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Parks, J.:
In July 1978, the appellant Kansas-Nebraska Natural Gas Company (referred to hereafter as K-N), a public utility operating within the State of Kansas, filed an application based on a test year ending December 31, 1977, for rates sufficient to produce increased revenue in the amount of $3,700,035. The Kansas Corporation Commission (KCC) considered the application and approved rates which increased revenues by $604,464. Rehearing was denied and K-N appeals.
It is undisputed that this court has exclusive jurisdiction to review orders of the KCC involving public utility rates (K.S.A. 1979 Supp. 66-118a) and that we are limited to determining whether the order is lawful or reasonable (K.S.A. 1979 Supp. 66-118d). Other well established rules regarding our scope of review are summarized in Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380, 595 P.2d 735, rev. denied 226 Kan. 792 (1979), and Sekan Electric Coop. Ass’n v. Kansas Corporation Commission, 4 Kan. App. 2d 477, 609 P.2d 188 (1980). In sum, to be lawful a KCC order must be made within the statutory authority of the Commission; to be reasonable it must be supported by substantial competent evidence.
I.
K-N contends that the KCC order is both unlawful and unreasonable. It further argues that the approved rates are confiscatory and violate its constitutional right to due process because they would not produce a reasonable return or just compensation upon the value of its property. K-N’s argument relating to confiscation attempts to broaden our scope of review to include an independent judicial judgment on the facts as well as the law.
The statutory standard of K.S.A. 1979 Supp. 66-118d requiring “reasonable” utility rates is higher than the constitutional standard for due process. In other words, a rate cannot be confiscatory if it is reasonable. Therefore, even if the scope of review is broader for a due process complaint, a determination that a rate order is reasonable would logically preclude consideration of an allegation of confiscation. In Power Comm’n v. Hope Gas Co., 320 U.S. 591, 88 L.Ed. 333, 64 S.Ct. 281 (1944), the U.S. Supreme Court said, “If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry . . . is at an end.” Hope, 320 U.S. at 602. The Court also said, “Since there are no constitutional requirements more exacting than the standards of the Act, a rate order which conforms to the latter does not run afoul of the former.” Hope, 320 U.S. at 607. Accordingly, our review is limited to the statutory standard of K.S.A. 1979 Supp. 66-118d.
II.
We now turn our attention to the general allegations of K-N that (1) the order lacks sufficient findings of fact and conclusions of law, (2) the KCC failed to consider all of its testimony, and (3) the KCC adopted an unduly strict accounting viewpoint.
K-N’s argument that the KCC failed to comply with its own rule, K.A.R. 82-1-232 (a) (3), is premised on the allegation that the order does not “contain a concise and specific statement of the relevant law and basic facts” which persuaded the Commission in making its decision. This rule is designed to facilitate judicial review and to avoid unwarranted judicial intrusion into administrative functions. The Commission must, therefore, express the basic facts upon which it relied with sufficient specificity to convey to the parties, and to the courts, an adequate statement of facts which persuaded the Commission to arrive at its decision. Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 744-45, 433 P.2d 572 (1967). We have experienced no problem in determining what the KCC held or what matters it considered in reaching its conclusions. Instead, we found that the order — 80 pages in length — summarized the position of the Staff and K-N on each of the issues and accepted one position or the other in its conclusions. Thus we are permitted a meaningful review of the issues without having to search the record or to infer outside facts.
Concerning K-N’s argument that the KCC disregarded its evidence in making its order, we note that some árguments presented by K-N were adopted by the Commission and that the position of both the K-N and Staff were set forth in the order on all disputed points.
K-N further alleges that the KCC placed undue emphasis on accounting evidence and failed to consider other important aspects of rate-making. This allegation may be answered by the following statement:
“The power of review does not give the courts authority to substitute their judgment for that of the commission. In reviewing the commission’s order the facts that are considered and the relative weight to be given them in making a decision are matters left to the commission’s discretion unless the commission has acted unlawfully or arbitrarily without supporting evidence. (Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, Syl. ¶ 6, 386 P.2d 266.) If the order of the commission is based upon substantial and competent evidence the order will generally be considered reasonable.” Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). (Emphasis added.)
III.
Of more concern is K-N’s contention that the “used or required to be used” standard was improperly applied by the KCC in determining the K-N rate base. K.S.A. 1979 Supp. 66-128 provides a guideline for the determination of a rate base by prescribing that only property used or required to be used must be evaluated. It further states that property of any public utility which has not been completed and dedicated to commercial service shall not be deemed to be used or required to be used in its service to the public except that any property of a public utility, the construction of which will be completed in one (1) year or less, may be deemed to be completed and dedicated to commercial service.
Recently our Supreme Court interpreted K.S.A. 1979 Supp. 66-128 to mean that the “inclusion or exclusion of CWIP [construction work in progress] in the rate base [is] a discretionary function of the Commission to be based upon a factual determination, from the evidence submitted, whether the requested CWIP was ‘property . . . used or required to be used in its services to the public within the state of Kansas . . . .’ (K.S.A. 66-128.)” Kansas City Power & Light Co. v. KCC, 224 Kan. 86, 88, 578 P.2d 254 (1978). Thus, the KCC cannot automatically exclude construction work because it is not completed without also determining that it is not required to be used. The court further held that the inclusion of CWIP continues to be a discretionary matter for the Commission only to the extent that it will be completed in one year or less. Based on these rulings, we now turn to K-N’s argument that the KCC improperly excluded two items from the rate base.
A. Gas Wells Completed but Not Connected.
K-N sought to have the expenses relating to 48 gas wells which were completed but not connected to a gathering system included in the rate base. The Staff recommended that the wells be excluded because they were not connected to a gathering system and were not used or required to be used to provide service to ratepayers at the end of the test year. K-N contended that the wells were required to be used for service because “they are an inventory of gas reserves which assures continued deliverability.” The order in this case stated that K.S.A. 1979 Supp. 66-128 “does not allow the inclusion in rate base of utility property merely because it is ‘useful’ in service of the public; with the exception of plant under construction to be completed within one year, only the property ‘used or required to be used’ in serving the public is to be included in rate base.” The KCC then found that until such time as these wells are furnishing gas to applicant’s gas system, the wells and their related equipment would not be included in applicant’s rate base.
K-N argues that the KCC conclusion is unlawful and unreasonable because: (1) The order did not specify adequate findings of fact and conclusions of law; (2) the conclusion that the wells are “useful” is equivalent to a finding that they are required to be used; and (3) the KCC did not properly consider the benefit of property held for future use, but automatically excluded it if it was not used by the end of the test year.
With regard to the first argument, it is clear from the order that the KCC recognized the ultimate usefulness and importance of gas resérves to the ratepayers but held that since the 48 wells were not furnishing gas to K-N’s system, they would not be included in the rate base. We find this decision states sufficient facts and conclusions to permit our review.
We next turn to K-N’s argument that the KCC’s finding that the wells were “useful” is equivalent to a finding that they were “required to be used.” Many other jurisdictions state the test for rate base includability in terms of whether the property is “used and useful.” 73 C.J.S., Public Utilities § 18. As acknowledged in Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, 675-76, 544 P.2d 1396 (1976), this test is basically the same as the “used or required to be used” phraseology employed by K.S.A. 1979 Supp. 66-128. This does not mean, however, that property which is merely useful is required to be used. The “used and useful” standard is a two-part test: property must be both used and useful to be included in the rate base under this test. The Kansas standard of includability is disjunctive; property must be included in rate base if it is either used or required to be used; i.e., if not in actual use, its use must be necessary. Property may well be useful without being either used or required to be used. We therefore hold that a finding that property is “useful” is not equivalent to a finding that it is “used” or “required to be used.”
Concerning the final argument, it must first be emphasized that the used or required to be used standard is a discretionary test. The Commission may. not, however, arbitrarily exercise this discretion by substituting a time limit by which property must be used to be required. The necessity of owning or developing this property for the future benefit of present ratepayers must be considered. Inasmuch as K-N failed to sustain its burden of proving that the wells were used or required to be used, we cannot say in this case that the KCC abused its discretion in excluding the wells from the rate base. However, a more detailed explanation of the reasoning of the KCC would be helpful in the future to reassure this court that the KCC is exercising its discretion properly.
B. Advance Payment.
In 1973, K-N assigned to Midlands Gas Corporation, its wholly owned subsidiary, the right to acquire leases in an area of Montana known as the Bowdoin Field. The two companies entered into a contract by which K-N paid Midlands a $10 million advance for developing and exploring that area in return for the right to purchase the gas produced. Midlands was required to drill at least 100 net wells each year in 1974,1975 and 1976 and to pay $33,333.33 for each well short of the 100 required. K-N was also to recover the amount of the advance by retention of 50% of the sales price of gas sold or 50% of the take-or-pay payments required of K-N under the contract. The contract further provided that if K-N had not recovered the amount of its advance in five years, Midland would repay the remaining balance. This contract was subsequently amended in 1975 and 1976.
The KCC concluded that the remaining advance payment of’ $1,812,225 could be included in the rate base only if it was used or required to be used to provide service to Kansas ratepayers and that the State of Kansas was not bound by the fact that the Federal Energy Regulatory Commission (FERC) had approved the specific contract between Midlands and K-N. The Commission excluded the advance payment from the rate base, concluding that while the ultimate benefit of exploration and development was apparent, the contract was not proven to be required.
The FERC’s regulation of the advance payment contract with an affiliate does not preclude KCC’s scrutiny of the agreement to determine whether it is required for service to the ratepayers. Application of this discretionary test could involve weighing the future benefit to ratepayers against the costs extracted by the contract to assure that the former is not too speculative in light of the latter. Once again, this type of evaluation is reserved for the discretion of the KCC, and this court may not substitute its judgment in the absence of an abuse of that discretion.
Here, the KCC determined that K-N sacrificed important benefits in negotiating amendments to the contract. It is not unreasonable to conclude that these sacrifices could negate the benefits of exploration by increasing the costs of the contract. We therefore hold that the KCC’s exclusion of the advance payment was not an abuse of discretion.
IV.
K-N has challenged the accounting methods applied by the KCC to several items of the rate base, including unsuccessful exploration and development costs, gas stored underground-non-concurrent, depreciation, amortization and depletion of jurisdictional reserves, and accumulated depreciation-general. The issues raised with regard to these items involve technical accounting decisions which are precisely the type of questions best determined by the expertise of the KCC. It is only when such decisions are so wide of the mark as to be outside the realm of fair debate that this court may nullify them. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975).
After carefully reviewing the record and order of the KCC with regard to these items, we conclude that there was substantial competent evidence to support the KCC’s accounting methods. The rate base adjustments approved by the KCC are therefore reasonable.
V.
The next point raised by K-N concerns the KCC’s reduction of working capital to reflect an average tax accrual balance. Tax accruals are sums collected from ratepayers which must be periodically forwarded to various taxing authorities. The working capital allowance does not generally include tax accruals because these funds provide the utility with a positive source of cash which may be used in place of funds usually supplied by investors. To include tax accruals in the rate base would be to require ratepayers to pay a return on funds already supplied by them in the form of prepaid taxes. Gas Service Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 623, 609 P.2d 1157 (1980). It was not K-N’s contention that tax accruals should be a part of working capital. Their reasoning was that because the tax accruals corresponded roughly to an amount required for compensating bank balances, rather than adding a sum for compensating bank balances and then subtracting a comparable figure for tax accruals, they offset both amounts from their working capital computation.
Compensating bank balances are those balances which banks require businesses to maintain in order to insure a line of credit. After Staff adjusted working capital to exclude tax accruals, K-N sought to present evidence on rebuttal that it was required to maintain minimum and compensating bank balances which should offset the tax accruals. K-N did not offer any evidence to indicate that credit could not be obtained without maintaining these balances. On surrebuttal, Staff testified that K-N was apparently attempting to include the compensating bank balances in the rate base via an offset against an item clearly not includable — tax accruals — without presenting any supporting evidence for treating the expenses as working capital. Staff further testified that the compensating bank balances should not be included in working capital because the stockholders and not the ratepayers are benefited by the K-N’s ability to obtain a line of credit at a lower interest rate.
The KCC properly excluded tax accruals from working capital and placed the burden on K-N to justify inclusion of the compensating bank balances. The KCC found that K-N did not meet this burden; however, the order used an inappropriate choice of words in describing this failure by stating that there was a lack of “compelling” evidence. The proper burden of proof which K-N had to meet was a preponderance of the evidence. The mention of an improper standard, however, does not invalidate the order if there is substantial competent evidence to support the KCC’s decision under the proper standard of proof and no bias or prejudice is apparent from the recitation of the higher standard. Kansas-Nebraska Natural Gas Co., 217 Kan. at 614.
