the defendant had unconditionally waived his right to a speedy trial. The Bloom court stated that the defendant was required to revoke his waiver before he could allege a speedy trial violation. 273 Kan. at 310.
Smallwood, Patch, and Bloom stand for the proposition that defendants who have waived their right to a speedy trial may condition or revoke their waivers and subsequently raise the speedy trial issue if the State is aware of the conditions or the revocation. Although Mitchell waived his right to a speedy trial in 2005, he revoked his waiver and unconditionally reasserted his right to a speedy trial on March 28, 2007, when he filed an objection to the State’s interlocutory appeal. Under Smallwood, Patch, and Bloom, Mitchell properly reasserted his right to a speedy trial and revoked his waiver by giving the State notice on the record.
Because Mitchell properly revoked the waiver of his right to a speedy trial, the holding in Unruh applies. The time for the State’s unauthorized interlocutory appeal must be charged against the State. K.S.A. 22-3402 does not specifically address the situation when the defendant revokes his or her waiver of the right to a speedy trial. However, it provides that a defendant in custody solely for the crime charged is entitled to be tried within 90 days of arraignment. K.S.A. 22-3402(1). If the defendant is out on bond, he or she is entitled to be tried within 180 days of arraignment. K.S.A. 22-3402(2). Mitchell was arraigned in 2005 but waived his right to a speedy trial until March 28, 2007. The district court set Mitchell’s bail at $125,000 after it suspended his trial. Other than Mitchell’s pleading filed on March 28, 2007, which states that Mitchell was in custody, there is nothing in the record to establish whether Mitchell is currently in custody or whether he bonded out. Assuming that Mitchell remains in custody, the State is entitled to a new 90-day period after Mitchell reasserted his right to a speedy trial. The 90-day period expired on June 28, 2007. Assuming that Mitchell was released on bond, the State is entitled to a 180-day period after Mitchell reasserted his right to a speedy trial. The 180-day period expired on September 27, 2007. Under either scenario, the State has failed- to bring Mitchell to trial within the statutory speedy trial period. As a result, the case against Mitchell must be dismissed and he is discharged from further liability.
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The opinion of the court was delivered by
Luckert, J.:
During the 2007 Kansas legislative session, the legislature passed and the governor signed House Substitute for Senate Bill No. 244 (H. Sub. S.B. 244), which substantially amended K.S.A. 21-4015 (Furse 1995), formerly known as the Kansas Funeral Picketing Act, and now, as amended, known as the Kansas Funeral Privacy Act, K.S.A. 21-4015. L. 2007, ch. Ill, secs. 1-6. Although the legislature repealed the Kansas Funeral Picketing Act, it did not make operative those substantive provisions of the Kansas Funeral Privacy Act regulating the time and place of protests at funerals. Rather, in a section the parties refer to as the judicial trigger provision, the legislature provided that the funeral protest provisions of the new legislation would not become operative unless and until this court or a federal court determined the funeral protest provisions were constitutional. K.S.A. 21-4015(i). In another provision, referred to as the judicial review provision, the legislature directed the attorney general to file a lawsuit challenging the constitutionality of the funeral protest provisions. K.S.A. 2007 Supp. 75-702a.
This lawsuit is not the action suggested in those provisions, however. In this action, the attorney general challenges the constitutionality of the judicial trigger provision, arguing the legislature violated the separation of powers doctrine by directing the attorney general to file the lawsuit contemplated in the provision. This argument is constructed on two premises. First, according to the attorney general, the legislature usurped or intruded into executive and judicial powers by ordering the attorney general to file a lawsuit he believes would seek an unconstitutional remedy and, as a result, would lack merit. Second, the attorney general’s conclusion regarding the merits of the suit is based upon an argument that the judicial trigger lawsuit would require a court to provide advice to the legislature as to whether the funeral protest provisions are constitutional and should become operative; he notes that courts do not have the judicial power to provide advisory opinions. If we agree with the attorney general on these points, he requests an order severing the judicial trigger provision from the Kansas Funeral Privacy Act.
These arguments are partially persuasive. The separation of powers doctrine prohibits the legislature from directing the attorney general to file a lawsuit that would seek an unconstitutional remedy, and the judgment sought by the judicial trigger provision would exceed the constitutionally defined power of a court, which is limited to deciding actual cases or controversies. The funeral protest provisions cannot present an actual case or controversy because the provisions are inoperative; therefore, no one’s privacy has been protected, no one’s protest has been restricted, no one’s liberty has been threatened, and no one’s duty to enforce the provisions has been activated.
Nevertheless, the judicial trigger provision cannot be severed from the Kansas Funeral Privacy Act because severance would broaden the effect of the Act in a manner contraiy to the express directions of the legislature. The legislature directed that the funeral protest provisions would become operative if and when determined constitutional. That determination has not been made, and it would violate the separation of powers doctrine to make the provisions operative in a manner contrary to the explicit directions of the legislature.
Quo Warranto Jurisdiction
Article 3, § 3 of the Kansas Constitution grants this court original jurisdiction in quo warranto actions. Quo warranto is an extraordinary remedy available when “any person shall usurp, intrude into or unlawfully hold or exercise anypublic office.” K.S.A. 60-1202(1). In other words, a writ of quo warranto may issue when it is alleged that the separation of powers doctrine has been violated. A violation of the separation of powers doctrine can result when legislation permits one branch of government to usurp or intrude into the powers of another branch of government. If such a situation exists, the statute is unconstitutional. See, e.g., State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 64, 687 P.2d 622 (1984) (statute allowing legislature to adopt, modify, or revoke administrative rules and regulations by concurrent resolution was unconstitutional usurpation of executive powers).
In this case, the governor does not dispute this court’s jurisdiction, tire appropriateness of this dispute being raised in a quo warranto action, or the appropriateness of this issue being decided on relation of the attorney general against the governor of the state (see Kansas House of Representatives, 236 Kan. at 58). Moreover, the governor does not dispute the premise that a statute would be unconstitutional if it ordered tire attorney general to seek a remedy, such as an advisory opinion, that was not within the power of a court.
What the governor does dispute is the attorney general’s contention that the judicial trigger and review provisions would lead to an advisory opinion. The governor asserts that a controversy exists currently, meaning that resolution of the controversy would be within constitutionally granted judicial powers, and, consequently, the legislature has the power to direct the attorney general to file the lawsuit testing the Kansas Funeral Privacy Act’s constitutionality.
To explain and analyze the parties’ differing positions we will examine the statutory provisions; analyze the separation of powers doctrine as it relates to the interrelationship of the legislative, executive, and judicial branches; and apply those principles to the question of whether the legislature’s directive to the attorney general violates the separation of powers doctrine.
Statutory Provisions
In arguing a present controversy exists, the governor’s argument is based, in part, upon section 6 of the Kansas Funeral Privacy Act, which provides the Act shall “take effect and be in force from and after its publication in the statute book.” L. 2007, ch. Ill, sec. 6.
The impact of this provision is diluted by the so-called judicial trigger, which makes some of the Act’s provisions inoperative. The judicial trigger provision states:
“(i) Amendments by this act to this section shall be applicable on and after whichever of the following dates is applicable:
(1) If the action authorized by K.S.A. 2007 Supp. 75-702a, and amendments thereto, is decided in Kansas state court, amendments by this act to this section shall be applicable from and after the date the Kansas supreme court upholds the constitutionality thereof.
(2) If the action authorized by K.S.A. 2007 Supp. 75-702a, and amendments thereto, is decided in federal court, amendments by this act to this section shall be applicable from and after the date of the judgment of the court upholding the constitutionality thereof.” (Emphasis added.) K.S.A. 21-4015(i).
Among the provisions that are not operative because of the judicial trigger are those which make it unlawful to demonstrate “at any public location within 150 feet of any entrance to a cemeteiy, church, mortuary, or other location where a funeral is held or conducted, within one hour prior to the scheduled commencement of a funeral, during a funeral or within two hours following the completion of a funeral” or to interfere with a funeral procession or anyone’s ability to exit or enter a funeral. K.S.A. 21-4015(e).
However, the judicial trigger does not cover section 2 of the Act, codified at K.S.A. 2007 Supp. 60-1803, which relates to libel and slander occurring at a funeral. Thus, section 2 is operative and, in this regard, stands alone as the only operative, substantive provision.
All other operative provisions are procedural, including section 4, codified at K.S.A. 2007 Supp. 60-2102a(b)(2), which relates to appellate jurisdiction; section 5, L. 2007, ch. Ill, which repeals the previous Kansas Funeral Picketing Act; and section 3, codified at K.S.A. 2007 Supp. 75-702a, which provides for judicial review of the substantive provisions. Section 3 states:
“In accordance with K.S.A. 75-702, and amendments thereto, the attorney general shall seek judicial determination of the constitutionality of K.S.A. 21-4015, as amended by L. 2007, ch. Ill, § 1, and amendments thereto. If the action authorized by this section is brought in a district court of this state, then the judgment of that district court shall be appealed directly to the Kansas supreme court as a matter of right.” K.S.A. 2007 Supp. 75-702a.
The combined effect of sections l(i), 3, and 6, L. 2007, ch. Ill, is that the attorney general is under a current statutory obligation to challenge the constitutionality of the Kansas Funeral Privacy Act. This obligation creates a current controversy regarding whether the legislature’s directive violates the separation of powers doctrine.
Separation of Powers Doctrine
The separation of powers doctrine is not expressly stated in either the United States or Kansas Constitutions. Yet, the doctrine is recognized as “an inherent and integral element of the republican form of government.” Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973). In Van Sickle, this court discussed the theoretical underpinnings of the doctrine and its importance to our government, describing it as the “cornerstone to free republican government” and essential to liberty. 212 Kan. at 445; see also Leek v. Theis, 217 Kan. 784, 804-05, 539 P.2d 304 (1975).
The basic contours of the separation of powers doctrine are easily stated. Each of the three branches of our government—the legislative, judicial, and executive branches—is given the powers and functions appropriate to it. As the United States Supreme Court explained nearly 200 years ago: “The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law.” Wayman v. Southard, 23 U.S. (10 Wheat) 1, 46, 6 L. Ed. 253 (1825).
This statement, while accurate and straightforward, is deceptively simplistic because “separation of powers of government has never existed in pure form except in political theory.” Leek, 217 Kan. at 805. In reality, there is an overlap and blending of functions, resulting in complementary activity by the different branches that makes absolute separation of powers impossible. Kansas House of Representatives, 236 Kan. at 59; see Youngstown Co. v. Sawyer, 343 U.S. 579, 635, 96 L. Ed. 1153, 72 S. Ct. 863 (1952) (Jackson, J., concurring) (“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”). This recognition has been described as a “pragmatic, flexible and practical approach” to the operation of government. State v. Greenlee, 228 Kan. 712, 715, 620 P.2d 1132 (1980).
Given that the separation of powers is not pure, how is it determined that one branch has violated the doctrine by unconstitutionally usurping or intruding into the powers of another branch? Guidance for that determination has been reduced to four general principles. See State v. Beard, 274 Kan. 181, 186, 49 P.3d 492 (2002); Kansas House of Representatives, 236 Kan. at 59-60; Manhattan Bldgs., Inc. v. Hurley, 231 Kan. 20, 32, 643 P.2d 87 (1982); Greenlee, 228 Kan. at 716.
First, the separation of powers doctrine requires a court to presume a statute to be constitutional. Beard, 274 Kan. at 186. “A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008).
Second, when considering if there has been a violation of the separation of powers doctrine, a court must examine the specific facts and circumstances presented and search for a usurpation by one branch of government of the powers of another branch of government. Beard, 274 Kan. at 186.
Third, a usurpation of powers exists when there is a significant interference by one branch of government with the operations of another branch. 274 Kan. at 186.
Fourth, a court determining whether there has been a significant interference by one branch of government should consider “(a) the essential nature of the power being exercised; (b) the degree of control by one [branch] over another; (c) the objective sought to be attained . . . ; and (d) the practical result of the blending of powers as shown by actual experience over a period of time.” Greenlee, 228 Kan. at 716 (citing State ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 [1976]).
As we apply these principles to this case, we begin with a presumption that the judicial trigger and review provisions are constitutional. Next, we must examine the powers of each branch in the context of the issues before this court. First, is there a significant usurpation or intrusion into the powers of the attorney general and the courts through the legislative directive to file a judicial trigger lawsuit which tire attorney general believes lacks merit? Second, does the judicial trigger provision purport to make either a federal court or this court an advisor to the legislature on whether inoperative funeral protest provisions are facially constitutional and, therefore, should be allowed to become operative?
Legislative Directive to File Suit
Regarding the essential nature of the power of the attorney general and of the legislature with respect to the attorney general, the Kansas Constitution designates the attorney general as an executive officer in Article 1, § 1. The Kansas Constitution does not define the attorney general’s duties, however. In the absence of constitutional definition of powers, the legislature has the power to de fine the attorney general’s duties. State ex rel. Stephan v. Finney, 251 Kan. 559, 578, 836 P.2d 1169 (1992) (“ ‘[T]he executive power is more limited than legislative powers, extending merely to the details of carrying into effect laws enacted by the legislature . . . , the legislature having the power, except where limited by the constitution itself, to stipulate what actions executive officers shall or shall not perform.’ ”).
In defining the attorney general’s duties, the legislature obligated the attorney general to “give his or her opinion in writing, without fee, upon all questions of law submitted to him or her by the legislature, or either branch thereof.” K.S.A. 75-704. This power is consistent with the long-held view that the giving of advisory opinions is an executive, not a judicial, power. Tex. Ass’n of Business v. Air Control Bd., 852 S.W.2d 440, 444 n.6 (Tex. 1993) (citing Correspondence of the Justices, Letter from Chief Justice John Jay and the Associate Justices to President George Washington, August 8, 1793, in Tribe, American Constitutional Law, p. 73 n.3 [2d ed. 1988]); see Kansas House of Representatives, 236 Kan. at 70 (Herd, J., dissenting) (positing that court had issued advisory opinion drat intruded upon attorney general’s duty to advise).
The legislative record regarding the Kansas Funeral Privacy Act reveals the attorney general advised the legislature regarding the constitutionality of the Act and, consistent with his argument before this court, opined the funeral protest provisions are laudable, important, and constitutional. Minutes, House Comm, on Fed. & State Affairs, March 8, 2007 (testimony of Attorney General Paul J. Morrison, attachment 4). The legislature apparently wanted a second opinion and directed the attorney general to seek that opinion by filing the judicial trigger lawsuit. See In re Advisory Opinion to Governor, 856 A.2d 320, 323 (R.I. 2004) (in exercising constitutional power granted by Rhode Island Constitution to issue advisory opinion, court cautions the justices are “speaking in our individual capacities as legal experts rather than Supreme Court justices” and that “this opinion is not an exercise of judicial power, it is not binding and it carries no mandate”).
Additionally, the legislature imposed a duty upon the attorney general to file and defend lawsuits involving the State when di rected to do so by the legislature or the governor. The duty is imposed by K.S.A. 2007 Supp. 75-702, which states:
“The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and shall also, when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any other court or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested or when the constitutionality of any law of this state is at issue and when so directed shall seek final resolution of such issue in the supreme court of the state of Kansas.”
This provision is not under attack in this suit. Nor does the attorney general argue the judicial review provision in the Kansas Funeral Privacy Act, which draws authority from K.S.A. 2007 Supp. 75-702, is unconstitutional by itself. Rather, he argues the unconstitutionality arises when the judicial review provision of the Kansas Funeral Privacy Act is combined with the judicial trigger provision, because the result is a directive from the legislature requiring the attorney general to take action contrary to the Kansas Constitution and, therefore, lacking merit.
The first premise of this argument—that the legislature cannot constitutionally direct the attorney general to take an action the attorney general believes is without merit—is supported by State ex rel. Foster v. City of Kansas City, 186 Kan. 190, 350 P.2d 37 (1960). State ex rel. Foster was an original quo warranto proceeding filed by the State, on relation of the county attorney, to test the validity of ordinances annexing an industrial district to the City of Kansas City. The attorney general intervened and filed a motion to dismiss the action. The following month, the governor directed the attorney general not to seek the dismissal of the proceeding but to prosecute it and assure all parties an opportunity to present the issues.
The principal issues on appeal were whether the attorney general had authority to intervene in a suit brought by die county attorney and, having done so, whether the attorney general had the right to file a motion to have the action dismissed when dismissal was contrary to the instructions of the governor. The court ruled the governor did not have the power to prevent die attorney gen eral from pursuing the motion to dismiss if the attorney general, acting as an attorney and, therefore, as an officer of the court, felt the action lacked merit. Even though the directive came from one member of the executive branch to another, the court found a violation of the separation of powers because the attorney general, in that capacity, acted as an officer of the court:
“[W]e conclude the attorney general by his motion to intervene and supersede the county attorney exercised his powers and duties under the constitution and appropriate statutes; this was as far as he could go as an executive officer and as an attorney and officer of this court. Since he is an officer of the judicial branch, under the separation of powers of the three branches of government, he was limited and restricted in his conduct before this court by the code of professional ethics [citation omitted] to the same extent any other lawyer would be. If, therefore, the attorney general considered the action unmeritorious, he not only had the authority, but he also had a duty to move for dismissal. We cannot think that the framers of our state constitution or the members of the legislature ever intended that the governor should have control over the judicial branch, or its officers, as is advocated [by the defendant]. Each of the three branches of our government should be zealous of its jurisdiction and each should also be vigilant to see that it does not encroach upon the jurisdiction of the other two.” 186 Kan. at 197.
These conclusions control the first issue in this case; the legislature, like the governor, lacks constitutional authority to intrude into the attorney general’s duties as an officer of the court. The legislature cannot override an attorney’s ethical duties to not “bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Kansas Rules of Professional Conduct (KRPC) 3.1 (2007 Kan. Ct. R. Annot. 500) (meritorious claims and contentions); see K.S.A. 60-211(b)(2), (c) (signing petition certifies good faith belief that claims are meritorious; sanctions provided for violations). Moreover, the attorney general is duty bound to uphold the constitution. K.S.A. 54-106 (oath of office shall be taken by all officers elected or appointed under any law of the State of Kansas to support the Constitution of the United States and the Constitution of the State of Kansas and to faithfully discharge all duties of office). Consequently, the legislature cannot direct the attorney general to file an action if the attorney general has a good faith belief that the action seeks an unconstitutional remedy.
The attorney general does not suggest this conclusion ends our analysis. Nor does he argue his conclusion regarding the merits of a judicial trigger action should not be tested. Indeed, the point of this action is to seek an adjudication that an action attacking the inoperative Kansas Funeral Privacy Act’s funeral protest provisions would necessarily seek a remedy that is constitutionally prohibited—i.e., an advisory opinion.
Legislative Directive for An Advisory Opinion
Unquestionably, courts have the power to determine whether a statute is constitutional. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803); State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 443, 172 P.3d 1154 (2007). This power arises, however, only when the question is presented in an actual case or controversy between parties; courts do not have the power to issue advisory opinions. Muskrat v. United States, 219 U.S. 346, 361-62, 55 L. Ed. 246, 31 S. Ct. 250 (1911); NEA-Topeka, Inc. v. U.S.D. No. 501, 227 Kan. 529, 531-21, 608 P.2d 920 (1980).
As the United States Supreme Court explained in Muskrat, which is often cited as the classic case stating the rule against advisory opinions:
“In [Marbury v. Madison] Chief Justice Marshall, who spoke for the court, was careful to point out that the right to declare an act of Congress unconstitutional could only be exercised when a proper case between opposing parties was submitted for judicial determination; that there was no general veto power in the court upon the legislation of Congress; and that the authority to declare an act unconstitutional sprang from the requirement that the court, in administering the law and pronouncing judgment between the parties to a case, and choosing between the requirements of the fundamental law established by the people and embodied in the Constitution and an act of the agents of the people, acting under authority of the Constitution, should enforce the Constitution as the supreme law of the land.” 219 U.S. at 357-58.
Kansas courts have followed the same rule as federal courts. See, e.g., Sheila A. v. Finney, 253 Kan. 793, 796, 861 P.2d 120 (1993); NEA-Topeka, Inc., 227 Kan. at 531; Knowles v. State Board of Education, 219 Kan. 271, 278, 547 P.2d 699 (1976); Thompson v. Kansas City Power & Light Co., 208 Kan. 869, 871, 494 P.2d 1092, cert, denied 409 U.S. 944 (1976); see also Hill v. Prince Hall Grand Lodge, 183 Kan. 148, 151, 325 P.2d 334 (1958) (describing Muskrat as “the classical, old case on the question of justiciable controversy”).
Advisory Opinions and Federal Separation of Powers
The prohibition against advisory opinions is imposed by the United States and Kansas Constitutions. Article III, § 1 of the United States Constitution invests the “Judicial Power” in the courts, and § 2 expressly limits the power to “Cases” or “Controversies.” The United States Supreme Court has explained that the “Cases” or “Controversies” provision in Article III limits the judicial power to resolving disputes that were “traditionally amenable to, and resolved by, the judicial process” in those cases that could be adjudicated at common law. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 774, 146 L. Ed. 2d 836, 120 S. Ct. 1858 (2000) (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 102, 140 L. Ed. 2d 210, 118 S. Ct. 1003 [1998]); see also Honig v. Doe, 484 U.S. 305, 340, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988) (Scalia, J., dissenting) (stating that the terms “The Judicial Power,” “Cases,” and “Controversies” have “virtually no meaning except by reference” to “the traditional, fundamental limitations upon the powers of common-law courts”); Coleman v. Miller, 307 U.S. 433, 460, 83 L. Ed. 1385, 59 S. Ct. 972 (1939) (“Judicial power could come into play only in matters that were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted ‘Cases’ or ‘Controversies.’ ”).
The constitutional terms—judicial power, case, and controversy—“define the role assigned to the judiciaiy in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.” Flast v. Cohen, 392 U.S. 83, 95, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). The United States Supreme Court explained the relationship by quoting a speech John Marshall made in the House of Representatives:
“ ‘A case in law or equity, . . . was a term ... of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act. The division of power [among tire branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.’ 4 Papers of John Marshall 95 (C. Cullen ed. 1984).” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 164 L. Ed. 2d 589, 126 S. Ct. 1854 (2006).
See Valley Forge Christian College v. Americans United, 454 U.S. 464, 474, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982).
In fact, the Supreme Court emphasized that “ ‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd, 521 U.S. 811, 818, 138 L. Ed. 2d 849, 117 S. Ct. 2312 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37, 48 L. Ed. 2d 450, 96 S. Ct. 1917 [1976]).
Recently, the United States Supreme Court has admitted its decisions, especially those where a party seeks a declaratory judgment, have not drawn “the brightest of fines” delineating which actions satisfy the Article III case-or-controversy requirement. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 166 L. Ed. 2d 604, 127 S. Ct. 764 (2007). Four standards were identified to assure this requirement was satisfied: (1) the dispute must be “ ‘definite and concrete’ (2) the dispute must touch “ ‘the legal relations of parties having adverse legal interests’ (3) the dispute must “be ‘real and substantial,’ ” which in the declaratory judgment context would mean the controversy was “ ‘of sufficient immediacy and reality to warrant the issuance of a declaratory judgment’ and (4) the dispute must “ ‘admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ [Citations omitted.]” 549 U.S. at 127.
As this indicates, the antithesis of a justiciable controversy—i.e., those having definite and concrete issues arising between parties with adverse legal interests that are immediate, real, and amenable to conclusive relief—is a case seeking an advisory opinion. Advisory opinions lack factual context, precise legal issues, truly adverse parties, and do not result in a binding judgment:
“Such [advisory] opinions, such advance expressions oflegal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. [Citations omitted.]” United States v. Fruehauf, 365 U.S. 146, 157, 5 L. Ed. 2d 476, 81 S. Ct. 547 (1961).
To enforce the case-or-controversy requirement, assure the four standards are met, and assure that federal courts do not provide advisory opinions, the United States Supreme Court has imposed requirements broadly incorporated into and labeled as “justiciability” and has emphasized that these requirements are essential to federal courts abiding by the separation of powers doctrine. DaimlerChrysler Corp., 547 U.S. at 341-42; Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11-12, 159 L. Ed. 2d 98, 124 S. Ct. 2301 (2004); Diamond v. Charles, 476 U.S. 54, 61-62, 90 L. Ed. 2d 48, 106 S. Ct. 1697 (1986); Valley Forge Christian College, 454 U.S. at 471-74; Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); see Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881, 897-98 (1983).
The justiciability doctrine requires a plaintiff to have standing and to present only issues that are ripe for decision, that are not moot, and that do not present a political question. DaimlerChrysler Corp., 547 U.S. 332 (doctrines of standing, mootness, ripeness, and political question all originate in Article Ill’s “case” or “controversy” language); Allen v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984) (justiciability includes doctrines of standing, ripeness, and mootness).
Were the attorney general to attempt to meet these requirements in federal court, it is unlikely there would be questions regarding whether the issues he presented were moot or presented a political question. But serious questions would arise regarding whether the issues were ripe and whether the attorney general had standing to bring the suit.
The doctrine of ripeness is “designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.’ ” National Park Hospitality Ass’n v. Department of Interior, 538 U.S. 803, 807, 155 L. Ed. 2d 1017, 123 S. Ct. 2026 (2003). To be ripe, issues must have taken shape and be concrete rather than hypothetical and abstract. Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 244, 97 L. Ed. 291, 73 S. Ct. 236 (1952). Stated yet another way, the doctrine prevents courts from being “asked to decide ‘ill-defined controversies over constitutional issues,’ [citation omitted], or a case which is of ‘a hypothetical or abstract character.’ [Citation omitted.]” Flast, 392 U.S. at 100.
The issues presented in the judicial trigger suit contemplated by the Act would be hypothetical, essentially asking: If the provisions were being enforced, would they infringe on any constitutional right? The parties and the court would speculate on what rights an aggrieved party might assert as having been violated, and those issues would be considered in the abstract without actual facts to inform the court’s analysis and resolution of the questions.
The second justiciability requirement implicated by the judicial trigger suit is standing. Standing is often capsulized as requiring an injuiy in fact. The standing doctrine has other implications, however, as explained by the United States Supreme Court:
“[Ojur standing jurisprudence contains two strands: Article III standing, which enforces the Constitution’s case-or-controversy requirement [citation omitted,] and prudential standing, which embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction,’ [citation omitted]. The Article III limitations are familiar: The plaintiff must show that die conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress. [Citation omitted.] Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses ‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked.’ [Citations omitted.]” Elk Grove Unified School Dist., 542 U.S. at 11-12.
Applying these requirements to the judicial trigger lawsuit, the governor conceded at oral argument that, at a minimum, the attorney general would not be able to prove injury in fact and would, therefore, lack standing to bring a suit in federal court. We, therefore, conclude the lawsuit contemplated by the judicial trigger provision, K.S.A. 21-4015(i), would not satisfy federal standards used to determine whether an actual case or controversy exists and under federal law would be considered a provision calling for an impermissible advisory opinion from the courts.
Advisory Opinions and Kansas Separation of Powers
Despite Kansas’ earlier adherence to the rule of Muskrat, application of the federal principles does not automatically lead to the conclusion that the Act’s judicial trigger could not be activated in Kansas. State courts are not bound by the prohibition against advisory opinions found in the Constitution of the United States or by federal justiciability requirements. The United States Constitution’s prohibition arises solely from Article III. 1 Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure § 2.13 (4th ed. 2007); see also, e.g., Allen, 468 U.S. at 750 (federal courts are confined to adjudicating actual cases or controversies); Qwest Corp. v. Public Utilities Comm’n of Colorado, 479 F.3d 1184, 1191 (10th Cir. 2007) (Article III of federal Constitution bars federal courts from issuing advisory opinions.). Neither the terms of Article III nor the Due Process Clause makes that Article applicable to the states. Asarco Inc. v. Radish, 490 U.S. 605, 617, 104 L. Ed. 2d 696, 109 S. Ct. 2037 (1989) (“the constraints of Article III do not apply to state courts”); see also U.S. Const., Amend. X (reserving powers “not delegated to the United States by the Constitution” to the states).
Hence, each state is free to define the judicial powers of its courts. Speaking generally, most state constitutions, including our Kansas Constitution, vary from the Constitution of the United States in three substantive ways that affect judicial power: (1) the inherent remedial role of state courts differs because of the nature of rights accorded by state constitutions; (2) jurisdiction of state courts differs from that of federal courts; and (3) the text of the judicial article in state constitutions often does not refer to the necessity of cases or controversies.
First, regarding the difference in the inherent remedial powers of the courts, the distinction arises because the Constitution of the United States grants what are referred to as negative rights—i.e., rights which the government may not infringe. If a court finds an • infringement of such a right—whether the infringement arises from an unconstitutional statute or through the actions of a government official—the remedy is to stop the infringement by striking the offending statute, prohibiting and punishing the action, and suppressing fruits obtained from the unconstitutional act. See Harris v. McRae, 448 U.S. 297, 318, 65 L. Ed. 2d 784,100 S. Ct. 2671 (1980); Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983); Herschkoff, State Courts and the “Passive VirtuesRethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1890 (2001).
Similarly, state constitutions, including Kansas’, grant negative rights, and judicial remedies for violations of those rights are consistent with remedies allowed in federal courts. The difference in the inherent remedial power of state courts arises because all state constitutions also grant positive rights, i.e., rights that entitle individuals to benefits or actions by the state. Herschkoff, Positive Rights and States Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, 1135 (1999) (“Unlike the Federal Constitution, every state constitution in the United States addresses social and economic concerns, and provides the basis for a variety of positive claims against the government.”); see, e.g., Montoy v. State, 278 Kan. 769, 771, 120 P.3d 306 (2005) (Article 6, § 6 of the Kansas Constitution requires legislature to “make suitable provision for finance” of the public schools.). When a positive right has been violated, the typical remedy imposed for protecting negative rights—prohibiting government action-—exacerbates the problem that arose when the government failed to act and fulfill its duties. To enforce a positive right, courts must mandate a positive remedy by requiring the state government to act and thereby fulfill the constitutional right. See Montoy v. State, 279 Kan. 817, 828, 112 P.3d 923 (2005); Herschkoff, 114 Harv. L. Rev. at 1890-91.
The second substantive difference between judicial power provisions in state constitutions and the provisions in the Constitution of the United States is found in the delineation of jurisdiction..Each state is free to determine the jurisdictional limits of its courts in any respect not preempted by federal jurisdiction. 1 Rotunda & Nowak, Treatise on Constitutional Law § 2.13. State constitutions contain unique jurisdictional features. For example, Article 3, § 3 of the Kansas Constitution grants this court original jurisdiction of this and similar quo warranto actions and mandamus actions. (Compare United States Constitution, Article III, held in Marbury v. Madison, 5 U.S. [1 Cranch] 137, to grant United States Supreme Court appellate jurisdiction in mandamus.)
The Kansas Constitution’s jurisdictional provisions do not vary from those in the United States Constitution as drastically as other states’ constitutions. Several states have explicitly empowered state courts to give advisory opinions. Kansas is not one of those jurisdictions. See 1 Rotunda & Nowak, Treatise on Constitutional Law § 2.13, p. 247 n.3 (listing states allowing advisory opinions); Herschkoff, 114 Harv. L. Rev. at 1845-46 (discussing history, cases, and differences between United States and state Constitutions); Topf, State Supreme Court Advisory Opinions as Illegitimate Judicial Review, 2001 L. Rev. Mich. St. U. Det. C.L. 101 (Spring 2001) (same; discussing history of provisions in 10 states); Topf, The Jurisprudence of the Advisory Opinion Process in Rhode Island, 2 Roger Williams U. L. Rev. 207, 254-56 (1997) (same; including text of constitutional provisions); see also, e.g., Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005) (general rule is that appellate court does not decide moot questions or render advisory opinions).
The final distinction between the provisions regarding judicial power in the United States and Kansas Constitutions is a difference in how the judicial power is phrased. Article 3, § 1 of the Kansas Constitution grants the “judicial power” exclusively to the courts just as Article III, § 1 of the United States Constitution establishes the separation of powers parameter in the federal government. But, Article 3 of the Kansas Constitution, like parallel provisions of many other state constitutions, does not include the “case” or “controversy” language found in Article III, § 2 of the United States Constitution.
Nevertheless, Kansas courts have repeatedly recognized that the “judicial power” is the “power to hear, consider and determine controversies between rival litigants.” State, ex rel., v. Mohler, 98 Kan. 465, 471, 158 Pac. 408 (1916), affd 248 U.S. 112, 63 L. Ed. 153, 39 S. Ct. 32 (1918); see In re M.R., 272 Kan. 1335, 1339, 38 P.3d 694 (2002) (“ ‘ “It is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions.” ’ ”); State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./ Kansas City, 264 Kan. 293, 337, 955 P.2d 1136 (1998) (judicial power is the “ power to hear, consider and determine controversies between rival litigants’”); U.S.D. No. 380 v. McMillen, 252 Kan. 451, Syl. ¶ 5, 845 P.2d 676 (1993) (“[t]he judiciary interprets, explains, and applies the law to controversies”); see Dorf, The Relevance of Federal Norms for State Separation of Powers, 4 Roger Williams U. L. Rev. 51, 61 (1998) (positing that “the state court shares with the federal court the limitations that flow from its status as a court”).
In recognizing a constitutional case-or-controversy requirement, Kansas courts have relied solely on the separation of powers doctrine embodied in the Kansas constitutional framework. NEA-Topeka, Inc., 227 Kan. at 531-32.
As part of the Kansas case-or-controversy requirement, courts require: (a) parties must have standing; (b) issues cannot be moot; (c) issues must be ripe, having taken fixed and final shape rather than remaining nebulous and contingent; and (d) issues cannot present a political question. See State v. Snow, 282 Kan. 323, 343, 144 P.3d 729 (2006) (standing); Martens, 279 Kan. at 244-45 (mootness); Department of Revenue v. Dow Chemical Co., 231 Kan. 37, 41, 642 P.2d 104 (1982) (quoting Public Service Comm’n, 344 U.S. at 243-44 (ripeness); Van Sickle v. Shanahan, 212 Kan. 426, 438, 511 P.2d 223 (1973) (adopting standards for political questions stated in Baker v. Carr, 369 U.S. 186, 210, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 [1962]). This court has noted the “ "constitutional dimension’ ” of these requirements which have the effect of requiring all plaintiffs and petitioners to meet the threshold burden of making "‘out a case or controversy between himself and the defendant.” 312 Education Ass’n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002) (quoting Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155, appeal dismissed 484 U.S. 804 [1987]).
Like federal decisions, this court’s decisions note the policy considerations that underlie the requirement of justiciability and the prohibition against advisory opinions: controversies provide factual context, arguments are sharpened by adversarial positions, and judgments resolve disputes rather than provide mere legal advice. See, e.g., Kansas Bar Ass’n v. Judges of the Third Judicial Dist., 270 Kan. 489, 500-01, 14 P.3d 1154 (2000) (lack of concrete facts); State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 70, 687 P.2d 622 (1984) (Herd, J., dissenting) (lack of adversarial positions means issues are not sharpened); see Note,""Ghosts That Slay”: A Contemporary Look at State Advisory Opinions, 37 Conn. L. Rev. 1155, 1180-81 (2005) (advisory opinions suffer from abstraction of legal questions and inadequate factual context).
As in federal court, less rigorous requirements have been imposed in declaratory judgment cases; yet, actual cases and controversies are still required. The one Kansas case stressed by the governor at oral arguments in this case is illustrative. In State ex rel. Hopkins v. Grove, 109 Kan. 619, 201 Pac. 82 (1921), the constitutionality of Kansas’ declaratory judgment statute was challenged on the basis those actions did not present a case or controversy. Rejecting this argument, the court noted a declaratory action involves “two disputants, each of whom sincerely believes in the rightfulness of his own claim” and upon whom the judgment would be binding. 109 Kan. at 623. In contrast, the court noted advisory opinions are based upon abstract questions, are “ "inoperative and nugatory,’ ” and are “ ‘merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties .... Such is not the judicial power confided to this Court.’ [Citation omitted.]” 109 Kan. at 622, 624.