The inclusion of compensating bank balances in the working capital is an issue on which the various jurisdictions are split. Cf. Re Potomac Electric Power Co., 1 Pub. U. Rep. 4th 238, 264 (Md. 1973); Re South Central Bell Teleph. Co., 22 Pub. U. Rep. 4th 281 (Tenn. 1977); and Pennsylvania PUC v. Duquesne Light Co., 16 Pub. U. Rep. 4th 36 (Pa. 1976), with Boston Edison v. Dept. of Public Utilities, 375 N.E.2d 305 (Mass. 1978); Re Iowa Pub. Service Co., 21 Pub. U. Rep. 4th 339 (S.D. 1977); and Re Missouri Public Service Co., 25 Pub. U. Rep. 4th 24 (Mo. 1978). In light of Staff testimony that the balances assure a lower interest rate, and absent proof that the maintenance of these bank balances is a necessary operating expense without corresponding income, we cannot say that the order of the KCC excluding compensating bank balances from working capital is unreasonable.
VI.
The next point appealed by K-N involves the figures adopted by the KCC for Kansas pro forma sales. Since K-N serves several jurisdictions, its costs are figured on a system-wide basis and a ratio must be computed to allocate the proportionate share of cost of service to each jurisdiction. This is accomplished by adding up total Kansas sales and total annual sales and then dividing the former by the latter to arrive at an allocation ratio. The computation of each of these sales figures must be normalized and annualized to reflect an average year’s conditions. This allocation ratio is then applied to the various expenses and taxes which make up the cost of service to Kansas.
In K-N’s application, it proposed an allocation ratio which was apparently normalized. Staff accepted this ratio as one which appeared appropriate for the utility and its operating conditions, but disagreed with the actual figure put forth by K-N to represent Kansas sales. The KCC accepted Staff’s adjustments to pro forma sales and K-N now contends that this was error. Since annualized Kansas sales are used to compute Kansas operating revenues and revenue deficiency as well as the allocation ratio, K-N contends that Staff’s adjustments to Kansas sales without corresponding adjustments to other system sales resulted in double normalization.
The conflict between the parties is essentially a mathematical dispute. The allocation ratio is simply a proportion of similarly computed figures. Once that ratio is accepted, adjustments to the figures used to compute the numerator or denominator of that ratio do not necessitate recomputation of the ratio so long as the normalization or adjustment techniques would have a proportionate effect on the remaining half of the ratio. This is the heart of the disagreement between K-N and the KCC. K-N presented testimony that the effect of the Staff’s normalization methodology on the other jurisdictional sales would not be proportionate to the changes brought about in the Kansas sales figure. The KCC agreed with Staff’s assessment of both the Kansas sales and the allocation ratio.
Once again, it must be remembered that the legislature has vested the KCC with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 511, 561 P.2d 779 (1977). The testimony of K-N regarding the computation of operating revenues was not sufficient in the eyes of the KCC to meet its burden of proof. We cannot say that this determination was so wide of the mark as to be outside the realm of fair debate and therefore find that the KCC did not err in figuring Kansas pro forma sales.
VII.
The final point raised by K-N concerns the KCC’s exclusion of certain rebuttal testimony. Generally, a trial court’s ruling with regard to the admissibility of testimony offered in rebuttal will not be grounds for reversal unless the court abused its discretion to the prejudice of appellant. Ellis v. City of Kansas City, 225 Kan. 168, 176, 589 P.2d 552 (1979). Furthermore, to find an abuse of discretion an appellate court must determine that no reasonable person could take the view adopted by the trial court. In re Pennington, 224 Kan. 573, 577, 581 P.2d 812 (1978), cert. denied 440 U.S. 929 (1979). The review of an evidentiary ruling of an administrative body involves the same test of discretion. Here the testimony presented as rebuttal by K-N could reasonably have been viewed as contradictory to the evidence presented in its case in chief. Therefore, we find that the KCC did not abuse its discretion in excluding this testimony.
VIII.
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Rees, J.:
Although originating as a negligence action, this case comes before us on appeal by defendant City of Sawyer and defendant Gene Aubley from an order dismissing their third party claim against Continental Research Corporation. The third party claim is a products liability claim for indemnification.
The plaintiffs are owners of a fifty-acre pasture abutting three sides of a fenced 3.7 acre tract owned by the City and within which the City maintains and operates sewage lagoons. On July 13, 1975, plaintiffs put 53 head of cattle in their pasture. Four days later, on July 17, Aubley, a city councilman, sprayed a herbicide solution within the City tract and along the fence line separating it from plaintiffs’ pasture. Three days after Aubley sprayed, on July 20, plaintiffs’iound six of their cattle dead and many obviously sick. Examination of the cattle revealed they were victims of arsenic poisoning.
The herbicide solution was made by adding water to a chemical compound of sodium arsenate and inert ingredients. It appears it was in 1973 that a quantity of the herbicide was sold to the City by Continental under the latter’s product name “CR-125.” It was delivered to the City not later than April, 1974. Continental is a marketer of pesticides and herbicides. The Huge Company, Inc., is engaged in direct sales of chemicals as well as packaging of chemicals for sale by others under private label. The CR-125 purchased by the City from Continental was packaged and labeled by Huge and shipped by Huge to the City as a private label product of Continental’s. It was packaged in a metal drum that bore a use direction and warning label. The particular wording of the label will not be set out; it does not affect our disposition of this appeal.
Litigation was begun on January 9, 1976, by the filing of a petition by plaintiffs for property and consequential damages. It was alleged Aubley negligently sprayed the herbicide solution in that the herbicide was placed on or allowed to drift onto plaintiffs’ side of the fence where it was ingested by the cattle. The named defendants were the City and Aubley. It is uncontroverted that the physical cause of plaintiffs’ property damage was the ingestion by the cattle of the herbicide solution or its residue.
In response to plaintiffs’ petition, defendants filed an answer denying they were negligent. Defendants promptly filed a third party petition under K.S.A. 60-214(a) claiming entitlement to recovery from Continental in such amount as defendants might be found liable to plaintiffs; defendants sought to recover over, to be made whole, to be indemnified. The doctrine of active-passive negligence, breach of express and implied warranties, and the rule of strict liability in tort were the asserted theories for recovery by defendants. On appeal, no reliance is placed on a claim of breach of express warranty. (Although the targeted result is the same, we believe it correct that strictly speaking it is only the active-passive negligence theory that seeks indemnity; the other theories seek recovery for damage, with the damage being defendants’ liability to plaintiffs.)
Without surprise, Continental brought Huge in as an additional third party defendant alleging the same entitlement to recovery as claimed against Continental by defendants.
No claim was asserted by plaintiffs against Continental or Huge. No claim was asserted by defendants against Huge.
After completion of discovery, Continental and Huge moved for summary judgment, or in the alternative for an order of dismissal, against defendants. In due course, the trial court ordered dismissal of defendants’ third party claim. The last of the series of memoranda and journal entries memorializing the trial court decision was filed January 11, 1978. Despite recitation by the trial court that its action was dismissal, there was taken into consideration the full discovery conducted by the parties and the ruling is to be treated as one for summary judgment. K.S.A. 60-212(b); Hiett v. Brier, 2 Kan. App. 2d 610, 614-615, 586 P.2d 55, rev. denied 225 Kan. 844 (1978).
On January 27, 1978, plaintiffs’ claim against defendants was dismissed with prejudice by the entry of a journal entry reflecting that in consideration of payment of a specified amount by defendants plaintiffs agreed to:
“Release . . . and forever discharge the said defendants and all other persons, firms and corporations, both known and unknown, of and from any and all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done by anyone prior to and including the date hereof on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 17th day of July, 1975, near Sawyer, Kansas.
“[T]his release shall be a complete bar to all claims or suits for injuries or damages of whatsoever nature resulting or to result from said accident.”
The release is a full release; it is in no sense a partial release; it includes no reservations or qualifications; it makes no assignment of plaintiffs’ claim to defendants; it creates no rights of subrogation in defendants. The record reflects no tender of defense made by defendants to Continental or Huge, no approval of the settlement by Continental or Huge, and no submission of proposed settlement to Continental or Huge for their information or approval.
The focal point of defendants’ claim is the label affixed to the CR-125 drum. Defendants contend the label language afforded inadequate use warning. In regard to their active-passive negligence theory, defendants argue Continental negligently failed to adequately warn. In regard to their breach of implied warranty and strict liability theories, defendants argue the product defect was inadequate warning. (Kansas cases recognize that failure to warn and inadequate warning may be negligence or a product defect under the doctrines of strict liability and implied warranty. Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 318, 607 P.2d 1339 [1980]; Prentice v. Acme Machine & Supply Co., 226 Kan. 406, 408, 601 P.2d 1093 [1979]; Jones v. Hittle Service, Inc., 219 Kan. 627, 634-635, 549 P.2d 1383 [1976].) Defendants argue that whether the label language constituted adequate use warning is a question properly submissible to a jury for determination; that a finding that the use warning was inadequate would support a finding Continental was negligent thereby affording a basis for the further assertedly factual issue of whether negligence of Continental’s was active while defendants’ negligence was passive; and that a finding that the use warning was inadequate would constitute a finding that the CR-125 was defective thereby fixing liability on the theories of implied warranty and strict liability. Simply stated, the trial court concluded that as a matter of law defendants’ own conduct, negligent spraying of the herbicide solution, prevented their recovery under all theories relied upon in their third party claim.
The essence of this case is that a purchaser of a product is seeking to be made whole for his legal liability to a third party resulting from the purchaser’s negligent use of the product. Since defendants are not sellers, this case does not involve the question of indemnification between sellers in the distributive chain. Insofar as implied warranty and strict liability are concerned, the status of the third party, the plaintiffs, is that of a bystander. (As an example of facts giving rise to liability to a bystander in strict liability, see Tucson Industries, Incorporated v. Schwartz, 108 Ariz. 464, 501 P.2d 936 [1972].)
We have found this case to have required consideration of a honeycomb of questions, only a few of which have been treated by the parties. We have endeavored to familiarize ourselves with the various viewpoints promulgated by jurists and other writers and to satisfy ourselves as to which issues are material to this decision. The directly and indirectly involved issues are discussed in literature of sufficient quantity to satisfy even the most voracious appetites of students of the law. Present expression of answers is not required for those related questions and issues we have found not material. Our answers and holdings will not be expansive. We suggest examination of the decisions and literature referred to in the case authorities we cite.
To obtain indemnity in the absence of defendants’ tender of defense to Continental or submission of proposed settlement for approval, defendants must establish by a preponderance of the evidence the existence of an obligation to plaintiffs which could not be legally resisted; they must prove actual liability. Cason v. Geis Irrigation Co., 211 Kan. 406, 413, 507 P.2d 295 (1973); Fenly v. Revell, 170 Kan. 705, 712, 228 P.2d 905 (1951); 41 Am. Jur. 2d, Indemnity § 33, p. 723. See also Parfait v. Jahncke Service, Inc., 484 F.2d 296, 304-305 (5th Cir. 1973), cert. denied 415 U.S. 957 (1974); Pan American Petroleum v. Maddux Well Service, 586 P.2d 1220, 1225 (Wyo. 1978). Proof of actual liability is required no matter which of defendants’ theories is addressed.
If defendants were liable to plaintiffs, it was because plaintiffs’ cattle were damaged as a result of Aubley’s failure to act with due care under the circumstances; he was not reasonably careful; his conduct did not comply with the standard of care that would have been met by that venerable creature of the law, the reasonably prudent man; he was negligent. There was no liability of defendants to plaintiffs under the doctrine of implied warranty or under the rule of strict liability.
To find Aubley’s conduct was negligence entitling plaintiffs to compensation for damage to their cattle requires the finding that Aubley knew, or by law is charged with having known, the toxic nature of the herbicide solution rendered his spraying of the solution on the day and at the location involved foreseeably dangerous to the well-being of plaintiffs’ cattle. Without inclusion of Aubley’s knowledge of danger as one of the circumstances under which his conduct is evaluated, there is no rational basis upon which a factfinder could find his conduct negligent.
Aubley read the use warning label. If the use danger was not patent to Aubley absent the label, the label language constituted an adequate warning for it either actually warned him or it was adequate to legally charge him with knowledge of the danger. This reduces defendants’ position to contention that Continental failed to warn Aubley of danger of which Aubley knew. With substantial persuasiveness, it may be argued this alone renders defendants’ position on appeal untenable on the reasoning that Continental’s purported failure to adequately warn was not causally related to plaintiffs’ loss and, as additional alternative reasoning with respect to strict liability, that Aubley’s conduct constituted misuse of the product. However, we do not base our determination of this appeal on this reasoning even though it may be correct and dispositive.
On January 24, 1976, in Brooks v. Dietz, 218 Kan. 698, 700-702, 545 P.2d 1104 (1976), our Supreme Court announced judicial adoption of the rule of strict liability in tort. The rule was applied in the personal injury action before it, a products liability case arising out of a propane gas explosion in 1970. We find Brooks must be read to not only announce the judicial adoption of the rule of strict liability in tort, but also to say that in products liability cases the rule of strict liability in tort wholly supplants the Kansas common law of implied warranty of fitness for ordinary purposes intended. Further, we perceive no reason that strict liability is not to be applied at least as broadly as implied warranty has been applied.
By supplanting implied warranty with strict liability, the commencement of the running of limitations is extended from the time of sale to the time of the injury-causing event, engagement in various rationalizations and legal fictions to find implied warranty applicable to particular cases is rendered unnecessary, and the jargon of implied warranty is discarded in favor of the new and as yet uncertain jargon of strict liability. Doubtless there are other consequences but at the moment these strike us as the principal practical ones.
Brooks makes no mention of the Uniform Commercial Code and its provisions regarding implied warranties and remedies for their breach; the parties before us make no reference to the Uniform Commercial Code and neither do we, except to say we find it does not require conclusions contrary to those we express in this case.
The rule of strict liability in tort adopted in Brooks is stated in Restatement (Second) of Torts § 402 A (1966):
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
Examination of statement of the rule discloses it is applicable to physical harm to the user or consumer, or to his property. The defendants in this case do not seek compensation for physical harm to their person or property; it is plaintiffs’ property that sustained physical harm.
Arguably there is case authority denying recovery under strict liability for monetary liability suffered by a user where the physical injury or damage is to the person or property of a third party. E.g., General Motors Corp. v. Simmons, 558 S.W.2d 855, 860 (Tex. Civ. App. 1977). Adherence to such conclusion would preclude recovery by defendants. There is case authority that tacitly if not directly acknowledges the propriety of recovery in strict liability for a user’s monetary liability for damage to a third party’s person or property, e.g., Suvada v. White Motor Co., 32 Ill. 2d 612, 624, 210 N.E.2d 182 (1965). We assume the propriety of such recovery and we will not pursue the questions of responsibility under strict liability in tort for consequential damages and commercial or economic losses, whether direct or indirect. We do this because of our conviction that defendants’ strict liability claim against Continental is otherwise precluded.
Kansas has legislatively adopted the doctrine of comparative negligence, albeit modified and not pure, to apply to causes of action accruing on or after July 1, 1974. K.S.A. 60-258a; K.S.A. 60-258b.
Review of precedential decisions in Brooks gave rise to the observation that those decisions provided signposts. 218 Kan. at 702. Similarly we find in the decisions of our Supreme Court signposts for application of our legislatively adopted doctrine of comparative negligence to our judicially adopted rule of strict liability.
In Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), it is held the intent and purpose of adoption of our comparative negligence statute was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gives rise to the injuries and damages. It is said in Brown that the statute implements the legislative intent to equate recovery and duty to pay to degree of fault (224 Kan. at 203) and that proportionate liability based on fault is an independent aim and a purpose of the statute (224 Kan. at 206). See also Eurich v. Alkire, 224 Kan. 236, 237, 579 P.2d 1207 (1978). The statute abolishes the concept of joint and several liability of joint tortfeasors. 224 Kan. 195, Syl. ¶ 5; 224 Kan. at 237.
After Brown, which arose out of a two-vehicle intersection accident where the parties were the driver of one vehicle and the owner-bailor of the other vehicle, have come Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978), and Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 582 P.2d 271 (1978).
Wilson involved the statutory liability of the State (which was immune from liability based on negligence) arising out of K.S.A. 1977 Supp. 68-419 (since repealed) for damages causally related to a highway defect, a liability not based on negligence. It is there said the “intent and purpose of the legislature in adopting [the comparative negligence statute] was to impose individual liability for damages based on proportionate fault of all parties” to the injurious occurrence and “[i]n the context of comparative negligence, highway defects claimed to have contributed to the occurrence from which the injuries and damages arose must be compared to the alleged negligence of other parties if the intent of K.S.A. 60-258a is to be accomplished.” 224 Kan. at 463.
Thomas, also a highway defect case, concerned the statutory liability of a township arising out of K.S.A. 68-301 (since repealed). It was held liability under that statute was a statutory strict liability not based on negligence (due care no defense) and although the language of the statute restricted its benefit to persons injured or damaged “without contributing negligence,” comparative negligence was applicable. 224 Kan. at 547.
Wilson and Thomas disclose application of the doctrine of comparative negligence is not restricted to cases involving only common law negligence. Brown, Wilson and Thomas reveal that in tort actions the doctrine of comparative negligence is applicable for the ascertainment and assessment of individual liability for damages based upon the proportionate fault of all parties to the occurrence or incident that results in injury or damage. Use of the word “negligence” in K.S.A. 60-258a does not limit application of the doctrine to negligence cases. The doctrine is one of comparative fault. Use of the word “fault” is inaccurate if that word is construed in its traditional sense. What is involved is causal responsibility for the injurious incident or event. Thus the doctrine is one of comparative causal responsibility, or as has been said, comparative causation. Murray v. Fairbanks Morse, 610 F.2d 149, 159-160 (3d Cir. 1979).
We conclude the doctrine of comparative negligence is applicable to strict liability claims. This is consonant with decisions in other jurisdictions. Murray v. Fairbanks Morse, 610 F.2d at 154-162; Butaud v. Suburban Marine & Sport. Goods, Inc., 555 P.2d 42, 43-46 (Alaska 1976); Daly v. General Motors Corp., 20 Cal. 3d 725, 731-743, 144 Cal. Rptr. 380, 575 P.2d 1162 (1978); Busch v. Busch Const., Inc., 262 N.W.2d 377, 393-394 (Minn. 1977); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978); Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 406 A.2d 140, 145-147 (1979); Baccelleri v. Hyster Co., 287 Or. 3, 597 P.2d 351, 354-355 (1979); General Motors Corp. v. Hopkins, 548 S.W.2d 344, 351-352 (Tex. 1977); Dippel v. Sciano, 37 Wis. 2d 443, 461-462, 155 N.W.2d 55 (1967). But see Melia v. Ford Motor Co., 534 F.2d 795, 802 (8th Cir. 1976); Kinard v. Coats Co., Inc., 37 Colo. App. 555, 557, 553 P.2d 835 (1976); Kirkland v. General Motors Corporation, 521 P.2d 1353, 1367 (Okla. 1974). There is no apparent social policy requiring a contrary holding. It is in accord with the prognostication of Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740, 756 (D. Kan. 1978). Whether in strict liability cases our doctrine of modified comparative negligence or pure comparative negligence is to be applied is not a decision now required of us; the consequence of defendants’ settlement with plaintiffs averts the need for resolution of that question.
Because we find it inconsistent if not conceptually illogical to be otherwise, we further hold that where as here there is not involved constructive or vicarious liability by operation of case or statutory law, or liability arising out of breach of nondelegable duty, the adoption of the doctrine of comparative negligence has abrogated the doctrine of active-passive negligence as a basis for indemnification. We find this follows from the holdings in Brown, Wilson and Thomas. See also McCleskey v. Noble Corp., 2 Kan. App. 2d 240, 247, 577 P.2d 830 (1978) (concurring opinion), and, for an active-passive negligence distinction example, Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P.2d 783 (1967).
It has been our rule that joint tortfeasors are not afforded rights of contribution. Russell v. Community Hospital Association, Inc., 199 Kan. at 254; Alseike v. Miller, 196 Kan. 547, 550, 412 P.2d 1007 (1966). The statutory right of joint and several judgment debtors to contribution continues (K.S.A. 60-2413[b]) with the exception that no contribution is available or required between joint judgment debtors in comparative negligence cases. Brown v. Keill, 224 Kan. at 204; Wilson v. Probst, 224 Kan. at 463.
Geier v. Wikel, 4 Kan. App. 2d 188, 603 P.2d 1028 (1979), holds the release by a claimant of one who under comparative negligence is liable for a proportionate share of the claimant’s damages has no effect on the claimant’s right to recover from another who also is liable for a proportionate share of these same damages. 4 Kan. App. 2d at 189-190. A necessary corollary must be that in cases where, in exchange for consideration paid, a party, whose liability is for a proportionate share of a claimant’s damages by operation of the doctrine of comparative negligence, obtains a release from the claimant, (1) that party, the releasee, has simply and solely effected a compromise of his individual liability exposure to the claimant, and (2) he, the releasee, has no basis upon which to recover over against some other party who also is liable for a proportionate share of the claimant’s damages. He who settles realizes the advantage of his bargaining or suffers if the bargaining proves to have been to the claimant’s advantage; he has only bought his peace.
With the foregoing in mind, we turn to the matter at hand, the question of whether defendants are entitled to recovery against Continental on defendants’ asserted theories. First, are defendants entitled to indemnification under the doctrine of active-passive negligence? No. Abrogation of the doctrine of active-passive negligence as a basis for indemnification of one joint tortfeasor by another joint tortfeasor has eliminated that doctrine as an available basis for recovery by defendants against Continental. Even if there were not this abrogation, our answer would be the same.
The doctrine of comparative negligence is plainly applicable to all claims of negligence arising out of the injurious event, the placement of the toxic herbicide on plaintiffs’ side of the fence. Determination of causal responsibility would require decision as to the role and proportionate causal contribution of each of the four parties. Under our expressed corollary to the holding of Geier, there is no basis for recovery by defendants of their settlement payment made in compromise of their individual liability exposure to plaintiffs.
Further, if defendants’ claim were to be considered under our law prior to adoption of the doctrine of comparative negligence we would have to conclude the negligence giving rise to defendants’ liability to plaintiffs, Aubley’s spraying with knowledge of its danger, simply could not rationally be found to be passive.
Second, may defendants obtain indemnification upon their asserted theory of breach of implied warranty? We hold they cannot because strict liability in tort has supplanted our common law of implied warranty in products liability cases and, additionally, if there were not this change in the law, Aubley’s conduct precludes recovery by defendants.
Kansás decisions in warranty products liability cases, as well as those in other states, have struggled to define the conduct of the user which bars his recovery. Sometimes it is referred to as contributory negligence. At other times it is denominated unreasonable encounter of a known danger, or assumption of risk. E.g., Huebert v. Federal Pacific Electric Co. Inc., 208 Kan. 720, 725-726, 494 P.2d 1210 (1972); Bereman v. Burdolski, 204 Kan. 162, 460 P.2d 567 (1969); 2 Frumer-Friedman, Products Liability § 16.01 [3] (1979). Assuming conduct of the defendants to bar their recovery on implied warranty must be conduct denominated unreasonable encounter of a known danger, commonly passing under the name of assumption of risk, we find Aubley’s conduct, which we have factually identified, was of that nature. There is not involved the question of whether Aubley had a duty to inspect and, if so, whether he did or did not inspect; in other words, a question of negligent failure to inspect. What is involved is his use of the product with knowledge of the danger. The fact that Aubley’s knowledge may be by reason of operation of law, i.e., he knew or should have known, in our view does not alter the validity of our conclusion. Aubley’s conduct bars defendants’ claim under our prior law of implied warranty.
May defendants recover on the theory that their liability to plaintiffs for damages, as represented by their settlement payment, constitutes damage for which Continental, a seller, is liable to defendants under the rule of strict liability in tort? No.
The underlying injurious event was the placement of the herbicide on plaintiffs’ side of the fence. On the record, the only conceivable causes of this event were Aubley’s negligent conduct and the purported inadequacy of Continental’s use warning. The doctrine of comparative negligence — comparative causal responsibility, or comparative causation — clearly injects the question of the adequacy of Continental’s use warning into determination of the causal responsibility of defendants to plaintiffs for the injuri ous event. This holds true whether one views the poisoning of the cattle as giving rise to a claim assertable by plaintiffs against both defendants and Continental or as an event giving rise to a claim assertable by plaintiffs only against defendants with defendants’ position being that if Continental was not directly liable to plaintiffs, Continental was strictly liable to defendants for wholly or partly causing Aubley’s negligent conduct. If this last reasoning may be afforded credibility, it would still follow that Continental bore a causal responsibility, even though indirect, that places it in the position of a joint tortfeasor for the purpose of assigning proportionate causal responsibility.
Our previously expressed corollary to the holding in Geier compels us to conclude defendants’ settlement effected only a bargained-for disposition of their individual liability exposure to plaintiffs and defendants cannot be indemnified by Continental under the rule of strict liability.