Thus, despite the differences between our Kansas Constitution and the Constitution of the United States, both limit the judicial power to actual cases and controversies. The judicial power granted by Article 3 of the Kansas Constitution does not include the power to give advisory opinions. A Kansas court issuing an advisory opinion would violate the separation of powers doctrine by exceeding its constitutional authority.
Advisory Opinions Regarding Legislation
The constitutional prohibition against advisory opinions applies to all cases, whether involving legislation or not. See, e.g., Cady v. Cady, 224 Kan. 339, 345, 581 P.2d 358 (1978) (postdivorce proceeding holding Kansas courts do not render advisory opinions on abstract questions of law absent actual controversy). Where, as here, the lawsuit would request an opinion regarding the constitutionality of inoperative legislation, an additional separation of powers issue is presented: Does the judicial trigger provision abdicate legislative power by seeking advice regarding the constitutionality of inoperative legislation?
Article 2 of the Kansas Constitution gives the legislature the exclusive power to pass, amend, and repeal statutes. State ex rel. Stephan v. Finney, 251 Kan. 559, 577, 836 P.2d 1169 (1992). It is universally recognized that “ "the essential of the legislative function is the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct within the limitations laid down by the constitution.’ ” 251 Kan. at 578. The separation of powers doctrine, therefore, prohibits either the executive or judicial branches from assuming the role of the legislature. E.g., State ex rel. Board of Healing Arts v. Beyrle, 269 Kan. 616, 622, 7 P.3d 1194 (2000); State ex rel. Tomasic, 264 Kan. at 337-38.
Broadly speaking, where the legislature looks to the future and changes existing conditions by making a new rule to be applied thereafter, by contrast “the judiciary investigates, declares, and enforces liabilities as they stand on present or past facts, under laws supposed already to exist.” (Emphasis added.) 16A Am. Jur. 2d, Constitutional Law § 262. Consequently, when the legislature is considering legislation, a court cannot enjoin the legislature from passing a law. “This is true whether such action by the legislature is in disregard of its clearly imposed constitutional duty or is the enactment of an unconstitutional law.” Kansas House of Representatives, 236 Kan. at 51.
In addition to preventing courts from interfering during the legislative process, the separation of powers doctrine requires courts to give deference to the legislature’s enactments. E.g., Leek v. Theis, 217 Kan. 784, 792-93, 539 P.2d 304 (1975). This deference is based upon a recognition that an assessment of constitutionality is inherent in legislative pokcymaking. See K.S.A. 54-106 (legislators required to take oath of office to uphold constitution). Hence, enacting a statute implies the legislature has made an assessment that the provision is constitutional.
Power is shifted away from the legislature when the legislature does not reach its own independent conclusion, albeit preliminary, regarding the constitutionality of a statute. Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002, 1003 (1924). Consequently, the giving of a judicial opinion regarding the constitutionality of pending legislation “violates the principle of separation of powers by facilitating abdication by the legislature of its duty to make a judgment on the constitutionality of a pending statute independent of that made by the justices.” Note, Advisory Opinions on the Constitutionality of Statutes, 69 Harv. L. Rev. 1302 (1956); see, e.g., In re Constitutionality of House Bill No. 222, 262 Ky. 437, 90 S.W.2d 692 (1936); In Re: Constitutionality of House Rill 88, 115 Vt. 524, 64 A.2d 169 (1949).
As the Minnesota Supreme Court stated in one of the earliest of such decisions, if the court were to opine on the constitutionality of legislation it would act as “the advisers of the legislature, nothing more.” In the Matter of Application of the Senate, 10 Minn. 78, 81 (1865); see also Muskrat v. United States, 219 U.S. 346, 362, 55 L. Ed. 246, 31 S. Ct. 250 (1911) (determining the validity of legislation would require court “to give opinions in the nature of advice concerning legislative action, a function never conferred upon it by the Constitution, and against the exercise of which this court has steadily set its face from the beginning”).
The constitutional concerns were summarized by Professor, later Justice, Frankfurter who warned that by resolving legislative questions without the factual framework of an actual conflict, the judiciary deals with abstract questions that weaken “legislative and popular responsibility” by shifting the policymaking burden away from the legislature, which Frankfurter described as the people’s branch of government, and depriving the legislature of its “creative function.” Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. at 1005, 1007. Additionally, he warned that attempts to “fori muíate [controversies] in terms of sterile legal questions [are] bound to result in sterile conclusions unrelated to actualities.” 37 Harv. L. Rev. at 1003. The need for a factual record and adversarial framing of issues is, in Frankfurter’s view, so fundamental and critical to consideration of constitutional questions that “failure scrupulously and persistently to observe tírese commonplaces jeopardizes the traditional American constitutional system more than all the loose talk about ‘usurpation.’ ” 37 Harv. L. Rev. at 1003.
The fact that the legislature has requested the advice does not cure the constitutional problems. “[A] power or duty forbidden by the Constitution cannot be conferred on the court by the Legislature, and cannot be exercised by the court or its members.” In re Constitutionality of House Bill No. 222, 262 Ky. at 441. Consistent with this conclusion, Kansas cases, although not addressing the specific circumstance of legislation authorizing advisory opinions, have held that while tire legislature may enact laws that confer jurisdiction or impose judicial functions on a court, it cannot impose a legislative or executive function on courts, except for functions relating to court administration. To do so would constitute a violation of the separation of powers doctrine by the legislature because it would be requiring the judicial branch to exercise legislative or executive power. Copeland v. Kansas State Board of Examiners in Optometry, 213 Kan. 741, 743, 518 P.2d 377 (1974); Lira v. Billings, 196 Kan. 726, 730-31, 414 P.2d 13 (1966).
Moreover, it is widely recognized that such advisory opinions regarding the constitutionality of legislation would have little effect. Such decisions relate to tire facial constitutionality of the statute, having little impact if the statute is attacked on an “as applied” basis, and do not directly affect the rights of nonparties who have a due process right to be heard. See Advisory Opinion to the Governor, 196 So. 2d 737, 739 (Fla. 1967).
Post-Muskrat Supreme Court Cases
The governor does not dispute these authorities but suggests a different situation is presented because the attorney general would not be seeking an opinion regarding pending legislation. Rather, the Kansas Funeral Privacy Act will not be further considered by the legislature; once this court renders a decision regarding the constitutionality of the substantive provisions of the Act, those provisions would become operative without further legislative action. Consequently, she suggests this case is more similar to three decisions in which the United States Supreme Court has considered the constitutionality of legislation that is not operative. Citing South Carolina v. Katzenbach, 383 U.S. 301, 15 L. Ed. 2d 769, 86 S. Ct. 803 (1966), Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976), and Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 48 L. Ed. 2d 274, 96 S. Ct. 1793 (1976), which she acknowledges are not binding on this court, the governor argues a similar approach would allow a Kansas court to decide whether the substantive provisions of the Kansas Funeral Privacy Act are constitutional.
The attorney general disagrees, suggesting that because the substantive provisions are inoperative the legislature has requested advice on whether the provisions should become operative rather than making that decision as a legislative body. Additionally, the attorney general notes that the governor s arguments ignore the justiciability requirements that are inherent in the constitutional requirements.
We agree with the attorney general on this point. A review of each of the cited cases reveals that the cases involved actual controversies, parties with conflicting positions and a stake in the litigation, and a factual framework for consideration. In contrast, none of these attributes would be present in a suit brought by the attorney general pursuant to the Kansas Funeral Privacy Act’s directive.
In Katzenbach, the Supreme Court upheld a provision of the Voting Rights Act of 1965 which required states to obtain preclearance of proposed voting rights statutes from the United States Attorney General or from the District Court for the District of Columbia to protect against racial discrimination in voting. 383 U.S. at 320, 337.
The Katzenbach Court dismissed the notion that it would be issuing an advisory opinion. Because the Act, which was operative, suspended any new voting regulation, the state or subdivision that enacted a voting regulation had “a concrete and immediate ‘controversy with the Federal Government” in that the states could not implement and enforce otherwise validly enacted voting laws. 383 U.S. at 335.
The Court contrasted the provision, which resulted in an actual controversy, from other provisions of the Voting Rights Act, which had not yet resulted in an actual controversy. South Carolina attacked these additional provisions, but the Court held that absent a showing that any person had been subjected to or threatened with criminal sanctions authorized by the provisions, South Carolina’s attack on the provisions was premature. 383 U.S. at 316-17. Thus, the absence of an injuiy or any threat barred the constitutional attack on those sections. These provisions are most analogous to the suspended provisions of the Kansas Funeral Privacy Act— no person could be prosecuted and, therefore, no actual controversy exists.
The second United States Supreme Court case cited for our consideration is Buckley. Buckley involved a challenge to the Federal Election Campaign Act of 1971, which limited political campaign contributions and expenditures. The plaintiffs, various candidates for federal office, sought a declaratory judgment and an injunction against enforcement of certain provisions of the Act. The Supreme Court stated: “At the outset we must determine whether the case before us presents a ‘case or controversy’ within the meaning of Art. Ill of the Constitution. Congress may not, of course, require this Court to render opinions in matters which are not ‘cases or controversies.’ ” 424 U.S. at 11. The Court found it clear that Congress intended to provide judicial review to the extent permitted by Article III and that the complaint demonstrated that at least some of the plaintiffs had a sufficient “personal stake” in a determination of the constitutional validity of each of the challenged provisions to present a real and substantial controversy, as opposed to “ ‘a hypothetical state of facts.’ ” 424 U.S. at 11-12 (noting prohibition potentially would benefit those plaintiffs who intended to run for office in the 1976 election and whose rights in that campaign would, to a significant degree, be adjudicated by the FEC); see also Reuss v. Balles, 584 F.2d 461 (D.C. Cir. 1978) (discussing Buckley). Hence, an actual case or controversy existed. In contrast, the challenge to the Kansas Funeral Privacy Act would not involve anyone with a personal stake because no one has a duty to enforce the provision and no one could be prosecuted. Additionally, there would be no factual framework for the decision.
Finally, the 1976 case of Hollowbreast, 425 U.S. 649, is cited by the governor. As the governor notes, it is difficult to fully reconcile this case with Muskrat, the classic case prohibiting advisory opinions. Yet, the United States Supreme Court did not comment on the obvious parallels.
Muskrat related to Congress allotting portions of communally owned land to specified members of the Cherokee Nation. In 1902, Congress passed legislation allotting the land to each living member of the Cherokee Nation born before September 1,1902. Sometime afterward, the tribal council asked that their children born during a certain period also receive scheduled allotments of land. Congress granted this request and passed legislation in 1904 and 1906 that allowed for this expansion of the class of persons receiving property. This expansion, of course, reduced the share of those members of the class described in the 1902 Act.
Sensing that this situation might pose constitutional problems, Congress enacted additional legislation that gave “ ‘William Brown and Levi B. Gritts, on their own behalf and on behalf of all other Cherokee citizens’ ” the right to sue the United States “ ‘in the court of claims to determine the validity’ ” of any acts passed after 1902. 219 U.S. at 350 (quoting the 1907 Act). A date was given by which the suits should be filed and provision was made to pay the attorney fees of Brown and Gritts. No other compensation or rem edy was provided. Under this Act of Congress, Brown and Gritts filed suit against the United States challenging the constitutionality of the post-1902 allocations.
The Supreme Court ordered that the suit be dismissed for lack of jurisdiction for failure to present a “case” or “controversy” under Article III, § 2 of the United States Constitution. 219 U.S. at 361. The Court determined that the United States had no interest adverse to Brown and Gritts.
“The object is not to assert a property right as against the government, or to demand compensation for alleged wrongs because of action upon its part. The whole purpose of the law is to determine the constitutional validity of this class of legislation. . . . Such judgment will not conclude private parties, when actual litigation brings to court the question of the constitutionality of such legislation. In a legal sense the judgment could not be executed, and amounts in fact to no more than an expression of opinion upon the validity of the acts in question.” 219 U.S. at 361-62.
Hollowbreast arose under similar circumstances. Hollowbreast resulted after Congress amended statutes it had adopted in 1926, relating to allotments of mineral rights to the Northern Cheyenne Tribe. In the 1926 legislation, Congress had provided by statute that mineral rights in the reservation property of the Northern Cheyenne Tribe should remain in the tribe, and after 50 years such rights would pass to the individual allottees of the surface rights or their heirs. In 1968, after the potential value of the mineral rights had appreciated tremendously, Congress passed a new law to reserve the mineral rights in perpetuity for the benefit of the tribe. To avoid liability for damages based upon a potential claim that the 1968 Act violated the allottees’ rights under the Just Compensation Clause of the Fifth Amendment to the United States Constitution, Congress conditioned the termination of the allottees’ interest in the mineral deposits upon a judicial determination that the 1926 Act did not grant the allottees vested rights to the mineral deposits or the passage of 2 years without a suit resolving the question.
In deciding the Fifth Amendment issue, the Hollowbreast Court did not explicitly discuss the question of whether it would be giving an advisory opinion. Perhaps this is explained by the fact the parties did not raise or discuss the issue on appeal. In fact, the briefs do not cite Muskrat. Nor was the issue discussed in the lower court decisions from which the appeal was taken, and the statutory provision that delayed effectiveness of the amendments is mentioned only in passing in the lower court decisions. For example, it is relegated to a footnote in the trial court’s opinion. Northern Cheyenne Tribe v. Hollowbreast, 349 F. Supp. 1302, 1303 n.1 (D. Mont. 1972), rev’d Northern Cheyenne Tribe v. Northern Cheyenne, etc., 505 F.2d 268 (9th Cir. 1974), revd 425 U.S. 649 (1976).
Rather, the Supreme Court observed that it “has consistently recognized the wideranging congressional power to alter allotment plans until those plans are executed.” 425 U.S. at 655-56. Further, the “extensiveness of this congressional authority, as well as ‘Congress’ unique obligation toward the Indians,’ [citation omitted,] underlies the judicially fashioned canon of construction that these [allotment] statutes are to be read to reserve Congress’ powers in the absence of a clear expression by Congress to the contrary.” 425 U.S: at 656. Also, the focus of the analysis was the 1926 statute, which was still in effect. After examining the legislative history of the 1926 provisions, the Court concluded it was not Congress’ intent to grant individual allottees vested future interests in the mineral deposits underlying the allotted lands. Therefore, the individual allottees did not possess a vested property interest in the mineral deposits, and the 1968 Act did not violate the Just Compensation Clause. 425 U.S. at 658-60.
At least one commentator has suggested that Muskrat may have been seriously diluted by Hollowbreast, noting that, -post-Hollow-breast, “advisory opinion traditions do not raise an insurmountable barrier to justiciability.” Wright, Miller & Cooper, 13 Federal Practice and Procedure: Jurisdiction 2d § 3529.1, p. 301 (1984).
Yet, although describing the Hollowbreast decision as “startling," another commentator notes the case involved identified interests and controversies. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 282 (1988). In Hollowbreast there is no difficulty identifying the nature of the interest of the parties seeking the Supreme Court’s judgment. The tribe stood to gain if the legislation was ruled constitutional because the consequence of the statute was to “revest” the mineral rights in the tribe. The substantive legal interests that the allottees sought to protect did not exist because of the new statute but because of the 1926 statute. Consequently, as pointed out by Professor Fletcher, the tribe would have been able to litigate the substantive question presented, although in a less expeditious way, under existing jurisdictional statutes. 98 Yale L.J. at 282. Simply put, “the only role of the special statute was to confer jurisdiction on the federal courts to hear the cases in an expedited manner.” 98 Yale L.J. at 282.
The lack of discussion of the issue of advisory opinions makes the impact of Hollowbreast ambiguous at best. Even if we consider the decision as presenting a relaxed reading of the advisory opinion rule, that reading can be reconciled with many of the policies underlying the prohibition against advisory opinions. The conditional termination in Hollowbreast was directly tied to the resolution of an actual, concrete dispute, i.e., allottees’ claims of vested rights in mineral deposits required the interpretation of an existing law and involved adverse parties with a stake in the outcome.
In contrast, the Kansas Funeral Privacy Act provisions criminalizing funeral protests are not in effect. See K.S.A. 21-4015(e), (i). Additionally, where in Hollowbreast the 1926 statute remained in effect and its meaning was at issue in the decision, the Kansas Funeral Privacy Act repealed the Funeral Picketing Act. In other words, there would be no effective statute to consider in the judicial trigger lawsuit, and any arguments regarding tire constitutionality of the provision would not be tied to the resolution of an actual dispute; both the governor and the attorney general believe the funeral protest provisions are constitutional. Thus, the htigation would lack adversarial sharpening of issues. Finally, the judgment would not have binding effect of any sort. In these respects, the judicial trigger suit has more similarities with the situation in Muskrat than with that in Hollowbreast.
Mandamus
Still, the governor argues she would have a sufficient stake in the outcome to justify a Hollowbreast-type allowance of the judicial trigger suit. The governor’s arguments, particularly her concession that federal standing requirements cannot be satisfied, imply that standing is the only barrier preventing the judicial trigger lawsuit from being brought in federal court. Further, her arguments suggest the attorney general would have standing in Kansas. Indeed, standing considerations are somewhat different in state court when an action is brought seeking a writ of mandamus.
In this action, the attorney general attempted to invoke mandamus jurisdiction. In his petition, he repeatedly asked that we direct the governor to enforce the funeral protest provisions. On July 25, 2007, the petition for writ of mandamus was denied. We stated:
“A ruling on the appropriateness of enforcement of S.B. 244’s substantive provisions is premature. This action is not a section 3 challenge to the authority of the legislature to enact provisions relative to funeral picketing as set forth in section 1. We have no case or controversy before us on that issue. In addition, there is no need for this court or any court to order the governor to enforce the law as passed by tire legislature and signed by her. That is her constitutional duty as head of the executive branch, and such law is presumed to be constitutional in the absence of a contrary court ruling.”
At this stage of the proceeding, we must determine whether an actual case or controversy would be presented even if a section 3 challenge—i.e., a judicial review lawsuit under K.S.A. 2007 Supp. 75-702a—was filed. The governor’s arguments suggest there would be if the suit was filed as a mandamus action seeking to resolve questions about the scope of her duty in enforcing the funeral protest provisions.
K.S.A. 60-801 defines mandamus as “a proceeding to compel some . . . person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” Thus, mandamus provides the remedy of “compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion.” Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 26, 643 P.2d 87 (1982). Additionally, “[m]andamus [is] an appropriate avenue to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of public business.” Alpha Med. Clinic v. Anderson, 280 Kan. 903, 916, 128 P.3d 364 (2006). This power can be invoked when an official has not performed a duty because of questions about whether the duty exists or about the scope of the duty. See, e.g., State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 172 P.3d 1154 (2007); Wilson v. Sebelius, 276 Kan. 87, 72 P.3d 553 (2003).
The governor observes that Article 1, § 3 of the Kansas Constitution provides that “[t]he supreme executive power of this state shall be vested in a governor, who shall be responsible for the enforcement of the laws of this state.” Thus, because of her constitutional duiy to execute the laws, the governor argues she would have a “substantial stake” in knowing whether she may enforce the criminal provisions regulating funeral protests and, therefore, her rights are affected and she would be entitled to guidance regarding her duties.
The fallacy of this argument is that a law-in-waiting cannot give rise to a present enforcement duty. At the time of tire judicial trigger lawsuit, like now, there would be only a possibility of an enforcement duty arising at some unspecified future time. Currently and during a judicial trigger lawsuit, the question of her duty has and would have no more reality than a law school exam question. Even in the broadest reading of our mandamus cases, courts do not have jurisdiction over purely hypothetical questions associated with nonexistent duties.
In reaching this conclusion, we concede, like the United States Supreme Court before us, that our cases in this area have not drawn the brightest of lines for discerning when a case or controversy exists. See, e.g., State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 70, 687 P.2d 622 (1984) (Herd, J, dissenting) (arguing there was no controversy and that majority, citing expediency, had issued advisory opinion and warning such “ ‘small beginnings’ ” create the danger of imperceptible “ ‘but gradual increase into the assumption of governmental power by one department’ ”); Stephens v. Van Arsdale, 227 Kan. 676, 682, 608 P.2d 972 (1980) (“On occasion, this court, when confronted with significant issues of statewide concern, has broadened the availability of mandamus in order to expeditiously resolve the is sues.”); State ex rel. Smith v. State Highway Comm., 132 Kan. 327, 335, 295 Pac. 986 (1931) (“Our conceptions of the proper use of mandamus to expedite tire official business of the state have expanded far beyond the ancient limitations of matters justiciable in mandamus.”).
In part, this leniency arises because the standing requirement is less stringent in some actions sounding in mandamus. This is not so when a private person brings an action in mandamus; in such a case, there must be a shoving of actual, specific, and peculiar injury. Kansas Bar Ass’n v. Judges of the Third Judicial Dist., 270 Kan. 489, 491, 500-01, 14 P.3d 1154 (2000) (bar association and two licensed attorneys could not show specific injury arising from Small Claims Procedure Act provision that precluded attorneys from representing claimants and allowed representation by individuals who were not licensed attorneys; petition did not state justiciable case or controversy; rather, it “presented as a hypothetical question—an issue which should be addressed upon a concrete set of facts”).
When actions are brought on relation of the attorney general or another government officer, however, there is no requirement of actual injury. Kansas House of Representatives, 236 Kan. at 53. In such a case, it must be shown: (1) there is a question relating to a specified duty imposed by law and not involving discretion; (2) the question must be of great public importance and concern sufficient to warrant the court exercising its discretionary jurisdiction; and (3) the question must arise from an actual controversy, meaning a situation must have arisen which implicates the official’s duty. See K.S.A. 60-801; Kansas House of Representatives, 236 Kan. at 53; State v. Dolley, 82 Kan. 533, 108 Pac. 846 (1910).
This third requirement was discussed extensively nearly 100 years ago in Dolley, 82 Kan. 533, a case in which the attorney general began proceedings in mandamus against the bank commissioner and the state treasurer, alleging they had denied national banks the privilege of participating in the benefits of an act providing for the creation of a depositors’ guaranty fund. A motion for abatement was filed, arguing the litigation resulted from collusion of the parties in an effort to get a court ruling regarding the scope of the act.
The court recognized that the controversy might have been “prompted by a purpose to make what is called a ‘test case’ ” but concluded that “does not defeat jurisdiction.” 82 Kan. at 537. A suit filed by an official in order to get a judicial interpretation of a statute rather than to “act upon a doubtful construction of a statute” does not make the action “fictitious, though it may in a sense be ‘friendly’ ” and may have been prompted by the treasurer’s desire to obtain guidance on his duties under the statute. 82 Kan. at 537.
The key was that there was an actual controversy. “[T]he court cannot undertake to interpret a statute because doubts exist as to its meaning in advance of a situation having arisen requiring action thereunder. In order for judicial power to be exercised with regard to the statute, there must be an actual and concrete controversy.” 82 Kan. at 536.
In concluding its discussion, the court observed that if there were no real controversy there would not be jurisdiction; jurisdiction does not exist where the petitioner
“ ‘seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter, which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.’ ” 82 Kan. at 537.
There must be “ ‘an actual, bona fide contest as to a legal right.’ ” 82 Kan. at 537.
For example, in State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, the court rejected the argument that no controversy existed and concluded there was an actual contest as to the legislature’s legal right to adopt, modify, or revoke administrative rules and regulations by concurrent resolutions without presentment to the governor. The court first noted: “[T]his action does not seek to preclude the legislature from exercising its discretion to enact an unconstitutional law, but rather seeks to stop the legislature from acting under the authority of an unconstitutional enactment.” 236 Kan. at 51. Hence, the court concluded a judgment in the case would not preclude the exercise of legislative discretion but would resolve a present, real controversy over whether the legislature was exercising an executive function. 236 Kan. at 51. Additionally, the court noted that the legislature had done more than pass the authorizing legislation, it had passed concurrent resolutions pursuant to the legislation. As a result, “various agencies and boards affected by the changes in these rules and regulations are unsure of the legal effect and enforceability of such rules and regulations.” 236 Kan. at 51.
The court next discussed whether an advisory opinion was being requested through a request for a writ of mandamus in State ex rel. Stephan v. Finney, 251 Kan. 559, 836 P.2d 1169 (1992). At issue in that case was whether the governor was authorized to negotiate and enter into binding tribal-state compacts under the Indian Gaming Regulatory Act. The governor had negotiated the compacts and submitted the agreements to the Secretary of the Interior for approval, a step required by law before the compacts could become enforceable. The Secretary of the Interior had given notice that no action would be taken to review the compacts until the lawsuit was resolved. The governor contended the relief sought through mandamus and quo warranto “would constitute only an advisory opinion inasmuch as the tribal-state compact is not an enforceable instrument unless and until it is approved by the Secretary of the Interior.” 251 Kan. at 566. Rejecting this contention, the court emphasized that the governor had actually negotiated and executed the contracts. Thus, the acts which gave rise to the contention that the governor had exceeded the constitutional authority of her office had occurred. Also, other tribes were seeking negotiations, and “to those directly involved the matter demands immediate settlement.” 251 Kan. at 568.
Again, the attributes of an actual case or controversy that underlie the separation of powers principles and define the judicial power were present in these cases: an actual case existed giving factual context to the issues, adversarial positions were asserted, and issues were real and not hypothetical. The governor has not cited Kansas cases that deviate from these conclusions, although admittedly the parties’ focus was on decisions of the United States Supreme Court and not this court.
In other words, contrary to the governor’s argument, satisfying the standing requirement is not all that is necessary to create an actual case or controversy relating to the constitutionality of the funeral protest provisions. Even if the attorney general does not have to show actual injury, he must establish that the issues are ripe and present an actual case or controversy. As long as the funeral protest provisions are inoperative, neither the attorney general nor the governor has a duty to enforce the provisions, and any questions about their duty would not have taken fixed and final shape but would remain hypothetical, nebulous, and contingent. Furthermore, no one would have been required to abide by the funeral protest provisions and, therefore, no rights would have been abridged and no one’s privacy would have been protected.
Consequently, we conclude the judicial trigger provision seeks an unconstitutional remedy that would violate the separation of powers doctrine in two respects. First, a lawsuit filed pursuant to the provision would not present an actual case or controversy. It would seek an advisory opinion, and a court would not have the judicial power to grant the remedy. Second, the provision purports to make the Kansas Supreme Court an advisor to the legislature on whether the inoperative funeral protest provisions are facially constitutional and should be allowed to become operative. A court issuing such an opinion would usurp the legislature’s duty to make a preliminary judgment on the constitutionality of inoperative legislative provisions.
Hence, we hold the legislature violated the separation of powers doctrine by directing the attorney general to file an action challenging the constitutionality of the funeral protest provisions of the Kansas Funeral Privacy Act.
Severance
Both the attorney general and the governor suggest that to cure this unconstitutionality we should sever the judicial trigger provision.
On several previous occasions, this court has considered severing a provision from a statute if to do so would make the statute constitutional and the remaining provisions could fulfill the purpose of the statute. Each time, this court has emphasized that the determination of whether the provision may be severed “ ‘depends on the intent of the legislature.’ ” State v. Limon, 280 Kan. 275, 302, 122 P.3d 22 (2005); see also, e.g., State v. Carpenter, 231 Kan. 235, 240-41, 642 P.2d 998 (1982) (striking phrase from statute as unconstitutionally vague); Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 588, 618 P.2d 837 (1980) (striking phrase from statute which unlawfully delegated legislative power). Further, “ ‘[t]his court will assume severability if the unconstitutional part can be severed without doing violence to legislative intent.’ ” Thompson v. K.F.B. Ins. Co., 252 Kan. 1010, 1023, 850 P.2d 773 (1993) (quoting Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 300, 327 P.2d 836 [1958]).
An argument in favor of severability is stronger if an act has a severability clause. Although the decision to strike language does not depend upon the presence of a severance provision, “ ‘[t]he enactment of a severability clause in a statute or series of statutes evidences the intent of the legislature that if some portion or phrase in the statute is unconstitutional, the balance shall be deemed valid.’ ” Limon, 280 Kan. at 304 (quoting State v. Next Door Cinema Corp., 225 Kan. 112, Syl. ¶ 8, 587 P.2d 326 [1978]). The legislation at issue in this case contains a severability clause. K.S.A. 21-4015(h). The severability clause was already in place at the time the legislature approved the 2007 amendments at issue in this case.
Citing these rules, both parties suggest we can sever the judicial trigger provision by relying on the severability clause. Severing that provision, which suspends the operation of the funeral protest provisions, would have the effect of making the funeral protest provisions operative. The parties and amicus suggest this indirect result is consistent with legislative intent and argue that the legislative history reveals the legislature would have passed the Kansas Funeral Privacy Act even without the judicial trigger provision.
To accept this conclusion, we must flip over the specific directive in the judicial trigger provision, which provided that the funeral protest provisions “shall be applicable on and after . . . the date of the judgment of the court upholding the constitutionality thereof.” K.S.A. 21-4015(i). We decline to engage in such judicial gymnastics. ‘When a statute is plain and unambiguous, we do not attempt to determine what the law should or should not be; nor do we attempt to divine the legislative intent behind it.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008). The suspension and activation clauses in the judicial trigger provision are more specific than the general severability provision, and, through those provisions, the legislature was very clear in stating the only condition under which the provisions would become operative. Having this type of specific directive distinguishes this case from other cases in which a court must employ extrinsic aids— such as determining whether an act can operate without the provision—to discern whether severance would violate legislative intent. Limon, 280 Kan. at 302-06; State v. Denney, 278 Kan. 643, 659-60, 101 P.3d 1257 (2004). In this case, the Act itself answers the question and tells us that striking the judicial trigger provision would make the funeral protest provisions operative in a manner other than expressly directed by the legislature.
An additional reason not to sever arises from the result that would occur upon severance, i.e., the activation of statutory provisions. Typically, courts do not have authority to decide when legislation becomes operative. Indeed, the decision of if and when legislation shall become effective is an inherently legislative duty. This duty was discussed in State ex rel. Tomasic, 264 Kan. at 317-18. The specific question in State ex rel. Tomasic was whether the legislature may constitutionally delegate to the voters its legislative power to decide if a law will become effective. In discussing the question, the court distinguished a situation where voters exercise local option provisions and thereby decide to accept a privilege conferred by the legislature, which is constitutional, from a situation where the existence of the legislative provisions was dependent upon the voters’ approval, which would be unconstitutional. 264 Kan. at 318-20.
The authorities that are cited to support this conclusion trace back to the leading case of Barto against Himrod, 8 N.Y. (4 Selden) 483, 59 Am. Dec. 506 (1853), where the court concluded:
“All the foregoing [constitutional] provisions contemplate that a law receives its vitality from the legislature. The representatives of the people are the law makers, and they are responsible to their constituents for their conduct in that capacity.
“The law under consideration is in conflict with the constitution in various respects. Instead of becoming a law by the action of the organs appointed by the constitution for that purpose, it claims to become a law by the vote of the electors; and it claims that the popular vote may make it void and restore the former law. All the safeguards which the constitution has provided are broken down, and the members of the legislature are allowed to evade the responsibility which belongs to their office. . . .
“. . . In short, the law was a mere proposition submitted to the people to be adopted or rejected as they pleased.
“If this mode of legislation is permitted and becomes general, it will soon bring to a close the whole system of representative government which has been so justly our pride. The legislature will become an irresponsible cabal, too timid to assume the responsibility of lawgivers, and with just wisdom enough to devise subtile schemes of imposture, to mislead the people. All the checks against improvident legislation will be swept away; and the character of the constitution will be radically changed.” 8 N.Y. (4 Selden) at 494-97 (Willard, J.).
These discussions in State ex rel. Tomasic and Bario occur in the context of the delegation of duties doctrine. See 1 Singer, Sutherland Statutes and Statutory Construction §4:6 (6th ed. 2002) (discussing delegation doctrine as it relates to legislature delegating to the judiciary). The parties did not discuss this doctrine, undoubtedly because both focus on the severability provision. Nevertheless, we cannot ignore implications of the delegation doctrine because both it and the rules relating to severability flow from the separation of powers doctrine and both must be considered to assure this decision does not result in a usurpation of legislative power. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 276, 75 P.3d 226 (2003). The delegation doctrine recognizes the impracticality of pure separation of powers and that a mixture of functions can result, especially in the functioning of an administrative agency where legislative, executive, and judicial powers are often blended together. 276 Kan. at 277. Based upon this recognition, the legislature can delegate, for example, the fashioning of regulations which fill in the details of a statute. 276 Kan. at 278. On occasion, the delegation of duties doctrine has been recognized as applying when duties are delegated to the judiciaiy. See Warren County v. Judges of the Fifth Jud. Dist., 243 N.W.2d 894 (Iowa 1976) (judges allowed to determine if full-time magistrate can be substituted for part-time magistrate).
On the other hand, as the discussion in State ex rel. Tomasic illustrates, some legislative duties cannot be delegated. See Praeger, 276 Kan. at 276 (referring to nondelegation doctrine). And State ex rel. Tomasic raises a question as to whether the legislature could delegate to a court the duty to make a legislative provision operative. Although we recognize this question, we need not resolve it in this case because the result is the same whether or not the power can be delegated. Under either circumstance, this court cannot make the funeral protest provisions operative. If the power to decide when a statute is to become operative cannot be delegated, the issue must return to the legislature. On the other hand, if we assume the duty can be delegated, the delegation came with specific directions and those directions must be followed.
Some direction must be given in order for a legislative delegation to be constitutional; the legislature must enact a statute that “ ‘expresses] the law in general terms and delegate[s] the power to apply it to an executive agency under standards provided by the legislature.’ [Citation omitted.]” Praeger, 276 Kan. at 277. It follows that the delegated power must be exercised in a manner consistent with the standards expressed in the legislation. See Wesley Medical Center v. McCain, 226 Kan. 263, 271, 597 P.2d 1088 (1979) (delegation to administrative agency requires “adequate standards and guide mies”); State ex rel. Donaldson v. Hines, 163 Kan. 300, 309, 182 P.2d 865 (1947) (delegation to administrative agency must be guided by “conditions, restrictions, limitations, yardsticks, guides, mies, [or] broad outlines”). Often the issue raised in delegation doctrine cases is the adequacy of the standard; that question does not arise here, however. See Praeger, 276 Kan. at 255.
Rather, the judicial trigger provision stated an explicit standard. Even though we have determined the judicial trigger provision is unconstitutional, we cannot ignore its clear statement of legislative direction that the provisions would become operative if and when this court or a federal court determined the provisions were constitutional. Activation under other circumstances would violate the express statement of the legislature, broaden the scope of the Kansas Funeral Privacy Act in a manner not authorized by the legislature, and violate the separation of powers doctrine. See 2 Singer, Sutherland Statutory Construction § 44.13 (6th ed. 2001).
Therefore, although the attorney general’s petition to find K.S.A. 21-4015(i) unconstitutional is granted, the attorney general’s request for an order severing K.S.A. 21-4015(i) is denied.
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The opinion of the court was delivered by
McFarland, C.J.:
On April 30, 2002, Joseph L. Guillory pled nolo contendere to the first-degree premeditated murder (K.S.A. 21-3401[a]) of Alva Truman Shaw. On July 1, 2002, he was sentenced to life imprisonment.
On October 31, 2005, Guillory filed a pro se K.S.A. 60-1507 motion in which he alleged (1) he was never informed he could appeal his sentence; (2) ineffective assistance of counsel; and (3) his attorney coerced him into entering a guilty plea. In a written decision, the district court summarily denied the motion. The district court cited from the sentencing transcript and concluded that Guillory had properly been advised of his right to appeal. The record supports this conclusion.
The court’s written decision denying relief was filed on November 22, 2005. The certificate of mailing shows that a copy of the decision was sent to Guillory at the El Dorado Correctional Facility. On March 27, 2006, Guillory filed a pro se notice of appeal from the summary denial of his K.S.A. 60-1507 motion. The appellate defender was appointed and the appeal was docketed.
The Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction due to the failure to file the notice of appeal from the denial of Guillory’s 60-1507 motion within the 30-day limitation of K.S.A. 60-2103(a). Guillory responded, asserting that his untimely appeal should be permitted as an exception under State v. Ortiz, as the district court did not inform him of his right to appeal the decision denying his K.S.A. 60-1507 motion.
The Court of Appeals held none of the Ortiz exceptions applied and dismissed the appeal. We granted Guillory’s petition for review.
FOCUSING ON THE ISSUES
Kansas appellate courts have only such appellate jurisdiction as is provided by law. The filing of a timely notice of appeal is jurisdictional. Failure to file a timely notice of appeal requires dismissal of the untimely appeal. Exceptions to the requirement of dismissal of direct appeals have been recognized in the interest of fundamental fairness only in those cases where a criminal defendant either was not informed of the rights to appeal or was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal. State v. Phinney, 280 Kan. 394, Syl. ¶ 3, 122 P.3d 356 (2005). These three exceptions were first set forth in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and are frequently referred to as the Ortiz exceptions. Interestingly, Ortiz himself was not permitted to file his direct appeal out of time from his sentence as he did not qualify for any of the exceptions. 230 Kan. at 736-37.
Guilloiy’s 60-1507 motion filed herein sought leave to file a direct appeal of his sentence on the grounds: (1) he was never informed of his right to appeal his sentence; (2) he received ineffective assistance of counsel; (3) his attorney coerced him into entering a guilty plea. He contended he came within the first Ortiz exception (failure to be informed of his right to appeal).
When presented with a K.S.A. 60-1507 motion, a district court has three options: First, it may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief, in which case it will summarily deny the movant’s motion. Second, the court may determine from the motion, files, and records that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the movant. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and records, and hold a prehminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. Laymon v. State, 280 Kan. 430, Syl. ¶ 1, 122 P.3d 326 (2005). The district court selected the first option. This is commonly referred to as the threshold determination. Noting the portion of tire transcript showing the court had advised Guillory of his right of appeal, the court summarily dismissed the motion.
A motion for postconviction relief filed under K.S.A. 60-1507 is a civil proceeding and is governed by the rules of civil procedure. Supreme Court Rule 183(a) (2006 Kan. Ct. R. Annot. 227); State v. Richardson, 194 Kan. 471, 472-73, 399 P.2d 799 (1965). Accordingly, the procedure for appeal in a K.S.A. 60-1507 action is found in K.S.A. 60-2103(a), which requires an appeal to be filed within 30 days from the entry of judgment. A statutory exception exists where a party shows that, through excusable neglect, the party failed to learn of the entry of judgment. K.S.A. 60-2103(a). In addition, Kansas case law has recognized a “unique circumstances” exception which applies where an untimely filing of a notice of appeal was tire result of the appellant’s good faith reliance on the court’s error in extending the time for filing the appeal when it had no authority to do so. See Schroeder v. Urban, 242 Kan. 710, 713-14, 750 P.2d 405 (1988). Guillory does not contend his untimely appeal meets either of these exceptions and, in fact, neither exception would apply in this case.
Rather, Guillory seeks to extend Ortiz to recognize an exception where an untimely appeal will be permitted from a 60-1507 motion which has been summarily denied and the defendant was not notified of the right to appeal. The claims in the 60-1507 motion relative to failure to inform him of his right to direct appeal from his sentence and ineffective assistance of counsel have been abandoned. The only issues before us are whether defendant can file an untimely appeal from the summary denial of his 60-1507 motion and, if so, was defendant’s plea coerced by his attorney.
We turn to the first issue.
SHOULD GUILLORY’S UNTIMELY APPEAL FROM THE DENIAL OF HIS 60-1507 MOTION BE PERMITTED?
Guillory does not deny that the exceptions set forth in Ortiz involved a direct appeal from a criminal conviction. Guillory argues, however, that because the district court did not inform him of his right to appeal from the denial of his K.S.A. 60-1507 petition, the principles of fundamental fairness that underlie Ortiz justify extending the first Ortiz exception to excuse his untimely appeal. He asserts that when a K.S.A. 60-1507 motion is summarily denied without counsel being appointed, the movant should either be informed of the right to appeal by the court or be permitted to appeal the denial out of time.
In support thereof he cites two cases where untimely civil appeals were permitted under authority of Ortiz. These cases are Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004), and In re T.M.C., 26 Kan. App. 2d 297, 988 P.2d 241 (1999).
In the Brown case, Brown filed a pro se K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. The district court appointed counsel to represent Brown, held a nonevidentiaiy hearing, and denied the motion, all unbeknownst to Brown. Brown, 278 Kan. at 482. Brown’s counsel failed to inform him of his appointment, of the hearing, of the court’s decision, or of his right to appeal. Further, counsel did not file an appeal. 278 Kan. at 482.
Over 2 years later, Brown learned of the outcome of his case, and an untimely appeal was filed, along with a motion asking the district court to permit the appeal. The district court denied the motion, citing Robinson v. State, 13 Kan. App. 2d 244, Syl. ¶ 4, 767 P.2d 851, rev. denied 244 Kan. 738 (1989) (holding there is no constitutional right to counsel or the effective assistance of counsel in a 60-1507 proceeding and, therefore, dismissal of a 1507 action because counsel failed to timely perfect appeal does not violate due process).
On appeal, the Brown court acknowledged that there is no constitutional right to effective assistance of counsel in postconviction collateral proceedings because they are civil, not criminal, actions. 278 Kan. at 483. However, because Kansas has provided a statutory right to counsel under certain circumstances in postconviction collateral proceedings, counsel appointed thereunder must perform competently and effectively. 278 Kan. at 483 (citing K.S.A. 2003 Supp. 22-4506[b] [requiring appointment of counsel where preliminary review of 60-1507 motion reveals substantial questions of law or triable issues of fact] and K.S.A. 2003 Supp. 22-4522[e][4] [suggesting standards of competence are required for appointed counsel]). Accordingly, the court held that counsel’s failure to timely notify the movant of an adverse decision in the postconviction proceeding and of the right to appeal that decision resulted in denial of the movant’s statutory right to effective assistance of counsel, entitling tire movant to take his appeal out of time. 278 Kan. at 484-85.
In In re T.M.C., tire natural mother’s court-appointed counsel failed to inform her that she had 30 days to file an appeal, and no appeal was filed within the allotted time. Later, the natural mother filed an application to appeal out of time, relying on Ortiz. The district court denied the application, holding that the Ortiz exceptions allowing a criminal defendant to appeal out of time did not apply in a parental rights termination proceeding. 26 Kan. App. 2d at 298.
On appeal, the Court of Appeals extended the fundamental fairness exception of Ortiz to allow an untimely appeal from an order terminating parental rights. The court’s decision was based on the fact that parents in termination proceedings have both a constitutional and statutory right to appointed counsel. 26 Kan. App. 2d at 298-300 (citing K.S.A. 38-1505[b] and In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct 1428 [1967]).
Thus, both Brown and In re T.M.C. involved situations where the person seeking the untimely appeal had statutorily mandated appointed counsel and the appointed counsel failed to advise the client of the client’s statutoiy right of appeal. In the In re T.M.C. case, the mother also had a constitutional right to counsel throughout the proceeding. Ineffective assistance of counsel who were appointed pursuant to statutory mandate lies at the heart of the Brown and In re T.M.C. extensions of the Ortiz exceptions.
A fatal flaw in Guillory’s argument is that the first Ortiz exception, excusing an untimely notice of appeal where the defendant was not informed of the right to appeal, was based on the fact that a criminal defendant has a statutory right to be advised of his or her right to a direct appeal. K.S.A. 22-3424(f) requires the sentencing court to inform criminal defendants of the right to appeal. See Phinney, 280 Kan. at 402 (discussing K.S.A. 22-3424(1), which requires trial court to advise defendant'in a criminal case of right to appeal, and noting State v. Willingham, 266 Kan. 98, 100-01, 967 P.2d 1079 [1998], and Ortiz indicate fundamental fairness requires that criminal defendant be advised of rights to direct appeal). In contrast, there is no statutory requirement that the district court advise a K.S.A. 60-1507 movant of the right to appeal the decision on his or her motion.
The fundamental fairness principle underlying all three exceptions recognized in Ortiz and its progeny is based on the facts that the defendant’s failure to timely appeal was the result of being deprived of a right to which he or she was entitled by law: the statutory right to be advised of the right to appeal; the statutory right to be provided an attorney to file an appeal; or the right to have the appointed attorney perform effectively in perfecting the appeal.
There is no statutory right to counsel at the district court level stage for indigent K.S.A. 60-1507 movants until they meet the threshold showing of substantial legal issues or triable issues of fact. Movants who fail to meet this threshold do have a statutory right to appointment of counsel on appeal but not until after a notice of appeal has been filed.
“If an appeal is taken in such action and if the trial court finds that the petitioner or movant is an indigent person, die trial court shall appoint counsel to conduct the appeal, order that the appellant be supplied with a record of the proceedings or so much thereof as such counsel determines to be necessary and order that the deposit of security for costs be waived.” K.S.A. 2006 Supp. 22-4506(c).
As far as the filing of a timely notice of appeal is concerned, a pro se K.S.A. 60-1507 movant is in the same position as all other pro se civil litigants and is required to be aware of and follow the rules of procedure that apply to all civil litigants, pro se or represented by counsel. Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, Syl. ¶ 1, 730 P.2d 1109 (1986).
We conclude we have no jurisdiction in this untimely appeal from a district court’s summary denial of the K.S.A. 60-1507 motion, and the appeal must be dismissed.
Having concluded that this appeal must be dismissed for lack of jurisdiction, we do not reach the issue of whether defendant was coerced by his attorney into entering his plea of nolo contendere.
The appeal is dismissed.
Davis, J., not participating.
McAnany, J., assigned. | [
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The opinion of the court was delivered by
Davis, J.;
Glenn A. Heath, Jr., was convicted in 1996 of felony murder and abuse of a child. After allocution, the district court imposed a mandatory life sentence for the felony murder and 68 months’ imprisonment for the child abuse conviction, to run consecutively. This court subsequently reversed Heath’s conviction for abuse of a child because of multiplicity and vacated his sentence for that conviction. At the same time, without remanding for re-sentencing, we affirmed his conviction and sentence for felony murder. State v. Heath, 264 Kan. 557, 571-72, 591, 957 P.2d 449 (1998). Heath filed a motion to correct an illegal sentence, claiming he was denied his right to allocution for his sentence on felony murder. His motion was summarily denied; he appeals and we affirm.
Highly summarized, the facts are that Heath filed his 2006 motion to correct an illegal sentence pursuant to K.S.A. 22-3504, claiming that he was never formally resentenced following the issuance of the mandate from this court’s 1998 decision relating to his direct appeal. Thus, according to his argument before the district court and now on appeal, he was denied his right to allocution for his current mandatory life sentence. The district court summarily denied his motion. He appeals and this court has jurisdiction pursuant to K.S.A. 22-3601(b)(l). See State v. Thomas, 239 Kan. 457, Syl. ¶ 2, 720 P.2d 1059 (1986) (jurisdiction over an appeal of a motion to correct an illegal sentence lies with the court that had jurisdiction to hear the original appeal).
Standard of Review
The question of whether a sentence is illegal raises an issue of law, reviewable de novo by an appellate court. State v. Jones, 279 Kan. 809, 810, 112 P.3d 123 (2005). An illegal sentence under the provisions of K.S.A. 22-3504 is a sentence “imposed by a court without jurisdiction; one that does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or one that is ambiguous with respect to the time and manner in which it is to be served. [Citations omitted.]” Jones, 279 Kan. at 810.
Heath does not assert that the district court lacked jurisdiction to impose his sentence. The sentence imposed for his felony murder, a mandatory life sentence, conforms to the statutory provisions. See K.S.A. 21-4706. His life sentence is not ambiguous as to the time or manner that it is to be served and, thus, his sentence is not illegal within the meaning of K.S.A. 22-3504.
Finally, this court has previously determined that a denial of allocution does not render an imposed sentence illegal within the meaning of K.S.A. 22-3504. In State v. Mebane, 278 Kan. 131, Syl. ¶ 1, 91 P.3d 1175 (2004), this court explained that “[t]he district court’s failure to comply with the statutory allocution requirements does not make a defendant’s sentence illegal.” In Mehane, the court acknowledged that the defendant was deprived of his right to allocution because the district court failed to allow him to present evidence in mitigation of punishment. 278 Kan. at 134. Nevertheless, this court found that this failure by the district court to allow allocution “does not mean that Mebane’s sentence ‘does not conform to the statutory provision, either in the character or the term of the punishment authorized.’ ” 278 Kan. at 134-35. Heath’s argument that a failure of allocution renders his sentence illegal fails.
We conclude that the district court correctly determined that Heath’s motion to correct an illegal sentence contained no substantial issues of fact or law, and the court’s summary denial of that motion was proper.
Affirmed.
Rosen, J., not participating.
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The opinion of the court was delivered by
Luckert, J.:
This appeal raises an issue of first impression; When a party who receives a temporary injunction and posts an injunction bond does not ultimately prevail in the action, is the party hable under K.S.A. 60-905(b) for the attorney fees and expenses incurred by the opposing party, including fees incurred during a trial on the merits and during an appeal, even though the opposing party files a counterclaim and seeks a temporary and permanent injunction? Because damages payable by injunction bonds are generally limited to those actually and proximately resulting from the effect of the temporary injunction itself, as opposed to litigation expenses independent of the temporary injunction, we conclude that a party who files a counterclaim and seeks a declaratory judgment and injunction in addition to answering and opposing the entry of a permanent injunction in favor of the other party is entitled only to those fees incurred in seeking the disso lution of the temporary injunction and is not entitled to damages for fees that would necessarily have been incurred in pursuing the counterclaim and its attendant remedies.
The attorney fees and expenses at issue in this appeal arise from litigation that culminated in this court’s decision in Idbeis v. Wichita Surgical Specialists, P.A., 279 Kan. 755, 112 P.3d 81 (2005) (.Idbeis I). The focus of the litigation is the enforceability of restrictive covenants that prohibited employees of Wichita Surgical Specialists, P.A. (WSS), from competing against WSS. Gary S. Benton, M.D.; Robert H. Fleming, M.D.; and John D. Rumisek, M.D. (Surgeons) and other physicians filed the suit after giving WSS notice that they were voluntarily terminating their employment relationship. The Surgeons and some other WSS-employed physicians, including Dr. Idbeis, who is not a party to this appeal, intended to establish competing practices within the geographic territory and during the time period covered by the noncompetition agreement and, in doing so, would have breached the restrictive covenants. Idbeis I, 279 Kan. at 761.
Through this action the Surgeons sought a judgment declaring the restrictive covenants unenforceable. Additionally, on March 15, 2002—the same date as the suit was filed—the Surgeons sought and received an ex parte temporary restraining order that prohibited WSS from enforcing the restrictive covenants.
Less than a week later, WSS filed a motion to vacate the temporaiy restraining order and on the same date filed a counterclaim seeking a declaratory judgment that the covenants were enforceable. WSS also sought a temporary and permanent injunction requiring compliance with the restrictive covenants.
The trial court conducted a hearing on the motion to vacate and on June 13, 2002, issued a temporary injunction prohibiting WSS from enforcing the restrictive covenants. Pursuant to K.S.A. 60-905(b), the trial court required the Surgeons to post an injunction bond.
Approximately 1 year later, after conducting discovery, the parties tried the case to the court. The trial court ruled that the restrictive covenants in the Surgeons’ employment contracts were enforceable. However, the trial court granted the Surgeons’ alter native request that they be allowed the option of paying liquidated damages and, upon doing so, continue their competing practice.
The Surgeons appealed and WSS cross-appealed. In Idbeis I, 279 Kan. 755, we affirmed the trial court’s decision that the restrictive covenants in the Surgeons’ employment contracts were enforceable, but we reversed the trial court’s ruling grafting a liquidated damages provision into the contracts. Idbeis I, 279 Kan. at 775.
After this court issued its mandate in Idbeis Z, WSS filed a motion for attorney fees and costs under K.S.A. 60-905(b). In its motion, WSS sought to recover as damages from the Surgeons (1) fees incurred in filing a motion to vacate the temporaiy order and in preparing for and conducting the hearing on the motion; (2) fees incurred in conducting discovery after the trial court’s June 13, 2002, ruling; (3) fees incurred in the trial on the merits of the Surgeons’ declaratory judgment claims and WSS’s counterclaim; and (4) fees incurred in the Idbeis I appeal. WSS claimed a total of $375,218.38. WSS argues it is entitled to the fees and expenses because it ultimately prevailed in.the underlying action based upon this court’s ruling.
The trial court granted the motion and determined the amount of attorney fees and expenses to be $361,851.38. Consequently, the trial court entered judgment against each surgeon (Drs. Benton, Rumisek, and Fleming) in the amount of $120,617.12.
The Surgeons timely appealed the trial court’s decision to grant WSS’s motion for attorney fees.
Analysis
As a general rule, attorney fees and expenses of litigation, other than court costs, incurred by a prevailing party are not recoverable against the defeated party in the absence of a clear and specific statutory provision or an agreement between the parties. Hayes Sight & Sound, Inc. v. ONEOK, Inc., 281 Kan. 1287, 1333, 136 P.3d 428 (2006); Brennan v. Kunzle, 37 Kan. App. 2d 365, 392-93, 154 P.3d 1094 (2007). Without statutory authority or an agreement by the parties, a trial court’s equitable powers do not extend to the awarding of attorney fees. 37 Kan. App. 2d at 392-93. Consistent with the general rule that attorney fees are not awarded to the prevailing party, statutory provisions allowing fees are typically construed strictly. See Hatfield v. Wal-Mart Stores, Inc., 14 Kan. App. 2d 193, 197, 786 P.2d 618 (1990) (citing Atlantic Coast Line v. Riverside Mills, 219 U.S. 186, 55 L. Ed. 167, 31 S. Ct. 164 [1911], for point that statute mandating attorney fees in certain proceedings upon defined claims is strictly limited to proceedings and claims described in statute).
Consequently, WSS can recover only those attorney fees allowed by K.S.A. 60-905(b). K.S.A. 60-905(b) states in part:
“Unless otherwise provided by statute or this section, no temporary injunction shall operate unless the party obtaining the same shall give aii undertaking with one or more sufficient sureties in an amount fixed and approved by the judge of the court, securing to the party injured the damages such injured party may sustain including attorney fees if it be finally determined that the injunction should not have been granted.” (Emphasis added.)
Before damages can be recovered under K.S.A. 60-905(b), there are two requirements that must be met. First,“it [must] be finally determined that the injunction should not have been granted.” K.S.A. 60-905(b); see also Tobin Construction Co. v. Holtzman, 207 Kan. 525, 530, 485 P.2d 1276 (1971) (to recover damages for the wrongful issuance of restraining order or temporary injunction, a party must establish that temporary restraint imposed was wrongful). Second, it must be established that the fees were incurred as the “actual, natural and proximate result of the granting of the [temporary] injunction order.” Tullock v. Mulvane, 61 Kan. 650, 663, 60 Pac. 749 (1900). Because of this requirement, from as long ago as 1881 the damages have been limited to attorney fees incurred in obtaining the “dissolution of the injunction.” Underhill v. Spencer, 25 Kan. 71, 73 (1881). Thus, “the damages recoverable are limited strictly to those incurred in procuring the setting aside of the wrongful restraining order.” Miner v. Kirksey, 113 Kan. 715, 718, 216 Pac. 284 (1923).
Applying these general rules, the Surgeons argue: (1) WSS is not entitled to these damages because there is no showing that the temporary injunction should not have issued and (2) the fees were not the proximate result of the temporary injunction but arose from WSS’s pursuit of its counterclaim seeking temporaiy and permanent injunctive relief enforcing the restrictive covenants against the Surgeons. WSS counters that the fact it prevailed on appeal shows that the temporaiy injunction should not have issued. Responding to the Surgeons’ arguments as to why the fees were not allowed by K.S.A. 60-905(b), WSS argues the trial court could fashion an equitable remedy; that the statute should be liberally construed; and that the expenses are so intertwined as to be inseparable, justifying the award of all fees, including those incurred on appeal.
These arguments bring into question the trial court’s authority to order the payment of the attorney fees. Where the trial court’s authority to award attorney fees is questioned, an appellate court is presented with a question of law over which it exercises unlimited review. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). Contrary to WSS’s suggestion, an abuse of discretion standard is not applicable to this appeal; that standard applies when appellate courts review the amount of the awarded fees (Johnson v. Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 [2006]) or the decision to award fees where the trial court’s authority to award fees is not questioned (Conner v. Occidental Fire & Cos. Co., 281 Kan. 875, 887-88, 135 P.3d 1230 [2006]). We do not reach those issues in this case and, instead, apply unlimited review to the question of whether K.S.A. 60-905(b) granted the trial court authority to award attorney fees under the circumstances of this case, e.g., whether (1) the temporary injunction against WSS should not have been granted and (2) the attorney fees were incurred as the actual, natural, and proximate result of the granting of the temporaiy injunction
Was the TRO Wrongfully Granted?
First, the Surgeons contend that WSS had no standing to request attorney fees because WSS failed to show that the June 13, 2002, temporaiy injunction was wrongfully granted.
In ruling on WSS’s motion for attorney fees, the trial court determined that the temporary injunction “should not have been issued.” The trial court noted there were necessary findings imposed by Kansas law regarding temporaiy injunctions. Although the trial court did not specify these necessary findings, we recently clarified that there are five factors to be considered before granting a temporary or preliminary injunction. First, the movant must establish the “substantial likelihood” of eventually prevailing on the merits. This requirement exists because “ ‘[t]he purpose of a temporary or preliminary injunction is not to determine any controverted right, but to prevent injury to a claimed right pending a final determination of the controversy on its merits’ ” Steffes v. City of Lawrence, 284 Kan. 380, 394,160 P.3d 843 (2007). If a substantial likelihood of success on the merits is established, the trial court must find: a substantial likelihood of eventually prevailing on the merits; a reasonable probability of suffering irreparable future injury; the lack of obtaining an adequate remedy at law; the threat of suffering injury outweighs whatever damage the proposed injunction may cause the opposing party; and the impact of issuing the injunction will not be adverse to the public interest. 284 Kan. at 395.
In this case, the trial court determined it failed to malee at least one of these necessary findings when the temporary injunction issued in 2002. The court noted this conclusion was “based upon the Court’s review of the record, the basis for originally granting the temporary injunction . . ., along with the Supreme Court’s decision in this matter.”
The Surgeons argue that, regardless of the final outcome of the case, the trial court’s 2002 findings and conclusions were supported at the temporary injunction stage of the proceeding. To support their arguments, the Surgeons cite Illinois case law for the proposition that a “temporary injunction may be wrongfully issued although the plaintiff prevails in his suit on the merits, and tire temporary injunction may rightfully issue although the plaintiff does not sustain his suit on the merits.” Label Printers v. Pflug, 246 Ill. App. 3d 435, 438, 616 N.E.2d 706 (1993); accord Schien v. City of Virden, 5 Ill. 2d 494, 503, 126 N.E.2d 201 (1955).
The Illinois case law is contrary to Kansas precedent, however. In Harlow v. Mason, 98 Kan. 353, Syl. ¶ 3, 157 Pac. 1175 (1916), it was said: “It is conclusively determined that a temporary injunction ought not to have been granted when it is finally decided on the merits that the plaintiff is not entitled to an injunction of any sort, temporary or permanent.” Accord Messmer v. Kansas Wheat Growers’ Ass’n, 129 Kan. 220, 222, 282 Pac. 728 (1929).
More recent case law, although not direcdy on point, raises questions about whether this rule remains viable. Subsequent to the decisions in Harlow, Messmer, and other cases citing this rule, this court has imposed the five requirements for the granting of a temporaiy injunction. A finding of these factors does not mean that the movant will succeed in a trial on the merits, however. Indeed, a reasonable probability of success is a much lower hurdle than meeting the applicable burden of proof at trial. As the Tenth Circuit Court of Appeals has stated: “ ‘To justify a temporary injunction it is not necessary that the plaintiff s right to a final decision, after a trial, be absolutely certain, wholly without doubt . . . Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 781-82 (10th Cir. 1964). A lower standard applies at the preliminary injunction stage because
“ ‘[t]he purpose of a temporary or preliminary injunction is not to determine any controverted right, but to prevent injury to a claimed right pending a final determination of the controversy on its merits. The grant of a temporary injunction would not be proper if it would appear to accomplish the whole object of the suit without bringing the cause or claim to trial. A temporary injunction merely preserves the status quo until a final determination of a controversy can be made.’ (Emphasis added.) [Citation omitted.]” Steffes, 284 Kan. at 394.
Also, beyond looking at the merits, the other factors raise separate and distinct issues not involved in a final judgment.
In light of these requirements, we conclude the holding of the Illinois court—that a “temporary injunction may be wrongfully issued although the plaintiff prevails in his suit on the merits, and the temporary injunction may rightfully issue although the plaintiff does not sustain his suit on the merits,” Label Printers v. Pflug, 246 Ill. App. 3d at 438—better reflects the current analysis of the question of whether a temporary injunction should have been granted. We, therefore, hold that under K.S.A. 60-905(b) the analysis of whether a temporary injunction should not have been issued must be based upon whether the movant met the five conditions for a temporary injunction by establishing: a substantial likelihood of eventually prevailing on the merits; a reasonable probability of suffering irreparable future injury; the lack of obtaining an adequate remedy at law; the threat of suffering injury outweighs whatever damage the proposed injunction may cause the opposing party; and the impact of issuing the injunction will not be adverse to the public interest. The determination of whether a temporary injunction should not have been issued is not based upon whether the movant ultimately prevailed in the action, because an analysis of the factors may result in the issuance of a temporary injunction even though the movant subsequently loses on the merits. In other words, a temporary injunction may be wrongfully issued although the plaintiff prevails in the suit on the merits, and the temporaiy injunction may be rightfully issued although the plaintiff does not prevail.
In this case, the trial court engaged in an analysis of whether the temporary injunction should have been granted by examining the various factors required to be met before a temporary injunction is issued. It determined that it had incorrectly applied Kansas law in evaluating the likelihood of the Surgeons’ success on the merits and had failed to find at least one other prerequisite before issuing the temporaiy injunction. We discussed the error of the trial court’s analysis in Idbeis I, and that discussion need not be repeated here. Additionally, the record reveals that the trial court did not find that the Surgeons had established each of the other factors as required for the issuance of a temporaiy injunction. Therefore, the trial court correctly determined that the June 13, 2002, temporary injunction should not have been granted.
Was the Award of Fees Authorized by KS.A. 60-905(b)P
Next, the Surgeons argue the trial court erred in awarding attorney fees and expenses to WSS under K.S.A. 60-905(b), resulting from the wrongful issuance of the June 13, 2002, temporary injunction. The Surgeons contend that the attorney fees requested by WSS too broadly encompassed fees WSS would have incurred in litigating its counterclaim and request to enforce the restrictive covenants.
It has long been the settled rule in Kansas that damages recoverable from injunction bonds under K.S.A. 60-905(b) and its predecessor statutes are generally limited to those actually and proximately resulting from the effect of the temporary injunction itself, as opposed to litigation expenses independent of the temporary injunction. See Tobin, 207 Kan. at 530 (party can only recover damages that are a “direct, natural and proximate result of the injunction”); Alder v. City of Florence, 194 Kan. 104, 110, 397 P.2d 375 (1964) (where restraining order or temporary injunction was wrongfully issued, all expenses which are incurred by defendants and which are recoverable by defendants on bond may be recovered whether determination that order was wrongfully issued is in final trial of case or on separate hearing pursuant to application to set aside or vacate order); Miner, 113 Kan. 715, Syl. ¶ 2 (fact part of relief sought was permanent injunction did not preclude recovery of reasonable and necessary fees and expenses incurred in dissolving temporary injunction wrongfully granted). This is true in other jurisdictions as well. See, e.g., Hayes v. State, 254 Ark. 680, 684-85, 496 S.W.2d 372 (1973) (to be recoverable, damages “must be traceable to the act complained of as its direct, proximate and natural consequence, and must not be remote and speculative, involving inquiries that are collateral to . . . the wrongful issuance of the temporary injunction”); Phoenix Aviation, Inc. v. MNK Enterprises, Inc., 128 Idaho 819, 824, 919 P.2d 348 (1996) (“liability is limited to compensation for injury directly attributable to the preliminary injunction”); Carr v. Citizens Bank & Trust Co., 228 Va. 644, 651, 325 S.E.2d 86 (1985) (“In an action on an injunction bond, a plaintiff may recover all damages that are the natural and proximate result of the issuance of the injunction. . . . Properly allowable damages include only those damages that directly result from the suing out of the injunction.”). Two cases relied upon by the Surgeons are in accord: Shultz v. Pascoe, 94 N.M. 634, 635, 614 P.2d 1083 (1980) (“Where a person is wrongfully enjoined, he may recover only that portion of his counsel fees applicable to the restraint or injunction, but not for the other legal services involved in the litigation.”), and Devine v. Cluff, 110 Idaho 1, 4, 713 P.2d 437 (1985) (attorney fees are limited to those applicable to re straining order; fees related to defense of plaintiff s claims and to counterclaim must be segregated).
As a matter of logic, the temporary injunction was not the sole proximate cause of WSS’s attorney fees when WSS was itself seeking an injunction enforcing the restrictive covenants. As a practical matter, the only manner in which WSS could effectively enforce its contract and protect its contractual rights was to seek an order prohibiting the Surgeons from practicing medicine in violation of the restrictive covenants. Therefore, at a minimum, it cannot be said that the temporary injunction was the sole cause of the incurred fees.
WSS counters this conclusion with three arguments. First, WSS argues that nothing in K.S.A. 60-905(b) limits the equitable jurisdiction of the trial court to fashion a remedy it deems to be fair and just under the circumstances. Contrary to this argument, the power to award attorney fees in this case is statutory, and equitable powers cannot extend that authority. Brennan, 37 Kan. App. 2d at 392-93.
Second, WSS suggests K.S.A. 60-905(b) should be liberally construed to accomplish its remedial purposes. This suggestion is in direct conflict with the rule of strict compliance applying to attorney fee provisions and, more specifically, with Kansas cases dealing with fees recoverable under injunction bonds. E.g., Miner, 113 Kan. at 718 (“[T]he damages recoverable are limited strictly to those incurred in procuring the setting aside of the wrongful restraining order.” (Emphasis added.)
Finally, citing DeSpiegelaere v. Killion, 24 Kan. App. 2d 542, 546, 947 P.2d 1039 (1997), WSS argues it made an appropriate segregation of its attorney fees and expenses where possible but in large part the fees were so intertwined with other claims “ ‘to the point of being inseparable.’ ” The trial court accepted this argument, explaining:
“Statements of counsel and affidavits indicate defense counsel has already segregated out fees and cost[s] related to other matters. The remaining work (and requested fees) is related to the core issue of the temporary injunction and whether it should have been granted. Even if WSS had not counterclaimed for its own injunction the same work would have been performed to establish the injunction should not have been granted. In the Court’s opinion the work was so intertwined that it was to the point of being inseparable.”
In so ruling, the trial court relied upon DeSpiegelaere. The issue in that case related to attorney fees under the Kansas Consumer Protection Act (KCPA). Additionally, the plaintiff asserted nonKCPA claims, none of which could serve as a basis for the recovery of attorney fees. Therefore, fees were only allowed under the KCPA. The defendant argued it should not be hable for fees incurred in relation to the non-KCPA claims and suggested the plaintiff was required to segregate the fees related to the KCPA claim. The Court of Appeals acknowledged the general rule that recoverable fees must be segregated from other fees. However, the Court of Appeals also recognized an exception to the segregation rule when the attorney fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their “ ‘ “prosecution or defense entails proof or denial of essentially the same facts.” [Citation omitted.]’ ” 24 Kan. App. 2d at 546. In other words, when the causes of action involved in the suit depend upon the same set of facts or circumstances and are “ ‘ “intertwined to the point of being inseparable,” ’ ” the party suing for attorney fees may recover the entire amount. 24 Kan. App. 2d at 546.
The Surgeons suggest that this rule should not apply to damages under K.S.A. 60-905(b); rather, under that provision, the damages must be strictly limited to the dissolution of the temporary injunction. The parties have not cited and we have not found any Kansas case dealing with injunction bonds which directly addresses the question of whether fees incurred in the trial on the merits and on appeal can be recovered when intertwined with the issues related to the temporary injunction to the point of being inseparable. Some guidance can, however, be mined from our prior case law where the court concluded the fees could be segregated.
In Messmer, a temporary injunction issued; it was not set aside until the court denied the request for a permanent injunction after the trial. In allowing the recoveiy of attorney fees, the court first rejected the argument that the fees could not be recovered because a motion to vacate the temporary order, although filed, had not been pursued. The court cited several Kansas cases where the temporary order was not vacated until the trial, yet attorney fees were allowed. The court then added: “Practically the only difference in the right to recover is that there may be some difficulty in determining what expenses were incurred where the temporary injunction or restraining order is dissolved or set aside on the trial while the expenses incurred on special hearing on motion present no such question.” 129 Kan. at 222-23. Although the difficulty was recognized, the court required segregation of the fees and concluded the attorney fees could be allowed because the fees had been segregated, stating: “Direct and competent evidence was offered to show the various steps taken before and after the application to set aside the restraining order was filed, the expenses incurred in preparing for a hearing of the application and the reasonable value of such services, which amounted to a substantial sum—expenses which apparently had no connection with the final trial of the case on its merits.” 129 Kan. at 223.
In reaching this conclusion, the Messmer court cited Tullock v. Mulvane, 61 Kan. 650, 60 Pac. 749 (1900), reversed on other grounds hy Tullock v. Mulvane, 184 U.S. 497, 46 L. Ed. 657, 22 S. Ct. 372 (1902), a case in which, before the final trial, the plaintiff dismissed the portion of its claim that related to the temporary injunction. The Tullock court stated:
“It is next contended that there was a failure to separate the attorneys’ fees which Mulvane claimed he had paid in the injunction branch of the case from those paid for defending the bill for damages for nonperformance of contract, and, also, that a portion of that for which he made claim was paid for services not rendered to him but rendered to other defendants in the injunction proceeding. We have examined the evidence as to this. The plaintiff in error is mistaken.” 61 Kan. at 658-59.
Because the portion of the claim that related to the temporary injunction had been dismissed before trial, the court, although its holding is not clear, seems to be stating that the evidence established that the fees had been segregated.
In another case, Miner, 113 Kan. 715, there was no final trial of the action. Rather, the plaintiff dismissed his case after the temporary order was sustained. The plaintiff argued that the fees were incurred in general defense of the action. The court acknowledged that the validity of a city ordinance was an issue involved in the merits of the case and was central to the temporary order. The court awarded the fees even though there was an overlap of issues, but it concluded: “Of course, the damages recoverable are limited strictly to those incurred in procuring the setting aside of the wrongful restraining order.” (Emphasis added.) 113 Kan. at 718. Thus, while issues were intertwined, the court required that the fees be incurred in the dissolution of the temporary injunction. See also Underhill v. Spencer, 25 Kan. 71, 73 (1881) (attorney fees are limited to “services in obtaining a dissolution of the injunction”).
These cases are consistent with a decision of the Utah Court of Appeals wherein the analysis was placed within a proximate cause rubric. The court explained:
“Although Rule 65A justifies awarding attorney fees to wrongfully enjoined parties, those parties are only entitled to ‘fees . . . incurred in defending against wrongfully obtained injunctive relief and not to fees incurred in litigating the underlying lawsuit associated with an injunction. [Citations omitted]. Thus, in the present case, [the defendant] is entitled only to those attorney fees which would not have been incurred but for the application for, and issuance of, the prefiminaiy injunction. Fees which would have been incurred anyway, in the course of proving [the defendant’s] entitlement to [summary] judgment and refuting [the plaintiff s response], are not recoverable under Rule 65A.” Tholen v. Sandy City, 849 P.2d 592, 597 (Utah App.), cert, denied 860 P.2d 943 (Utah 1993).
See also Annot., 164 A.L.R. 1088 (“where the temporary injunction is ancillary only, it seems clear that there can be no recovery” and where injunction is sole remedy sought many courts still deny recovery because “whether there had been a temporary injunction or not, there would have been the same defense, the same pleadings, the same evidence, the same arguments, and consequently the same counsel fees, and that their expenditure would be caused by the suit and not by the issuance of the preliminary injunction”).