One additional matter requires mention. It is black letter law that under our common law prior to adoption of the doctrine of comparative negligence, contributory negligence was a complete defense in a negligence action. Conduct commonly passing under the name of assumption of risk was a complete defense in an implied warranty action. Bereman v. Burdolski, 204 Kan. 162. Comment n to Restatement (Second) of Torts § 402 A (1966), and Brooks v. Dietz, 218 Kan. at 704-705, state that conduct of the latter sort, assumption of risk, is a defense to a strict liability claim. We have concluded above that Aubley’s conduct was conduct commonly passing under the name of assumption of risk, but we have not held that defendants’ strict liability claim against Continental is barred on this ground. This is because it is our conclusion that application of the doctrine of comparative negligence renders the form of contributory negligence which commonly passes under the name of assumption of risk an incomplete defense in a strict liability action; that “negligence” is simply causative conduct to be considered in the apportionment of causal responsibility. We are satisfied this conclusion is required to avoid frustration of the purpose of the doctrine of comparative negligence. Case authority of other jurisdictions supports our conclusion, e.g., Murray v. Fairbanks Morse, 610 F.2d at 154-162; Butaud v. Suburban Marine & Sport. Goods, Inc., 555 P.2d at 43-46; Daly v. General Motors Corp., 20 Cal. 3d at 736-737; Busch v. Busch Const., Inc., 262 N.W.2d at 393-394.
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Meyer, J.;
This is an appeal by the defendant, Jack D. Boster (Boster), from his conviction of possession of burglary tools in violation of K.S.A. 21-3717, and an appeal by the defendant, Roy A. Winters (Winters), from a conviction of the same crime, plus convictions for the unlawful possession of a firearm within five years after conviction of a felony (K.S.A. 21-4204[l][b]), and for unlawful possession of a firearm by a narcotics addict (K.S.A. 21-4204[l][a]).
The city marshal of Madison, Kansas, during the night of June 22, 1978, observed two men running down an alley behind the Pope Drug Store in that city. He gave pursuit in his patrol car but momentarily lost sight of them. He regained sight of the two men, one of whom ran off, while the other slowed to a walk. It developed these two men were Winters and Boster. Winters, the one who had slowed to a walk, was stopped by the marshal. He was frisked and found to have a pair of gloves and a flashlight. Winters advised the officer he had had car trouble and took the marshal back to the car, voluntarily opened the trunk, and showed him a flat tire. The marshal also observed a crowbar and “paraphernalia” in the trunk. At that time the marshal arrested Winters and called the Greenwood County sheriff to aid in the search for the other defendant. The sheriff looked behind Pope Drug Store and noticed a screen had been cut and that the latch on the screen had been opened. The sheriff then went back to the Winters vehicle and discovered Boster lying in the back seat. He thereupon took Boster into custody. A search warrant was obtained the following day and a search of the car revealed locksmith tools, certain drug paraphernalia, and other equipment.
Winters was charged with possession of burglary tools, attempted burglary, possession of a firearm within five years of conviction of a felony, and possession of a firearm by a narcotics addict.
Boster was charged in a separate information with possession of burglary tools and attempted burglary.
The State moved for consolidation of the two cases for trial and the court granted consolidation over the objection of the defendants. The jury acquitted both defendants of attempted burglary but convicted each of them on all other counts charged.
Defendants’ first claimed error is that the district court erred in holding that the affidavit attached to the complaint in this matter established probable cause and was sufficient to authorize the issuance of a warrant for arrest.
They cite Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978), for the proposition that in order for an arrest warrant to be valid there must be sufficient information from which a neutral and detached magistrate could determine probable cause. While we feel the affidavit and warrant contained sufficient information within themselves to determine probable cause, it is noted that both defendants were arrested without a warrant and that the warrant complained of was issued following those arrests. The requirements for an arrest warrant in the Fourth Amendment and Article 15 of the Kansas Bill of Rights go to the legality of the arrest. See Giordenello v. United States, 357 U.S. 480, 2 L.Ed.2d 1503, 78 S.Ct. 1245 (1958); and Whitely v. Warden, 401 U.S. 560, 28 L.Ed.2d 306, 91 S.Ct. 1031 (1971). The legality of the arrests in the instant case, therefore, depends not upon whether the warrant was proper, but upon whether there was probable cause for the arresting officers to make the arrests without a warrant.
In State v. Curtis, 217 Kan. 717, 721, 538 P.2d 1383 (1975), the Court states:
“The basic question presented is whether Officer Parks had probable cause to arrest defendant. K.S.A. 22-2401(c)(l) provides, inter alia, that a law enforcement officer may arrest a person when he has probable cause to believe that the person has committed a felony. The provisions of the statute referred to simply codify the existing case law of this jurisdiction authorizing the warrantless arrest for a felony if the officer has probable cause.”
We conclude that under the facts of this case there was probable cause for the warrantless arrests and that the arrests were valid. Moreover, even if the warrant was invalid and the arresting officer lacked probable cause for arrest, the defendants have shown no substantial rights which were prejudiced as a direct result of unlawful arrest.
“[jurisdiction of a court to try a person accused of a crime is not divested by the fact he may have been unlawfully arrested.” State v. Addington, 205 Kan. 640, 644, 472 P.2d 225 (1970).
Further, “[u]nless a defendant’s substantial rights are prejudiced as a direct result of an unlawful arrest, such as the use of evidence seized at the time, his arrest will not vitiate his subsequent conviction.” 205 Kan. at 645. See also State v. Stephenson, 217 Kan. 169, Syl. ¶ 1, 535 P.2d 940 (1975).
Winters complains that the court erred in failing to sustain his motion for suppression of the evidence because the affidavit for the search warrant was insufficient to show probable cause and because of defective and duplicitous returns. We are not persuaded by either of these arguments.
The affidavit for search warrant contained sufficient facts from which the magistrate could conclude there was probable cause to believe that the automobile contained contraband. It showed from whom and by what means the affiant obtained his information and what that information consisted of." The rule involving search warrants is set out in State v. Hart, 200 Kan. 153, 162, 434 P.2d 999 (1967), wherein it is stated:
“[B]efore a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; that bald conclusions or mere affirmations of belief or suspicion are not enough; and while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant’s personal knowledge or his knowledge concerning his informant, or as to the informant’s personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.”
See also State v. Sanders, 222 Kan. 189, 192, 563 P.2d 461 (1977).
As to the adequacy of the return of the search warrant and of the duplicitous nature of it, K.S.A. 22-2511 states:
“No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”
There was testimony to the effect that a return was left in the vehicle and a copy of the search warrant was left with Winters at the county jail. Apparently the trial court believed this testimony. As to the duplicitous returns complained of by defendants, we note the only difference between the returns is that the same items were referred to by different names. The items were, however, clearly identifiable and the returns, in effect, said the same thing. Further, there is no indication that defendants were surprised in any way by the admission of the seized evidence and the trial court made a specific finding that no prejudice resulted to their rights.
Defendants claim error in the consolidation of their cases. This claim of error also lacks merit. The court, in State v. Coe, 223 Kan. 153, 157-158, 574 P.2d 929 (1977), states:
“Although 22-3204, supra, is silent concerning the power of the trial court to consolidate trials on the motion of one or more of the defendants, the trial court has such inherent authority. The underlying purpose of the statute is to provide the defendant a fair trial without undue delay. The trial court is vested with broad discretion to achieve this goal.”
In State v. Coe, the trial court denied defendants a joint trial, whereas in the instant case the trial court ordered the consolidation over the objection of the defendants. We deem State v. Coe to be sufficient authority for the trial court to consolidate the trial of the two defendants herein. We conclude, also, that same is a matter discretionary with the trial court, and will not be disturbed absent abuse of discretion. In State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977), defendants were jointly charged and it was held by the court that: “When two or more defendants are jointly charged with a crime the granting of a separate trial for any one defendant lies within the sound discretion of the trial court. (K.S.A. 22-3204).” 221 Kan. 727, Syl. ¶ 2. The Rueckert court states: “A defendant does not have the right to be tried with or separate from a codefendant if no prejudice to his rights can be shown.” 221 Kan. at 730-731. We find this to be further authority for the trial court to consolidate the trials of two defendants, even where they are charged in separate informations.
It is noted that Winters was charged with possession of a firearm by a felon and possession of a firearm by a narcotics addict, whereas Boster was charged with neither of these two offenses. The district court stated it felt the consolidation actually favored the defendants. The pistol and the drug paraphernalia were found in the same car where Boster was found and apprehended. We find no abuse of discretion.
In addition to the issues heretofore decided, which we deem applicable to both Winters and Boster, Winters claims the court erred in permitting the ,25-caliber American automatic pistol to be admitted into evidence because it was not a firearm under K.S.A. 21-4204. He claims the instrument was not a firearm under the statute because it was in the locked trunk of the automobile, that no ammunition was found, and that there was no clip for the weapon. Most cases dealing with the definition of a firearm have decided the question under statutes other than ones prohibiting possession of a firearm by a felon or a drug addict. Under statutes prohibiting the carrying of a concealed, dangerous weapon, it appears the majority of cases hold that the fact that a firearm is unloaded does not take the firearm out of the purview of the statute. See Annot., 79 A.L.R.2d 1412. Representative of these decisions is Commonwealth v. Harris, 344 S.W.2d 820, 821 (Ky. 1961), where it was held:
“[A] gun mechanically capable of being fired is a deadly weapon within the meaning of [the statute forbidding carrying of concealed deadly weapons], though it be unloaded and though there be no ammunition upon the carrier’s person or so near to him as to make it readily available.”
The court in Harris noted that ammunition is rarely unavailable.
Evidence establishing that a weapon was an operating instrument and capable of firing a bullet was not necessary to support a conviction under K.S.A. 21-2611, a predecessor statute to the one now in question, which made it unlawful for one previously convicted of burglary to own a pistol (statutorily defined by K.S.A. 21-2610 as a firearm having a barrel less than twelve [12] inches), or to have or keep a pistol in his possession, or under his control. State v. Omo, 199 Kan. 167, 428 P.2d 768 (1967); State v. Bolin, 200 Kan. 369, 436 P.2d 978 (1968). Furthermore, a pistol need not contain a clip in order for it to be fired.
There are two recent cases of our Supreme Court which have considered the definition of “firearm” as used in our mandatory sentencing statute, K.S.A. 1979 Supp. 21-4618. In State v. Deutscher, 225 Kan. 265, 589 P.2d 620 (1979), where it was held an unloaded revolver is a firearm within the meaning of that statute, it is said:
“We note the word ‘firearm’ is used in the statute without further definition. The appellant argues there was no firearm used in this case since the only evidence introduced established the .357 magnum revolver was unloaded and the defendant had access to no live ammunition. Appellant points to several cases from other jurisdictions holding that a weapon incapable of firing a bullet does not constitute a ‘firearm.’ These cases are not applicable here. In this case there was evidence the revolver had been and was capable of being used for target practice. The failure of the officers to find live ammunition within reach of the defendant when he was stopped does not make the revolver any less a firearm. It was capable of discharging a bullet. We have no reason in the present case to inquire into different fact situations where a particular revolver is not mechanically capable of firing a bullet. Such was not the case here. We leave that question for future decision in some case with a suitable fact situation to justify resolution of that question.” (pp. 272-273.)
In a case where it was held the weapon was not a firearm (State v. Davis, 227 Kan. 174, 605 P.2d 572 [1980]), is found the following:
“The weapon was described as a .22 caliber blank gun which was incapable of firing a projectile because the barrel was blocked by a piece of metal.” (p. 175.)
“The second issue raised by the appellant is whether the starter pistol was a ‘firearm’ within the meaning of K.S.A. 1978 Supp. 21-4618 . . . .”
“We specifically deferred to future consideration of this issue in State v. Deutscher, 225 Kan. at 272-73, wherein we held an unloaded revolver was a ‘firearm.’ Kansas statutes do not define ‘firearm.’
“The State contends the trial court properly found the starter pistol was a firearm based on examination of the gun, the gun’s use during the crime, and the victim’s perception of the gun. The appellant contends the finding was erroneous because criminal statutes must be construed strictly against the State and in favor of the defendant. State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559 (1978).
“After reviewing the decisions from other jurisdictions which have dealt with this issue we find but one logical conclusion. A firearm is consistently defined in terms of its design or capacity to propel a projectile by force of an explosion, gas, or other combustion. See People v. Norton, 80 Cal. App. 3d Supp. 14, 146 Cal. Rptr. 343 (1978); Schmit v. Guidry, 204 So. 2d 646 (La. 1967); State v. Millett, 392 A.2d 521 (Me. 1978); Coleman v. State, 506 P.2d 558 (Okla. Crim., 1972); State v. Hash, 34 Or. App. 281, 578 P.2d 482 (1978); Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973). See also Black’s Law Dictionary 761 (4th ed. rev. 1968). It was stipulated that the appellant’s starter pistol lacked the capacity to propel a projectile. In light of the definition adopted herein, the trial court erroneously determined the pistol was a firearm. See State v. Taylor, 225 Kan. 788, 795, 594 P.2d 211 (1979); State v. McCarty, 224 Kan. 179, Syl. ¶ 1, 578 P.2d 274 (1978).” pp. 177-78.
We hold the definition of “firearm” adopted in Davis, “an object having the design or capacity to propel a projectile by force of an explosion, gas or other combustion,” (227 Kan. 174, Syl. ¶ 2) applicable to K.S.A. 21-4204, and the .25-caliber automatic pistol was a firearm.
Winters’ contention that the court erred in not sustaining his motion for acquittal at the close of the State’s case lacks merit. His contention as to this issue is that there was insufficient evidence to show possession of the firearm, and that there was no evidence to show that he was a narcotics addict.
“Intent may be established by circumstantial evidence.” State v. Goodman, 3 Kan. App. 2d 619, 627, 599 P.2d 327 (1979). In that case, a gun was found in defendant’s car and the court held that there was sufficient circumstantial evidence from which the jury could infer an intent to willfully and knowingly possess the firearm, even though there was evidence that there might have been two or more persons occupying the vehicle before it was discovered abandoned.
In State v. Hart, 200 Kan. 153, burglary tools were found in defendant’s car and this was found sufficient evidence to support possession by the owner of the car. It was stated in that case:
“The possession of tools or instruments designed or commonly used in the commission of burglaries may be joint as well as individual, and where two or more persons have the power of control over the use of such tools or instruments and have the intent to control and use them jointly, all of them will be criminally liable under the statute.” 200 Kan. 153, Syl. ¶ 8.
“Proof of intent to use, for burglarious purposes, tools .which are commonly employed in committing burglaries may be inferred from the circumstances which attend their possession, such as prior burglary convictions, concealment of the tools on one’s person or in his clothing, resistance to arrest, and possession of other items not suitable for breaking but which might be generally useful to one engaging in burglarious pursuits.” 200 Kan. 154, Syl. ¶ 12.
The standard of review in criminal convictions is whether the evidence when viewed in the light most favorable to the prosecution convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. Henderson, 226 Kan. 726, 603 P.2d 613 (1979); State v. McGhee, 226 Kan. 698, 602 P.2d 1339 (1979).
A review of the record discloses there was sufficient evidence of possession of the firearm and Winters’ addiction to narcotics to support the verdict.
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Meyer, J.:
This is an appeal by Jonathan Edward Allen (defendant) from his conviction by a jury of aggravated battery (K.S.A. 21-3414) and unlawful use of weapons (K.S.A. 1979 Supp. 21-4201). His motion for new trial was overruled.
Defendant, 19 years of age, was employed as a maintenance man at the Johnson County Courthouse in Olathe. On March 28, 1978, defendant arrived for work at approximately 5 p.m. He locked the last front door on the first floor of the courthouse and proceeded to his assigned work area on the second floor. He was walking down a hallway with his trash cart when an elevator bell rang. As he went down the hall to see who was on the elevator, and as he passed the office of Judy Clouston, a court reporter, according to him, “his heart began to beat uncontrollably.” He removed a knife from his pocket and stated that after he had hesitated several times, something popped in his mind and he entered Judy Clouston’s office, stabbed her several times, and ran out of her office. He hid the knife in the ceiling of a janitor’s closet, but later returned and sought out a sheriff’s officer to help the victim. The victim pointed out defendant as being the person who stabbed her. After being questioned by sheriff’s authorities, defendant took an hour dinner break and thereafter returned to the courthouse where later that night he confessed to the stabbing. His written confession was admitted into evidence at trial. Defendant raised the theory of insanity as to the aggravated battery charge and produced the testimony of a psychiatrist. The State presented the testimony of a psychiatrist and a clinical psychologist. Defendant appeals from his convictions and from the denial of his motion for a new trial.
Defendant first complains that the trial court abused its discretion in failing to grant his motion for change of venue due to pretrial publicity and the fact that the crime took place at the courthouse.
The change of venue statute, K.S.A. 22-2616(1), provides:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
It is well settled that a trial court’s determination regarding venue lies within its discretion and that the court’s determination will not be disturbed on appeal unless there is a showing of prejudice to the substantial rights of the defendant. State v. Gilder, 223 Kan. 220, 222-23, 574 P.2d 196 (1977); State v. McCorgary, 218 Kan. 358, 367, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976). The burden of proof to show that such a prejudice exists must be borne by a defendant and must be shown as a demonstrable reality, not merely by speculation. State v. Gilder; State v. Gander, 220 Kan. 88, 92, 551 P.2d 797 (1976). Media publicity does not establish prejudice per se. State v. Gilder.
In the instant case defendant presented only newspaper articles in support of his motion for change of venue. He did not produce affidavits to establish the effect of the publications. There is no indication that the fact the trial occurred in the same courthouse in which the crime was committed affected the jury. The incident occurred on the second floor of the courthouse and the trial was . held on the third floor. The trial court admonished the jury that they were to take the elevator directly to and from the third floor and were not to wander around on the second floor. Defendant’s allegations that the jury might nevertheless overhear conversations of the victim’s fellow employees in the halls or in the cafeteria is too speculative in nature to show prejudice as a demonstrable reality. We conclude that there is no error as to this issue.
Defendant next complains that the court erred in overruling his motion for new trial based upon alleged juror misconduct. His claim of misconduct is that the jury foreman, Baker, spoke to three different people about the trial while the case was in progress.
During an adjournment of the trial, Baker went on a personal errand. The first person to whom he spoke was Mrs. Althouse. She stated that Baker indicated that psychiatric testimony was to come in that afternoon, that Baker didn’t indicate how he would vote, that she didn’t tell him how to vote, nor did she give him an indication whether she thought defendant was guilty. She stated there was no discussion of newspaper and television coverage. She also stated that it was her opinion or impression from the conversation that Baker was going to vote guilty; however, he had never told her how he was going to vote.
The next person to whom Baker spoke was Lewis Petzold, who testified that Baker told him that after having heard the confession of defendant, he couldn’t go along with insanity as a defense or with the psychiatrist’s reports. He testified Baker said that the young man had stabbed the woman, but this was based on the evidence adduced at trial. Petzold further testified that Baker did not tell him how he was going to vote. He also stated that he did not express any personal opinion to Baker. Petzold’s further testimony was to the effect that defendant had made a confession and that Baker was certain that defendant had stabbed the victim. He testified that Baker said he felt that there had to be something more than just one human being wanting to go in and stab another human being and that there had to be some ulterior motive.
Jack Petzold, the third person to whom Baker talked, testified that he got the impression that Baker thought defendant was guilty, and specifically stated that Baker had said, “[I]t just looks to me like the man is guilty.” He testified that he had not sought to influence Baker’s verdict in any way.
Baker testified that he had not told any of the three that he thought defendant was guilty, nor did he state how he was going to vote. He did admit that he mentioned the fact that defendant had testified that he had stabbed the lady. Baker also testified that he stated that the reason the court had been recessed was that they were waiting to hear testimony from some psychiatrist. He further testified that none of the three he had spoken with had tried to influence his opinion.
In summation, it is defendant’s contention in regard to this jury misconduct, that there was prejudice because the statements indicated that the juror had made up his mind as to guilt before all the testimony was in. However, had Baker made up his mind or formed an opinion as to guilt at that time, there is no indication that that opinion was based on anything other than evidence adduced at trial. There was, however, a clear conflict in the evidence as to whether Baker had, in fact, made up his mind as to defendant’s guilt.
We have no hesitancy in concluding that the conduct of the juror in question was improper. At the same time it is not every improper misconduct that will justify or require the granting of a new trial; and the matter is largely within the discretion of the trial court.
In State v. Coburn, 220 Kan. 743, 746-47, 556 P.2d 376 (1976), we find:
“Not every jury is to be disqualified because of some improper communication or contact made to a juror prior to or during trial. The granting of a mistrial or new trial because of such conduct is generally regarded as resting in the sound discretion of the trial judge who is best able to assess the impact of any such approach upon the fairness of the trial. [Citation omitted.] To warrant reversal of a judgment because of improper contact or communication between a juror and an outsider, there must be some showing or indication of injury, actual or potential, to the complaining party, or the act or conduct complained of must be such as to afford reasonable grounds to question the fairness of the trial or the integrity of the verdict, or as would tend to destroy or impair public confidence in trial by jury. [Citation omitted.] The substance of the communication may be important. If the ■comment relates to the merits of the case, it will be more likely to be found prejudicial. However, if it relates to the case merely in a general or incidental manner it will more likely be found harmless. [Citation omitted.]”
“[I]t must be shown that remarks so made were such as would necessarily prejudice the party complaining, or it must be shown that prejudice did result therefrom, in order to warrant this court in directing new trial . . . .”
In State v. Cypher, 92 Idaho 159, 168, 438 P.2d 904 (1968), a juror who was later selected foreman of the jury asked a question and made a declaration that if defendant was guilty he should throw himself on the mercy of the court. The court recognized the rule that:
“Statements and expressions of opinion concerning the case or evidence offered therein made by a juror outside the jury room, during the course of the trial and before the submission of the case, are normally grounds for a new trial if they indicate an opinion unfavorable to the losing party or ill-will toward him. [Citations omitted.] A casual remark of a juror however, though such may indicate bias at that time, is not necessarily a ground for a new trial. [Citation omitted.]
“A mere expression of opinion by a juror as to the merits of the case, based only on the testimony that has been adduced and not indicating any improper bias or prejudice against the unsuccessful party, or an expression of opinion that the case ought to be settled out of court, does not evidence bias or prejudice against either party.”
The statements of Baker in the case at bar were based on evidence adduced at trial and did not indicate any improper bias or prejudice against the unsuccessful party.
In Freeman v. Vetter, 61 Tex. Civ. App. 569, 574, 130 S.W. 190 (1910), a juror, after opening argument for appellee and during a recess of the court, had told a third person who was not on the jury that he thought appellee was badly injured and ought to have all he sued for. In that case, the court noted that the third person did not discuss the case with the juror and the conversation did not have any effect on the verdict of the jury. The court stated that:
“It merely showed that the juror had formed an opinion and his expression of his opinion did not in any manner change that opinion. Nothing was said or done to influence the juror or to crystallize his opinion, but he had it when he told [the third person] about it and if he changed the change was not caused by the conversation. His conduct was very reprehensible and deserves censure, still we can not see how the expression of the opinion could have injured appellant.”
Finally, in Krieg v. Grant, 248 Iowa 396, 80 N.W.2d 724 (1957), a juror expressed an opinion in a conversation in a restroom while the trial was in progress that he had made up his mind. The court stated that this statement was not such as to justify a new trial as a juror may hear part of the evidence and make a certain decision, and may later hear all of the evidence as the trial progresses and arrive at a contrary final decision.
The trial court did not abuse its discretion in denying the motion for a new trial.
Defendant’s third issue was abandoned at the hearing before this court.
Defendant’s final claim of error was that he was denied a fair trial by the inherent deficiencies in the M’Naghten rule and the trial court’s failure to instruct the jury based on the A.L.I. Model Penal Code (lack of capacity to appreciate wrongfulness due to mental disease or defect).
Kansas has always adhered to the M’Naghten rule. The court, in State v. Smith, 223 Kan. 203, 208, 574 P.2d 548 (1977), after relating the various arguments against the M’Naghten rule, states:
“To its critics we reply the M’Naghten rule has the merit of being well-established as well as practical. Although it is not scientifically perfect, we feel it is the best criteria yet devised for ascertaining criminal responsibility. Psychiatry is a science in which great uncertainty still exists. Moreover, criminal responsibility is a legal question and not a medical question. Finally, while a majority of the federal circuits may follow the American Law Institute test, a majority of the states follow M’Naghten.”
Moreover, as held in the recent cases of State v. Levier, 226 Kan. 461, 465, 601 P.2d 1116 (1979), and State v. Sandstrom, 225 Kan. 717, 731, 595 P.2d 324, cert. denied 444 U.S. 942 (1979), the majority of the Kansas Supreme Court still adheres to that view. Defendant’s complaint as to the M’Naghten rule lacks merit.
Affirmed. | [
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Meyer, J.;
This suit to recover on a promissory note was brought by the Santa Fe Trail State Bank (appellant) against the appellees Richard D. Rixner (Rixner) and Daniel D. Frackowiak (Frackowiak).
Appellees executed a promissory note in the amount of $5,039.76 to Superior Trailer Sales Co., assignor of appellant. The note evidenced a loan of $4,500.00 with a finance charge of $539.76, payable in twelve monthly installments of $419.98 each. This resulted in an annual percentage rate of 21.45%.
Rixner and Frackowiak defaulted and appellant sued on the note. The agreement executed in conjunction with the note contained a form clause which stated that the loan was subject to the Uniform Consumer Credit Code (UCCC). Frackowiak filed a counterclaim alleging violations of the UCCC, specifically charging an interest rate over the maximum limit and making a “supervised loan” when the lender was not qualified as a “supervised lender.” Frackowiak filed a motion for summary judgment in which defendant Rixner joined. Summary judgment was granted in favor of Frackowiak and Rixner. The judgment voided the agreement and awarded attorney fees to Frackowiak’s attorney. The court, however, declined to impose any penalty or to award a refund of payments made, and also declined to award attorney fees to Rixner’s attorney.