As we have noted, since at least 1900, this court has stated that only fees that are the proximate cause of the temporary injunction are recoverable. E.g., Tobin Construction Co. v. Holtzman, 207 Kan. 525, 530, 485 P.2d 1276 (1971) (party can only recover damages that are a “direct, natural and proximate result of the injunc tion”); Tullock, 61 Kan. at 663 (“such damages as were the actual, natural and proximate result of the granting of the injunction order”). “Proximate cause” is defined as that cause which “ ‘ “in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.” ’ ” Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). In other words, under K.S.A. 60-905(b), a party injured by a temporary injunction is entitled to only those attorney fees and expenses it would not have incurred but for the temporary injunction and cannot recover for fees that would have been incurred in the litigation even if the temporary injunction had not issued.
WSS’s approach would convert the remedy to a loser pays provision in almost every case. Such an approach is contrary to Kansas’ general view of attorney fee recovery. Moreover, it is contrary to the purpose of the injunction bond provision which contemplates that when a party obtains the extraordinary remedy of a temporary injunction and thereby temporarily deprives another of a right, the party should be responsible for any damages that arise if the restraint is wrongful. Hence, the fees are strictly limited to those incurred in the removal of that temporary restraint—the dissolution of the temporary injunction—and are not intended to cover fees incurred in determinating all of the claims and counterclaims asserted by the parties.
We hold that a party who files a counterclaim and seeks a declaratory judgment and injunction in addition to answering and opposing the entry of a permanent injunction in favor of the other party is entitled only to those fees incurred in seeking the dissolution of the temporary injunction and is not entitled to damages for fees that would have been necessarily incurred in pursuing the counterclaim and its attendant remedies, even if the issues relevant to the counterclaim are intertwined with the issues relevant to the temporary injunction.
We, therefore, remand the case for the district court to determine the fees directly and exclusively incurred in the dissolution of the temporary injunction.
Reversed and remanded with directions.
Davis, J., not participating.
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The opinion of the court was delivered by
McAnany, J.:
This case comes to us for review from the Court of Appeals. Leo F. Schuyler, a prisoner in the El Dorado Correctional Facility, petitioned the district court for a writ of habeas corpus, claiming he was classified as a sex offender by prison officials and placed in a sex offender treatment program without a hearing and without proof that he had ever been convicted of a sexually motivated crime. The district court dismissed the petition on the grounds that it failed to state a claim for which relief may be granted. The Court of Appeals reversed the district court’s dismissal.
In dismissing this action the district court was required to examine the allegations in the petition and the contents of any attachments. K.S.A. 60-1503. Its task was to determine if the petition alleged shocking and intolerable conduct or continuing mistreatment of a constitutional nature. Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert, denied 525 U.S. 1060 (1998). On review, our task is to accept as true the allegations in Schuyler’s petition in order to determine if the facts alleged and their reasonable inferences state a claim for relief. See Smith v. State, 264 Kan. 348, 353, 955 P.2d 1293 (1998). With those standards in mind, we consider the factual claims in Schuyler’s petition, the facts contained in the petition’s attachments, and any reasonable inferences which arise from them.
Fact Claims
On October 29, 1991, Schuyler was charged with aggravated sexual battery and aggravated assault. He pled guilty to aggravated assault, and the State dismissed the aggravated sexual battery charge. The record is silent as to whether Schuyler’s plea and the State’s dismissal of the remaining count were the product of a plea agreement. The court found Schuyler guilty of aggravated assault. On December 27, 1991, the district court sentenced Schuyler to prison for a term of 2 to 5 years.
Schuyler was released from prison after serving his sentence for the aggravated assault conviction. He was later returned to prison to serve a 154-month sentence for aggravated battery and driving while a habitual violator. While serving this second sentence, his Program Classification Review of February 12,2003, indicated that Schuyler was classified as a sex offender. This classification was made by Department of Corrections staff in Topeka. His review form stated: “Managed as a Sex Offender due to Other determination not an override.” Warden Raymond N. Roberts, Jr., submitted an override request on September 23, 2003, but the override committee determined that Schuyler should be managed as a sex offender based on the following: “1991 Agg. Assault offense was sexually motivated; was charged with Rape.”
Schuyler claims the manner of his classification was contrary to Kansas Department of Corrections policies and procedures. He further claims his classification was made without benefit of due process of law guaranteed by the United States Constitution and the Kansas Constitution. According to Schuyler, he was never convicted of a sex offense, no court has made a finding that his aggravated assault conviction was sexually motivated, and he has never been accused of engaging in sexually motivated behavior while in prison.
Schuyler states that, having been placed in the KDOC sex offender treatment program, if he now refuses to participate he will be deprived of certain personal property, such as the use of a television, radio, and reading materials; and his visitation privileges and canteen purchases will be restricted. He states that since the sex offender program is not available at the El Dorado facility, he will have to be transferred to another prison resulting in the loss of his work-release job. He further alleges that upon release from prison he will be required to register as a sex offender, though he has never been convicted of a sexually motivated crime.
Following his classification as a sex offender Schuyler filed a grievance which provided him no relief. He exhausted his administrative remedies before bringing this habeas corpus action in the district court against Warden Roberts. In his petition he sought, among other things, a declaration from the court that his classification as a sex offender violated his due process rights and an order requiring the prison authorities to provide him with a hearing before classifying him as a sex offender. The district court provided a summaiy review of the petition and its attachments as required by K.S.A. 60-1503 before dismissing this action on the grounds that Schuyler failed to state a claim upon which relief could be granted.
Schuyler appealed to the Kansas Court of Appeals. The Court of Appeals reversed and remanded the case to the district court for further proceedings. Schuyler v. Roberts, 36 Kan. App. 2d 388, 139 P.3d 781 (2006). In doing so, the Court of Appeals adopted the “stigma plus” test used by the Tenth Circuit Court of Appeals to determine whether a prisoner’s classification as a sex offender implicated a protected liberty interest. The Court of Appeals determined that the stigma element of the test was met by Schuyler being labeled a sex offender. Upon remand, the district court was directed to conduct further proceedings to determine the extent to which Schulyer was burdened by the sex offender classification, the “plus” element of the test. Roberts’ petition for review brought the matter before us.
The “Stigma Plus” Test
The “stigma plus” test was described in Gwinn v. Awmiller, 354 F.3d 1211, 1216 (10th Cir. 2004). Roberts argues that this “stigma plus” test adopted by the Court of Appeals does not apply. He asserts that the objective of the sex offender treatment program “is to provide an appropriate treatment, management and supervision scheme for individuals who have been convicted of sex offenses, have a history of sexually motivated behavior in a correctional setting, or whose crime was sexually motivated.” According to Roberts, Schuyler’s classification as a sex offender was used to determine the type of management and control he should receive while confined in prison. Thus, he argues, the courts should grant considerable deference to penal authorities in finding the appropriate balance between prison security and the rights of inmates.
The cases are legion that recognize the deference courts give penal authorities in the management and operation of our prison system. See Meachum v. Fano, 427 U.S. 215, 224, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976); Wolff v. McDonnell, 418 U.S. 539, 555, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Foster v. Maynard, 222 Kan. 506, 509, 565 P.2d 285 (1977); Chambers v. Colorado Dept. of Corrections, 205 F.3d 1237, 1242 (10th Cir. 2000). Nevertheless, and though they are confined to prison, inmates retain certain constitutionally protected liberty interests to which the right of due process applies. To the extent a liberty interest survives an inmate’s loss of personal freedom, the essence of incarceration, that liberty interest is entitled to protection. See Wolff v. McDonnell, 418 U.S. at 557; Chambers v. Colorado Dept. of Corrections, 205 F.3d at 1242.
“Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a ‘retraction justified by the considerations underlying our penal system.’ [Citation omitted.] But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.” Wolff, 418 U.S. at 555.
A protected liberty interest may arise when prison authorities impose a restraint on a prisoner’s already quite-limited freedom, and the restraint is atypical and a significant hardship on the inmate in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995).
Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980), considered one such liberty interest of a prison inmate. Vitek presents a somewhat analogous situation to that of Schuyler. Schuyler alleges he was classified as a sex offender and ordered to treatment without a hearing. Vitek was declared to be mentally ill and transferred from the prison to a psychiatric hospital without a hearing. The Court in Vitek reasoned that “the stigmatizing consequences of a transfer to a mental hospital for involuntaiy psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the land of deprivations of liberty that requires procedural protections.” Vitek, 445 U.S. at 494. The Court noted:
“Appellants maintain that the transfer of a prisoner to a mental hospital is within the range of confinement justified by imposition of a prison sentence, at least after certification by a qualified person that a prisoner suffers from a mental disease or defect. We cannot agree. None of our decisions holds that conviction for a crime entitles a State not only to confine the convicted person but also to determine that he has a mental illness and to subject him involuntarily to institutional care in a mental hospital. Such consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by a person convicted of crime. ... A criminal conviction and sentence of imprisonment extinguish an individual’s right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntaiy psychiatric treatment without affording him additional due process protections.” 445 U.S. at 493-94.
The Court noted that “commitment to a mental hospital han engender adverse social consequences to the individual’ and that ‘[w]hether we label the phenomena “stigma” or choose to call it something else . . . we recognize that it can occur and that it can have a very significant impact on the individual.’ [Citations omitted.]” Vitek, 445 U.S. at 492.
At issue here is the characterization of Schuyler as a sex offender and the consequences that flow from this characterization. It is clear that simply because a person has been defamed by the government by being mislabeled a sex offender does not implicate due process protections absent some more tangible interest. Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). In the present context the showing of such a “more tangible interest” as required by Paul was considered in Gwinn.
Gwinn presents several facts which are similar to the allegations now before us. Gwinn had been charged with robbery and sexual assault. He pled guilty to robbery, and the sexual assault charge was dismissed. Gwinn was informed that as a result of having been charged with sexual assault, he was being categorized as a sex offender and was required to complete a sex offender treatment program. He claimed, among other things, that the prison authorities violated his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution by failing to conduct an adequate hearing before classifying him as a sex offender. While the appellate court ultimately found that Gwinn had been afforded an adequate due process hearing on the issue, the court enunciated the applicable “stigma plus” test, by which
“a plaintiff asserting that the government has violated the Due Process Clause by impugning his or her ‘good name, reputation, honor, or integrity,’ [citation omitted], must demonstrate that: (1) the government made a statement about him or her that is sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she asserts is false, and (2) the plaintiff experienced some govemmentally imposed burden that ‘significantly altered [his or] her status as a matter of state law.’ Paul, 424 U.S. at 710-711, 96 S. Ct. 1155.” Gwinn, 354 F.3d at 1216.
We conclude that Schuyler’s classification as a sex offender calls for application of this “stigma plus” test to determine whether he has alleged facts in his petition which, if proven, establish that he has a liberty interest which was infringed without affording him due process of law. Under the particular facts of this case, it would be improper to judge the adequacy of Schuyler’s pleading from the perspective of the considerable deference courts grant to corrections authorities in the management of the prison, as expressed in Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). Courts continue to defer to the expertise of corrections authorities in the difficult task of managing prison inmates. However, courts do not defer to prison authorities on the question of whether due process should be afforded an inmate before the prison authorities take action which abridges an inmate’s constitutionally protected liberty interest.
As a final comment on this issue, we note that Roberts’ reliance on Hill v. Simmons, 33 Kan. App. 2d 318, 101 P.3d 1286 (2004), is misplaced. Hill was classified as a sex offender after he engaged in inappropriate sexual behavior while in prison. As a result, he was not allowed to have sexually explicit materials in his possession while in prison. Hill sought relief pursuant to K.S.A. 60-1501, claiming his classification violated the Ex Post Facto Clause, his First Amendment rights, and his Fourteenth Amendment right to due process. The analysis of Hill’s due process claim appears to have been skewed by the manner in which his pro se appeal was presented. As a consequence, the court in Hill was never called upon to consider whether the prisoner was entitled to a hearing before being classified as a sex offender.
Hill claimed a violation of his due process rights in two respects. First, he claimed the district court’s summary dismissal of his petition without a hearing violated his due process rights. The Court of Appeals quickly disposed of this claim. Schuyler makes no such claim in the appeal before us.
The second aspect of Hill’s due process claim related to Internal Management Policies and Procedures (IMPP) 11-115, the regulation regarding the management of sex offenders in prison. Hill presented two due process arguments relating to the application of IMPP 11-115 to him. First, he did not argue that he was denied a hearing; rather, he argued the unfairness of the consequence of being characterized as a sex offender, i.e., the denial of his right to have pornographic material while in prison. The Court of Appeals resolved this issue by concluding that imposing restrictions against such materials was within the wide discretion granted prison officials in managing prison operations. Finally, Hill argued that he could not be found to be a sex offender under IMPP 11-115 since K.S.A. 2003 Supp. 22-4902 defined a sex offender as one who had been convicted of a sexually violent crime and he had never been convicted of such a crime. Hill never claimed he had been denied a hearing on the issue of his classification as a sex offender. Accordingly, Hill simply does not apply.
Application of the “Stigma Plus” Standard
Schuyler alleges that the prison authorities have characterized him as a sex offender and require his ongoing participation in a sex offender treatment program. He denies that he is a sex offender. He alleges that his failure to participate in the sex offender treatment program will result in the loss of certain property and privileges. He also alleges that he will be required to register as a sex offender when released from prison.
In order to determine whether tírese allegations set forth an actionable claim we must determine whether, if proven, they constitute either shocldng and intolerable conduct or continuing mistreatment of a constitutional nature. Foster v. Maynard, 222 Kan. 506, 509, 565 P.2d 285 (1977). In making this determination we must look to the “stigma plus” test. If Schuyler’s pleading satisfies both elements of this test, then to compel his treatment as a sex offender without affording him the benefit of any hearing to consider whether he is, in fact, a sex offender would infringe upon a liberty interest and thereby constitute continuing mistreatment of a constitutional nature.
To satisfy the “stigma” element of the test, (1) Schuyler must set forth allegations which, if true, demonstrate that the prison authorities have characterized him in a way which is sufficiently derogatory so as to injure his reputation, and this characterization is capable of being proven false; and (2) he must allege that the characterization is false. To satisfy the “plus” element of the test, Schuyler must allege that this mischaracterization has caused him to experience a govemmentally imposed burden which has signif icantly altered his status as a matter of state law. Paul, 424 U.S. at 710-11; Gwinn, 354 F.3d at 1216.
The Court of Appeals determined that the State’s classification of Schuyler as a sex offender under IMPP 11-115 met the stigma prong of the analysis because the classification is “derogatory enough to damage his reputation” and because “[i]t may also be possible for Schuyler to prove that he is not a sex offender.” Schuyler, 36 Kan. App. 2d at 392. This conclusion is sound. As the court explained in Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997):
“We can hardly conceive of a state’s action bearing more ‘stigmatizing consequences’ than the labeling of a prison inmate as a sex offender. . . . One need only look to the increasingly popular ‘Megan’s laws,’ whereby states require sex offenders to register with law enforcement officials who are then authorized to release information about the sex offender to the public, to comprehend the stigmatizing consequences of being labeled a sex offender. The classification of an inmate as a sex offender is precisely the type of ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life’ that the Supreme Court held created a protected liberty interest. [Citation omitted.]”
Further, Schuyler denies being a sex offender. Whether Schuyler is, in fact, a sex offender as defined by IMPP 11-115 is certainly a matter which can be proven. Thus, Schuyler’s allegations in his petition satisfy the stigma element of the test.
With respect to the plus factor of the test, Schuyler makes allegations which, if proven, establish a mischaracterization which has caused him to experience a govemmentally imposed burden which significantly alters his status as a matter of state law. According to Schuyler’s petition and its attachments, Schuyler was classified as a sex offender in accordance with IMPP 11-115. Prisoners so classified must be placed in the sex offender treatment program. IMPP 11-115(I)(A)(4). Prisoners so classified must also submit to mandatory sex offender treatment after being released from prison. IMPP 11-115(I)(B)(1). Among other aspects of the treatment program, prisoners classified as sex offenders must submit to periodical polygraph testing, both while in prison and after release. IMPP 11-115(VIII). In addition, prisoners classified as sex offenders are permitted limited visitation with minors, are prohibited from viewing sexually explicit material (both while in prison and after release), and have additional travel hmitations placed on them after release. IMPP 11-115(VI), (VII), and (IX). Prisoners so classified must pay the costs of sex offender treatment after being released from prison unless they can demonstrate indigence. IMPP 11-115(IV)(B).
Schuyler clearly states a claim that the sex offender treatment program places significant burdens on him which are not imposed on prisoners who are not classified as sex offenders under IMPP 11-115. Viewing Schuyler’s petition in the light most favoring him, and assuming the truth of his allegations for the purpose of determining whether he has stated an actionable claim, we conclude that Schuyler has stated a claim which, if proven true, warrants relief.
Roberts argued at length in his petition for review that the sex offender treatment program does not differ substantially from other prisoners’ treatment. Whether this is true requires fact-finding beyond the examination of the pleading and its attachments as called for in K.S.A. 60-1503 and goes beyond our standard for appellate review. The resolution of this and other fact issues must await further proceedings in the district court. If the district court determines that Schuyler, in fact, satisfies the second element of the “stigma plus” test, then Schuyler is entitled to advance notice of his proposed classification as a sex offender, an opportunity to present evidence in his defense, and a written statement of the evidence relied upon by the panel in making its final determination. See Wolff, 418 U.S. at 559-67.
We conclude that the Court of Appeals properly reversed the district court’s dismissal of Schuyler’s petition and remanded the case to the district court for further proceedings.
Decision of the district court reversed; case remanded for further proceedings.
Davis and Johnson, JJ., not participating.
McAnany, J., and Larson, S.J., assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator against respondent, Kiehl Rathbun, of Wichita, an attorney admitted to the practice of law in Kansas on September 12, 1975. This action arose from two disciplinary complaints. A hearing panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2006 Kan. Ct. R. Annot. 284).
The hearing panel concluded that Rathbun violated Kansas Rules of Professional Conduct (KRPC) as follows: KRPC 1.1 (2006 Kan. Ct. R. Annot. 358) (competence); KRPC 1.3 (2006 Kan. Ct. R. Annot. 371) (diligence); KRPC 1.4 (2006 Kan. Ct. R. Annot. 386) (communication); KRPC 1.5 (2006 Kan. Ct. R. Annot. 401) (fees); KRPC 1.16 (2006 Kan. Ct. R. Annot. 448) (declining or terminating representation); KRPC 3.3(d) (2006 Kan. Ct. R. An-not. 467) (candor toward the tribunal); and KRPC 8.4(d) (2006 Kan. Ct. R. Annot. 510) (misconduct). Additionally, Rathbun was held to have violated Kansas Supreme Court Rule 211(b) (formal hearings). The hearing panel unanimously recommended that Rathbun be indefinitely suspended from the practice of law in the state of Kansas. Rathbun did not file exceptions to the final hearing report.
Hearing Panel’s Findings of Fact
The hearing panel, based upon clear and convincing evidence, made findings of fact. Highly summarized, the final hearing report contained the following findings of fact regarding the two complaints against Rathbun.
The first complaint arose from Rathbun’s representation of a party in postdivorce proceedings. Rathbun filed a motion to modify child support. At a hearing on June 18, 2002, the court sustained Rathbun’s motion and directed Rathbun to prepare the journal entry. Rathbun failed to timely do so; it was not until March 2003— 8 months after the hearing—that Rathbun prepared the journal entry.
Simultaneous with the issues regarding support, motions were also pending regarding visitation. The court appointed a case manager who, on June 10, 2002, completed a plan for visitation. The plan included a provision that Rathbun’s client—the children’s father who lived in Kansas City—would pick up the children in Wichita on Friday, June 14, 2002, and return them on Sunday, June 16, 2002. On Friday, June 14, 2002, in an ex parte contact, Rathbun told the judge the mother was denying the father visitation. As a result, the judge signed an ex parte order that changed the visitation from Friday through Sunday to Saturday through Monday at 8 a.m. and required the mother to pick up the children in Kansas City.
Rathbun’s client had received the case manager’s visitation plan prior to the ex parte contact. Rathbun, however, did not inform the judge that the case manager’s plan required his client to pick up and return tire children to Wichita or that his client had been required to do the driving to and from visitation in the past.
As a result of the ex parte order, the children’s mother traveled to Kansas City on Sunday and spent the night in a hotel so she could pick up her children at 8 a.m. Monday morning. Because of the travel to Kansas City, the mother missed a day of work. The attorney representing the mother filed a motion seeking reimbursement of the mother’s expenses for travel, lodging, gasoline, and attorney fees and requiring Rathbun to compensate the case manager.
On June 25, 2002, a different judge imposed sanctions that were personally paid by Rathbun.
The second complaint arose from Rathbun’s representation of a client in a criminal proceeding. Rathbun prepared an engagement letter which detailed the terms of the representation and the fee. According to the engagement letter, the fee was “earned on receipt” and was “not refundable.” Although an executed copy of the agreement was not an exhibit in the disciplinary proceeding, Rathbun testified during the final hearing that the engagement letter reflected the agreement of the parties and that he believed that he and his client signed the letter of engagement.
On the morning scheduled for the jury trial, Rathbun waived his client’s right to a jury and the case was tried to the court. During the trial, Rathbun, who had not interviewed any of the eyewitnesses, did not call any witnesses and advised his client not to testify. The client followed the advice. As a result, no factual defense was asserted.
Following the trial, the court directed the parties to brief a legal issue and submit written closing arguments. The prosecutor submitted a brief and closing argument. Rathbun, however, did not. On August 17, 2005, the court issued its decision in which it stated that the facts were not disputed. Rathbun’s client was convicted.
Before the sentencing hearing, Rathbun did not research his client’s criminal history or advise his client regarding the impact of previous convictions on the possible sentence or that the presumptive sentence was a term of imprisonment. Rathbun’s client served 14 months in prison.
Immediately following the sentencing hearing, Rathbun filed a notice of appeal but told his client he thought he should withdraw because the court did not look favorably on the respondent. Rathbun, however, never withdrew from the case nor took any further action.
Additionally, at one hearing, a court services officer presented a warrant for the arrest of Rathbun’s client. Rathbun became enraged and called the court services officer a “bitch.”
Complaints arising from these actions led to the Disciplinary Administrator filing a formal complaint in the instant case. Rathbun failed to file an answer to the formal complaint within 20 days, as required by Supreme Court Rule 211(b). His answer was filed just 6 days before the hearing was held on the formal complaint.
Hearing Panel’s Conclusions of Law
Based upon these facts, the hearing panel made several conclusions of law. First, the hearing panel noted: “Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ ” The hearing panel concluded that Rathbun failed to be thorough and prepared and thereby failed to competently represent his client in' the criminal case when he failed to interview witnesses to the crime. Accordingly, the hearing panel concluded Rathbun violated KRPC 1.1.
Second, the hearing panel noted: “Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3.” The hearing panel concluded Rathbun violated this provision when he failed to prepare a journal entry for a period of 8 months. Additionally, Rathbun failed to provide diligent representation in the criminal proceeding when he failed to file a letter brief and closing argument and failed to properly research his client’s criminal history.
Third, the hearing panel cited KRPC 1.4(b), which provides that a “lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” The hearing panel concluded that Rathbun violated KRPC 1.4(b) when he failed to properly explain the effects of his client’s criminal history.
Fourth, the hearing panel noted that a lawyer’s fee must be reasonable. KRPC 1.5(a). The hearing panel concluded it is unreasonable for a lawyer to charge a fee that is nonrefundable and, therefore, Rathbun violated KRPC 1.5(a).
Fifth, the hearing panel quoted KRPC 1.16(d), which provides:
“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.”
The hearing panel concluded that Rathbun violated this provision by failing to take any steps to protect his client’s interest in the appeal after the criminal conviction.
Sixth, the hearing panel concluded that Rathbun violated KRPC 3.3(a)(1), which provides that a “lawyer shall not knowingly make a false statement of material fact or law to a tribunal.” The hearing panel concluded that Rathbun violated this provision when he knew the case manager in the postdivorce proceedings had developed a visitation plan and, without informing the court of the plan, sought and received an ex parte order that direcdy conflicted with the plan.
Seventh, the hearing panel found that when Rathbun became belligerent and called the court services officer a “bitch” he violated KRPC 8.4(d), which states: “It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.”
Finally, the hearing panel noted that the Supreme Court Rules require attorneys to file answers to formal complaints. Supreme Court Rule 211(b) states: “The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.” 2006 Kan. Ct. R. Annot. 285. The hearing panel concluded that Rathbun violated Supreme Court Rule 211(b) by failing to file a timely written answer to the formal complaint.
In deciding what discipline to recommend, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (1991). Applying Standard 3, the hearing panel considered the duty violated, the lawyer’s mental state, the potential or actual injury caused by the misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation and adequate communication. Additionally, the Respondent violated his duty to the legal profession to maintain his per sonal integrity. Finally, the Respondent violated his duty to the legal system to refrain from interfering with the administration of justice.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury.
“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 filis case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been informally admonished for having engaged in misconduct in five previous cases. First, on July 10, 1979, the Respondent was informally admonished for having spoken with represented parties without written consent of their counsel, W1395. On December 5,1996, in A6641, the Respondent was informally admonished for having violated KRPC 1.1, KRPC 1.5, and KRPC 1.15. On June 17,1997, the Respondent was informally admonished for violating KRPC 1.9, A6809. On July 18, 2000, the Respondent was informally admonished in two separate cases. In A7100, the Respondent was informally admonished for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 8.4 and in A7519, the Respondent was informally admonished for having violated KRPC 1.5(d).
“Additionally, on May 30, 2003, the Kansas Supreme Court placed the Respondent on probation for three years for having violated KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 3.3, KRPC 3.4, KRPC 3.5, and KRPC 8.4, in a total of eight disciplinaiy cases.
“Finally, on December 9, 2005, the Kansas Supreme Court extended the Respondent’s probation for one year for having violated KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 3.1, and Kan. Sup. Ct. R. 207(b), in a total of six disciplinary cases. The Respondent’s probation is set to terminate on May 30, 2007.
“A Pattern of Misconduct. Included in this case are two complaints. The complaints involve similar misconduct. Additionally, the Respondent has previously been disciplined on a number of occasions. Some of the previous cases have included violations of the rules violated in this case. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.3(d), KRPC 8.4(d), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1975. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for more than thirty years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommen dation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“Personal or Emotional Problems. The Respondent has had extensive personal and emotional problems in his life. The Respondent has engaged in mental health treatment to address his personal and emotional problems.
“Remoteness of Prior Offenses. The discipline imposed in 1979 is remote in time and in character to the misconduct in this case. The other cases are similar in time and circumstances, however.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘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.”
The Deputy Disciplinary Administrator recommended that Rathbun be informally admonished for his conduct in his representation of his client in the postdivorce proceedings. This recommendation was made, in part, because the misconduct occurred prior to Rathbun being placed on probation. Additionally, the Deputy Disciplinary Administrator recommended that Rathbun be suspended for an indefinite period of time for his conduct in representing the criminal defendant because the misconduct in that case occurred in 2004 and 2005 while Rathbun was on probation.
The hearing panel concluded that Rathbun’s license to practice law should be indefinitely suspended. The hearing panel noted that Rathbun has had the benefit of probation for a number of years and, yet, he continues to violate the Kansas Rules of Professional Conduct. The hearing panel concluded that Rathbun s plan of probation is insufficient to resolve the problems and, therefore, should not be extended for a longer period of time.
Analysis
In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evi dence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284). When a respondent does not file exceptions to the hearing panel’s report, the report is deemed admitted under Supreme Court Rule 212(c) and (d) (2006 Kan. Ct. R. Annot. 295). In this case, Rathbun filed no exceptions to the hearing panel’s report.
We conclude there is clear and convincing evidence that Rathbun violated KRPC 1.1, 1.3, 1.4, 1.5, 1.16, 3.3(d), 8.4(d) as well as Supreme Court Rule 211(b), and we adopt the conclusions of the hearing panel.
Further, Rathbun, having been notified of these proceedings, failed to appear before this court. This failure to appear constitutes a violation of Supreme Court Rule 212(d).
With respect to the discipline to be imposed, the hearing panel’s unanimous recommendation that Rathbun be indefinitely suspended from the practice of law in the state of Kansas is advisory only. The court may impose discipline greater or lesser than that recommended by the hearing panel or the Disciplinary Administrator. Supreme Court Rule 212(f).
The hearing panel based its recommendation upon ABA Standard 8.2, relating to discipline imposed after a respondent has previously been disciplined. Standard 8.2 provides for suspension from the practice of law. Related Standard 8.1 provides:
“Disbarment is generally appropriate when a lawyer:
(a) Intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.”
Potentially, Standard 8.1 applies in this case because in In re Rathbun, 275 Kan. 920, 69 P.3d 537 (2003), this court suspended Rathbun from the practice of law and then suspended that punishment and placed Rathbun on probation. The order prohibited Rathbun from violating any provisions of the Kansas Rules of Professional Conduct. The same term was imposed when Rathbun’s probation was extended in In re Rathbun, 280 Kan. 672, 124 P.3d 1 (2005). In addition, Standard 8.1 relates to situations in which there has been a knowing violation of the previous disciplinaiy order and resulting injury. Although not specifically addressing Standard 8.1, the hearing panel found that Rathbun’s violations were knowingly made and that actual injury resulted. Hence, the hearing panel made the findings suggested by Standard 8.1. See In re Comfort, 284 Kan. 183, 207, 159 P.3d 1011 (2007) (every potentially applicable ABA Standard need not be discussed by hearing panel or court; ABA Standards serve only as guidelines to assist courts in selecting appropriate and uniform discipline).
In our consideration of whether to order suspension or disbarment, we note that subsequent to the hearing panel’s recommendation Rathbun has committed a new violation by fading to appear before the court as required by Supreme Court Rule 212(d). While every such violation does not result in an escalation of the severity of punishment, in this case the violation reflects a pattern of misconduct that spans a decade, involves 21 separate cases, and occurs while the respondent is already on probation. Repeated attempts at probation and rehabilitation have failed.
We conclude that the appropriate discipline is disbarment.
It Is Therefore Ordered that the respondent, Kiehl Rathbun, be and he is hereby disbarred from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(1) (2006 Kan. Ct. R. Annot. 243) for his violations of the Kansas Rules of Professional Conduct.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Kiehl Rathbun from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that Kiehl Rathbun comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent.
Davis and Nuss, JJ., not participating.
Greene, J., assigned. | [
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The opinion of the court was delivered by
McFarland, C.J.:
Darrell L. Farmer appeals his convictions and sentences for first-degree felony murder, criminal discharge of a firearm at an occupied vehicle, aggravated burglary, aggravated battery, and aggravated assault. Farmer argues: (1) the evidence was insufficient to support his conviction of criminal discharge of a firearm at an occupied vehicle and, thus, both that conviction and his felony-murder conviction predicated thereon cannot stand; (2) his convictions for felony murder and criminal discharge of a firearm at an occupied vehicle are multiplicitous; (3) his confession was involuntary; and (4) the district court improperly determined his criminal histoiy score without having it proven to a juiy beyond a reasonable doubt.
FACTS
The events that led to the convictions in this case occurred on July 13, 2002, starting with DeAundrey Neal driving to Farmer s apartment complex in Coffeyville, Kansas, and honking his car’s horn. Farmer, who was walking to the northeast between the apartment buildings, returned to the parking area and spoke with Neal through the passenger-side window of Neal’s vehicle. A witness saw Farmer walk from the passenger-side window around to the driver’s side of Neal’s vehicle, pull a gun from his pocket, and put his arm inside the vehicle. The witness then heard several shots. Neal sustained six gunshot wounds: three gunshots to the head, one shot to his neck, one shot in his clavicle, and one shot in his arm. He died at the scene.
After killing Neal, Farmer walked to his apartment, remained inside for a few minutes, then walked out of the apartment complex in a northeasterly direction, the same direction he was headed when Neal had honked his horn at him. Farmer walked about a block to Levi Hayes’ house to collect money that Hayes owed him.
Without knocking, Farmer kicked Hayes’ front door open and burst into the house. Once inside, Farmer screamed at Hayes, who had been asleep on the couch, then began beating Hayes with the gun he had used to shoot Neal. When Hayes’ wife, Betty Hayes, attempted to stop Farmer from beating Hayes, Farmer grabbed Betty, pointed the gun at her head, and threatened to kill her. While Hayes struggled with Farmer to get the gun, Betty ran next door and called the police.
During the scuffle, Farmer bit Hayes on the neck. Eventually, Hayes took the gun from Farmer. Farmer then left the house. Hayes followed Farmer onto the porch and pointed the gun at' Farmer. Hayes was aware the gun was empty because during the struggle Farmer had pulled the trigger and the gun clicked without firing. Hayes then left the gun on the front porch and went back inside the house. Later, ballistics testing of the gun Hayes took from Farmer confirmed that the gun had been used to shoot Neal.
Shortly after the police received Betty’s call, they received a separate telephone call that gunshots had been fired. The police believed that the two calls were related because of the close physical proximity of the callers’ addresses. The police responded first to the shots-fired call rather than Betty’s call.
A witness at the scene of Neal’s shooting informed police that he had observed someone wearing khaki pants and a white shirt leaving the apartment complex to the north. Following that information, two officers headed north from the apartment complex and noticed Farmer, who fit the witness’ description, walking down the street. The officers observed that Farmer had blood on his clothing.
When Farmer became aware of the officers, he began to take off his clothes. The officers ordered Farmer to stop after he had removed his shirt and was taking off his pants. Farmer then dropped his pants, attempted to run, but tripped himself. When the officers apprehended Farmer, Farmer stated, “Dear Jesus, please forgive me. Please forgive me. I didn’t mean to do it.” After his arrest but before he was restrained, Farmer kicked one of the officers twice.
Coffeyville police interviewed Farmer immediately after his arrest. After Farmer waived his Miranda rights and agreed to speak with the officers, Farmer denied that he had consumed drugs or alcohol, then stated he had no knowledge of Neal being shot. When Farmer was booked into jail, Coffeyville police found in Farmer’s pocket a live round of ammunition matching that used to shoot Neal and a bottle of phencyclidine (PCP).
The next morning, Detectives Diane George and Brian Richstatter from the Coffeyville police department interrogated Farmer. Farmer again waived his Miranda rights and agreed to speak with the officers. Farmer admitted fighting with Hayes and told the officers that he believed he had been arrested for that fight. Farmer then stated that he was to meet Neal, but tire meeting did not occur. He claimed he was not aware that Neal had been shot.
Detective Richstatter asked Farmer if he was a “very religious person.” Farmer responded that he was. Detective Richstatter told Farmer to remember that God would forgive him, but Farmer had to be honest. After the detectives had encouraged Farmer to tell the truth, Farmer admitted to the officers that he shot Neal. Farmer stated that the purpose of his arranged meeting with Neal was for Neal to deliver a job application to him. Instead, Neal asked Farmer to sell him some rocks of cocaine. This angered Farmer.
Farmer said he had consumed alcohol and smoked a marijuana joint dipped in PCP prior to the shootings. The detectives obtained samples of Farmer s blood and urine for testing, which showed that Farmer had PCP and marijuana in his urine, but only marijuana in his blood when he had confessed to killing Neal.
The State charged Farmer with first-degree felony murder based on the underlying felony of criminal discharge of a firearm at an occupied vehicle, criminal discharge of a firearm at an occupied vehicle, aggravated burglary for breaking into the Hayes’ house, aggravated battery for beating Hayes, and aggravated assault for threatening Betty with a gun.
After a jury convicted Farmer of all charges, the district court sentenced Farmer to life in prison for felony murder, 228 months for criminal discharge of a firearm, 34 months for aggravated burglary, 13 months for aggravated battery, and 13 months for aggravated assault. All five sentences were ordered to run consecutively. Farmer appeals his convictions and his sentences.
SUFFICIENCY OF THE EVIDENCE SUPPORTING THE CRIMINAL DISCHARGE OF A FIREARM AT AN OCCUPIED VEHICLE CONVICTION
Farmer argues that there is insufficient evidence to support the underlying felony of discharging a firearm at an occupied vehicle and, thus, he cannot be convicted of either the underlying felony or felony murder.
The State argues that this issue is not properly before the court because Farmer has raised it for the first time on appeal. To support this argument, the State cites the general rule that appellants cannot raise new issues, including constitutional grounds, for the first time on appeal. See State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993). The State, however, cites no authority for the specific proposition that a challenge to the sufficiency of the evidence before the district court is necessary to preserve it for appeal. There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve it for appeal. See K.S.A. 22-3601(b)(l); K.S.A. 2006 Supp. 22-3602. This issue is properly before us.
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. Hanson, 277 Kan. 855, 856-57, 89 P.3d 544 (2004).
Farmer asserts that to convict him of criminal discharge of a firearm at an occupied vehicle, the State had to prove that he maliciously and intentionally, without authorization, discharged a firearm at an occupied vehicle. Farmer argues that the evidence showed that he fired at the person in the vehicle, and not at the vehicle and, therefore, the evidence was insufficient to prove criminal discharge of a firearm at an occupied vehicle. Farmer points to the eyewitness testimony that Farmer put his arm inside the vehicle right before he started shooting, plus the fact that four shell casings were found inside the victim’s vehicle, and the testimony of a police officer who opined that the gun was inside the vehicle when those four shots were fired in order for the casings to have been in the vehicle.
Farmer contends, and the dissent agrees, the criminal discharge statute focuses on the intended target of the shooting, recognizing a distinction between shooting at a vehicle with someone in it and shooting at an individual in a vehicle. Farmer argues that the intent of the statute was to cover random acts of shooting violence where no person is targeted or injured. According to Farmer, and the dissent, if the evidence shows the shooter intended to shoot the victim, as it did here, the facts do not fall into the gap the statute was designed to fill. Instead, he argues the act of discharging a firearm at a person who happens to be in the vehicle is aggravated battery or aggravated assault, which merges with felony murder. See K.S.A. 2006 Supp. 21-3436(b)(4), (b)(6). Thus, the argument goes, the State has used the criminal discharge statute in a situation it was not intended to cover.
Farmer also argues that “by [electing] to pursue this shooting as a drive-by shooting charge rather than aggravated battery or aggravated assault,” the State was able to avoid application of the merger rule. See K.S.A. 2006 Supp. 21-3436(a)(15) (criminal discharge of a firearm under K.S.A. 21-4219 does not merge with the resulting homicide); State v. Rayton, 268 Kan. 711, 724, 1 P.3d 854 (2000) (reaffirming that the crimes of felony murder and criminal discharge of a firearm do not merge). This, he argues, unfairly prejudiced him. For support, Farmer points to the statement in State v. Taylor, 25 Kan. App. 2d 407, 422, 965 P.2d 834, rev. denied 266 Kan. 1115 (1998), in which the court stated: “Because the drive-by shooting charge is an alternative, rather than an additional charge, the defendant is not prejudiced by the State’s election to pursue the drive-by shooting charge.”
K.S.A. 2006 Supp. 21-4219(b) was created to impose criminal liability where an individual discharges a firearm into an occupied building or vehicle but the State is unable to prove the requisite intent for the crimes of aggravated assault or aggravated battery. Thus, the statute prohibits “the wanton and willful act [of discharging a firearm into an occupied building or vehicle] itself without regard to the state of mind of the shooter . . . .” (Emphasis added.) Taylor, 25 Kan. App. 2d at 421 (citing Report of Subcommittee, House Judiciaiy Committee on Drive-by Shooting [H.B. 2709], February 25, 1992). The statute was designed to cover situations where there are difficulties in proving the shooter’s intent. According to Farmer’s, and the dissent’s, interpretation of the criminal discharge statute, there cannot be any evidence of intent to shoot at anything other than the occupied vehicle or building itself. In other words, there must be a complete absence of intent to hit an occupant of an occupied vehicle or building for the statute to apply. Such a construction eviscerates the criminal discharge statute by putting the focus right back on the shooter s intent, thus making it unavailable in the very situations it was designed to cover—situations where proof of intent to injure or kill is problematic.
Although the dissent contends the State could have charged this crime as first-degree premeditated murder, the issue before us is whether the evidence was sufficient to prove the offense of criminal discharge of a firearm at an occupied vehicle. The fact that the evidence may have supported different charges is irrelevant to this issue.
Therefore, we move to consideration of whether the evidence is sufficient to support the underlying felony of discharging a firearm at an occupied vehicle. K.S.A. 2006 Supp. 21-4219(b) defines criminal discharge of a firearm at an occupied vehicle as:
“the malicious, intentional and unauthorized discharge of a firearm at a dwelling, building, structure, motor vehicle, aircraft, watercraft, train, locomotive, railroad car, caboose, rail-mounted work equipment or rolling stock or other means of conveyance of persons or property in which diere is a human being.”
To prove the offense of criminal discharge of a firearm at an occupied vehicle, as a severity level 3 person felony under K.S.A. 2006 Supp. 21-4219(b), the State had to establish the following elements beyond a reasonable doubt:
“1. That the defendant maliciously and intentionally, without authorization, discharged a firearm at an occupied vehicle; [and]
“2. That the act resulted in great bodily harm to a person.” PIK Crim. 3d 64.02-A-l.
See State v. Conway, 284 Kan. 37, 53, 159 P.3d 917 (2007) (approving this instruction as a correct statement of the law).
It is undisputed that Farmer was standing outside of the vehicle shooting a gun. It is undisputed that the vehicle was occupied. It is undisputed that bullets from the gun Farmer was shooting were fired into the occupied vehicle. And it is undisputed that the bullets caused great bodily harm to the vehicle’s occupant. Even if Farmer’s hand may have been inside the vehicle when he began shooting, Farmer admitted that he was backing away from the vehicle as he was shooting. His admission is supported by the evidence. Two shell casings were found on the ground outside of the vehicle, located approximately 10 feet in a straight line away from the vehicle’s rear axle. Although stippling showed that one of the shots had been fired from less that 1 foot away, the absence of stippling on the other wounds showed those shots were fired from a minimum distance of lVz to 3 feet or beyond.
Viewing the evidence in the light most favorable to the State, we are convinced that a rational factfinder could have found Farmer guilty beyond a reasonable doubt of the crime of criminal discharge of a firearm at an occupied vehicle. Accordingly, the conviction for felony murder stands. See State v. Alderson, 260 Kan. 445, 458, 922 P.2d 435 (1996); cf. State v. Houck, 240 Kan. 130, 140, 727 P.2d 460 (1986) (reversing a conviction for felony murder because there was insufficient evidence to support the underlying felony).
ARE THE CONVICTIONS FOR FELONY MURDER AND CRIMINAL DISCHARGE OF A FIREARM AT AN OCCUPIED VEHICLE MULTIPLICITOUS?
In the alternative, Farmer argues that if he was properly convicted of felony murder based on the underlying felony of criminal discharge of a firearm at an occupied vehicle, then he cannot also be convicted of the underlying felony because the homicide merged with the discharge of the firearm. Farmer claims that a conviction for both crimes is multiplicitous in violation of the constitutional protection against double jeopardy.
The issue of whether the defendant’s convictions for criminal discharge of a firearm and felony murder are multiplicitous is a question of law over which this court exercises unlimited review. State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006).
Farmer argues that the act of discharging the firearm was a single, continuous act of violence, unseparated in time and indistinct from the resulting death and, thus, the convictions for felony murder and criminal discharge of a firearm are multiplicitous.
We have recently rejected this very argument in State v. Conway. In that case, we applied the multiplicity analysis of Schoonover and held that the legislature intended felony murder and criminal discharge of a firearm at an occupied to be separate offenses for which there can be cumulative punishments and, thus, double jeopardy violation does not attach to convictions for felony murder and criminal discharge of a firearm at an occupied vehicle even if the charges arise from the same conduct. Conway, 284 Kan. at 57. See also State v. Walker, 283 Kan. 587, Syl. ¶ 23, 153 P.3d 1257 (2007) (double jeopardy does not attach to convictions for felony jnurder and discharge of a firearm at an occupied dwelling, even if the charges arise from the same conduct).
Accordingly, Farmer’s convictions of felony murder and criminal discharge of a firearm at an occupied vehicle are separate offenses for which cumulative punishments may be imposed.
WAS FARMER’S CONFESSION VOLUNTARY?
Detectives George and Richstatter interrogated Farmer for approximately an hour and a half the morning after he was arrested. The detectives did not handcuff or shackle Farmer in the interview room. The interrogation was recorded on both videotape and audiotape. The detectives took a 15-minute break during the interrogation and provided Farmer with coffee, water, and blankets upon his request.
Farmer was advised of his Miranda rights and waived them prior to speaking with the detectives. Farmer did not ask for an attorney or request an opportunity to speak with anyone else. Although Farmer spoke softly, he did not appear to be confused or under the influence of drugs or alcohol during the interview. When Farmer advised the detectives that he drank some alcohol and smoked a marijuana cigarette dipped in PCP the night before, the detectives requested samples of Farmer’s blood and urine to test. The results indicated that Farmer had PCP and marijuana in his urine but only marijuana in his blood. There is no evidence that Farmer’s decision process was impaired.
Initially, Farmer admitted to having a fight with Hayes but denied any knowledge of shooting Neal. A few minutes later, Farmer admitted seeing Neal drive into the parking lot and talking to him. Farmer asked the officers, “Did I shoot him?” One of the detectives responded, “Do you think you shot him?” After the detectives encouraged Farmer to do the right thing and tell the truth, Farmer admitted to the detectives that he shot Neal. He also disclosed inculpatory information about the fight with Hayes, admitting that he hit him with his gun. Farmer argues that the detectives coerced the confession from him by telling him that God would forgive him if he confessed.
Farmer claims that the district court should have suppressed his involuntaiy confession. He argues that the police used unfair interrogation tactics when they appealed to his religious beliefs to obtain a confession. Specifically, Farmer takes issue with the following statements:
“Whatever you did, whatever happened, okay, the most important thing to remember is that God can forgive everything, but . . . . To do that, you have to be honest.”
“God wants you to tell the truth, Darrell. That’s the most important thing. God wants you to be honest and help yourself.”
“It sounds ldnda corny, Mnda clich, but the truth will set you free.”
An appellate court reviews the admission of a confession using a dual standard of review. First, the court reviews the factual findings using a substantial competent evidence standard. Giving deference to tire trial court’s factual findings, an appellate court does not reweigh the evidence or pass on the credibility of witnesses. Second, the court analyzes the ultimate legal conclusion drawn from the trial court’s factual findings using an unlimited standard of review. State v. Hams, 279 Kan. 163, 167, 105 P.3d 1258 (2005).
Coercion can be mental or physical. Therefore, analyzing whether a defendant’s confession is voluntary requires the appellate court to evaluate the totality of the circumstances as outlined by the following six factors:
“(1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of tire officers in conducting the interrogation; and (6) the accused’s fluency with the English language.” State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007).
Farmer does not raise any issues regarding the duration or manner of the interrogation; his ability to communicate with the outside world; his fluency; or his age, intellect, or background. Farmer s argument concerns the fairness of the officers’ interrogation. On that issue, the district court specifically found that “Richstatter asked Farmer some questions. Richstatter, however, was unaware of any religious beliefs that Farmer held. Richstatter did not know if Farmer attended church, or regularly read the Bible.” This factual finding is supported by substantial competent evidence in the record. Farmer, however, focuses his argument on Detective Richstatter’s comments as to Farmer’s religious beliefs, claiming that the comments were unfairly coercive because they caused him to consider a higher will instead of focusing on his own interests.
We note that the Court of Appeals addressed a similar issue in State v. Cobb, 30 Kan. App. 2d 544, 43 P.3d 855, rev. denied 274 Kan. 1115 (2002). During a homicide interrogation, a police officer made numerous religious references, asking the defendant, Artis Cobb, if the Lord would prefer truth or lies and if Cobb thought that God would be pleased with what Cobb was saying. Cobb then initiated the discussion of religious themes during the interrogation, stating that God would see him through the situation. Cobb argued that his confession was coerced by the officer’s improper appeals to his religious beliefs. Although it considered the case to be a close one, the Cobb court upheld the admission of Cobb’s confession. The court relied on Cobb’s enthusiastic participation in the religious discussion and suggested that “persons of deep religious faith should [not] be presumed to be more gullible and easily manipulated than those with deeply held secular beliefs or opinions.” 30 Kan. App. 2d at 559. In reaching its conclusion, the Cobb court analogized the officer’s use of religious comments to the technique of feigning agreement with and enthusiasm for the defendant’s worldview. 30 Kan. App. 2d at 559.
Farmer questions the Cobb court’s statement about the gullibility of religious persons, claiming that the Cobb court had mis focused on the gullibility of the person under interrogation where it should have focused on the propriety of the officer’s interrogation technique. This argument overlooks the Cobb court’s analogy to the interrogation technique of feigning agreement with the defendant’s worldview. The Cobb court’s holding does not rely on gullibility, rather it refuses to suggest that religious people are more susceptible to coercion when interrogators feign agreement with the defendant’s worldview.
Farmer does not argue that Detective Richstatter’s comments in this case are more egregious than those in Cobb. Although the statements in this case are similar in nature to the statements in Cobb, the religious comments were more pervasive in Cobb. Thus, Cobb supports the district court’s conclusion that Farmer’s confession was not coerced by the officers’ references to Farmer’s religious beliefs. Farmer’s attempt to distinguish Cobb based on the court’s comments as to Farmer’s gullibility is without merit.
Farmer also relies on People v. Montano, 226 Cal. App. 3d 914, 277 Cal. Rptr. 327 (1991); People v. Adams, 143 Cal. App. 3d 970, 192 Cal. Rptr. 290 (1983), disappoved on other grounds People v. Hill, 3 Cal. 4th 959, 13 Cal. Rptr. 2d 475, 839 P.2d 984 (1992); and Carley v. State, 739 So. 2d 1046 (Miss. App. 1999), for the proposition that any reference to the defendant’s religious beliefs is coercive. We note that none of these cases stand for the broad proposition suggested by Farmer and are factually distinguishable from this case.
Montano involved a confession by an 18-year-old illegal Mexican immigrant who was questioned using a police officer as an interpreter. Although the defendant repeatedly told the police officers that he did not want to talk to them, the police officers did not respect the defendant’s right to silence and continued to ask him questions. The Montano court noted that the officers aggravated the situation by using a common religion to “conjure up in defendant’s mind the picture of confessing to avoid going to hell,” but held the defendant’s confession involuntary based on the officers’ failure to respect the defendant’s repeated attempts to invoke his right to silence. 226 Cal. App. 3d at 935-37.
The Adams case involved a 32-year-old defendant who was acquainted with the sheriff who interrogated her. The sheriff, who knew the defendant through her participation in his church and her employment in a Christian book store, quoted the Bible and told the defendant that God would turn his back on any person who refused to submit to God and that people who stopped living according to God’s law were required to suffer some form of discipline. The sheriff further stated to the defendant that she was a candidate for a nervous breakdown because she was not telling the truth.
The Adams court concluded that the sheriff s remarks were not purely intellectual persuasion but “an overwhelming and calculated appeal to the emotions and beliefs, focusing appellant’s fears in an area the sheriff knew appellant to be particularly vulnerable.” 143 Cal. App. 3d at 986. The Adams court’s analysis relied on the sheriff s exploitation of his friendship with the defendant and the sheriff s use of her known vulnerabilities and fears. 143 Cal. App. 3d at 989. A dissenting judge disagreed with the majority’s analysis, noting there was evidence that showed the defendant to be devious and scheming, which refuted the theory that she was a helpless, easily pressured victim of sophisticated police interrogation. 143 Cal. App. 3d at 1003-05.
Carley involved a confession by a mentally ill 14-year-old boy with learning disabilities who had not taken his anti-psychotic medications for 4 days. The Carley court reversed the boy’s conviction for murder, holding that his confession was “induced by the investigating officers’ invocation of the deity, references to Heaven and Hell, and promises of leniency and religious salvation.” 739 So. 2d at 1054.
The only commonality between this case and Montano, Adams, or Carley is the reference to religion. Here, there are no other aggravating factors found in Montano, Adams, or Carley. We note that Farmer is not a mentally ill juvenile and does not have problems understanding the English language. Farmer did not attempt to invoke his right to silence. The interrogating officers did not have previous relationships with Farmer, so they could not have exploited that relationship or known of Farmer’s religious back ground or his vulnerabilities and fears. The Montano, Adams, and Carley cases are not helpful in analyzing this issue.
Prior Kansas case law does not restrict police officers from encouraging people to tell the truth during interrogations. In State v. Kornstett, 62 Kan. 221, 227, 61 Pac. 805 (1900), the police told the defendant that he would feel better if he told the truth. The Kornstett court concluded that “mere advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent.” 62 Kan. at 227. Here, interrogating detectives repeatedly encouraged Farmer to tell the truth but did not threaten him if he would not. Cf. State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005).
Likewise, the detectives made no promise of leniency for Farmer’s honesty. Although Detective Richstatter’s comments “be honest and help yourself’ and “the truth will set you free” may imply a benefit, when viewed in the totality of the circumstances, the comments do not indicate any promises in return for Farmer’s confession. When Farmer asked what would happen to him, Detective George informed him the case was still under investigation, then reminded Farmer that he was in jail and that he would be charged. Detective George told Farmer that she would talk to the county attorney and attempt to find out what the charges would be but did not indicate that she would try to influence what the county attorney charged. Farmer informed the detectives that his statements to them did not result from force or their promises.
When viewed in the totality of the circumstances, Farmer has failed to establish how the detectives’ conduct during the interrogation unfairly deprived him of his free and independent will. We conclude that the trial court correctly determined that Farmer’s confession was voluntary and properly admitted it at his trial.
MUST A DEFENDANT’S CRIMINAL HISTORY SCORE BE PROVEN TO A JURY BEYOND A REASONABLE DOUBT PRIOR TO SENTENCING?
Finally, Farmer asserts that his sentence is illegal because the trial court used his criminal history score, which had not been proved beyond a reasonable doubt to a jury. The court uses a de novo standard to review the legality of Farmer s sentence under the sentencing guidelines. See State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).
We note that this issue has been previously decided in Ivory, where this court held that the defendant’s criminal history score does not have to be found beyond a reasonable doubt by a jury to satisfy Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Farmer argues that Ivory should be overruled and, for support, quotes language from Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403,124 S. Ct. 2531 (2004). We have reaffirmed Ivory after the United States Supreme Court’s post-Apprendi decision in Blakely, as well as the decisions in United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005), and Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005). State v. Gonzalez, 282 Kan. 73, 145 P.3d 18 (2006); State v. Lackey, 280 Kan. 190, 120 P.3d 332 (2005). Moreover, we note that in 2007, the United States Supreme Court reaffirmed that the fact of a prior conviction does not have to be found by a jury. See James v. United States, 550 U.S. 192, 214 n.8, 167 L. Ed. 2d 532, 127 S. Ct. 1586 (2007).
Farmer’s claim that his sentence improperly relies on his criminal history score in violation of Apprendi is without merit.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Johnson, J.:
Charles R. Hawkins, Jr., seeks review of the Court of Appeals decision in State v. Hawkins, 37 Kan. App. 2d 195, 152 P.3d 85 (2007), in which the court affirmed Hawkins’ jury convictions for driving under the influence, failing to stop at a stop sign, failing to dim headlights, and making an illegal right turn; affirmed the district court’s imposition of a Board of Indigents’ Defense Services (BIDS) application fee; and reversed and vacated the district court’s order for reimbursement of BIDS attorney fees. We affirm.
In the summer of2003, Hawkins was charged with felony driving under the influence (DUI) and driving while suspended (DWS). Hawkins pled guilty to the DWS charge but went to trial on the DUI count in 2005. At trial, the district court read the complaint to the prospective jurors, which included an allegation that Hawkins had prior convictions for DUI. Accordingly, the district court granted the defense motion for a mistrial. A new trial commenced die next day, but ultimately the jury was unable to reach a verdict, and the court declared a second mistrial.
Prior to the third trial, the State filed an amended information, again charging Hawkins with felony DUI, but adding one count each of failure to stop at a stop sign, failure to dim headlights, and illegal right turn. Apparently, Hawkins did not challenge the State’s amendment and proceeded to trial on the amended information.
As he had done prior to the first trial, Hawkins filed a motion for a Jackson v. Denno hearing, challenging admission of his statements made to the arresting officer, and a motion to suppress the results of the breathalyzer test. Hawkins’ basis for suppression was his allegation that the officer first elicited his refusal to take the breath test during a custodial interrogation and, only afterward, gave him the required implied consent warnings. The court ruled that the officer had substantially complied with the implied consent warnings, and Hawkins does not challenge that ruling on appeal.
Hawkins’ theory on the Jackson v. Denno motion centered on the arresting officer’s testimony that the initial driver’s license check revealed that Hawkins had two outstanding warrants and that the officer was going to arrest Hawkins on those warrants, regardless of tire outcome the DUI investigation. Hawkins made the creative argument that, because he was under arrest on the warrants and not free to leave, all of the subsequent DUI investigation including the field sobriety testing was a custodial interrogation which had been effected without the required Miranda warnings. The district court found that “there is no need to give Miranda at that particular stage, or during this investigation.”
At this trial, the jury convicted Hawkins on all four counts of the amended information. At sentencing, the court ordered Hawkins to reimburse BIDS in the amount of $1,400 attorney fees and $100 application fee.
In the Court of Appeals, Hawkins made three claims: (1) The district court erred in allowing the State to use Hawkins’ refusal to submit to a breathalyzer against him at trial; (2) the district court violated Hawkins’ rights under the compulsory joinder statute by allowing the State to add three counts to the information after he was convicted of DWS; and (3) the district court erroneously ordered the BIDS reimbursement without considering the defend ant’s ability to pay, the financial burden tire payment would inflict, and the validity of the attorney fees.
EVIDENCE OF TEST REFUSAL
In his brief to tire Court of Appeals, Hawkins acknowledged that his trial counsel had not objected at trial to the introduction of the evidence of his breath test refusal. However, citing to State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982), Hawkins pointed out that appellate courts have recognized three exceptions to the rule that issues may not be raised for the first time on appeal: (1) where the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) where consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) where the judgment of the district court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision. Hawkins declared, without elaboration, that this case fit within the first two exceptions.
The Court of Appeals found two impediments to appellate review. Hawkins did not lodge a timely and specific objection at trial, which is required even where the district court has made a pretrial ruling. See State v. Lowe, 276 Kan. 957, 961, 80 P.3d 1156 (2003). Further, the court found that die issue presented on appeal was not the same issue presented to the district court. The court then declared that “[bjecause the district court was not given the opportunity to address the claim, the matter is not properly raised for consideration on appeal. [See] State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006).” Hawkins, 37 Kan. App. 2d at 196. The court did not discuss the applicability of the proffered exceptions permitting first-time consideration on appeal.
In his petition for review, Hawkins begins by declaring: “The Court of Appeals found that it was not error for the district court to allow Mr. Hawkins’ refusal to submit to a breathalyzer at trial. The Court of Appeals is incorrect.” The petition then proceeds to discuss the merits of Hawkins’ argument that Miranda warnings were a prerequisite to the admissibility of his statement refusing the proffered breath test.
Of course, as noted, the Court of Appeals did not reach the merits of Hawkins’ claim. Rather, the ruling on the table at this point is that Hawkins did not preserve the issue for appellate review. In that regard, Hawkins does not challenge the appellate court’s finding that Hawkins failed to contemporaneously object to the introduction of the evidence or that the issue raised on appeal was not the same issue raised in his pretrial motions.
To get us to address the merits of the issue, Hawkins would need to convince us that the case presented such exceptional circumstances that the Court of Appeals was compelled to depart from the ordinary rules of appellate practice. However, neither the initial brief of appellant nor the petition for review provides any explanation as to why the judicially created exceptions should apply here. That omission could resolve the matter. See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (issue not briefed deemed waived or abandoned).
However, we do acknowledge that appellate courts have been known to fill in the gaps for appellants fading to provide argument on an issue. If we were to do that here, we would nevertheless find that the exceptions listed by Hawkins do not compel appellate review.
Even if the issue is a question of law on undisputed facts, its resolution would not be finally determinative of the case. Hawkins’ statement that he refused the breath test was only one small piece of the State’s evidence, without which a rational jury could still have found him guilty.
Further, Hawkins’ theory is contrary to existing statutoiy and case law. See K.S.A. 2006 Supp. 8-1001(i) (“The person’s refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.”); see also Pennsylvania v. Muniz, 496 U.S. 582, 604 n.19, 110 L. Ed. 2d 528, 110 S. Ct. 2638 (1990) (a State may permit a suspect to refuse to take a breath or blood alcohol test but then allow comment upon that refusal at trial and such does not “com pel” the suspect to incriminate himself or herself and hence does not violate the privilege against self-incrimination); State v. Bishop, 264 Kan. 717, 724, 957 P.2d 369 (1998) (neither requesting a defendant to take a breath test nor the administration of an actual breath test amounts to an interrogation). We would not deem a request to change existing law, made for the first time on appeal, as falling within the necessitous circumstances of serving the ends of justice or preventing a denial of fundamental rights. Accordingly, we affirm the Court of Appeals’ determination that Hawkins failed to preserve this issue for appellate review.
COMPULSORY JOINDER
In his second issue, Hawkins raises an interesting question on the application of the compulsory joinder provisions of our statute codifying the prohibition against double jeopardy, K.S.A. 21-3108(2). If a defendant was formerly prosecuted for a different crime or for the same crime based upon different facts and that prosecution resulted in a conviction or acquittal, K.S.A. 21-3108(2)(a) bars a subsequent prosecution for crimes “of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely.” However, K.S.A. 21-3108(2)(c)(ii) excepts the termination of a prosecution because of the “inability of the jury to agree” from the bar on a second prosecution, i.e., a retrial following a hung jury mistrial is not prohibited.
Hawkins was convicted of the DWS charge, and he argues that the three traffic infractions could have been included in the complaint charging that crime. Curiously, however, to satisfy the requirement that evidence of the new crime was admitted in the former prosecution, Hawkins points to the introduction of evidence of the three traffic infractions at his trial on the DUI count, not to any evidence presented at the plea hearing on the DWS count. Accordingly, the State argues that the amendment of the DUI information was not barred because K.S.A. 21-3108(2)(c)(ii) permitted the retrial on the DUI charge after the former prose cution ended in a hung jury. In other words, the question would be whether Hawkins’ guilty plea to one count of an information cut off the State’s ability to amend the remaining portion of the information on which Hawkins elected to go to trial.
Again, however, the Court of Appeals did not reach the merits of the issue, summarily declaring: “Again, this issue was not raised before the district court and is not properly before this court. See Rojas, 280 Kan. at 932. Therefore, the defendant’s convictions are affirmed.” Hawkins, 37 Kan. App. 2d at 197. The opinion did not discuss the applicability of an exception to the rule.
On review, Hawkins again urges our consideration of the same two exceptions to the contemporaneous objection requirement: (1) where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; and (2) where consideration of the questions raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights. See Puckett, 230 Kan. at 598. Additionally, defendant argues that “the compulsory joinder rule is a jurisdictional instrument, codifying the double jeopardy clause,” and thus limits the jurisdiction of the district court to try a defendant on the newly added charges.
Our consideration of Hawkins’ cursory reference to the compulsory joinder rule being a “jurisdictional instrument” is hampered by his failure to flesh out the argument. The complaint or information is the jurisdictional instrument. See State v. Brown, 280 Kan. 898, 901, 127 P.3d 257 (2006); State v. Sims, 254 Kan. 1, 9, 862 P.2d 359 (1993). Perhaps Hawkins intends to argue that a defendant cannot waive any double jeopardy infirmity in the amendment of a complaint or information.
This court has reviewed double jeopardy issues for the first time on appeal where we have found the defendant’s fundamental right to a fair trial was implicated. State v. Walker, 283 Kan. 587, 609, 153 P.3d 1257 (2007) (reviewing for the first time on appeal whether sentencing for both felony murder and discharge of a firearm at an occupied dwelling violates double jeopardy); State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984) (reviewing double jeopardy issue involving multiplicity). On the other hand, we have found that double jeopardy is an affirmative defense that a defendant waives by failing to raise the defense in a timely manner and by proceeding to trial a second time. State v. Ward, 198 Kan. 61, 64, 422 P.2d 961 (1967); Cox v. State, 197 Kan. 395, 402, 416 P.2d 741 (1966).
Under the circumstances of this case, the defense’s failure to object to the amended information is particularly compelling. Hawkins’ plea to DWS left him in an all or nothing trial on the DUI charge. The addition of the traffic infractions did not subject him to any significant risk of additional incarceration and, in fact, the convictions resulted in fines of only $60 per count. Defense counsel may well have perceived a benefit to going to trial on the new, multiple-count information that outweighed the risk presented by the additional traffic counts.
Granted, characterizing the defense’s failure to object to the amended complaint as trial strategy is purely conjectural in this case. The point, however, is that the defendant should have the option of proceeding to trial on the amended information if he or she deems it to be advantageous. We are loath to remove that option by declaring that a defendant is incapable of waiving any statutory or constitutional infirmity presented by the amendment. Accordingly, requiring a defendant to signify his or her option by raising an objection prior to proceeding to trial on the amended information is not fundamentally unfair. Accordingly, we find no compelling exception and affirm the Court of Appeals’ decision that the issue was not preserved for appellate review.
BIDS APPLICATION FEE
At sentencing, the district court ordered Hawkins to pay $1,400 to reimburse BIDS for the attorney fees expended in his defense and to pay the $100 BIDS administrative (application) fee. The Court of Appeals vacated the order imposing the BIDS attorney fees reimbursement and remanded the case for consideration of the statutory factors under K.S.A. 2006 Supp. 22-4513, pursuant to our decision in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). Hawkins, 37 Kan. App. 2d at 197-201. In Robinson, 22-4513 was interpreted to require the sentencing judge, when de termining the amount and method of payment of the BIDS attorney fees reimbursement, to consider on the record the financial resources of the defendant and the nature of the burden the payment will impose. 281 Kan. at 543-44. Here, the sentencing judge had not made the requisite findings in conjunction with the attorney fees order. Hawkins does not challenge that ruling.
Robinson did not distinguish between the attorney fees/defense services fees and the $100 administrative/application fee. See State v. Davis, 283 Kan. 569, 586, 158 P.3d 317 (2007) (BIDS reimbursement order reversed in its entirety); State v. Moody, 282 Kan. 181, 182, 198, 144 P.3d 612 (2006) (defendant challenged BIDS attorney and administrative fees; reversed and remanded without distinguishing between attorney fees and application fee). In this case, however, the State separately challenged the application fee, asserting that the Robinson holding should not extend to the application fee required by K.S.A. 2006 Supp. 22-4529, because that statute does not contain the same language as K.S.A. 2006 Supp. 22-4513(b), upon which Robinson relied. The Court of Appeals agreed, affirming the order for Hawkins to pay the $100 application fee. Hawkins takes exception to that ruling. Hawkins, 37 Kan. App. 2d at 201.
The Court of Appeals compared the applicable statutes, and we will do the same, employing an unlimited review. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006) (statutory interpretation a question of law over which appellate court has unlimited review). K.S.A. 2006 Supp. 22-4513(a) provides that if the defendant is convicted, the “expenditures” made by BIDS “to provide counsel and other defense services to such defendant” shall be taxed against the defendant. Subsection (b) contains the language that Robinson found controlling: “In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.” K.S.A. 2006 Supp. 22-4513(b).
In contrast, K.S.A. 2006 Supp. 22-4529 provides, in relevant part:
“Any defendant entitled to counsel pursuant to K.S.A. 22-4503, and amendments thereto shall pay an application fee in the amount of . . . $100 on or after July 1, 2004, to the clerk of the district court. If it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee. ... If the defendant is acquitted or the case is dismissed, any application fee paid pursuant to this section shall be remitted to the defendant.” (Emphasis added.)
As the Court of Appeals pointed out, the apphcation fee was obviously not intended to fall within the category of defense services governed by 22-4513, because the application fee would be incurred when the defendant seeks the appointment of counsel, before any defense services would have been rendered. Hawkins, 37 Kan. App. 2d at 199. Likewise, 22-4529 provides for the return of the application fee if the defendant is acquitted or the case dismissed. Such a provision would be unnecessary under 22-4513(a), which only taxes the attorney fees and other defense services expenditures “[i]f the defendant is convicted.” Likewise, we note that K.S.A. 2006 Supp. 21-3836(c) makes payment of the apphcation fee a condition of any pretrial release for a defendant who requests or is entitled to the assistance of counsel under K.S.A. 2006 Supp. 22-4503, which obviously contemplates an assessment of the fee prior to conviction.
In short, the provisions of K.S.A. 2006 Supp. 22-4513 upon which Robinson was based were not intended to apply to the apphcation fee. Instead, a determination is to be made at the time that a defendant applies for counsel as to whether “payment of the apphcation fee will impose manifest hardship on the defendant.” K.S.A. 2006 Supp. 22-4529.
The Court of Appeals opined that the language of 22-4529, making waiver discretionary and prefacing waiver on the condition, “[i]f it appears to the satisfaction of the court,” places the burden of producing evidence of manifest hardship upon the criminal defendant seeking waiver of the BIDS application fee. Hawkins, 37 Kan. App. 2d at 200. The Court of Appeals said that “[a]t a minimum, K.S.A. 2006 Supp. 22-4529 requires a criminal defendant to object to the payment of the BIDS apphcation fee on the basis of a manifest hardship.” 37 Kan. App. 2d at 200. Hawkins never objected to the $100 application fee, either when the district court ordered it to be paid within 30 days of the first appearance or when the district court again ordered at sentencing that it be paid. Therefore, the Court of Appeals refused to find the district court’s order on the $100 application fee to be erroneous, albeit the court noted that Hawkins would have another opportunity to demonstrate the manifest hardship of the application fee when the case was remanded for consideration of the attorney fees reimbursement. 37 Kan. App. 2d at 201.
Hawkins does not challenge the statutory analysis of the Court of Appeals decision. Rather, his brief argument on review complains that the decision requires a defendant to request a waiver of the application fee at the time the defendant is requesting appointed counsel; that a nonlawyer defendant would not know of his or her right to a waiver of the application fee prior to being appointed counsel; and that “the imposition of such a rule would be unfair.”
Contrary to Hawkins’ suggestion, we do not perceive that the Court of Appeals promulgated a new rule about the timing of the application fee assessment. The legislative enactments obviously contemplate that the application fee, as the name suggests, is to be assessed at the time the defendant applies for court-appointed counsel. That is also the logical and practical point at which the district court should make the determination on waiving a part or all of the fee.
In conjunction with applying for court-appointed counsel, the defendant is required to file an affidavit as to his or her financial condition. The court may interrogate the defendant under oath concerning the affidavit’s contents, may direct the prosecutor or other county officer to investigate defendant’s financial condition, or may require the production of evidence on the issue of defendant’s inability to employ counsel. K.S.A. 2006 Supp. 22-4504(a). Upon the basis of the affidavit and such other evidence as may be brought to the court’s attention, the court is to make a determination whether the defendant is indigent, in full or in part, or whether the defendant is financially able to employ his or her own counsel. K.S.A. 2006 Supp. 22-4504(b).
“In making such determination the court shall consider the defendant’s assets and income; the amount needed for the payment of reasonable and necessary expenses incurred, or which must be incurred to support the defendant and the defendant’s immediate family; the anticipated cost of effective representation by employed counsel; and any property which may have been transferred or conveyed by the defendant to any person without adequate monetary consideration after the commission of the alleged crime.” K.S.A. 2006 Supp. 22-4504(b).
Thus, determining whether payment of the application fee would impose manifest hardship on the defendant would be but a minor extension of the analysis which the district court is already performing when assessing eligibility for court-appointed counsel.
Where we may depart from the Court of Appeals decision is in its suggestion that the phrase, “[i]f it appears to the satisfaction of the court,” indicates that the defendant has the burden of coming forward to plead and prove manifest hardship with additional evidence. Hawkins, 37 Kan. App. 2d at 200. Rather, we perceive that phrase should be read in conjunction with the investigation into defendant’s financial condition which will be performed pursuant to K.S.A. 2006 Supp. 22-4504. See Pankratz Implement Co. v. Citizens Nat’l Bank, 281 Kan. 209, 215, 130 P.3d 57 (2006) (courts should construe various provisions of an act in pari materia with view to reconcile and bring them into workable harmony).