After the trial court granted summary judgment, appellant’s attorney filed a motion for leave to amend its pleadings and for reconsideration of the motion for summary judgment. The trial court denied appellant’s motion to amend. Appellant appeals from the trial court’s denial of the motion to amend and from the granting of the motion for summary judgment, and further alleges the award for attorney fees to Frackowiak’s attorney was excessive. Frackowiak has cross-appealed from the trial court’s refusal to impose a penalty or to refund payment for violation of the UCCC. Rixner cross-appeals from the refusal to award attorney fees for his attorney.
Appellant first complains that the trial court erred in denying its motion to amend the pleadings made after the motion for summary judgment had been granted.
Appellant filed suit December 5, 1977. Frackowiak, in January, 1978, counterclaimed asserting the UCCC defenses of interest rates which were above the maximum allowed by the UCCC and the failure to make truth in lending disclosures. Appellant answered with a general denial. Frackowiak’s second amended counterclaim asserted the UCCC violation of making a “supervised loan” when the lender was not a “supervised lender,” which counterclaim was filed April 28, 1978. On June 5, 1978, appellant answered and as a defense alleged waiver and estoppel. Frackowiak’s motion for summary judgment, later joined in by Rixner, was filed July 10, 1978. The appellant responded to the motion for summary judgment alleging mutual mistake and novation which response it filed on August 7, 1978; however, it did not move to amend its pleadings to comply with its assertions at that time. On August 21, 1978, Frackowiak replied to appellant’s response and asserted that the pleadings had not been amended and that mistake and novation must be specifically pleaded. On October 27, 1978, the court inquired of counsel if they desired further argument or further briefs, and counsel agreed that the motion was finally submitted for determination by the court without oral argument. Thereupon, on November 30, 1978, the court granted summary judgment for both Frackowiak and Rixner.
Appellant moved the court for rehearing on the motion for summary judgment and the court allowed plaintiff to prepare its motion to amend pleadings and a motion for reconsideration. On December 21, 1978, the court ruled that appellant’s motion to amend its pleadings was untimely and could not properly be considered. The court ruled that the defenses first raised in appellant’s reply brief were not timely pleaded pursuant to K.S.A. 60-208 and 60-209.
K.S.A. 60-215(a) provides that when a party does not file an amendment within the prescribed time for amendment as a matter of right, he may amend his pleadings only by leave of court or by written consent of the adverse party. The statute contains the language, “leave shall be freely given when justice so requires.”
Failure to allow a party to amend his pleadings was found to be error in Schierenberg v. Hodges, 221 Kan. 64, 66, 558 P.2d 133 (1976), and in Weaver v. Frazee, 219 Kan. 42, 547 P.2d 1005 (1976). In both of those cases, the actions involved matters required to be specially pleaded under K.S.A. 60-209 and were dismissed either pursuant to a motion to dismiss or a motion for summary judgment. In those cases the court on appeal found there was sufficient merit to the cases to return them to the trial court and the court ruled that amendment should have been allowed in order to determine the matter on the merits.
The instant case, however, can be clearly distinguished from the two foregoing cases, in that in those cases the motion to amend was made either prior to or at the time of the hearing on summary judgment. In the instant case the motion for summary judgment had been filed several months before the trial court entered its order in summary judgment. Furthermore, in the instant case, the parties agreed that the matter was “ripe” for summary judgment, and filed their motion to amend only after they learned of the unsatisfactory results of the summary judgment order. We conclude that the trial court was correct in concluding that appellant was barred by the pleading requirements of K.S.A. 60-208 and 60-209.
Appellant next complains that the court erred in granting summary judgment.
The first question which must be determined is whether the UCCC applies to the transaction. The appellant argues that the clause in the contract which stated, “[t]his loan is subject to the provisions of sections 1 through 131 of the Kansas Uniform Consumer Credit Code applying to consumer loans,” was not binding.
The loan was admittedly taken for a business purpose and, therefore, would not qualify as a consumer loan under K.S.A. 16a-l-301(14)(c)(ii). Parties can contract, however, to have their transaction subject to the UCCC. If they so contract, the action is a consumer credit transaction for the purposes of K.S.A. 16a-l-101 through 16a-9-102 of the act. See K.S.A. 16a-l-109. The question is, therefore, whether the clause making the loan subject to the UCCC is a valid part of the contract.
“It is the duty of every contracting party to learn and know the contents of a contract before signing it.” Commercial Credit Corporation v. Harris, 212 Kan. 310, 314, 510 P.2d 1322 (1973).
“When a person signs a written contract he is bound by its terms, in the absence of fraud, undue influence or mutual mistake as to its contents, regardless of the person’s failure to read and understand its terms.” Washington v. Claassen, 218 Kan. 577, 580, 545 P.2d 387 (1976).
Furthermore, “[t]he general rule is that a contracting party is bound by an agreement to which he assents, where the assent is. uninfluenced by fraud, violence, undue influence, or the like, and he will not be permitted to say he did not intend to agree to its terms.” Sutherland v. Sutherland, 187 Kan. 599, 610, 358 P.2d 776 (1961). The assignee bank cannot complain that the drafter did not know the contents of the instrument.
As was noted in Miller v. Sirloin Stockade, 224 Kan. 32, 36, 578 P.2d 247 (1978), the non-moving party is under an affirmative duty “to respond with counter affidavits or take advantage of the alternatives offered to him, which are to ask leave to make additional discovery or to show good cause why he cannot obtain and present by affidavits facts essential to justify his position.” (Citing from Gard’s Kansas C. Civ. Proc. § 60-256 [1977 Supp.].) As in Miller, the appellant has not shown the existence of a material issue of fact or complied with the duties referred to above.
We also conclude that the trial court was correct in its conclusions of law that the transaction violated the UCCC provision regarding supervised loans and an interest rate above the maximum credit rate ceiling.
Under K.S.A. 16a-l-301(40), a “supervised loan” means a consumer loan in which the rate of the finance charge, calculated according to the actuarial method, exceeds twelve percent (12%) per year. K.S.A. 16a-2-301 provides that:
“Unless a person is a supervised financial organization or has first obtained a license from the administrator authorizing him to make supervised loans, he shall not engage in the business of
(1) making supervised loans; or
(2) taking assignments of and undertaking direct collection of payments from or enforcement of rights against debtors arising from supervised loans . . . .”
K.S.A. 16a-5-201(2) provides:
“If a creditor has violated the provisions of this act applying to authority to make supervised loans (section 16a-2-301), the loan is void and the consumer is not obligated to pay either the amount financed or finance charge. If he has paid any part of the amount financed or of the finance charge, he has a right to recover the payment from the person violating this act or from an assignee of that person’s rights who undertakes direct collection of payments or enforcement of rights arising from the debt.”
Since the annual percentage rate of 21.45 percent was over 12 percent per year, the creditor was making a “supervised loan” and, therefore, was required to be licensed as a supervised lender. Since he was not licensed, he violated K.S.A. 16a-2-301 and became subject to the penalty provision under K.S.A. 16a-5-201(2). Therefore, the loan is void and the appellees have a right to recover the $419.98 payment made to appellant.
The trial court refused to grant the appellees the $419.98 payment which they had made to appellant. Frackowiak and Rixner cross-appealed on this issue arguing that the trial court does not have discretion to refuse to award the recovery of the payment. We agree. K.S.A. 16a-5-201(2) provides for a mandatory penalty and once a violation of 16a-2-301 is found, the loan must be voided and any payments made under the transaction must be returned to the payor.
Further, there was a violation of K.S.A. 1979 Supp. 16a-2-401. K.S.A. 1979 Supp. 16a-2-401(l) sets the maximum limit for consumer loans. It provides:
“With respect to a consumer loan, including a loan pursuant to open end credit, a lender may contract for and receive a finance charge, calculated according to the actuarial method, not exceeding eighteen percent (18%) per year on the unpaid balances of the amount financed not exceeding one thousand dollars ($1,000) and fourteen and forty-five hundredths percent (14.45%) per year on that portion of the unpaid balance in excess of one thousand dollars ($1,000).”
Since the lender in this case was not a supervised lender, he would not qualify for the rates set out in subsection (2).
The annual percentage rate of 21.45% on the balance of $4,500.00 exceeded the statutory maximum and, therefore, was in violation of said section.
The trial court was correct in finding that the interest rate was in violation of the UCCC ceilings. The trial court concluded, however, that the penalty was discretionary with the court and did not award the penalty as damages to Frackowiak and Rixner. They appeal from this decision.
K.S.A. 16a-5-201(4) provides that:
“If a creditor has contracted for or received a charge in excess of that allowed by this act, or if a consumer is entitled to a refund and a person liable to the consumer refuses to make a refund within a reasonable time after demand, the consumer may recover from the creditor or the person liable in an action other than a class action a penalty in an amount determined by the court not less than one hundred dollars ($100) or more than one thousand dollars ($1,000).” .
K.S.A. 16a-l-301(17) defines creditor as:
“[T]he person who grants credit in a consumer credit transaction or, except as otherwise provided, an assignee of a creditor’s right to payment, but, use of the term does not in itself impose on an assignee any obligation of his assignor.”
In the case at bar, the bank would be a creditor who has received a charge in excess of that allowed by the act and, therefore, is subject to the penalty provision. Although the statute says the consumer “may” recover a penalty, the fixing of a statutory minimum amount indicates a legislative intent that the consumer should recover at least that much. Accordingly we hold that, while the court does have discretion as to the amount of the penalty, it must impose at least the minimum penalty provided for in the act. Therefore, the court is directed on remand to establish the civil penalty in an amount of not less than $100 nor more than $1,000.
Appellant further argued on appeal that the attorney fees awarded by the court of $3,000 was excessive, in light of the recovery by Frackowiak. K.S.A. 16a-5-201(8) states that “[reasonable attorney’s fees shall be determined by the value of the time reasonably expended by the attorney and not by the amount of the recovery on behalf of the consumer.”
Frackowiak’s attorney presented time sheets and the court awarded fees on the basis of a rate of $45.00 per hour. The trial court is to be considered an expert on the matter of reasonable compensation. Stafford v. Karmann, 2 Kan. App. 2d 248, 251, 577 P.2d 836 (1978). The trial court did not abuse its discretion in the amount of the attorney fees awarded.
Rixner cross-appeals from the trial court’s refusal to consider his motion for attorney fees. The statute which awards attorney fees (K.S.A. 16a-5-201[8]) is also mandatory.
“In an action in which it is found that a creditor has violated any provision of sections 1 through 131 [16a-l-101 through 16a-9-102] of this act, the court shall award to the consumer the costs of the action and to his attorneys their reasonable fees.” (Emphasis added.)
It may well be that the trial court may find that the attorney for Rixner performed less work than did the attorney for Frackowiak, and, therefore, is not entitled to as large a fee. Nevertheless, it is incumbent upon the trial court to receive evidence as to Rixner’s attorney’s work in relation to this case and to grant a fee for the proper worth of those services.
The motion to tax attorney fees as costs on appeal filed by the attorney for Frackowiak is considered, and said attorney is awarded the sum of $750.00 for his services on appeal, same to be paid by appellant.
Affirmed in part, reversed in part, and remanded for further proceedings in harmony with this opinion. | [
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Rees, J.:
Petitioner Val Gene Williams appeals from the denial of his application for a writ of habeas corpus. The respondent is the Sedgwick County sheriff. Although petitioner is free on bond, he is in “custody” for present purposes. In re Berkowitz, 3 Kan. App. 2d 726, 727, n. 1, 602 P.2d 99 (1979).
By a single count information filed August 3,1973, in Sedgwick County District Court, petitioner was charged with aggravated indecent solicitation of a child as defined in K.S.A. 21-3511:
“Aggravated indecent solicitation of a child is the accosting, enticing or soliciting of a child under the age of twelve (12) years to commit or to submit to an unlawful sexual act.”
The unlawful sexual act (K.S.A. 21-3501[2]) relied upon by the State was indecent liberties with a child as was defined in K.S.A. 21-3503(1):
“(1) Indecent liberties with a child is engaging in . . . the following [act] with a child under the age of sixteen (16) years who is not the spouse of the offender;
“(b) Any fondling or touching of the person of either the child or the offender done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.”
The date of the alleged offense was June 11,1973; the victim was then eleven years old; the victim was not the spouse of the petitioner.
Petitioner’s jury trial resulted in his conviction and the imposition on December 10, 1973, of a one to five year sentence. He appealed. During the pendency of the appeal, K.S.A. 21-3503(l)(b) was held unconstitutionally vague and therefore void. State v. Conley, 216 Kan. 66, 531 P.2d 36 (1975). The Supreme Court accepted the suggestions made in a confession of error filed by the State and ordered reversal of the conviction and discharge of the petitioner on April 4, 1975.