If the district court receives an application for counsel that is not accompanied by the application fee, the court should be able to determine from the affidavit and other evidence gathered to assess eligibility for court-appointed counsel whether payment of the $100 application fee would impose a manifest hardship upon defendant. At that point, the district court may order the application fee to be paid or may waive all or part of the fee. Only if a defendant seeks to modify an order to pay the fee would the defendant bear the additional burden described by the Court of Appeals. Moreover, if any fee ordered by the court remains unpaid at sentencing, the district court may include the unpaid fee in its sentencing order without additional findings.
In this case, at Hawkins’ first appearance, the district court ordered him to pay the application fee within 30 days. Apparently, Hawkins did not comply with that order and no action was taken to enforce it prior to sentencing. Nevertheless, an order was in place which Hawkins never attempted to modify. The sentencing court was not required to make any further inquiry. Accordingly, the Court of Appeals did not err in affirming the $100 application fee.
We affirm the Court of Appeals’ decision in affirming the defendant’s convictions, reversing and vacating the order imposing $1,400 in BIDS attorney fees, and remanding the case for reconsideration of such attorney fees. The district court is directed to make the findings regarding defendant’s reimbursement of BIDS attorney fees, considering K.S.A. 2006 Supp. 22-4513 and pursuant to our decision in State v. Robinson 281 Kan. 538, 543-146, 132 P.3d 934 (2006).
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The opinion of the court was delivered by
Luckert, J.:
Akira Brown was convicted of first-degree premeditated murder after James Cooper died of a single gunshot wound to the head. According to the prosecution’s theory, the shooting was motivated by animosity between rival street gangs. Several eyewitnesses identified Brown as the shooter and, after several hours of interrogation, he confessed. In defense arguments to the jury, Brown’s attorney suggested police focused on Brown as the suspect within a few minutes after the shooting and, con sequently, ignored evidence pointing to other suspects. Further, defense counsel argued Brown’s confession was coerced.
On appeal, Brown raises several issues. We first consider his argument that his confession was- not voluntary. The fact that Brown was handcuffed to a table for a 12-hour span during which several periods of interrogation occurred makes the issue of voluntariness a close question. An examination of the totality of the circumstances, however, leads us to the conclusion that Brown’s free will was not overborne and his confession was freely and voluntarily given.
Next, we consider whether the admission of several hearsay statements violated Brown’s right to confrontation and whether the statements met any hearsay exceptions. Applying Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), and Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), we conclude the statements, which were made at the scene shortly after the shooting by an unidentified emotional bystander to one of approximately 200 other bystanders, were not testimonial and, therefore, did not violate the Confrontation Clauses of the United States and Kansas Constitutions. Further, we find that all but one of the statements were properly admitted under a hearsay exception, specifically the excited utterance exception. See K.S.A. 60-460(d)(2). One statement was not properly admitted, however, because it was double hearsay and a foundation was not laid for the included statement. This error does not require reversal of Brown’s conviction, however, because there were other eyewitness identifications of Brown as the shooter and because Brown confessed to being the shooter, malting the evidence cumulative and the error harmless.
We find no merit to Brown’s remaining arguments. We conclude that the trial court did not commit error in admitting gang evidence because the evidence tied Brown and the victim to rival gangs and the evidence of the rivalry provided a motive for an otherwise inexplicable crime. Additionally, we conclude there was not an evidentiary basis for giving a voluntary manslaughter instruction as a lesser included offense because the evidence was that Brown interjected himself into the fight that preceded the shooting, there was no showing of prior animosity between Cooper and Brown, and the fight that preceded the shooting would not have placed a reasonable person in Brown’s position in fear of great bodily harm or at risk of death. Next, we conclude the trial court did not err in refusing to admit speculative testimony tending to suggest a third party committed the shooting because there is no evidence actually tying an alleged third party to the crime. Finally, we reject Brown’s request to find cumulative error requiring reversal of his convictions.
Facts
The rivaliy that formed the basis of the State’s theory of the case was between the Bloods and Junior Boys gangs. The Junior Boys gang, which consists of “older” gang members, has two subsets formed of younger members: the Second Street Junior Boys and the Hill Block Junior Boys. Officer Espinoza, a gang intelligence officer, testified that tension between the Bloods and Junior Boys had resulted in several violent incidents separate from the current crime. Espinoza mentioned gang intimidation, various forms of “disrespect,” shootings, and murder. History had shown that verbal confrontations between a Blood and a Junior Boy could easily escalate into physical violence when gang members “back-up” fellow members.
The victim of the shooting in this case, James Cooper, was a member of the Bloods. Shortly after midnight on January 11,2003, Cooper and his girlfriend, Cecilia Arnold, joined several Bloods gang members at “The Cave” nightclub in Wichita. Members of the Hill Block and Second Street Junior Boys gangs, including Brown who is a member of the Hill Block gang, were also present at “The Cave.”
When the nightclub closed around 2 a.m., a crowd estimated to number “a couple hundred” exited onto the streets and sidewalks around the club. Several fights broke out in the crowd.
According to Arnold, she and Cooper prepared to leave in Arnold’s car when Terrell Cole—a member of the Second Street gang (one of the Junior Boy subsets and a rival gang to Cooper’s gang)— ran in front of the car, chasing two persons while holding a gun. The couple got out of the car because Cooper wanted to tell the others to “quit tripping” or calm down. Arnold testified that Cooper basically followed Cole and told him to stop fighting and put away the gun, saying, “We all kicked it. We all had fun. Let’s call it a night.” Arnold indicated that, although she did not see the gun anymore, Cole kept a “cocky” and “bodacious” attitude toward Cooper. Cooper told Cole he would remember how Cole was acting. Arnold was not certain where Cole went after the conversation with Cooper, but she thought he “kind of mingled off into the crowd.”
Cooper’s cousin Bruce Berry had walked up at some point during the confrontation, and he also spoke to Cooper. Then, Arnold and Cooper, holding hands, started to walk away but stopped when they saw a commotion in the crowd. A single shot rang out, and the bullet struck Cooper in the back of his head causing a fatal wound.
Arnold told police that, although she did not actually see the shooting, she believed the shooter was Cole. When asked where she had stood talking with Cooper and his cousin Berry, Arnold testified that they stood “in the middle of Second Street,” near the nightclub at Second Street and Mosley.
Russell Hunt was also in the crowd of people exiting the nightclub. According to his testimony, he observed the altercation occurring in the road at Second Street and Mosley. Hunt first saw three to four individuals “jumping” one man on the ground. Then, Hunt saw a man pull a handgun out of the waistband of his pants, point it toward the middle of Second Street, and fire a single shot. Hunt described the man as wearing a créam-colored shirt. He stated the man was standing beside a tree. After taking cover and then seeing that someone was hit, Hunt called 911 and helped clear the way for an ambulance.
Hunt talked to an officer about what he had seen. As he did so, he noticed another man standing there, looking “very distraught.” After he finished talking to the officer, Hunt asked the bystander what was wrong. Hunt testified that the bystander told him “That’s my cousin” and “They said Lovey shot him.” Although Berry was identified as Cooper’s cousin, the bystander who talked to Hunt was never identified. Police knew Brown was nicknamed “Lovey,” and other eyewitnesses identified Brown as “Lovey,”
Later, after reviewing a photographic lineup, Hunt identified Brown as the shooter.
Another eyewitness was Devon Brown (who will be referred to as Devon to avoid confusion with the defendant Brown). Devon testified she actually saw Brown fire the shot. Devon was at the nightclub, and she saw Brown there earlier that evening. Devon testified that she had gone to the same high school as Brown and had no difficulty recognizing him. She also knew him as “Lovey.” When the club closed, Devon attempted to drive away from the scene on Second Street but saw an altercation in the middle of the crowded street. Next, Devon saw two men walking backwards as if one was trying to break up an argument and “he was pushing his friend away from the altercation.” Devon and her passenger got out of the car to see if they recognized anyone in the midst of the fight. Devon saw Brown step out from a tree, raise a gun, and fire a shot in the direction of the fight. After Brown fired the gun, he took off running eastward on Second Street.
Berry, who had talked to Cooper just before the shooting, also identified Brown as the shooter. Beny testified that he saw Brown inside the nightclub on the night of the incident and described him as wearing a cream-colored shirt. After the club had closed, Berry started to pull away in his car but then got out to carry on two separate conversations, one of which included Cooper and Cooper’s girlfriend Arnold. Beny had finished talking to the couple and turned to go back to his car when he heard a gunshot coming from behind. He ducked and ran toward his car. Beny testified that as he put his foot inside the car, he turned to see Cooper lying on the ground. According to Berry, he saw Brown standing near a tree, holding a gun. Then, he saw Brown run eastward on Second Street with the gun held down to Iris side.
Police dispatch notified patrol officers to be on the lookout for a suspect nicknamed “Lovey.” Officers checked Brown’s known addresses and eventually went to a recent address at an apartment complex. Around 3:17 a.nr., a vehicle drove into the parking lot and officers saw the passenger was a black male wearing a “tan” shirt. The passenger was Brown.
Brown was placed in custody and taken to the police station, where he was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). He was handcuffed to a table and held in an interrogation room for approximately 12 hours during which he was interrogated periodically by two detectives for a total of approximately 5 hours. During breaks in the interrogation, Brown napped, was given restroom bréales, and was allowed to eat.
Brown’s version of events changed numerous times over the course of his interview. At first, he said that he stood outside the club talking to a woman he called “Dee,” noticed a few fights, and then heard some “gunshots.” Brown told the detectives he was standing next to a car on the north side of Second Street at the time of the shooting. He indicated that Dee left with him in the car immediately thereafter.
When Detectives James Hosty and Timothy Relph told Brown that eyewitnesses placed him in a different location—in the middle of a fight—he initially said that Dee and two men were with him at the scene and would verify his story. Brown’s interview was put on hold for approximately 3 hours and 15 minutes while these three witnesses were located and interviewed at the station. Then, Detectives Hosty and Relph returned to their interview with Brown.
The officers informed Brown that they had spoken to the three individuals, but none had verified anything he had previously told them. At first, Brown continued to say he was with the three others, but then his story changed. Eventually, he told the officers that he saw a large black male, a possible gang member, outside of the club fighting and that the fight moved out into the street. Although Brown said he did not know the man’s name, he identified Cole, through a photo, as the person involved in the altercation. Brown admitted that the two men he had earlier identified were not with him during the shooting, but stated that he was walking down Second Street when the shots were fired.
In another version of events, Brown said “Big 2,” later identified as Cole, handed an unknown black male a handgun and the un known male shot Cooper in the middle of the street. Then, Brown changed his story to state that the unknown male was actually Adrian Patterson, also known as “Al.” He told the officers that he stood close to Patterson along with Cole next to the fight and that Patterson was the person who shot Cooper.
At another point in the police interview, Brown said that while Cole was arguing with Cooper, Cole handed Patterson a gun and when Patterson raised the gun, Brown put his hand on the gun in an attempt to stop the shooting just as the gun fired. Finally, when the officers told Brown that witnesses saw only one person holding a gun, not three, he began to cry and admitted that he was the one who fired the gun.
Analysis
1. Voluntariness of Confession
Before trial, Brown filed a motion to suppress his statements to police officers. The trial court conducted a hearing and, after reviewing the video recording of the police interview, found there was no evidence indicating that Browii’s will was overborne. In reaching this determination, the court observed that Brown was advised of his Miranda rights, waived those rights, and agreed to speak with the officers. Also, Brown was 21 years old at the time of the interview, appeared to be a person of reasonable intelligence, and had previous exposure to the criminal justice system. As for the officers’ interrogation techniques, the trial court found they were not overly aggressive and the officers did not promise Brown anything or threaten him in any way. Further, ¿though Brown was held in the interrogation room for nearly 12 hours and was handcuffed to the table, the actual interview time totaled just under 5 hours. And in the periods between questioning, during which the officers stopped to investigate various aspects of the case based on information gleaned from Brown, it appeared that Brown was napping. Brown was also given breaks to use the restroom and to eat a meal.
Standard of Review
When analyzing a trial court’s decision to deny suppression of a confession, an appellate court reviews “the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard.” An appellate court does not, however, “reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.” State v. Harris, 284 Kan. 561, Syl. ¶ 9, 162 P.3d 28 (2007); State v. Ackward, 281 Kan. 2, Syl. ¶ 1, 128 P.3d 382 (2006); State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005).
It is well established that voluntariness of a confession must be determined under the totality of the circumstances. The State has the burden of proving that a confession is admissible, and the required proof is by a preponderance of the evidence. The essential inquiry is whether the statement was the product of the accused’s free and independent will. 284 Kan. at 579; State v. Gonzalez, 282 Kan. 73, 103, 145 P.3d 18 (2006). Numerous factors are to be considered when determining if a statement was voluntary, which this court has consolidated into the following list based on previous Kansas case law:
“(1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language.” State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007).
Totality of the Circumstances
Mental State. Brown does not specifically argue that his mental state played a part in impeding the voluntary nature of his confession. At trial, Brown presented evidence he had some drinks at “The Cave” nightclub, but the officers testified that Brown did not appear to be under the influence of alcohol. The interrogation videos show that Brown’s responses were appropriate for the questions asked, and there is no indication in the record that he was under the influence of drugs or alcohol.
Duration and Manner. As previously indicated, tire length of Brown’s confinement to the interrogation room, while handcuffed to a table for long periods of time, causes the issue of voluntariness to be close. Granted, there were legitimate reasons for delay while Brown’s version of events were investigated. However, the legiti macy of or justification for the delays does not erase the concern over whether the length of time of confinement in the interview room while handcuffed to a table was so excessive as to be coercive. Nor can such reasons be a license for law enforcement to extend interviews to such an excessive length that a suspect’s will is overborne. On the other hand, it would be inappropriate for us to draw a bright line and state a specific time period where an interrogation becomes inherently coercive solely because of its duration. But see Ashcraft v. Tennessee, 322 U.S. 143, 153-54, 88 L. Ed. 1192, 64 S. Ct. 921 (1944) (36-hour interrogation inherently coercive).
The trial court made a distinction between the number of hours of confinement and the number of hours of interrogation. Certainly, as part of the totality of the circumstances the differentiation is a consideration. See United States v. Lopez, 437 F.3d 1059, 1063-64 (10th Cir. 2006) (Tenth Circuit Court of Appeals’ enumeration of factors regarding voluntariness of confession include [1] the age, intelligence, and education of the defendant; [2] the length of detention; [3] the length and nature of the questioning; [4] whether the defendant was advised of his constitutional rights; and [5] whether the defendant was subject to physical punishment). Decisions from other states distinguish between the time of interrogation and the time of detention, considering such factors as whether significant breaks in questioning occurred or, in other words, whether the pressuring was unrelenting. See, e.g., State v. Agnello, 269 Wis. 2d 260, 273-74, 674 N.W.2d 594 (Wis. App. 2003) (discussing issue of duration and collecting cases where time of detention ranged from 8 hours to 7 days).
While the overall length of detention cannot be ignored, we have concluded that statements were voluntary when similar lengths of time were involved. See Walker, 283 Kan. at 596-97 (upholding statements as voluntary where defendant was held for almost 13 hours and confessed to committing crime after about 8 hours); Ackward, 281 Kan. at 8 (upholding statements as voluntary where defendant’s interrogation lasted 8 or 9 hours); State v. Grissom, 251 Kan. 851, 919-20, 840 P.2d 1142 (1992) (confession voluntary where defendant was handcuffed the entire time during an 8-hour interview, with breaks for meal time and restroom); State v. Wil liam, 248 Kan. 389, 409-10, 807 P.2d 1292, cert, denied 502 U.S. 837 (1991) (upholding statements as voluntary where defendant was interrogated for approximately 6 hours over a 19-hour period).
The time period of tire detentions involved in the Kansas cases cited above and the 12 hours in this case stretch to die temporal boundaries of an uncoercive interrogation. We cannot say, however, that under the circumstances of this case—where breaks were taken, Brown was allowed to leave the room for short periods, and he napped—the duration and manner of the interview were coercive.
Outside Contact. Next, Brown contends he was denied contact with the outside world. Brown points to three occasions during the interrogation when he asked if he could make a phone call, and his requests were denied. He focuses on the third instance, where Detective Relph told Brown he could either tell the officers what happened or make a phone call, “but [the two were] not tied together.” Brown takes this comment out of context and argues that the comment implied a warning not to bring a lawyer into the negotiations with the officers. When the statement is examined in context, this implication is nonexistent.
Detective Hosty explained at trial, “[W]e were talking about who was doing the shooting and he comes out of the blue asking about the phone call-, and we didn’t want him to misunderstand that [it] was a deal for anything.” We further note that when Brown asked Officer Espinoza, who had looked in to check on him during one of the bréales, to contact Brown’s foster mother about the situation, Espinoza agreed to do so. There was no indication the request was related to an assertion of Brown’s right to counsel or that the denial of access in any way chilled his assertion of this right.
This court has stated that refusing a request for outside contact is not per se coercive. “While isolation from the outside world can be a factor in making an interrogation coercive, it is to be expected that police will take steps to limit the ability of potential witnesses and suspects to communicate and, potentially, conspire during an investigation.” Walker, 283 Kan. at 598. In Walker, this court rejected the defendant’s contention that he was coerced by the officers’ denying him contact with the outside world. 283 Kan. at 598. At various times, Walker was not permitted to speak to his father who was sitting in the waiting area at the police station or to call his grandmother. The Walker court noted that the police told Walker they were talking to other witnesses simultaneous to his interview. At one point Walker asked what one of the witnesses had said. When the officers refused to tell him, Walker immediately asked to speak to his father. This court found the timing and context of Walker s request suggested his motivation for seeking outside contact was to gather information and also explained the officers’ reluctance to grant his request. 283 Kan. at 598.
In the present case, similar to Walker, the officers told Brown they were talking to other witnesses. They specifically took breaks to locate Brown’s supposed alibi witnesses and to ask questions of witnesses during the course of Brown’s interview. Brown’s version of the events and identification of the shooter changed during the interrogation, and it was during a discussion about who committed the act of shooting that Brown asked about a phone call. Understandably, the officers would have been reluctant to grant Brown’s request when the timing and context suggested a motivation for gathering information.
One cannot conclude that, in this case, Brown’s requests for a phone call or the officers’ responses coerced Brown’s confession.
Age, Intellect, and Background. The evidence showed that Brown was 21 years old and had previous experience with the judicial system. The trial court found that Brown appeared to be a person of reasonable intelligence, and there is nothing in tire record that would render that finding unsupported.
Fairness of the Officers. Brown focuses much of his argument upon this factor, arguing the police tactics were coercive because the officers were “unfair” and told Brown he could be hurt by not telling them “why” the shooting occurred. The trial court found the officers were not overly aggressive and did not promise Brown anything or threaten him in any way.
Brown first complains that the officers put “emotional pressure” on him. He takes issue with the fact that Detective Hosty asked something to the effect of “Do you want me to look your 4-year-old son in the eye and tell him Daddy put a gang before him? Because I’ll do it.” Brown argues that the officers then placed more emotional pressure on him by telling him he was hurting his mother and his child by sticking with his original statement in which he denied any involvement in the shooting.
The officers were basically asking Brown to tell the truth. Urging the accused to tell the truth does not render a confession involuntary. See State v. Newfield, 229 Kan. 347, 359, 623 P.2d 1349 (1981); State v. Tillery, 227 Kan. 342, 344, 606 P.2d 1031 (1980). As this court has stated:
“ ‘ “ ‘If [an extrajudicial confession] has been extorted by fear or induced by hope of profit, benefit, or amelioration, it will be excluded as involuntary. However, the advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent.’ ” ’ [Citations omitted.]” State v. Wakefield, 267 Kan. 116, 128, 977 P.2d 941 (1999).
The officers’ statements regarding Brown’s family were not an attempt to extort by fear; they were merely admonitions to be honest.
With regard to Detective Hosty’s request for an explanation of why the shooting occurred and the statement that Brown could get hurt if he did not do so, Brown argues that the officer’s tactic was deceptive because it implied that he would get a lesser penalty if he cooperated. He also points to one officer’s statement that the “truth would not look bad” and that “[i]f we get the truth from start to finish, we can get up and say we got the truth.” The officers also told Brown there is a difference between degrees of murder, mentioned 40 years’ imprisonment for first-degree murder and said that “[n]ot everybody is a first degree murderer.” Brown acknowledges that the officers did not explicitly threaten to tell the prosecutor if he had not cooperated, but Brown asserts that “the implication was clear.”
This court has held that in order to render a confession involuntary as a product of a promise of some benefit to the accused, including leniency, the promise must concern action to be taken by a public official; it must be such that it would be likely to cause the accused to make a false statement to obtain the benefit of the promise; and it must be made by a person whom the accused reasonably believes to have the power or authority to execute it. State v. Banks, 260 Kan. 918, 925, 927 P.2d 456 (1996); State v. Norris, 244 Kan. 326, Syl. ¶ 6, 768 P.2d 296 (1989); see also Tillery, 227 Kan. at 344 (statement about things going “better” if truth told not promise of benefit vitiating voluntariness of defendant’s confession). There were no such promises or threats in this case.
In State v. Harris, 279 Kan. 163, 170, 105 P.3d 1258 (2005), this court cited Wakefield, for the controlling principle that “[deceptive interrogation techniques alone do not establish coercion.” We also discussed this issue in Swanigan, 279 Kan. at 32, where the court stated: “[U]nder Wakefield, the false information must be viewed as a circumstance in conjunction with others, e.g., additional police interrogation tactics.” In Swanigan, the interrogating officers urged Swanigan to confess to tire crime so they could report that he cooperated. When Swanigan denied involvement in the crime, the officers threatened Swanigan with telling the district attorney that he had refused to cooperate and suggested the district attorney would reject any deal for leniency. The officers further indicated that Swanigan could be charged with five robberies instead of one unless he confessed. This interrogation tactic involved an implied or express detriment if the defendant refused to cooperate, which the Swanigan court found may amount to suggesting to a suspect that his or her exercise of the constitutional right to remain silent could result in harsher treatment. 279 Kan. at 34-35. The court refused, however, to regard even that tactic as “one which makes the confession involuntary per se.” Rather, it is “one factor to be considered in the totality of circumstances.” 279 Kan. at 37.
The Swanigan court ultimately held that, under the circumstances, the repeated use of false information combined with Swanigan’s low intelligence and susceptibility to being overcome by anxiety, police threats, and promises constituted coercion that produced an involuntary statement. 279 Kan. at 39. In contrast to Swanigan, there is no evidence that Brown had low intelligence and no testimony indicating that Brown was susceptible to being overcome by anxiety. Brown was calm, he rested when left alone, and he carried on intelligent conversations with the officers when being questioned. As previously discussed, the trial court found that Brown appeared to be of “reasonable intelligence.”
The statements concerning the “why” of the crime and the degrees of punishment are more akin to those made in State v. Johnson, 253 Kan. 75, 84, 853 P.2d 34 (1993), where this court upheld a finding of voluntariness after an officer stated he would go to the district attorney and tell him if the defendant, was cooperating. The court determined that the officer did not bargain with or promise Johnson anything either directly or by implication. 253 Kan. at 84; see also Walker, 283 Kan. at 599-602 (admissible portion of confession not involuntary where officers indicated cooperation could impact severity of sentence but also stated sentencing was up to the court and no promises could be made); State v. Ninci, 262 Kan. 21, 39, 936 P.2d 1364 (1997) (interrogating officers told Ninci that “[y]ou can do some things to help yourself now”); State v. Harwick, 220 Kan. 572, 575-76, 552 P.2d 987 (1976) (interviewing officer’s mere offer to talk to district attorney did not render defendant’s confession involuntary).
Consequently, the officers’ conduct was not of a nature to overcome Brown’s free will and render his statements involuntaiy and inadmissible.
Fluency. No question was raised in this case regarding Brown’s English fluency.
Totality of the Circumstances. As discussed above, while the duration and manner of the interview are troubling, on that basis alone we do not conclude that Brown’s free will was overborne. An examination of the totality of the factors and circumstances of the interrogation lead to the conclusion the statements were the product of Brown’s free and independent will.
2. Admission of Hearsay
In another issue on appeal, Brown argues that the trial court erred by admitting hearsay statements into evidence. He takes issue with the court’s decision to permit Russell Hunt to testify about statements made by another individual (declarant), whose name he did not know, at the scene of the crime. The declarant identified the victim as his cousin and the shooter as “Lovey.” Officers never positively identified the person who spoke to Hunt. The trial court found that the statement was admissible as an excited utterance under K.S.A. 60-460(d)(2).
On appeal, Brown contends for the first time that Hunt’s trial testimony violated his rights of confrontation under the United States Constitution and the Kansas Constitution Bill of Rights. Then, again for the first time, Brown alleges that one statement spoken to Hunt was a double hearsay statement, i.e. hearsay within hearsay. The State disagrees with this characterization and contends that Brown misinterprets Hunt’s testimony.
Double Hearsay
The accurate characterization of the level of hearsay could be significant in a case because when an out-of-court statement includes a statement made by another declarant and both statements are offered for the truth of the matter stated, both levels of hearsay must meet the requirements of a hearsay exception. K.S.A. 60-463 (multiple hearsay); see State v. Davis, 2 Kan. App. 2d 698, 699, 587 P.2d 3 (1978), rev. denied 225 Kan. 846 (1979). Likewise, a Confrontation Clause analysis must not ignore any such multilevel hearsay issues. We, therefore, will first consider whether the statement is double hearsay.
At a pretrial hearing to determine, inter alia, the admissibility of the statements, Hunt testified that right after the shooting, he talked to a dark-skinned man near the victim’s body. Hunt recognized this individual from school but did not know his name. The man said he was the victim’s cousin. When the paramedics started arriving about 5 minutes after the shooting, the man kept repeating, “Lovey shot him. Lovey shot him.” Hunt said the man had tears in his eyes, was “flustered,” and was “almost to the point of cussing.”
It was after this hearing on the parties’ motions that the trial court held the statements were admissible as an excited utterance. Then, during trial, Hunt gave the following testimony:
“Q. Sir, when you told the officer what you observed, did you talk to any other eyewitnesses at that time?
“A. Yes.
“Q. Could you tell us about that?
“A. One individual. When I was standing there talking to the officer, he was in distress and I asked him what was wrong and he said, ‘That’s my cousin. That’s my cousin.’
“[Defense Counsel]: I’m going to make my contemporaneous objection to the hearsay.
“THE COURT: Very Well. It will be noted for the record. #
“Q. Go ahead.
“A. At that time he said, ‘It’s my cousin. It’s my cousin. He’s like, They said Lovey shot him. Lovey shot him.’
“Q. And did he seem physically upset to you?
“A. Oh, yes. He was veiy distraught, almost in tears.” (Emphasis added.)
Brown’s double hearsay argument is based upon Hunt’s statement “They say Lovey shot him,” as compared to the preliminary hearing testimony that tire unknown bystander said, “Lovey shot him.” The State suggests in its appellate brief that Hunt merely used tire word “they” as another way to refer to the unidentified man.
To adopt the State’s argument and accept that the use of the word “they” was really meant to be “he” would require us to determine that Hunt did not intend to use “they.” We cannot malee this assumption. It may be that Hunt’s mistake was in his prior testimony when he failed to say “they.” Or, it might be that after the preliminary hearing he recalled that the bystander had said “they.” A number of additional explanations could be postulated. Such an exercise is meaningless, however, because it is inappropriate for us to speculate on what the witness meant to say; we must consider the issue based upon what the witness actually said. As a result, the statement must be considered as double hearsay.
Contemporaneous Objection
The State notes that defense counsel made no objections pertaining to an unknown third-party declarant or to a Confrontation Clause violation. Brown does not dispute that he failed to specifically object on these grounds.
K.S.A. 60-404 provides that no verdict shall be set aside based upon the erroneous admission of evidence unless an objection was “timely interposed and so stated as to make clear the specific ground of objection.” Generally, constitutional grounds for reversal are subject to this same rule, and objections raised for the first time on appeal are not properly preserved for appellate review. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007); State v. Gonzalez, 282 Kan. 73, 114, 145 P.3d 18 (2006).
A recognized exception to that general rule, however, applies when consideration of the newly asserted claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Moody, 282 Kan. 181, 192, 144 P.3d 612 (2006); State v. Williams, 275 Kan. 284, 288-89, 64 P.3d 353 (2003). Applying this exception, this court has considered Confrontation Clause claims even though defendants failed to raise this objection if the trial occurred before the landmark decision in Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), which abrogated Ohio v. Roberts, 448 U.S. 56, 63, 65 L. Ed. 2d 597, 100 S. Ct. 2531(1980) (which allowed hearsay testimony of an unavailable witness if evidence fit within a firmly rooted hearsay exception or otherwise contained adequate indicia of reliability). State v. Miller, 284 Kan. 682, 709, 163 P.3d 267 (2007) (considering confrontation issue “ ‘necessary to serve the ends of justice’ ” in light of recent developments to the law regarding defendant’s confrontation rights); see also State v. Corbett, 281 Kan. 294, 308-09, 130 P.3d 1179 (2006) (ruling that hearsay statements were not testimonial and that defendant failed to preserve the issue for appeal); State v. Torres, 280 Kan. 309, 319, 121 P.3d 429 (2005) (considering recurring arguments regarding Confrontation Clause asserted for first time on appeal).
In light of that allowance, the double hearsay must be considered because “[t]he admission of double level hearsay . . . creates far greater obstacles to the accused’s right to confront the witness against him than does the admission of single level hearsay,” United States v. Daniels, 572 F.2d 535, 539 (5th Cir. 1978). Additionally, as the witness was beginning to answer, defense counsel objected to hearsay, the objection was noted for the record, and the witness was directed to “[g]o ahead.” The fact that counsel did not immediately rise to his feet to state another hearsay objection does not defeat Brown’s right to present the issue.
Confrontation Clause
We will begin our analysis with the constitutional challenge to the evidence under the federal and state Confrontation Clauses. Issues related to confrontation under the Sixth Amendment to the United States Constitution or the Kansas Constitution Bill of Rights, § 10 raise questions of law over which this court exercises de novo review. State v. Henderson, 284 Kan. 267, 276, 160 P.3d 776 (2007); see State v. White, 284 Kan. 333, 345, 161 P.3d 208 (2007).
The Sixth Amendment’s Confrontation Clause provides that “ ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” Crawford, 541 U.S. at 42. This federal principle is applied to the States through the Fourteenth Amendment to the United States Constitution. Pointer v. Texas, 380 U.S. 400, 403-06, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). Similarly, a criminal defendant in Kansas has the right to “meet the witnesses face to face.” Kansas Constitution Bill of Rights, § 10; see also State v. Blanchette, 35 Kan. App. 2d 686, 699, 134 P.3d 19, rev. denied 282 Kan. 792 (2006) (right of confrontation under federal Constitution and the right to meet witnesses face to face under Kansas Constitution are satisfied when defendant has had opportunity to cross-examine witnesses against defendant).
Under the 1980 decision of Roberts, 448 U.S. at 63, admission of the statement of an unavailable witness did not violate confrontation rights if the evidence fit within a firmly rooted hearsay exception or otherwise contained adequate indicia of reliability. The Confrontation Clause analysis was drastically altered with the United States Supreme Court’s decision in Crawford and, subsequently, Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006). The Crawford Court reasoned that the phrase “confronted with the witnesses” required historical and linguistic analysis of what the phrase meant and concluded: “It applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ 2 N. Webster, An American Dictionary of the English Language (1828). ‘Testimony,’ in turn, is typically ‘a solemn dec laration or affirmation made for the purpose of establishing or proving some fact.’ [Citation omitted].” Crawford, 541 U.S. at 51. Hence, the Court concluded the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54.
The Crawford Court did not provide a comprehensive definition of what causes a statement to be “testimonial” for purposes of the Confrontation Clause. In fact, as the Court later noted, it “set forth Various formulations’ of the core class of ‘testimonial’ statements, but found it unnecessary to endorse any of them, because ‘some statements qualify under any definition.’ [Citation omitted.]” Davis, 547 U.S. at 822; see Crawford, 541 U.S. at 53-54, 68; State v. Davis, 283 Kan. 569, 575-76, 158 P.3d 317 (2006). The statement at issue—the one which, according to the Crawford Court, would qualify as testimonial under any definition—was taken several hours after an incident and while the individual giving the statement was herself in custody and Mirandized.
The Court did malee wider-ranging statements that this and other courts have attempted to use to determine if statements made in other factual situations are testimonial. The Court mentioned at least two strands of analysis. First, the Court listed several “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Crawford, 541 U.S. at 51-52. Two characteristics define these examples: (1) formality and (2) generally, in a criminal context, a law enforcement officer or other governmental official was the witness to tire statement, if not the interrogator. Some courts and commentators have separated these two characteristics into separate tests: the first being whether the statement has a resemblance to the formality inherent in the types of “testimony” Usted, and the second being whether the testimony resulted from “official inducement,” in other words, when government officials “shape the statement into accusatorial form for evidentiary use at trial.” 30A Wright & Graham, Federal Practice and Procedure § 6371.2, pp. 43-44 (2007 Supp.). Regarding the official inducement consideration, some statements in Crawford seem to imply that a gov emmental actor must be.involved for a statement to be testimonial. For example, the Court stated that an “off-hand, overheard remark . . . bears little resemblance to the civil-law abuses the Confrontation Clause targeted.” 541 U.S. at 51. In noting that not all hearsay “implicates the Sixth Amendment’s core concerns,” the Court stated: “An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted.” 541 U.S. at 51; see 30A Wright & Graham, Federal. Practice and Procedure § 6371.3, pp. 200-03 (2007 Supp.).
In the second strand of analysis, the Court focused upon the intent of the person making the statement, referring to testimonial statements as those “that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” 541 U.S. at 52.
The Court then melded the two strands of analysis, referring to “ ‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.’ ” 541 U.S. at 51. Where these tests are met and, thus, “[wjhere testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U.S. at 68-69.
Subsequently, in State v. Lackey, 280 Kan. 190, 201, 120 P.3d 332 (2005), cert, denied 547 U.S. 1056 (2006), this court focused on the declarant’s intent to hold that an officer’s interview with a witness conducted during the police investigation resulted in a testimonial statement because “an objective witness would think [it] would be used for trial and could arguably be construed as a police interrogation.”
Two years after Crawford, the United States Supreme Court revisited the Crawford testimonial analysis in Davis, 547 U.S. 813. Davis actually involved two consolidated cases: Davis v. Washington and Hammon v. Indiana. Through the facts presented in Davis, the Court considered the admissibility of a victim’s 911 call and concluded those statements were not testimonial. 547 U.S. at 826-28. Through the facts of Hammon, the Court considered statements made to officers at a victim’s home and concluded the statements were testimonial. 547 U.S. at 829-32.
In analyzing why different conclusions were justified, the Court clarified that the Confrontation Clause applies only to testimonial hearsay, stating: “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” 547 U.S. at 821. The Court determined that the text of the Sixth Amendment—the right “to be confronted with the witnesses against him”—created “[a] limitation so clearly reflected in the text of the constitutional provision [that it] must fairly be said to mark out not merely its ‘core,’ but its perimeter.” 547 U.S. at 824. Once again, however, the Court refrained from giving precise boundaries to this perimeter, expressly declining to provide a comprehensive definition of “testimonial statements.” 547 U.S. at 822, 830-31 n.5.
Instead, the Davis Court first limited the holding in Crawford, explaining the classification of the police interrogations that Crawford had in mind were limited to the facts of the “case [then] before us”—that is, a police interrogation “solely directed at estabhshing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator.” 547 U.S. at 826. The temporal aspect is repeated throughout the opinion, culminating in the Court making it a part of the test for determining whether statements are “testimonial” under the circumstances of the cases:
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U.S. at 822.
Factors mentioned in this conclusion included (1) involvement of police; (2) interrogation (although in a footnote the Court indicated the holding could extend beyond “interrogations” [547 U.S. at 822 n.l]); and (3) the objective purpose of the interrogation. These factors were given more emphasis than in Crawford and, arguably, at least some were new considerations. In a later part of the decision, as part of a response to Justice Thomas’ dissent, the majority returned to another Crawford factor, stating that “[w]e do not dispute that formality is indeed essential to testimonial utterance.” 547 U.S. at 831 n.5. The Court stated:
“What we called the ‘striking resemblance’ of the Crawford statement to civil-law ex parte examinations, [citation omitted], is shared by [the] statement here. Both declarants were actively separated from the defendant .... Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for five testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.” 547 U.S. at 830.
In a footnote, the Court seems to define the level of necessary formality by stating: “It imports sufficient formality, in our view, that lies to such officers are criminal offenses.” 547 U.S. at 831 n.5.
The Davis decision creates an ambiguity about the role (and perhaps the continued viability) of another factor, the declarant’s objective intent. While the declarant’s intent is frequently referenced in Crawford, the Davis Court vacillated on this point. At some points in the discussion, the Davis Court indicated it is the purpose of the declarant that counts: “[E]ven when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.” 547 U.S. at 823 n.l. Yet, in other passages there are indications that the interrogator’s intent is determinative. For example, the Court stated: “A 911 call . . . at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” 547 U.S. at 827.
We attempted to synthesize these different statements in State v. Henderson, 284 Kan. 267, 160 P.3d 776 (2007). Henderson dealt with the interview of a 3-year-old victim by a social worker from Child Protective Services of the Kansas Department of Social and Rehabilitation Services and a police detective. We concluded the interview resulted in a testimonial statement even though the 3-year-old declarant may not have known the potential prosecutorial purposes of the interview. This holding was based upon an analysis that Davis focused upon the primary purpose of the interview as measured by an objective totality of the circumstances test including the nature of the officials involved. Henderson, 284 Kan. at 281-89. We concluded, however, that Davis did not erase consideration of the declarant’s state of mind and considered it as a component of the totality of the circumstances. We cited the following as being relevant to the determination of whether a statement is testimonial: “(1) whether the declarant was speaking about events as they were actually happening, instead of describing past events; (2) whether the declarant made the statement while in immediate danger, i.e., during an ongoing emergency; (3) whether the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and (4) the level of formality of the statement.” Henderson, 284 Kan. at 278-79 (citing Davis, 547 U.S. at 828-30).
The factor stressed in Henderson, because we perceived it to be stressed in Davis, was the primary purpose of the interview. Examining the purpose of the interview at issue in this case leads to an obvious result: when Hunt addressed the bystander, he was checking on the bystander’s welfare rather than seeking facts about the crime.
This conclusion raises another consideration: Is the involvement of police or other government officials a critical factor? In other words, do the holdings in Crawford and Davis require an “official inducement” for a statement to be testimonial? This question arises, in part, because the Davis Court deflects exclusive reliance on law enforcement inducement, indicating that neither Crawford nor Davis decided “whether and when statements made to someone other than law enforcement personnel are ‘testimonial.’ ” Davis, 547 U.S. at 823 n.2. At another point, the Davis Court stated it was unnecessary to consider whether and when statements made to someone other than law enforcement personnel are testimonial. The Court again mentioned that the question was left open: “We have acknowledged that our holding is not an ‘exhaustive classification of all conceivable statements'—or even all conceivable statements in response to police interrogation.’ ” 547 U.S. at 830-31 n.5.
However, rather than distinguishing statements made to non-officials from those made to officials, there is some indication these passages are meant to distinguish official inducement from the subset of law enforcement inducement. The specter of this possible distinction arises from other passages in the decision. Notably, after limiting tire holding of Crawford to the context of police interrogation, the Court observed that this limitation avoided secondary definitional problems related to the universe of “interrogations” and justified a similar limitation of the holding in Davis because “these cases require us to determine more precisely which police interrogations produce testimony.” 547 U.S. at 822. The Court also avoided the broader question of statements made to someone other than law enforcement (nonpolice interrogations) by assuming that 911 operators were law enforcement officers, stating: “If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and without deciding the point), we consider their acts to be the acts of the police.” 547 U.S. at 823 n.2. Consistent with these limitations, in stating its holding, the Davis Court carefully limited the scope to police interrogations: ‘Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases . . . .” 547 U.S. at 822.
Hence, while it is clear that the Court left open the question of whether statements made to government officials other than law enforcement are testimonial, it is not clear that the Court intended to leave open the question of whether statements made to nonofficials can be testimonial. Rather, there are indications that the Court intended to exclude private or casual conversations from the definition of testimonial statements. This distinction is significant in this case because the statements at issue were made to Hunt, a nonofficial, and the distinction raises the possibility we could categorically exclude from Confrontation Clause analysis all statements made to nonofficials. If so, the bystander s statements to Hunt would not raise a constitutional issue.
As already discussed, there are several statements in Crawford regarding “casual remarks to an acquaintance” in which the Court repeatedly indicated these casual comments bore litde resemblance to the civil-law abuses the Confrontation Clause targeted. 541 U.S. at 51. Perhaps most notable, when the Court in Crawford defined the Confrontation Clause’s phrase “giving witness against someone,” the Court indicated this meant giving “testimony” and concluded the discussion by stating: “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” 541 U.S. at 51. Similarly, the Court in Davis contrasted casual statements to the formality of statements made to a governmental official which are testimonial. 547 U.S. at 824. Finally, the Court cited Roberts-em cases it said were consistent with Crawford, specifically stating that Rourjaily v. United States, 483 U.S. 171, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987), and Dutton v. Evans, 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970), involved statements (to a wired informant and to a cellmate, respectively) that were clearly nontestimonial. The citation to these cases, particularly Dutton, “lends some support to the categorical treatment of ‘private conversations’ ” as nontestimonial. 30A, Wright & Graham, Federal Practice and Procedure § 6371.3, p. 211 (2007 Supp.).
At a minimum, these passages indicate that there remains an open question as to whether the United States Supreme Court categorically excludes from the definition of testimonial any statement made to someone who is not a government official. Relying upon one or more of these passages from Crawford and Davis, several other courts have concluded private conversations—those not induced by an official—are categorically nontestimonial. See, e.g., State v. Staten, 364 S.C. 7, 22-32, 610 S.E.2d 823 (Ct. App. 2005), vacated in part 374 S.C. 9, 647 S.E.2d 207 (2007) (collecting and discussing nontestimonial cases). Our court has not adopted such a categorical holding, however. We confronted the issue in our recent decision of State v. Miller, 284 Kan. 682, 709-13, 163 P.3d 267 (2007), and applied various considerations discussed in Crawford and Davis after noting that the explanation regarding testimonial statements in Davis was of limited applicability where the hearsay statements at issue were not made to law enforcement officers. The statements at issue in Miller were made by the defendant’s former lover (Parb) by another woman (Cuthbertson) who became involved with the defendant after his wife’s murder. The statements, made at Parb’s residence, involved both Parb’s and Cuthbertson’s involvement with the defendant.
We concluded Cuthbertson’s statements were not testimonial. 284 Kan. at 713. We applied the test from Crawford to determine whether the statements were made “ ‘under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” 284 Kan. at 713 (quoting Crawford, 541 U.S. at 52). To make this determination we examined factors discussed in Crawford and Davis, noting the statements were not (1) made in the presence of police officers or other authorities and (2) subject to any of the formalities and procedures otherwise associated with testimonial hearsay but were the result of a very emotional conversation between the two women. 284 Kan. at 713; see Crawford, 541 U.S. at 68 (explaining that testimonial hearsay applies “at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police investigations”).
In Miller, we did not engage in a discussion of whether Davis exempts from a Confrontation Clause analysis any statement which is not made to or induced by a government official. Nor do we resolve that issue today. We have discussed the issue in order to point out the possibility we may eventually reach such a conclusion and to clarify that we are not definitively holding that all hearsay statements, in particular those hearsay statements that do not involve government officials, may be testimonial.
In light of the ambiguities and uncertainties of the Crawford and Davis decisions, the unsettled nature of the case law, and the continuing debate between members of the United States Supreme Court and among legal scholars as to the efficacy of the testimonial standard and as to what test formulation best determines when that standard has been met, we will continue to approach the issue broadly under the possibility that the Supreme Court may intend for conversations between a declarant and a nonofficial to be testimonial if other aspects of the test stated in the decisions are met.
Thus, we are left once again to attempt to synthesize what aspects of Crawford and Davis might be considered. In light of the Crawford rule that testimonial out-of-court statements offered for the truth of the matter asserted cannot be used against a criminal defendant unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant, the various factors considered in Crawford, Davis, Henderson, and Miller for determining whether a hearsay statement is testimonial include:
(1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime?
(2) Was the statement made to a law enforcement officer or to another government official?
(3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether
(a) the declarant was speaking about events as they were actually happening, instead of describing past events;
(b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency;
(c) the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and
(d) the interview was part of a governmental investigation?; and
(4) Was the level of formality of the statement sufficient to make it inherently testimonial; e.g., was the statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building?
As to the first inquiry, when stated in terms of this case: Would an objective witness reasonably believe such statements would be available for use in the later prosecution of a crime when the totality of the circumstances indicate that the statements were made by an unidentified emotional bystander to another bystander shortly after the shooting at the scene of a crime where there were approximately 200 other bystanders? The answer to this question is “No.” The statements were made to Hunt by an unidentified emotional declarant, not to police officers. Although police officers were presumably nearby, the evidence does not show that the statements were made within earshot of police officers or other authorities. In fact, the statements were at least three layers of communication away from being used at a later trial: the statements of the “they” that spoke to Cooper’s cousin, Cooper’s cousin who spoke to Hunt, and Hunt who spoke to the police. With approximately 200 people around, an objective witness would not reasonably conclude that the statements made at the scene would be “available for use at a later trial.” See Crawford, 541 U.S. at 52.
Regarding the second inquiry, clearly the statements were not made to a law enforcement officer or other government official. Even under an expansive reading of the facts, there is no indication that Hunt was working as an agent or conduit for the police.
Third, the purpose of the inquiry was merely to check on the bystander, not to investigate the crime. Additionally, the bystander was clearly shaken by the events and the scene, obviating any implication that Hunt’s inquiry was to accuse for purposes of criminal prosecution. We note that some courts have held that excited utterances are per se nontestimonial. See, e.g., United States v. Hadley, 431 F.3d 484, 503-06 (6th Cir. 2005) (collecting cases). A more reasoned approach in light of the Davis Court’s eschewing of hearsay rules as the standard for Confrontation Clause analysis (with the possible exception of dying declarations, see Crawford, 541 U.S. at 56 n.6) is to recognize that even an excited utterance could be testimonial if made in response to police interrogation. Samarron v. State, 150 S.W.3d 701, 706-07 (Tex. App. 2004). In this case, however, the circumstances weigh toward a conclusion that the statement, although accusatory, was not made with that purpose in mind. See 30A Wright & Graham, Federal Practice and Procedure § 6371.2, p. 42 (2007 Supp.) (suggesting that better reasoned approach would have been for the Court to use “accusation” test rather than “testimonial” test). The inquiry was to resolve a current emergency; Hunt testified, “[The other bystander] was in distress and I asked him what was wrong.” Also, with regard to the temporal aspects, although the statements were made about a past crime, the statements were made while police and paramedics were trying to deal with the emergency at hand and while the declarant was dealing with the excitement of the events.
Finally, this emotional conversation between two men at the scene of a shooting was not subject to any of the formalities and procedures otherwise associated with testimonial hearsay. See Davis, 547 U.S. at 827-28; Crawford, 541 U.S. at 68.
Before leaving this topic, we note that Brown urges this court to adopt a “broad definition” of testimonial, citing United States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005) (“[W]e hold that a statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime.”), and People v. Victors, 353 Ill. App. 3d 801, 812, 819 N.E.2d 311 (2004) (“[Djepending on the context and circumstances of the case, testimonial evidence encompasses out-of-court statements that are offered to establish or disprove an element of the offense charged or a matter of fact.”).
We reject Brown’s invitation for several reasons. First, in raising this argument, Brown does not cite Kansas authority. Moreover, we note that both holdings are post-Crawford but pre-Davis. They offer no assistance in synthesizing the two decisions. Additionally, the cases are significant, or have the potential of being significant, enlargements of the Crawford and Davis factors. While Crawford addresses statements “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” (emphasis added) 541 U.S. at 51-52, or for use “prosecutorially,” 541 U.S. at 51, the Tenth Circuit Court of Appeals includes statements that might be used in the investigation of the crime. Summers, 414 F.3d at 1302. This might be the United States Supreme Court’s intent when stating the test included statements that would be used prosecutorially, but that is not entirely clear. The Illinois test is even broader and seems to be more of a test for whether evidence addresses the truth of the matter asserted—i.e., whether it is hearsay—than whether it is testimonial which requires more than simply that the statement relates to an element of the crime. See Victor, 353 Ill. App. 3d at 811-12. Moreover, neither test advances nor provides clarity to the analysis beyond the guidance given in Crawford and Davis. We, therefore, decline to broaden the test.
We conclude that statements made by an unidentified emotional bystander to another bystander (Hunt) within minutes of a shooting, were not testimonial because the statements were not made under circumstances which would lead an objective witness to reasonably believe that the statements would be available for use at a later trial. Hunt did not intend to seek testimony, the statements were not made to a law enforcement officer or other government official, and the statements lacked the formality of testimony. Because the statements made to Hunt were not testimonial, they did not implicate Brown’s rights under the Confrontation Clause. But, because the statements are hearsay, we must determine whether they are admissible under the requirements of the Kansas hearsay statutes. See State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 (2006).
3. Excited Utterance
After the pretrial hearing, the trial court ruled that the bystander’s statements were admissible under K.S.A. 60-460(d)(2), commonly referred tb the excited utterance exception. Generally, this court reviews a trial court’s determination that hearsay is admissible under a statutory exception, such as K.S.A. 60-460(d)(2), for an abuse of discretion. This standard includes a “ ‘ “review to determine that the discretion was not guided by erroneous legal conclusions.” ’ [Citations omitted.]” Danis, 283 Kan. at 573. Simply put, the trial court’s discretion must have been exercised in light of a correct understanding of the applicable law. 283 Kan. at 575.
Under the excited utterance provision of K.S.A. 60-460(d)(2), an event or condition must have occurred, the event must be sufficiently “startling” to show that the declarant perceived it, and the declarant must have made the statement while under stress of nervous excitement. State v. Rowe, 252 Kan. 243, 250, 843 P.2d 714 (1992); see Barbara, Kansas Rules of Evidence with Eviden tiary Objections and Evidentiary Foundations, § 7.6 (3d ed. 1993). The excited utterance exception has the “ ‘characteristic of spontaneity arising either from the reaction to contemporary perception or from the excitement which carries over from the event.’ ” Rowe, 252 Kan. at 248-49 (quoting 1 Gard’s Kansas C. Civ. Proc. 2d An-not. § 60-460[d], p. 239 [1979]).
Brown first argues that the statements do not qualify as excited utterances because the unnamed declarant spoke to Hunt a “full five minutes after the shooting.” He contends that this lapse of time took away any spontaneity the utterances might have had. We disagree.
This court has permitted statements given after lapses of time similar to the one in this case. See, e.g., State v. McCrady, 152 Kan. 566, 106 P.2d 696 (1940) (in rape trial, testimony as to prosecutrix’ statements concerning defendant’s attack on her held admissible in view of her testimony warranting conclusion that period intervening between attack and such statements was less than 15 minutes and evidence that she was hysterical at time of making statements); State v. Morrison, 64 Kan. 669, 68 P. 48 (1902) (declaration by a person whose throat was cut and who was speechless, written within about 5 minutes after her assailant had been pulled away from her, that “J. killed me,” was admissible). As one treatise author notes, in contrast to a present sense impression where the timing requirement is rigorous: “If the declarant is still excited or in pain, an excited utterance can be made hours after the event.” Imwinkelried, Evidentiary Foundations, p. 352 (4th ed. 1998). Time is not the indicia of reliability underlying the excited utterance exception; rather the sense of excitement or stress that vitiates the opportunity for reflection makes the statement spontaneous and reliable.
Here, the declarant was clearly under the stress of nervous excitement caused by the very recent event. Cooper, the victim, was a family member; the declarant said he was a cousin. Further, the declarant was visibly tearful, distraught, and in a state of panic. As Hunt testified, Hunt and the declarant stood over Cooper’s body and observed blood and biological matter around his head. It would have been a distressing scene. There is nothing, including the lapse of time, that would indicate the statements were anything but spontaneous. The statements made by the declarant bystander that did not include another level of hearsay were admissible under the excited utterance exception of K.S.A. 60-460(d)(2).
Next, Brown relies on his contention that the statement “They said Lovey shot him” constituted double hearsay and argues that a foundation was not laid to meet the excited utterance exception because there is no way of knowing if the original declarant (the person who spoke to the bystander who spoke to Hunt) personally perceived the shooting or suffered nervous excitement. On this ground, Brown’s assertion is correct. There is no evidence in die record regarding the alleged original declarant or the context in which the statement might have been made to the person who eventually spoke to Hunt, and admission of the statement was error. ’
The admission of the statement was not necessarily reversible error, however. K.S.A. 60-261 provides that an error in the admission of evidence will not be grounds for reversing a conviction unless affirming the conviction is “inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect die substantial rights of the parties.”
Under the facts of this case, the admission of the statement identifying the shooter as “Lovey” was harmless. The statement was cumulative to the testimony of several other witnesses who identified Brown as the shooter, including that of Berry, Hunt, and Devon Brown. These witnesses variously identified Brown by photographic lineup and by name, and both Devon and Officer Espinoza testified Brown was nicknamed “Lovey.” Moreover, Brown confessed to committing the crime. Thus, the erroneous admission of the evidence was harmless.
4. Gang Affiliation
Next, Brown argues that the trial court abused its discretion by allowing the State to introduce evidence of his gang affiliation as motivation for the shooting. Arguing that the State failed to sufficiently prove the charged crime was related to gang activity, Brown contends the gang evidence was irrelevant and that its admission violated his rights to due process and a fair trial. Brown’s arguments have no merit.
Before trial, the State filed a motion to introduce evidence of Brown, Cooper, and other witnesses’ gang affiliation to show motive for an otherwise inexplicable act. At a hearing on that motion, Brown objected to the admission of such evidence because of its prejudicial nature. Brown also filed a pretrial motion in limine seeking to exclude gang evidence, arguing there was no evidence that the crime was gang related and that gang evidence would prejudice the jury and deny him a fair trial.
The trial court ultimately ruled that die gang evidence was relevant and admissible to show a motive for what would otherwise be an inexplicable act.
Standard of Review
With regard to examining the relevance of gang evidence, we apply the following standard of review:
“A determination of relevance is the first step in analyzing if evidence is admissible. Unless otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. [Citations omitted.] Because relevancy is a matter of logic and experience, the determination of relevancy is generally seen as inherently diseretionaiy. [Citation omitted.] However, atrial court’s discretion must be guided by the considerations imposed by prior case law and by the rules of evidence. [Citation omitted.]” State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006).
The first inquiry, then, is whether the evidence is relevant. As a general rule, gang affiliation evidence is admissible if relevant. State v. Conway, 284 Kan. 37, 47, 159 P.3d 917 (2007); State v. Ross, 280 Kan. 878, 885, 127 P.3d 249 (2006). “ ‘Relevant evidence’ ” means “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). “Materiality requires that the fact proved be significant under the substantive law of the case and properly at issue,” and although an evidentiary fact may be “relevant under the rules of logic, it is not material unless it has a legitimate and effective bearing on the decision of the ultimate facts in issue.” Goodson, 281 Kan. 913, Syl. ¶ 7. Inherent in these requirements is the necessity that there be proof that gang affiliation or gang activity is related to the crime charged. 281 Kan. 913, Syl. ¶ 9; State v. Winston, 281 Kan. 1114, 1125, 135 P.3d 1072 (2006).
Evidence that a defendant is a gang member or is associated with gang-related activity “may be material and, therefore, relevant when the evidence provides a motive for an otherwise inexplicable act, forms a part of the events surrounding the commission of the crime, or shows witness bias.” 281 Kan. at 922; see also State v. Jamison, 269 Kan. 564, 568, 7 P.3d 1204 (2000) (evidence of gang affiliation relevant to establish motive for shooting).
Brown argues that the gang evidence in the present case does not fit into any of these categories, in large part because there was not sufficient evidence that the crime was gang related. Brown likens this case to State v. Lietner, 272 Kan. 398, 415-18, 34 P.3d 42 (2001), where this court held that evidence of Lietner’s participation in witchcraft was lacking in probative value and prejudicial to her; however, other overwhelming evidence prevented its erroneous admission from constituting reversible error. Other trial evidence showed that Lietner had shot her ex-husband once in the back of the head and twice more in the temple out of frustration from their divorce, fear of physical abuse, and need for his life insurance proceeds. In Lietner, the record contained not even a hint or innuendo that her abstract beliefs had any connection to the killing. Brown argues that the gang evidence in this case is similar to the inadmissible evidence in Lietner because it raised the “possibility” that tire jurors would develop a dislike or fear of the defendant. Simply put, Brown contends that the evidence served only to prejudice the jurors against him. What he ignores, however, is that, unlike Lietner, the record in this case contains connections between the gang evidence and the shooting which give a motive for what would be an otherwise inexplicable act.
This case is more similar to State v. Tatum, 281 Kan. 1098, 135 P.3d 1088 (2001), and State v. Gholston, 272 Kan. 601, 35 P.3d 868 (2001), cert, denied 536 U.S. 963 (2002). In Tatum, Damon Walls, his girlfriend Kyea Kimbrough, and his friend Terrell Williams drove to Dwayne Coates’ house in Kansas City, Kansas, to purchase marijuana. The buy had been prearranged. When they arrived at Coates’ house, Walls parked the car and Williams got out. As Williams walked up to the house, Walls’ car was hit by a barrage of gunfire. Walls and Kimbrough both received multiple gunshot wounds. Walls survived, but Kimbrough died. Chatha Tatum and Charles Winston were eventually identified as the shooters. The State’s theory of the case was that the shooting was gang related in that it arose out of an ongoing conflict between two rival Kansas City, Missouri, gangs.
In Tatum’s appeal, he argued there was insufficient evidence that he was a gang member and that the crime was gang related. The Tatum court distinguished cases in which there was no evidence of gang motivation or of gang membership, e.g., State v. Cox, 258 Kan. 557, 908 P.2d 603 (1995), and State v. Pham, 27 Kan. App. 2d 996, 10 P.3d 780 (2000). The court noted that Tatum’s gang association was established and there was abundant evidence suggesting the motivation for the Tatum shooting was gang related. At a separate incident at Oak Park Mall, Tatum and Winston, acting together, referenced the prior gang-related murder of Walls’ brother “Messy Marvin” and made a veiled threat that Walls would soon be facing the same fate. Then, just several months later, Walls was shot at in a gang-style ambush attack, and the shooters were identified as Tatum and Winston. The Tatum court characterized the mall incident was pivotal by, inter alia, suggesting the gang-related motivation for the crime.
In Gholston, the defendant was charged with premeditated first-degree murder for firing a semiautomatic weapon into a parked car and killing a 2-year-old girl. The trial court permitted the prosecution, over defense counsel’s objection, to introduce evidence of Gholston’s membership in the Neighborhood Crips gang and that one of the individuals in the car with the girl at the time of the incident was a member of the Second Street rival gang. On appeal, this court affirmed, rejecting Gholston’s argument that the trial court’s failure to give a limiting instruction was clearly erroneous and determining that evidence of gang membership provided motive for an otherwise inexplicable act. 272 Kan. at 615.
In the present case, like Tatum and Gholston, evidence of gang membership was relevant and admissible. Officer Espinoza’s expert testimony explained gang characteristics and gang member identifiers. He identified Brown as a Junior Boy, in die Hill Block subset, and the victim as a member of the rival Bloods gang. And Cole, the individual with whom Cooper had an altercation before the shooting, was also a Junior Boy in the Second Street subset. In addition, evidence was presented of several incidents of violence between these rival gangs, the Bloods and the Junior Boys.
Although Brown complains only about Officer Espinoza’s testimony, other witnesses also testified regarding gang affiliation. Cooper’s girlfriend Arnold testified that she knew Cole was a “Second Streeter” or Junior Boy. She also testified that victim Cooper was a Blood. Arnold stated that the two men whom Cole chased with a gun in front of Arnold’s car “associated with” Cooper. Testifying that she did not know if the two were actually members of the Bloods gang, Arnold stated, “[B]ut . . . they were around Bloods a lot.” Cooper saw Cole chasing the two associates and got out of Arnold’s car to stop the altercation. According to Arnold, she saw Brown and Cole together right before the fight broke out.
Although Brown denied being a current gang member when testifying in his own defense at trial and admitted only to hanging out with Hill Blocks, Brown himself told the officers during his interrogation that he was a Hill Block and a “baby Junior Boy.”
Thus, evidence of gang affiliation clearly provided motive for the shooting death of Cooper, an otherwise inexplicable act. Further, while this court has acknowledged that such gang affiliation evidence may also be prejudicial to the defendant, the prejudicial effect of the such evidence may be cured by a limiting jury instruction. See Ross, 280 Kan. at 887-88 (concluding that limiting instruction cured prejudicial effect of admitting evidence that defendant and one of defendant’s witnesses were members of the same gang). But see Conway, 284 Kan. at 51 (trial court is not required to sua sponte give hmiting instruction regarding gang evidence). We note that the trial court gave a hmiting instruction in this case.
Admitting the gang evidence was not error.
5. Heat of Passion Voluntary Manslaughter Instruction
Next, Brown contends the trial court erred by refusing defense counsel’s request to instruct the jury on voluntary manslaughter as a lesser included offense. This contention lacks merit.
As a general rule concerning lesser included offenses:
“ ‘A trial court must instruct the jury on a lesser included offense “where there is some evidence which would reasonably justify a conviction” of the lesser offense. [Citation omitted.] “If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether tire evidence is weak or inconclusive.” [Citation omitted.] . . . “However, the duty to so instruct arises only where there is evidence supporting the lesser crime.” [Citation omitted.] An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented.’ [Citation omitted.]” State v. Boyd, 281 Kan. 70, 93, 127 P.3d 998 (2006) (quoting State v. Drennan, 278 Kan. 704, 712-13, 101 P.3d 1218 [2004]).
Brown suggests that a voluntary manslaughter instruction was warranted because the shooting of Cooper (allegedly by Brown) “was not separated either in time or space from the argument [Cooper] had with Terrell Cole.” He argues that because of “bad blood” between the rival gangs, “[i]t belies the State’s theory of motive to argue now that the fight between Cole and Cooper was not sufficient provocation for Mr. Brown.” This theory does not comport with Kansas law.
K.S.A. 21-3403 defines voluntary manslaughter as “the intentional killing of a human being committed: ... (a) [u]pon a sudden quarrel or in the heat of passion.” To prove “heat of passion” voluntary manslaughter, a killing must be intentional and there must have been legally sufficient provocation. State v. Cheeks, 258 Kan. 581, 590, 908 P.2d 175 (1995). The test of the sufficiency of the provocation is objective, not subjective. We have said: “ ‘ “The provocation, whether it be ‘sudden quarrel’ or some other form of provocation, must be sufficient to cause an ordinary [person] to lose control of his [or her] actions and his [or her] reason.” ’ [Citation omitted.]” State v. Monda, 262 Kan. 58, 74, 936 P.2d 727 (1997); see also State v. Hill, 242 Kan. 68, 74, 744 P.2d 1228 (1987) (“ ‘Such emotional state of mind [heat of passion] must be of such a degree as would cause an ordinary man to act on impulse without reflection.’ ”). Such provocation must be more than mere words or gestures, and if assault or battery is involved, the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. State v. McClanahan, 254 Kan. 104, 114, 865 P.2d 1021 (1993). Additionally, this court has held that a defendant was not entitled to the voluntary manslaughter instruction when the defendant “ ‘interjected’ ” himself or herself into the situation. See State v. Hays, 270 Kan. 535, 542, 17 P.3d 317 (2001). Likewise, this court has held that a voluntary manslaughter instruction was not warranted where, absent prior bad blood between the defendant and the victim or evidence of any prior argument, the evidence failed to establish adequate provocation to require the instruction. McClanahan, 254 Kan. at 115-16.
The evidence at trial showed that an altercation erupted between Cooper and Cole, not Brown. By some accounts the altercation was verbal; by no account was the altercation one which would have placed Brown in reasonable belief that he was in danger of great bodily harm or at risk of death. Additionally, there was no evidence of personal animosity between Brown and Cooper, the victim.
The trial court did not err by refusing to instruct the jury on “heat of passion” voluntary manslaughter.
6. Third-Party Evidence Rule
In Brown’s supplemental brief, he argues the trial court denied his right to present a defense by denying his requests to introduce evidence of a third-party’s guilt. He specifically complains about the court’s refusal to permit evidence that (1) an individual named Brian Walker, with an allegedly similar physical description to Brown and allegedly similar motive, was involved in a fight at the scene of the killing; (2) an individual named Derrick Hubbard was also involved in a fight at the scene and had a similar physical description to Brown; (3) a police officer stopped individuals named Adrian Patterson and Joseph Nelson leaving the scene of the shooting with the lights of their vehicle turned off; (4) another officer received a telephone call from an individual who said the police had the wrong person in custody for the shooting; and (5) hearsay evidence that a woman named Monique Jackson contacted law enforcement and told them a man named Ronald “Napoleon” James called her around the time of the shooting and told her he had just shot someone in the head in “Old Town.”
Standard of Review
A trial court’s decision under the third-party evidence rule at the heart of the evidentiary question before us here is subject to an abuse of discretion standard of review on appeal. See State v. Marsh (Marsh I), 278 Kan. 520, 531, 102 P.3d 445 (2004), revd on other grounds Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006). This standard of review places the burden of proof on appeal on the party alleging that such an abuse of discretion occurred. State v. Scott-Herring, 284 Kan. 172, 176, 159 P.3d 1028 (2007); State v. Trotter, 280 Kan. 800, 810, 127 P.3d 972 (2006). The trial court’s decision maybe an abuse of discretion if the decision does not rest on considerations imposed by prior case law. Goodson, 281 Kan. at 922.
This court recently clarified the law relating to the third-party evidence rule in Marsh I, 278 Kan. 520, and State v. Adams, 280 Kan. 494, 505, 124 P.3d 19 (2005). Since Adams, the United States Supreme Court reversed Marsh Ts holding striking down Kansas’ death penalty statute, see Kansas v. Marsh, 548 U.S. 163, but that portion of Marsh I clarifying the third-party evidence rule was not subject to review and remains good law.
In Marsh I, this court held that “while evidence of the motive of a third party to commit the crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to the crime.” 278 Kan. at 530. This is also because
“evidence of a third person’s motive alone would not have any tendency to prove a material fact, but instead would serve to ‘confuse the jury, to permit [jurors] to indulge in speculations on collateral matters wholly devoid of probative value relative to who committed the [crime] and to divert their attention from the main issue they were sworn to try.’ [Citation omitted.]” 278 Kan. at 530-31.
The Adams court reiterated:
“[In Marsh Z] [w]e made clear that admission of third-party evidence did not turn on the sometimes hazy distinction between direct and circumstantial evidence. Rather, we said, a district judge must evaluate the totality of facts and circumstances in a given case to determine whether the defense’s proffered evidence effectively connects the third party to the crime charged. [Citation omitted.]” 280 Kan. at 505.
The Adams court then summarized recent cases on this issue. See 280 Kan. at 505-06. In Marsh I, the defendant was accused of killing two victims, but there was also evidence that the husband and father of the victims might have been involved. The Marsh I court found the defendant had proffered more than mere evidence that the husband had a motive, in part because there was evidence that there was a mixture of the husband’s blood and blood from one of the victim’s on the defendant’s shoes. As a result, the court held that Marsh’s right to a fair trial had been violated by the trial court’s exclusion of the third-party evidence. 278 Kan. at 533.
In State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003), the defendant tried to admit evidence that another person was seen holding the murder weapon immediately after the fatal shot was fired. There was also evidence that a third party admitted to the shooting and later dumped the body. This court held that the trial court erred in not admitting the third-party evidence. 275 Kan. at 97, 101, 106.
This court reached a different result in State v. Hooker, 271 Kan. 52, 21 P.3d 964 (2001). In that case, the State presented evidence that the defendant broke into the residence of the victim and his girlfriend, asked about money, struggled with the victim, and shot him in the back. A burgundy Cadillac had been seen in the parking lot at the time of the shooting; 3 days later, the girlfriend of the victim saw a burgundy Cadillac at a gas station and recognized the defendant as the man who had broken in and shot her boyfriend. She wrote down the license plate number and called the police, who picked up the defendant later that day.
In response, Hooker sought to introduce evidence that two other individuals had threatened the victim. He conceded that the proffered evidence was hearsay based on rumors. The Hooker court held the evidence was irrelevant in the absence of other evidence to connect either of the two persons to the victim’s death. 271 Kan. at 65-66.
Finally, in Adams, the defendant was charged with the death of a small child in a shaken baby scenario. Adams tried to admit evidence that the child’s mother had abused one of her daughters from a previous marriage and the divorce decree from that marriage gave her only supervised visits with the children. Adams was trying to use this evidence in conjunction with evidence that the mother had been seen acting aggressively towards the child in the weeks before the death to prove she was actually the cause of the child’s death. This court determined that this was more like Hooker than Marsh I or Evans in that none of the evidence proffered by Adams could place the mother at the crime scene at the time relevant to the child’s injuries or death. 280 Kan. at 506-07. Without such evidence, the Adams court found that the defendant’s “effort to pin blame on [the mother] amounted to baseless innuendo. In such a situation, the district judge’s decision to exclude [the evidence] did not qualify as an abuse of discretion.” 280 Kan. at 507.
Brown’s case is more like Hooker and Adams than Marsh I and Evans. Some of the evidence proffered by Brown was pure hearsay. And none of the evidence offered by Brown amounted to anything more than baseless innuendo. There is nothing tying these third parties to the shooting. The closest possible third-party connection is Adrian Patterson in that Brown, at one point, told officers that Patterson was the shooter. This connection was dispelled by Brown himself, however, when he admitted to police he shot Cooper.
Under the circumstances, the trial court did not abuse its discretion by excluding evidence of third-party guilt.
7. Cumulative Error
Finally, Brown argues that cumulative trial errors deprived him of a fair trial. This contention has no merit.
This court applies the following test to a claim of cumulative trial errors:
“Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced tire defendant and denied [the defendant] a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. State v. Holmes, 278 Kan. 603, 641, 102 P.3d, 406 (2004).” State v. Ackward, 281 Kan. 2, 29, 128 P.3d 383 (2006).
Because multiple errors have not been found, the cumulative error doctrine is simply not applicable.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Beier, J.:
This case addresses whether, when, and to what effect
a Kansas driver may contest an alcohol- and/or drug-based administrative license suspension arising out of a law enforcement traffic stop allegedly violating the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of rights.
Factual and Procedural Background
This case began when plaintiff Thomas J.G. Martin was pulled over by Officer Christopher Wilson of the Prairie Village Police Department in August 2002. The parties have stipulated that Mar tin was under the influence at the time, but there had been nothing about Martin s driving that alerted the officer to this fact. Rather, Wilson stopped Martin because of a malfunctioning rear brake light. At the time, Wilson believed the malfunctioning light to be in violation of the law, even though two other rear brake lights on Martin’s vehicle were working.
After the stop, Wilson became suspicious that Martin had been drinking. Martin failed field sobriety tests, refused a prehminary breath test, and later failed a chemical breath test at the police station. The chemical breath test result led Kansas Department of Revenue (Department) to suspend Martin’s driver’s license. Notes from Martin’s administrative hearing on the suspension show that Martin attempted unsuccessfully to argue the unconstitutionality of the traffic stop before the Department.
Martin sought review in the district court, where the judge reversed the license suspension, holding that Wilson misinterpreted the law governing brake lights and that this misinterpretation meant he lacked reasonable suspicion to initiate Martin’s stop.
A panel of our Court of Appeals overturned the district court decision, agreeing with the Department that the propriety of a traffic stop is irrelevant in a driver’s license suspension hearing. Martin v. Kansas Dept. of Revenue, 36 Kan. App. 2d 561, 567, 142 P.3d 735 (2006). The panel focused on the fundamental differences between such an administrative proceeding and a criminal prosecution, noting in particular that the purpose of the former is remedial and the latter, punishment. 36 Kan. App. 2d at 564-65 (citing Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 457, 980 P.2d 1022 [1999]; Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 188, 959 P.2d 940, rev. denied 265 Kan. 885 [1998]).