When petitioner’s conviction was reversed, he was serving his sentence at the Kansas State Industrial Reformatory (KSIR) concurrently with a fifteen years to life sentence imposed December 26, 1973, by the Sedgwick County District Court upon an unrelated conviction of aggravated robbery (see State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395 [1975]).
On May 22, 1975, seven weeks following the reversal of petitioner’s conviction here involved, a second prosecution was commenced by the filing of a single count complaint again charging him with aggravated indecent solicitation of a child (K.S.A. 21-3511) but alleging the unlawful sexual act to have been lewd and lascivious behavior as defined in K.S.A. 21-3508(l)(b):
“(b) The exposure of a sex organ in the presence of a person who is not the spouse of the offender or who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.”
An arrest warrant was issued the same day.
Petitioner was not informed of the newly filed charge. No detainer was ever filed by the State; the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., was not implemented.
In September of 1976, petitioner was released from KSIR to a Sedgwick County work release program. He returned to Sedgwick County. On January 6,1977, petitioner was apprehended by law enforcement officers in Sedgwick County for reasons unknown to us and the existence of the outstanding wárrant was discovered. Petitioner’s arrest came nineteen and one-half months after the commencement of the second prosecution.
Following an unsuccessful motion to dismiss, petitioner filed an original action for a writ of habeas corpus in the Supreme Court. The action was transferred to the Sedgwick County District Court where the proceedings on the second prosecution were pending. Petitioner’s habeas corpus application raised issues including double jeopardy and denial of speedy trial. The district court denied petitioner’s application. That denial is now before us for review. We conclude the writ should have been granted and the complaint dismissed.
We have the benefit of the record of the evidence introduced at the trial of petitioner on the first prosecution; it appears in the record on appeal filed in the direct appeal terminated by reversal and discharge of the defendant. There are endorsed on the complaint filed in the second prosecution the same witnesses as those endorsed on the information filed in the first prosecution. It would appear indisputable that their testimony at a second trial, at the least, would be the same as admitted at the first trial.
When proceedings were first undertaken against petitioner concerning the June 11, 1973, incident involving the victim and upon the evidence later admitted at petitioner’s first trial, the State, as a matter of prosecutorial selectivity, or discretion, stood free to choose among charges of indecent liberties with a child (K.S.A. 21-3503[l][h], a class C felony — the State was entitled to then assume the statute was constitutional); lewd and lascivious behavior (K.S.A. 21-3508[1][¿], a class B misdemeanor); indecent solicitation of a child (K.S.A. 21-3510, a class A misdemeanor) relying upon either indecent liberties with a child or lewd and lascivious behavior as the unlawful sexual act; arid aggravated indecent solicitation of a child (K.S.A. 21-3511, a class E felony) relying upon either indecent liberties with a child or lewd and lascivious behavior as the unlawful sexual act. Whether as a result of the single incident petitioner might lawfully have been convicted of and sentenced for more than one offense, we need not now discuss or decide. However, rules of some present relevance include the following:
“Each of several crimes established by the same conduct of a defendant may be alleged as a separate count in a single information. K.S.A. 21-3107(1). It is proper to charge by several counts of an information the same offense committed in different ways or by different means to the extent necessary to provide for every possible contingency in the evidence. State v. Pierce, et al., 205 Kan. 433, 437, 469 P.2d 308 (1970).” State v. Hagan, 3 Kan. App. 2d 558, 560, 598 P.2d 550, 554 (1979).
Further, under K.S.A. (now 1978 Supp.) 22-3202(1), “Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” The crimes involved here fall within these rules.
We cannot quarrel with the prosecutor’s initial decision. Sound prosecutorial discretion frequently dictates one charge when multiple charges are legally possible. Further, separation would have encountered hazards of its own, and might well have run into allegations of duplicity or multiplicity, variants of the problem of double jeopardy. See e.g., State v. Thornton, 224 Kan. 127, 577 P.2d 1190 (1978); State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973). The fact remains that petitioner was convicted of a crime which proved as a matter of law to be no crime at all. There is no suggestion that the State chose its present position deliberately. From petitioner’s point of view, however, it makes little difference whether he is to be retried from design or from chance. Either way he must run the gauntlet again.
In the former prosecution, petitioner was charged with and convicted of accosting, enticing or soliciting a child under the age of twelve years who was not the spouse of petitioner to touch the person of petitioner with the intent to arouse or to satisfy the sexual desires of the petitioner. K.S.A. 21-3511; K.S.A. 21-3503(1). The trial evidence proved not only that charge, but also that petitioner was guilty of accosting, enticing, or soliciting a child under the age of twelve years who was not the spouse of the petitioner to submit to exposure of petitioner’s sex organ in the presence of the child with the intent to arouse or gratify the sexual desires of the petitioner. K.S.A. 21-3511; K.S.A. 21-3508(l)(h). The latter is the offense for which petitioner is now charged. The only difference is the touching of petitioner’s person as distinguished from exposure of petitioner’s sex organ. To be specific, the victim testified without contradiction that not only was there touching of petitioner effected by petitioner’s taking and placement of the victim’s hand, but also that the touching was immediately preceded and contemporaneously accompanied by proscribed exposure by petitioner.
Petitioner’s double jeopardy argument almost falls within the facts and holding of the recent decision of this court in In re Berkowitz, 3 Kan. App. 2d 726. In Berkowitz, the compulsory joinder provisions found in K.S.A. 1978 Supp. 21-3108(2)(a) barred that petitioner’s reprosecution since the new charge was actually proved in the first trial and could have been but was not charged or relied upon in the former prosecution. The dispositive distinction of Berkowitz is that in that case the former prosecution resulted in an acquittal of a greater offense. The similarity of Berkowitz is the conviction in the former prosecution of a crime which proved as a matter of law to be no crime at all. 3 Kan. App. 2d at 748.
In sum, the present subsequent prosecution is for a crime (1) of which evidence was introduced and admitted in the former prosecution and (2) which might have been included as another count in the information filed in the former prosecution had the State so elected, but the former prosecution did not result in conviction or acquittal. We hold prosecution of petitioner under the pending complaint does not constitute double jeopardy proscribed by K.S.A. 1978 Supp. 21-3108(2)(o).
Consideration of petitioner’s claim of denial of speedy trial leads us to conclude that his federal and state constitutional rights to a speedy trial were violated.
The constitutional guaranty of a speedy trial attaches when one becomes accused and the criminal prosecution begins. State v. Taylor, 3 Kan. App. 2d 316, Syl. ¶ 5, 594 P.2d 262 (1979), and cases cited therein. Petitioner’s right to a speedy trial on the now pending charge attached on May 22, 1975, upon the filing of the complaint and issuance of the arrest warrant. K.S.A. 21-3106(5); K.S.A. 1978 Supp. 22-2202(5); K.S.A. 1978 Supp. 22-2301(1); United States v. Louzon, 392 F. Supp. 1220, 1225-1226 (E. D. Mich. 1975); People v. Love, 39 Ill. 2d 436, 442, 235 N.E.2d 819 (1968); Jacobson v. Winter, 91 Idaho 11, 13, 415 P.2d 297 (1966); Rost v. Municipal Court, 184 Cal. App. 2d 507, 510-513, 7 Cal. Rptr. 869, 85 A.L.R.2d 974 (1960).
The factors to be considered in determining whether a peti tioner has been denied a speedy trial are: (1) length of the delay, (2) reason for the delay, (3) petitioner’s assertion of his rights, and (4) prejudice resulting to the petitioner. Barker v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972); State v. Smith & Miller, 224 Kan. 662, 671, 585 P.2d 1006 (1978), modified 225 Kan. 199, 588 P.2d 953 (1979); State v. Taylor, 3 Kan. App. 2d at 321-322.
We treat the delay here to be nineteen and one-half months, the period between commencement of the present prosecution and petitioner’s arrest, since this appeal was taken prior to trial. Prior to his arrest, petitioner was not informed of the outstandng warrant and had no reasonable means of discovering its existence. No detainer was filed by the State. Under the facts of this case, the State may not be heard to say it was unaware of petitioner’s incarceration and whereabouts so as to excuse its failure to file a detainer at KSIR or to serve the arrest warrant in Sedgwick County. Since petitioner was without knowledge of the outstanding warrant, his failure to assert his right to a speedy trial cannot be held against him. Lastly, petitioner was prejudiced in that had a speedy trial been afforded and had petitioner been found guilty, a sentence imposed likely would have been ordered to run concurrently with the aggravated robbery sentence petitioner was serving. United States v. Louzon, 392 F. Supp. at 1227-1228. This was a real and practical possibility in view of his prior sentencing. As a result of the delay, petitioner was denied this possibility. We conclude petitioner was denied his right to a speedy trial and the complaint now pending against petitioner should be dismissed.
The decision of the trial court is reversed; the case is remanded to the district court with directions to grant the writ and dismiss the complaint now pending against petitioner. | [
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Meyer, J.:
This is an appeal from the district court’s denial of plaintiff’s application for relief made pursuant to K.S.A. 60-1507.
On April 10, 1975, complaints were filed against plaintiff and four other persons, charging each of them with the crimes of aggravated robbery, contrary to K.S.A. 21-3427, and aggravated assault, contrary to K.S.A, 21-3410. The accompanying affidavits for arrest warrants recite that on March 24, 1975, plaintiff and Steve Watts entered a cafe in Detroit, Kansas, in order to commit a robbery. Watts was armed with a shotgun and plaintiff appeared to be carrying a handgun, although he later stated it was a toy gun. While the robbery was in progress, Norman Peart stood guard outside the cafe while James Hodges and Donna Martin waited in the “getaway” vehicle. Plaintiff and Watts took some beer, several checks and an amount of currency from the cafe and proceeded to the car where the group was waiting. One account of the incident suggests that a shot was fired from the vehicle a short time after the robbery.
Watts, Peart, Hodges and Martin ultimately entered their respective pleas of guilty to a second information charging each with robbery, contrary to K.S.A. 21-3426. Watts was sentenced to a minimum term of one year and a maximum term of twenty years, with execution of the sentence suspended and five years probation imposed in lieu thereof. Peart was sentenced to a minimum term of one year and a maximum of twenty years and his request for probation was denied. Martin was placed pn five years probation. Hodges was sentenced to a minimum term of two years and a maximum term of twenty years, with execution of the sentence suspended and two years probation granted. Thus, Peart was the only defendant not placed on probation other than plaintiff.
On May 16, 1975, plaintiff entered a plea of guilty to one count of aggravated robbery, contrary to K.S.A. 21-3427. The trial court thereupon sentenced plaintiff to a minimum term of fifteen years and a maximum term of life. Plaintiff’s attorney thereafter filed a motion for reduction of sentence and request for probation which were denied on September 12,1975. On October 2,1978, plaintiff filed the instant action pursuant to K.S.A. 60-1507, alleging that (1) the trial court abused its discretion in its imposition of the maximum sentence under K.S.A. 21-3427 against plaintiff in view of the treatment of the four other codefendants; (2) the trial court gave no reasons or justification for plaintiff’s sentence; and (3) plaintiff was denied effective assistance of counsel in that neither his attorney nor the trial court advised him of his right to appeal or to pursue his post-conviction remedies. The trial court denied relief and this appeal followed.
The primary thrust of plaintiff’s appeal is that the court erred in denying relief in that the trial court’s imposition of sentence constituted an abuse of discretion and is contrary to the constitutional prohibition of cruel and unusual punishment. The plaintiff’s claim regarding ineffective assistance of counsel is clearly without merit. The record discloses the trial court informed plaintiff that he waived his statutory right to a direct appeal upon his guilty plea. At any rate, failure to advise a defendant of his right to appeal does not amount to a denial of a constitutional guarantee. See Tuscano v. State, 206 Kan. 260, 261, 478 P.2d 213 (1970), and cases cited therein. We turn to an examination of plaintiff’s claim regarding his sentence.
The applicable statutes, in force at the time of the plaintiff’s sentencing, were K.S.A. 21-4601 and 21-4606. 21-4601 provides:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
21-4606 provides:
“(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.
“(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
“(a) The defendant’s history of prior criminal activity;
“(b) The extent of the harm caused by the defendant’s criminal conduct;
“(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
“(d) The degree of the defendant’s provocation;
“(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
“(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
“(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
In State v. Coutcher, 198 Kan. 282, 288, 424 P.2d 865 (1967), the court quoted the following passage from Weems v. United States, 217 U.S. 349, 368, 54 L.Ed. 793, 30 S.Ct. 544 (1910):
“ ‘What constitutes a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous, torture and the like. McDonald v. Commonwealth, 173 Massachusetts, 322. The court, however, in that case conceded the possibility “that imprisonment in the State prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.” . .