The panel then turned to the language of K.S.A. 8-1020(h)(2), evaluating it “[a]gainst this backdrop.” 36 Kan. App. 2d at 565. This portion of the statute reads:
“If the officer certifies that the person failed a breath test, the scope of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system;
(B) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was certified by the Kansas department of health and environment;
(E) the person who operated the testing equipment was certified by the Kansas department of health and environment;
(F) the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment;
(G) the test result determined that the person had an alcohol concentration of .08 or greater in such person’s breath; and
(H) the person was operating or attempting to operate a vehicle.” K.S.A. 8-1020(h)(2).
The panel concluded that this list clearly and unambiguously expresses the legislature’s intention to limit the issues that can be raised at an administrative license suspension hearing. Had the legislature intended to allow a more expansive inquiry before the Department, it would have said so. 36 Kan. App. 2d at 565-66.
The panel also rejected Martin’s constitutional challenge to its reading of the statute, because driving is not a right but a privilege; and administrative suspension of a driver’s license for the holder’s failure of a chemical breath test, to which every driver gives implied consent, is supported by government’s legitimate promotion of public health, safety, and welfare. 36 Kan. App. 2d at 566. In support of this holding, the panel noted several cases from other jurisdictions. 36 Kan. App. 2d at 566-67 (citing Tomabene v. Bonine ex rel. Highway Dept., 203 Ariz. 326, 333, 54 P.3d 355 [Ct. App. 2002]; Powell v. Secretary of State, 614 A.2d 1303, 1305-06 [Me. 1992]; Beavers v. State Dept. of Mtr. Vehicles, 109 Nev. 435, 438, 851 P.2d 432, cert, denied 510 U.S. 946 [1993]).
This court granted Martin’s petition for review. To resolve this case, after reference to our standard of review, it is necessary for us to address whether the Department is permitted to decide the merits of a driver’s constitutional challenge in an administrative hearing on license suspension; whether, even if a decision by the Department is precluded in an administrative setting, a driver may raise such a claim there; whether the limitations on searches and seizures of the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights are implicated when the driver’s license suspension rather than criminal sanction is at issue; and whether a meritorious constitutional challenge to an underlying traffic stop requires a district court to apply the exclusionary rule and reverse license suspension.
Standard of Review
Although generally an appellate court applies a substantial competent evidence standard of review when examining a district court’s ruling in a driver’s license suspension case, see Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820, Syl. ¶ 1, 74 P.3d 588 (2003), the issues before us here require statutory and constitutional interpretation. These raise pure questions of law subject to unlimited review. See, e.g., Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213-14, 135 P.3d 1203 (2006); Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
When we are called upon to interpret a statute, we first attempt to give effect to the intent of tire legislature as expressed through its language. When a statute is plain and unambiguous, we do not attempt to determine what the law should or should not be; nor do we attempt to divine the legislative intent behind it. We will not read or rewrite such a statute to add something not readily found within it. If a statute is clear as written, there is no need to resort to statutory construction. Williamson v. Amrani, 283 Kan. 227, 231, 152 P.3d 60 (2007); State v. Robinson, 281 Kan. 538, 539-40,132 P.3d 934 (2006). In short, statutory interpretation begins with the language selected by the legislature. If that language is clear, if it is unambiguous, then statutory interpretation ends there as well. Graham v. Dokter Trucking Group, 284 Kan. 547, 161 P.3d 695 (2007).
A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. 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. Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, Syl. ¶ 1, 133 P.3d 104 (2006). However, we may not rewrite a clear and unambiguous statute to make it pass constitutional muster. See State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), revd on other grounds Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006).
May the Department Decide a Constitutional Claim?
In the administrative hearing, Martin sought a decision on the merits of his constitutional challenge to Wilson’s decision to pull him over. Martin alleged that the traffic stop was not supported by reasonable suspicion, as it must be under both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1,20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993) (§ 15 of the Kansas Constitution Bill of Rights identical in scope to Fourth Amendment).
In Cross v. Kansas Dept. of Revenue, 279 Kan. 501, 110 P.3d 438 (2005), this court set out a comprehensive overview of the provisions of Kansas’ Implied Consent Law, K.S.A. 8-1001 etseq., of which K.S.A. 8-1020(h)(2)(A)-(H) is a part. We need not repeat that overview here. Rather, we note only that, when a driver refuses or fails a test to determine the presence of alcohol or drugs in the driver’s body, a law enforcement certification must be prepared and signed by one or more officers. Cross, 279 Kan. at 504-05 (citing K.S.A. 8-1002[a][2]). The Department’s Division of Vehicles reviews the certification to ensure that all requirements were met; if so, it will suspend the driver’s license. K.S.A. 8-1002(e), (f); K.S.A. 8-1013(c); Cross, 279 Kan. at 505. The driver may then request an administrative hearing to determine whether suspension is appropriate. K.S.A. 8-1020(a)-(d); Cross, 279 Kan. at 505.
K.S.A. 8-1020 governs the administrative hearing. Cross, 279 Kan. at 505. Subsections (e) and (f) limit the documents and materials subject to discovery; subsection (g) limits the witnesses who may testify; and subsection (h), as quoted above, lists the issues for decision. Under subsection (k), the driver bears the burden of proving, by a preponderance of the evidence, that the facts set out in the certification are false or insufficient and that the suspension should therefore be dismissed.
If a driver is unsuccessful in challenging a license suspension at the administrative level, he or she may petition the district court for trial de novo, as Martin did in this case. K.S.A. 8-1020(p); see Cross, 279 Kan. at 506-07. The driver bears the burden of proving to the court that the agency decision should be set aside. K.S.A. 8-1020(q).
If the Department can decide the merits of a Fourth Amendment or § 15 claim such as that raised by Martin here, it must be empowered to do so either because K.S.A. 8-1020(h)(2) permits it or, fading that, because the federal or state constitution demands it. We turn first to the statute.
We agree with the Court of Appeals panel that K.S.A. 8-1020(h)(2)(A)-(H) is clear and unambiguous and that its list is exclusive. To the extent this is so, Martin attempts to persuade us that the issue of whether “reasonable grounds to believe” a driver was under the influence under K.S.A. 8-1020(h)(2)(A) is equivalent to the issue of whether “reasonable suspicion” existed to support the traffic stop. In other words, he asserts, the issue he wished to have decided in the administrative hearing was among those the statute permitted to be pursued there and then.
We are unmoved by this argument. “Reasonable grounds to believe” a driver is under the influence and “reasonable suspicion” sufficient under constitutional law are distinct legal concepts. The first demands consideration of the behavior of a driver before, during, and after he or she is behind the wheel. The relevant time period for determination of “reasonable suspicion,” in contrast, ends at the moment the stop is effected. In addition, we observe that K.S.A. 8-1020(h)(2)(A) was enacted in 2001, long after the “reasonable suspicion” standard arose in United States Supreme Court constitutional analysis and long after we employed it in Kansas. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976). Because we presume our legislature knows the law in existence at the time of an enactment, see In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 524, 957 P.2d 473 (1998), we consider it significant that it did not choose to mimic the “reasonable suspicion” language from cases when it drafted K.S.A. 8-1020(h)(2)(A). Instead, it deliberately decided to enunciate a different standard.
The statute’s exclusion of Martin’s issues from the list that may be decided by the Department by means of an administrative hearing also is consistent with several of our cases arising out of challenges to Board of Tax Appeals decisions and other agency actions. In those cases, we have repeatedly recognized that administrative agencies are not empowered to decide constitutional questions; courts are. See In re Appeal of Weisgerber, 285 Kan. 98, Syl. 1, 169 P.3d 321 (2007); In re Tax Appeal of CIG Field Services Co., 279 Kan. 857, 864, 112 P.3d 138 (2005); In re Tax Appeal of Sprint Communications Co., 278 Kan. 690, 700-02, 101 P.3d 1239 (2004); U.S.D. No. 443 v. Kansas State Board of Education, 266 Kan. 75, 81-82, 966 P.2d 68 (1998); Zarda v. State, 250 Kan. 364, 370, 826 P.2d 1365 (1992); In re Residency Application of Bybee, 236 Kan. 443, Syl. ¶ 4, 691 P.2d 37 (1984).
Does due process otherwise demand that the Department be empowered to decide a Fourth Amendment or § 15 claim raised by a driver subject to license suspension? We have previously recognized that limited due process applies in such matters. See Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, 824, 714 P.2d 975 (1986) (possession of driver’s license regulated privilege; “deprivation ... by the State constitutes a deprivation of property sufficient to necessitate application of the due process clause,” citing Mackey v. Montrym, 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612 [1979]; Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723 [1977]); compare State v. Heironimus, 262 Kan. 796, 803, 941 P.2d 1356 (1997) (license not inherent fundamental right); Popp v. Motor Vehicle Dept., 211 Kan. 763, 766, 508 P.2d 991 (1973) (“The driver’s license . . . privilege is granted to those who are qualified, who comply with reasonable police power requirements in the interest of public safety and welfare, and is withheld from those who do not.”); Agee v. Kansas Highway Com mission, 198 Kan. 173, 180, 422 P.2d 949 (1967) (license to drive motor vehicle on public streets not natural right but privilege, subject to reasonable regulation in public interest); Lee v. State, 187 Kan. 566, 358 P.2d 765 (1961) (driver’s license not natural, unrestrained right; license privilege subject to reasonable regulations by State under police power in interest of public safety, welfare). But the outcomes in the administrative agency cases cited above suggest the answer to this question is no. In addition, in the peculiar context of alcohol- and/or drug-related driver’s license suspensions, we have recently held more than once that delaying full argument and decision of a particular aspect of a case—preventing its pursuit at the administrative level and deferring it to later court appeal—does not run afoul of due process. See Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 133 P.3d 104 (2006); Cross, 279 Kan. 501.
In Kempke, the driver argued that due process was offended because he was not permitted to call the officer who administered the preliminary breath test as a witness at the administrative license suspension hearing. We disagreed, holding that suspension did not finally take place until after de novo appeal to district court and that the driver’s ability to call the officer as a witness on appeal satisfied due process. 281 Kan. at 799-800. In Cross, we rebuffed an as-applied due process challenge to the statute limiting witnesses at administrative hearings on driver’s license suspensions. 279 Kan. at 513.
In view of the fact that a driver’s license is a privilege rather than a right, and in view of our approach in Kempke, we hold that the exclusion of Fourth Amendment and § 15 issues from Department decision in administrative suspension hearings under K.S.A. 8-1020(h)(2)(A)-(H) does not violate procedural due process.
May a Driver Raise a Fourth Amendment Claim in an Administrative HearingP
The rule that a constitutional issue cannot be decided by an administrative agency does not necessarily preclude a driver from raising such an issue in that forum. Our previous cases do not preclude Martin’s effort to raise his Fourth Amendment claim be fore the Department. See, e.g., CIG, 279 Kan. at 864; Sprint, 278 Kan. at 700-02; see also Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 197-200, 62 P.3d 236 (2003) (workers compensation case; merits of constitutional question addressed, even though issue not decided below).
In fact, our decision in similar circumstances in Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 148 P.3d 538 (2006), makes raising any potentially controlling constitutional issue at the time of the administrative hearing the wise course for a driver who wishes to preserve the issue for judicial review in the district court and beyond. 282 Kan. at 776. In Bruch, we stated that the district court lacked jurisdiction to consider whether an officer possessed probable cause to arrest based on results of a driver s preliminary breath test, because the driver had failed to raise the issue first in the administrative tribunal. 282 Kan. at 776.
Do Driver’s License Suspensions Implicate the Fourth Amendment and § 15?
Previous Kansas cases have not squarely addressed whether or how the Fourth Amendment and § 15 apply to traffic stops that precede an alcohol- or drug-related driver’s license suspension. See Butcher v. Kansas Dept. of Revenue, 34 Kan. App. 2d 826, 124 P.3d 1078 (2005) (Court of Appeals holds officer had cause to make traffic stop; no discussion of whether Fourth Amendment applies in suspension proceedings); Pywell v. Kansas Dept, of Revenue, No. 95,598, unpublished opinion filed February 16, 2007 (Court of Appeals panel declines to reach issue); Hinton v. Kansas Dept, of Revenue, No. 90,806, unpublished opinion filed October 8,2004 (Court of Appeals holds district court lacked jurisdiction to decide whether pretextual traffic stop violated Fourth Amendment when licensee had failed to comply with specific pleading requirements). Since the Court of Appeals panel issued its decision in this case, another panel has decided that the limited scope of an administrative driver’s license suspension hearing does not implicate the Fourth Amendment. See Bray v. Kansas Dept. of Revenue, No. 95,702, unpublished opinion filed March 2, 2007. Another panel, merely noting the issue and the decision in Martin, addressed the merits of the driver’s claim that a traffic stop was unconstitutional. See Kruserv. Kansas Dept. of Revenue, No. 95,517, unpublished opinion filed April 13, 2007.
Generally the Fourth Amendment applies to all governmental action, not just actions in criminal investigation; and its protections apply to all people, not just criminal defendants.
“ '[T]he Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations. [Citation omitted.] The reason is found in the “basic purpose of this Amendment . . . [which] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” [Citation omitted.] If the government intrudes on a person’s property, the privacy interest suffers, whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.’ ” State v. Smith, 243 Kan. 715, 720-721, 763 P.2d 632 (1988) (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816 [1978]).
A breath, blood, or urine test for alcohol or drugs can constitute a search for purposes of the Fourth Amendment. See State v. Jones, 279 Kan. 71, 106 P.3d 1 (2005) (preliminary breath test [PBT] performed on driver after accident qualifies as search; deep lung air, extractable only by requiring driver to forcibly blow into device for 3 to 5 seconds, not normally held out to public).
Yet compulsoiy testing for alcohol or drugs through drivers’ implied, even coerced, consent does not violate the Constitution; it is reasonable in light of the State’s compelling interest in safety on the public roads. See Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 835, 888 P.2d 832 (1995); Standish v. Department of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 (1984); Popp v. Motor Vehicle Dept. 211 Kan. 763, 767, 508 P.2d 991 (1973); see also South Dakota v. Neville, 459 U.S. 553, 559-65, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983) (implied consent law permits licensee to submit to or refuse blood test with caveat that evidence of refusal admissible in any related criminal case; upheld against Fifth Amendment self-incrimination challenge and due process); Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966) (state-compelled blood test under implied consent law upheld on Fifth Amendment self-incrimination challenge, reject ing related arguments premised on due process, right to counsel, prohibition of unreasonable searches); compare State v. Jones, 279 Kan. 71, 79, 106 P.3d 1 (2005) (PBT results cannot be admitted in criminal DUI case absent evidence of voluntary consent; statutory implied consent does not apply to PBT; its purpose to help law enforcement ascertain whether to request test covered by implied consent rule).
Here, Martin does not challenge the constitutional legitimacy of the expectation that he will submit to testing under the Implied Consent Law or of the consequences flowing from a test failure or refusal. His Fourth Amendment and § 15 claims focus instead on whether Wilson’s initial decision to pull him over was supported by reasonable suspicion. If it was not, he asserts, then Wilson’s subsequent observation of him and resulting conclusion that there were “reasonable grounds to believe” Martin was driving under' the influence as well as the results of the chemical breath test must be suppressed; they simply cannot be used to support license suspension.
If this were a criminal proceeding, there is no doubt that a traffic stop would be considered a seizure under constitutional law. State v. Morris, 276 Kan. 11, Syl. ¶¶ 3-6, 72 P.3d 570 (2003); State v. Slater, 267 Kan. 694, 696-97, 986 P.2d 1038 (1999); State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998); State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991). To stop a moving vehicle, an officer must have a reasonable suspicion based on articulable facts that a crime has been, is being, or is about to be committed. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); McKeoum, 249 Kan. at 510. A traffic violation provides an objectively valid reason to effect a traffic stop, even if the stop is pretextual. See Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996); State v. DeMarco, 263 Kan. 727, 733, 952 P.2d 1276 (1998). A traffic stop is not magically converted to a “nonseizure” when it leads to a civil or administrative rather than a criminal proceeding. Fourth Amendment and § 15 implications transcend this boundary because those provisions delineate rights that attach to individuals in either circumstance.
Even if constitutional rights to be free from unreasonable searches and seizures are implicated here, the Department asserts that the articulable facts in Wilson’s possession were adequate to support reasonable suspicion that Martin was committing, had committed, or was about to commit a crime. See State v. Toothman, 267 Kan. 412, Syl. ¶ 3,985 P.2d 701 (1999). Martin responds that Wilson made a mistake of law in interpreting the ordinance governing how many rear brake lights on a vehicle must be functioning. In his view, such a mistake of law makes any suspicion Wilson may have harbored inherently unreasonable and constitutionally inadequate to support the traffic stop.
K.S.A. 8-1708(a) requires that “[e]very motor vehicle . . . shall be equipped with two (2) or more stop lamps meeting the requirements of subsection (a) of K.S.A. 8-1721.” K.S.A. 8-1721 requires every vehicle to be “equipped with a stop lamp or lamps on the rear of the vehicle . . . which shall be actuated upon application of the service or foot brake” and sets forth the colors of the “lamp or lamps” and the distance from which they must be visible. The city ordinance that formed the basis for Wilson’s stop of Martin contains provisions identical to K.S.A. 8-1708 and K.S.A. 8-1721.
Before the stop, Wilson observed that only two of the three brake lights on the rear of Martin’s vehicle were operating properly. Believing the ordinance required all three to be functioning, Wilson pulled Martin over. We agree with Martin that Wilson misunderstood and misapplied the ordinance. Two functioning rear brake “lamps” were sufficient under the law.
The reasonableness of an officer’s suspicion is based on the totality of circumstances and is viewed from the perspective of those versed in law enforcement. See Toothman, 267 Kan. at 418 (citing State v. DeMarco, 263 Kan. 727, 734-35, 952 P.2d 1276 [1998], citing State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 [1993]). In light of common sense and ordinary human experience, “reasonable suspicion represents a 'minimum level of objective justification.’ ” Toothman, 267 Kan. at 418 (quoting United States v. Mendez, 118 F.3d 1426, 1431 [10th Cir. 1997], citing United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 [1989]).
We have not previously decided whether an officer’s mistake of law alone may invalidate a traffic stop. Decisions from various panels of our Court of Appeals appear to be inconsistent on this point. Compare State v. Ross, 37 Kan. App. 2d 126, 131, 149 P.3d 876 (2007) (officer lacked reasonable suspicion when defendant crossed fog line; failure to maintain single lane not necessarily violation of statute); State v. Kotos, 35 Kan. App. 2d 769, 777, 134 P.3d 677 (2006) (officer’s observation of vehicle crossing solid double yellow lines while making U-tum on bridge in advance of DUI checkpoint provided objective, articulable factual basis for reasonable suspicion, even though no statute did, in fact, prohibit driver’s actions); State v. Knight, 33 Kan. App. 2d 325, 326, 104 P.3d 403 (2004) (defendant’s failure to signal when pulling out of private parking lot onto a public street not in violation of ordinance; conviction reversed for lack of reasonable suspicion to support stop); and City of Manhattan v. Larson, 26 Kan. App. 2d 851, 853, 994 P.2d 1087 (2000) (officer’s stop of defendant’s truck for expired tag, despite statutory grace period for renewal, valid under reasonable suspicion standard).
The Tenth Circuit has adopted the view that an officer’s mistake of law can make all the difference in ruling on reasonable suspicion. See United, States v. Ramstad, 219 F.3d 1263, 1267 (2000) (mistake of law makes suspicion objectively unreasonable; fundamentally unfair to hold “citizens to the traditional rule that ignorance of the law is no excuse, while allowing those entrusted to enforce the law to be ignorant of it”); see also United States v. Salinas-Cano, 959 F.2d 861, 865-66 (10th Cir. 1992) (Fourth Amendment does not invalidate warrantless search based on a reasonable mistake of fact, as distinguished from a mistake of law). The Eleventh Circuit has ruled similarly. See United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003). We also observe that the rationale of the Knight panel of our Court of Appeals was in accord with that of the Tenth Circuit. See Knight, 33 Kan. App. 2d at 327. In essence, a panel stated that a police officer must be held to a more demanding standard of legal knowledge than any citizen who may be subject to the officer’s exercise of authority.
We find this reasoning persuasive and consequently hold that an officer’s mistake of law alone can render a traffic stop violative of the Fourth Amendment and § 15 of the Bill of Rights. Here, Wilson’s misunderstanding and misapplication of the ordinance on brake fights took him outside the common sense and ordinary human experience that must be considered by us on a challenge to the existence of reasonable suspicion. Wilson thus lacked constitutional authority to stop Martin, and the district judge was correct to this point of the analysis.
Does the Exclusionary Rule Require Reversal of the Suspension ?
Martin insists that the exclusionary rule applicable in criminal cases when reasonable suspicion for a traffic stop is lacking requires suppression and thus reversal of his license suspension. He further suggests that Meigs v. Kansas Dept. of Revenue, 16 Kan. App. 2d 537, 825 P.2d 1175 (1992), and Ostmeyer v. Kansas Dept. of Revenue, 16 Kan. App. 2d 639, 827 P.2d 780 (1992), should guide us on this question.
In Meigs, an officer failed to give Elizabeth Meigs notice of the suspension that would result if she refused to take a breath test. The court determined the State’s failure to comply with mandatory notice provisions in the statute required a sanction, and it drew an analogy between the case before it and criminal cases in which the exclusionary rule is employed to refuse to admit evidence gathered in violation of the Constitution. Ultimately, the court vacated the suspension, ruling that the State’s failure to comply with the statute’s requirements divested it of authority to suspend Meigs’ license. 16 Kan. App. 2d at 543.
Similarly, in Ostmeyer, the court ruled that the State’s failure to provide a licensee with counsel at her request after a breath test required suppression of the test results in an administrative license suspension proceeding. An express statutory provision granted the licensee the right to consult with an attorney after the test. 16 Kan. App. 2d at 642-44.
This case does not involve a violation of a mandatory provision of the Implied Consent Law by an officer of the State. We therefore regard Miegs and Ostmeyer as distinguishable.
Martin’s argument also implies that the exclusionary rule is a constitutional mandate. It is not. United States v. Leon, 468 U.S. 897, 906, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984) (Fourth Amendment contains no provision expressly precluding use of evidence obtained in violation of its commands.).
The exclusionary rule is a judicially created remedy, designed to deter the government from engaging in unconstitutional conduct. See, e.g., Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 362-63, 141 L. Ed. 2d 344, 118 S. Ct. 2014 (1998) (“We have emphasized repeatedly that the government’s use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution.”); Arizona v. Evans, 514 U.S. 1, 10, 131 L. Ed. 2d 34, 115 S. Ct. 1185 (1995) (“exclusionary rule operates as a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule’s general deterrent effect,” citing Leon, 468 U.S. at 906); State v. Turner, 257 Kan. 19, 21, 891 P.2d 317 (1995) (Turner I) (“[exclusionary] rule ‘is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved,’ ” citing United States v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 94 S. Ct. 613 [1974]).
A Fourth Amendment violation is “ ‘fully accomplished’ ” by an illegal search or seizure, and no exclusion of evidence from a judicial or administrative proceeding can “ ‘cure the invasion of the defendant’s rights which he has already suffered.’ ” Leon, 468 U.S. at 906 (citing Calandra, 414 U.S. at 348). As such, the rule does not “proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” (Emphasis added). Stone v. Powell, 428 U.S. 465, 486, 49 L. Ed. 2d 1067,96 S. Ct. 3037 (1976). It applies only in contexts “ ‘where its remedial objectives are thought most efficaciously served.’ ” Calandra, 414 U.S. at 348; see United States v. Janis, 428 U.S. 433, 454, n.29, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976).
The United States Supreme Court has held the rule applicable “only where its deterrence benefits outweigh its ‘substantial social costs.’ ” Pennsylvania Bd. of Probation, 524 U.S. at 363; Leon, 468 U.S. at 907; State v. Turner, 259 Kan. 865, 870-71, 915, P.2d 753 (1996) (Turner II ) (“deciding whether to apply the exclusionary rule must be determined by weighing the extent to which the rule will deter unconstitutional conduct with the cost to the truth-finding process”). And, the Court has set out a framework for deciding which types of proceedings merit application of the exclusionary rule. See Jams, 428 U.S. 433. “Imprecise as the exercise maybe,” a court must weigh the likely social benefits of excluding unlawfully seized evidence against the likely costs. See I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1041-42, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984).
“On the benefit side of the balance ‘the “prime purpose” of the [exclusionary] rule, if not the sole one, “is to deter future unlawful police conduct.” ’ On the cost side, application of the rule means the loss of often probative evidence and all of the secondary costs that flow from the less accurate or more cumbersome adjudication that therefore occurs.” Lopez-Mendoza, 468 U.S. 1041-42 (quoting Janis, 428 U.S. at 446, quoting Calandra, 414 U.S. at 347); State v. McCloud, 257 Kan. 1, 11-12, 891 P.2d 324 (1995).
The United States Supreme Court has noted that, “[i]n the complex and turbulent history of the [exclusionary] rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state.” Janis, 428 U.S. at 447; see Lopez-Mendoza, 468 U.S. at 1041-42; compare One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 700, 702, 14 L. Ed. 2d 170, 85 S. Ct. 1246 (1965) (“the constitutional exclusionary rule does apply to [civil] forfeiture proceedings,” which are “quasi-criminal in character”). Nor does our research reveal any case in which we have previously applied the exclusionary rule to suppress unlawfully obtained evidence in an administrative or civil context. Divine v. Groshong, 235 Kan. 127, 679 P.2d 700 (1984) (exclusionary rule not extended to prohibit introduction of blood test evidence in civil suit; suppression in civil case in which neither State nor its officers were parties would have no deterrent effect upon law enforcement officers); Turner 1,257 Kan. 19, Syl. (evidence illegally seized from probationer not barred from probation revocation proceeding); see also Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 461-62, 980 P.2d 1022 (1999) (suppression of evidence in criminal DUI prosecution based on a lack of probable cause to arrest does not collaterally estop State from arguing in civil license suspension proceeding that officer had reasonable grounds to request breath test pursuant to Implied Consent Law); compare State v. 1990 Lincoln Town Car, 36 Kan. App. 2d 817, 145 P.3d 921 (2006) (noting Fourth Amendment protection applicable to civil forfeiture proceedings, but suppression in related criminal case does not dictate suppression in forfeiture case; collateral estoppel sole issue on appeal). We therefore examine this case under the balancing framework outlined by tire United States Supreme Court.
Public interest demands that alcohol- and/or drug-impaired drivers be removed from the road. The opening provisions of the Implied Consent Law state the legislature’s intention that the remedial act “be liberally construed to promote public health, safety and welfare.” K.S.A. 8-1001(q). And we have recognized that it was designed to counteract the “continuing slaughter on the highways of this state and those of the nation as a whole” by alcohol- and drug-impaired drivers. Popp, 211 Kan. at 768; see K.S.A. 8-1001(q).
The criminal consequences of driving under the influence are provided for in different statutes. Compare K.S.A. 8-1567 (part of uniform act regulating traffic; originally enacted as L. 1974, ch. 33, sec. 8-1567) and K.S.A. 8-1001 et-seq., (implied consent law, originally enacted as L. 1955, ch. 61, sec. 1; substantially revised L. 2001, ch. 200, sec. 12); see State v. Mertz, 258 Kan. 745, 758-61, 907 P.2d 847 (1995) (suspension of driver’s license for driving under influence of alcohol civil remedy designed to protect public, not criminal penalty designed to punish driver). Such civil and criminal proceedings are wholly separate from one another and are intended to serve two different purposes. Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 462, 980 P.2d 1022 (1999); Mertz, 258 Kan. at 759-60.
This court’s decision in Turner I may provide a helpful analogy. The Turner I court concluded that the exclusionary rule generally would not apply to bar evidence illegally seized from a probationer at a probation revocation proceeding. “Any extension of exclusionary rule beyond its traditional applicability in criminal proceedings is warranted only where use of remedy would result in appreciable deterrence of police misconduct.” 257 Kan. at 21-22 (citing Leon, 468 U.S. at 909). We noted that use of the rule might be warranted if, under a totality of circumstances, police misconduct was egregious. 257 Kan. at 27. The facts here certainly do not reveal egregious police misconduct.
Our sister states have reached varying conclusions on the applicability of the exclusionary rule in this context.
In Tornabene v. Bonine ex rel. Highway Dept., 203 Ariz. 326, 333, 54 P.3d 355 (2002), rev. denied May 28, 2003, Wendy Lyn Tomabene was stopped by police based on a tip from an anonymous caller. She failed field sobriety tests and refused or unreasonably delayed a breath test. At her administrative license suspension hearing, the administrative law judge mled against her. She appealed, challenging the reasonableness of the initial traffic stop. The Superior Court vacated the ALJ’s order of suspension, implicitly concluding that “ ‘reasonable grounds to believe that [a motorist] was driving . . . [w]hile under the influence of intoxicating liquor’ . . . require[d] a predicate finding that the investigatory stop that ultimately led to those grounds for belief was lawful.” 203 Ariz. at 332.
On review, the Arizona Court of Appeals noted its obligation to “decide cases on nonconstitutional grounds if possible,” and first addressed whether its statute required the hearing officer to determine whether Tomabene had been legally stopped. 203 Ariz. at 332. Like Kansas, Arizona limits the scope of an administrative license suspension hearing under its implied consent provisions. Such a hearing may decide
“ ‘only the issues of whether:’
1. A law enforcement officer had reasonable grounds to believe that the person was driving or was in actual physical control of a motor vehicle in this state either:
(a) While under the influence of intoxicating liquor or drugs.
(b) If the person is under twenty-one years of age, with spirituous liquor in the person’s body.
2. The person was placed under arrest.
3. The person refused to submit to the test.
4. The person was informed of the consequences of refusal.’ ” 203 Ariz. at 331-332 (citing Ariz. Rev. Stat. Ann. § 28-1321[K][l]-[4]).
The Tomabene court concluded that the statute expressly and clearly prohibited the hearing officer from deciding the validity of the stop. 203 Ariz. at 333. Even if the statute’s language were not clear,
“the obvious spirit, purpose, context, and effect of the implied consent statute [citation omitted] establish a clear legislative intent to limit the issues for administrative review, not expand them to include consideration of the constitutional validity of the investigatory stop leading to a criminal DUI arrest. As our supreme court has stated, a civil license suspension proceeding for a DUI arrestee’s refusal of testing is ‘separate from and unrelated to’ a criminal prosecution for DUI, and the ‘outcome of one proceeding usually will not have any effect on the outcome of the other.’ [Citation omitted.] In sum, we find nothing in § 28-1321 or its underlying rationale to suggest any legislative intent to incorporate all the procedural protections available to a DUI criminal defendant into the civil license suspension process. Rather, the legislature apparently intended such hearings to narrowly focus, inter aha, on whether the law enforcement officer ‘had reasonable grounds to believe’ that the motorist had been driving while under the influence of alcohol or drugs, regardless of the circumstances of the underlying stop.” 203 Ariz. at 333.
The Arizona Court of Appeals, mindful that a statute “cannot circumvent a firmly established constitutional right,” then moved to the propriety of applying the exclusionary rule if Tomabene’s stop violated the Fourth Amendment. It held:
“Based on our evaluation of the relevant policies and our weighing of the relative benefits and detriments, we hold that the exclusionary rule, although required to preserve and protect Fourth Amendment rights in the criminal context, should not be applied to civil license suspension hearings under § 28-1321(K).” 203 Ariz. at 336.
It cited similar decisions from several other states. See Fishbein v. Kozlowski, 252 Conn. 38, 49-50, 743 A.2d 1110 (1999) (“[F]ailure to comply with the requirements for criminal prosecution as they apply to investigatory stops should not prevent suspension of the license of a person arrested upon probable cause to believe that he was operating under the influence of intoxicating liquor.”); Powell v. Secretary of State, 614 A.2d 1303, 1305 (Me. 1992) (administrative hearing officer in license suspension pro ceeding need not “determine the legality of the stop or whether there was probable cause to stop the vehicle”); Riche v. Director of Revenue, 987 S.W.2d 331, 333, 336 (Mo. 1999) (refusing to impose on license suspension requirement of “ probable or reasonable cause to stop’ for drivers over twenty-one years of age”); Lopez v. Director, N. H. Div. of Motor Vehicles, 145 N.H. 222, 224, 761 A.2d 448 (2000) (“A valid arrest and traffic stop, while vital to a criminal proceeding, is not a required predicate under the [license suspension] statute”); Com. Dep’t of Transp. v. Wysocki, 517 Pa. 175, 179, 535 A.2d 77 (1987) (alleged illegality of vehicle stop does not prevent suspension of license for refusal to submit to breathalyzer test); see also Nevers v. State, Dept. of Admin., 123 P.3d 958, 964 (Alaska 2005) (exclusionary rule generally does not apply to license revocation proceedings; exception would trigger rule in case where “police misconduct . . . shocks the conscience, or is of a nature that calls for the judiciary, as a matter of judicial integrity, to disassociate itself from benefits derivable therefrom”); Chase v. Neth, 269 Neb. 882, 892, 697 N.W.2d 675 (2005) (holding exclusionary rule inapplicable to administrative license revocation proceedings, except as indirectly applied through later statutory provision that suspension for refusal to submit to chemical test dependent upon successful criminal prosecution); Jacobs v. Director, Div. of Motor Vehicles, 149 N.H. 502, 823 A.2d 752 (2003) (affirming Lopez; reasonableness of underlying stop irrelevant in driver’s license suspension proceeding; unlawful stop does not trigger application of exclusionary rule).
A minority of jurisdictions that have considered the issue, as noted by the Tomabene court, “have superimposed on their license suspension statutes a requirement that the underlying stop be lawful, even when the statutes contained no such condition.” Tornabene, 203 Ariz. at 334; see, e.g., People v. Krueger, 208 Ill. App. 3d 897, 906, 567 N.E.2d 717 (1991), cert, denied 503 U.S. 919 (1992) (“[W]e are unwilling to conclude that the legislature intended to authorize the suspension of drivers’ licenses based on the fruits of illegal arrests”); Olson v. Com'r of Public Safety, 371 N.W.2d 552, 556 (Minn. 1985) (investigatory DUI stops that result in license revocation proceedings must comply with Fourth Amendment standards); see also State v. Lussier, 171 Vt. 19, 28, 757 A.2d 1017 (2000) (relying on Vermont Constitution; state constitution construed more liberally than Fourth Amendment); Pooler v. MVD, 306 Or. 47, 51, 755 P.2d 701 (1988) (en banc) (court refuses to “attribute to the legislature the intent to sanction unconstitutional procedures”; suspension of driver’s license under implied consent statute must be based on valid arrest; otherwise, resulting evidence must be excluded); Watford v. Bur. of Motor Vehicles, 110 Ohio App. 3d 499, 502, 674 N.E.2d 776 (1996) (“a lawful arrest, including a constitutional stop,” required before refusal to take test triggers license suspension).
California's cases are inconsistent. See Gikas v. Zolin, 6 Cal. 4th 841, 848, 25 Cal. Rptr. 2d 500, 863 P.2d 745 (1993) (en banc) (license suspension requires lawful arrest based on constitutional stop); but see Park v. Valverde, 152 Cal. App. 4th 877, 61 Cal. Rptr. 3d 895 (2007), rev. denied September 25, 2007 (suppression in license proceeding not required, although traffic stop based on outdated information).
We regard the reasoning and outcomes of the Arizona Court of Appeals and the majority of our sister states as more sound. The balance outlined by the United States Supreme Court between the benefits and costs of application of the exclusionaiy rule, when employed in driver’s license suspension proceedings, tips in favor of the Department and against Martin and other drivers. The deterrent effect of the rule is already accomplished in the criminal arena. Any additional deterrent effect on law enforcement violation of the Fourth Amendment and § 15 to be gleaned from extension of the rule beyond the criminal DUI setting would be minimal, and it cannot outweigh the remedial imperative of preventing alcohol- and/or drug-impaired drivers from injury or killing themselves or others. Responsive administrative license regulation is essential to that public good. It should not be hamstrung by application of the rule here.
Court of Appeals is affirmed. District court is reversed.
Davis and Johnson, JJ., not participating.
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