Our earlier decisions noted that reviewing courts would rarely interfere with a sentence on the ground that it violates the cruel and unusual punishment prohibition. See, e.g., In re MacLean, 147 Kan. 678, 681, 78 P.2d 855 (1938). More recent decisions have enunciated the general rule as follows:
“ ‘When a sentence is fixed by the trial court within permissible limits of the applicable statutes the sentence is not erroneous. In the absence of special circumstances showing an abuse of judicial discretion it cannot be determined on appeal that such a sentence is excessive or so disproportionate to the offense as to constitute cruel and unusual punishment.’ ” State v. Steward, 219 Kan. 256, 270, 547 P.2d 773 (1976).
Cf. State v. Foy, 224 Kan. 558, 569, 582 P.2d 281 (1978); State v. Pettay, 216 Kan. 555, Syl. ¶ 4, 532 P.2d 1289 (1975); State v. Smith, 3 Kan. App. 2d 179, 182, 591 P.2d 1098 (1979).
Plaintiff concedes his sentence is within the applicable statutory bounds but argues that the trial court abused its discretion in imposing the maximum sentence under K.S.A. 21-4501(fo) in view of the disparate and more lenient sentences received by his codefendants and in light of the lack of reasoning which accompanied the trial court’s imposition of sentence.
Three recent cases provide guidance in assessing plaintiff’s claims. State v. Coe, 223 Kan. 153, 574 P.2d 929 (1977), and State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), are companion cases in which each defendant appealed from convictions of multiple counts of aggravated robbery. Each defendant contended the trial court abused its discretion in imposing a ninety years to life sentence pursuant to the habitual criminal act, K.S.A. 21-4504. The Kansas Supreme Court vacated both defendants’ sentences and remanded for resentencing. In Buckner the court noted that the presentence report and evaluation from the Kansas Reception and Diagnostic Center were overall favorable to the defendant and that the multiple convictions derived from a single incident. The primary emphasis in Buckner, however, is on the desirability of including a statement of reasons accompanying a severe sentence.
“The legislature has dictated, in K.S.A. 21-4606, certain minimum factors to be considered in imposing sentence. Although the statute may not require it, we feel that when the sentence exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the trial court has abused its discretion.” 223 Kan. at 151.
Cf. State v. Williams, 226 Kan. 688, 697, 602 P.2d 1332 (1979).
In Coe, the Court vacated the trial court’s ninety years to life sentence, finding it to be so arbitrary and unreasonable as to constitute an abuse of judicial discretion. The court emphasized the favorable presentence reports which indicated defendant to be a fairly well adjusted individual with substantial chances of being a successful probationer. The court also emphasized that the two felony convictions by which defendant’s sentence was enhanced resulted in his probation and subsequent incarceration at the Kansas State Industrial Reformatory for less than one year.
A recent case which confronts the present issue is State v. Goering, 225 Kan. 755, 594 P.2d 194 (1979). The court therein vacated defendant’s consecutive sentences, emphasizing the disparity in sentences received by Goering’s codefendants, Thach and Keener, in comparison to their respective culpability in the criminal activity:
“Sandra Goering was not armed during the occurrences related above. She had no weapon. She fired no shots. Her sole activity was that as the driver of the getaway vehicle. The crime was severe, and defendant’s participation therein cannot be excused, justified or condoned. The entire occurrence was reprehensible.
“However, upon a review of the entire record, it is readily apparent that the conduct of Sandra Goering was the least culpable of the three participants. We can see no reasonable basis upon which the sentence imposed upon her should exceed by several times the sentence imposed upon Thach. We conclude that the sentence imposed is excessive.” 225 Kan. at 762.
The court also noted the trial court’s lack of justification or reasoning accompanying the imposition of sentence.
In the present case, the trial court was advised of the factual basis underlying plaintiff’s guilty plea. In essence, the facts related by the county attorney indicated that three of the five codefendants were armed, although plaintiff’s counsel informed the trial court plaintiff’s gun was actually a toy. Although plaintiff and Watts apparently threatened the patrons of the bar, the county attorney noted that no one was harmed. The plaintiff was twenty years old at the time of the guilty plea hearing with no prior felony convictions. The county attorney advised the trial court that at the time of the hearing felony detainers were filed in three other Kansas counties against plaintiff, charging him with aggravated robbery, criminal damage to property and aggravated assault. The record does not indicate the ultimate disposition of any of these charges.
Upon the trial court’s invitation, plaintiff stated that he and the other participants “. . . had been drinking, and we was driving around, and we just all got a wild notion.” The court thereupon entered the sentence and ordered plaintiff to the Kansas Reception and Diagnostic Center for evaluation. The report subsequently received from K.R.D.C. indicated plaintiff to be in normal physical health and noted that his participation in the crime seemed “passive” and was induced by his more daring friends and under the influence of drugs. Upon plaintiff’s motion for reduction of sentence after the evaluation was completed, the trial court denied the request and stated:
“The Court was, I believe, quite well informed as to the roles that each of the defendants played in this armed robbery; and while the — there are elements of the report from the Reception Center that indicate this person was probably not the principal leader at the time of the robbery, he was certainly in the front row of instigation of the whole operation that night. And the Court tried to take into consideration all of the elements that you mentioned, of course, with the exception of the Diagnostic Center report at the time sentence was passed. The application for reduction and for immediate probation is denied.”
No further reasons appear in the record which would further explain the trial court’s imposition of the maximum sentence.
We find the trial court’s lack of reasoning to be particularly troublesome. While courts now are required to state the reasons for imposing a sentence of commitment under K.S.A. 1979 Supp. 21-4603(3), the trial court in the present case was not bound by such a statutory duty. Nevertheless, our reading of such cases as State v. Buckner, 223 Kan. 138, and State v. Coe, 223 Kan. 153, indicates to us that the lack of reasoning, even when not technically required, is a proper factor to be considered in determining whether a particular sentence constitutes an abuse of the trial court’s judicial discretion. Additionally, we find the disparity in sentencing between plaintiff and his codefendants to be a persuasive factor in finding an abuse of discretion. While the disparity in sentences in the present case is not as marked as the circumstances presented in State v. Goering, 225 Kan. 755, we find no justification in the record for imposing a minimum sentence upon plaintiff which is fifteen times greater than that imposed upon Peart, even though both men were tagged as the primary instigators of the crime. It is also to be noted that plaintiff apparently was not offered similar plea bargaining possibilities as his codefendants, in violation of ABA Standards, Pleas of Guilty § 3.1 (c) (Approved Draft, 1968), which provides that “[similarly situated defendants should be afforded equal plea agreement opportunities.” We likewise find the length of plaintiff’s sentence disturbing, particularly in light of the fact that plaintiff had no prior felony convictions or incarcerations. While we certainly agree with the trial court as to the severity of the crime committed, we cannot say that the present state of the record supports its imposition of the maximum sentence possible.
We do not hold that the trial court abused its discretion at the time it originally sentenced the plaintiff. At that time the court had before it only his plea of guilty to aggravated robbery. However, the trial court failed to reduce plaintiff’s sentence upon his motion for reduction of sentence (K.S.A. 1979 Supp. 21-4603). It was at that point that the trial court abused its discretion since the court was then aware of the ultimate disposition of sentences received by the codefendants involved and of plaintiff’s evaluation from K.R.D.C.
Considering plaintiff’s age at the time of the offense, the relative extent of his involvement in the crime, the fact that the offense was his first felony conviction, the lack of reasoning supporting the trial court’s imposition of sentence, the much more lenient sentences received by the other codefendants, the length of the sentence imposed, the favorable evaluation from K.R.D.C., the disparity in plea agreement offers, and the fact that the trial court failed to modify plaintiff’s sentence when all available information concerning the other codefendants’ respective dispositions and plaintiff’s psychological evaluation was known, we conclude that the trial court abused its discretion in failing to modify plaintiff’s sentence.
The judgment is reversed and the case is remanded to the trial court with directions to vacate plaintiff’s sentence and to resentence him pursuant to K.S.A. 21-4601 and K.S.A. 1979 Supp. 21-4603(2). | [
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Spencer, J.:
This is a workers’ compensation case. The sole issue is whether the Workmen’s Compensation Fund was properly dismissed as a party to the proceedings.
Claimant was injured July 25, 1975. Claim for compensation was served on respondent in October, 1975. A full hearing was held before the examiner on December 9, 1976, at which pretrial stipulations were taken, the claimant testified, and various medical records were introduced into evidence. Immediately following the hearing, claimant’s attorney furnished a psychiatric report to respondent’s attorney which indicated the claim might involve a preexisting emotional or psychiatric problem. The district court specifically found respondent had no actual notice prior to the hearing of December 9 that claimant’s injuries might be related to a preexisting psychiatric condition. On December 10, 1976, respondent filed notice impleading the Fund as a party to the proceedings.
On April 7, 1977, a compromise settlement was made between claimant and respondent under which claimant received a lump sum disability payment. The question of whether the Fund could be held responsible for any part of the settlement award was expressly reserved by respondent and the Fund.
The examiner thereafter dismissed respondent’s claim for con tribution from the Fund. Both the director and the district court affirmed. The court held that the Fund was not a proper party to the proceedings because the respondent failed “to implead the Workers’ Compensation Fund prior to the hearing of December 9, 1976, as required by K.S.A. 44-567(d) [now K.S.A. 44-567(c)] . . . .” Claimant is not a party to this appeal.
K.S.A. 1978 Supp. 44-567(c) provides in pertinent part:
“An employer shall not be relieved of liability for compensation awarded nor shall he or she be entitled to an apportionment of the costs thereof as provided in this section, unless the employer shall cause the commissioner of insurance, in his or her capacity as administrator of the workmen’s compensation fund, to be impleaded ... by giving written notice of the employee’s claim to the commissioner of insurance prior to the first full hearing where any evidence is presented on the claim.”
By the clear wording of the statute, an employer cannot seek to shift all or any part of the cost of an award to the Fund unless the Fund is impleaded “prior to the first full hearing.” It is undisputed in this case that the first — and only — full heáring occurred December 9, 1976, and that the Fund was not impleaded until December 10, 1976. Respondent suggests that the statute “should be interpreted to allow the impleading of the Fund after a respondent first receives actual notice that a claim is, in fact, based on mental conditions or complications of a claimant rather than physical injuries, which are the only injuries alleged by claimant prior to such actual notice.”
The fallacy in respondent’s argument is that this court is not authorized to amend K.S.A. 1978 Supp. 44-567(c). The language of the statute is clear and it provides for no exceptions: If the Fund is not impleaded prior to the first full hearing, then the Fund is not a proper party to the proceedings. See Safeway Stores, Inc. v. Workers’ Compensation Fund, 3 Kan. App. 2d 283, 593 P.2d 1009 (1979). When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Thomas County Taxpayers Ass’n v. Finney, 223 Kan. 434, 573 P.2d 1073 (1978); Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, 557 P.2d 1286 (1976).
Affirmed. | [
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Abbott, J.:
The sole issue in this review of a rate application is the reasonableness of the Kansas Corporation Commission’s dis-allowance for rate purposes of a portion of a payment by Southwestern Bell Telephone Company to its parent company, American Telephone and Telegraph Company, under a license contract.
The license contract, dated September 26, 1930, and amended April 26, 1963, provides for payments by Southwestern Bell to AT&T of an amount equal to 2Vi percent of Southwestern Bell’s annual gross earnings. These payments are in consideration for services provided to Southwestern Bell by AT&T. As described by Southwestern Bell’s witnesses, these services fall under four principal categories:
1. Research and fundamental development in the field of telephony;
2. Advice and assistance to the operating companies in matters pertaining to efficient conduct of their business;
3. The right to use AT&T patents and protection from patent infringement suits; and
4. Advice and assistance in financial matters.
From 1948 to 1974, AT&T waived a portion of its fee and accepted one percent of Southwestern Bell’s gross earnings in satisfaction thereof. Southwestern Bell contends that this resulted in substantial deficits to AT&T in that the one percent did not cover the cost of services it provided pursuant to the licensing contract. Beginning October 1, 1974, AT&T required the operating companies (of which Southwestern Bell is one) to pay an allocated share of the costs incurred by AT&T in providing the services, including a return on investment. Each company’s allocated share, however, was not to exceed the contract rate of 2Vz percent of gross revenues. Since 1974, Southwestern Bell’s payments to AT&T under the license contract have increased an average of 23.06 percent per year. For the test year here involved (ending March 31, 1977), the Kansas intrastate portion of Southwestern Bell’s payment was $3,582,543 (approximately 1.7 percent of revenues).
The Kansas Corporation Commission, for ratemaking purposes, limited Southwestern Bell’s payment under the license contract to the traditional one percent of revenues ($2,062,000). The reasonableness of that limitation is the issue on review.
There appears to be little, if any, disagreement by the parties as to the standard of review applicable for cases of this nature. The standard was recently stated in Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380-81, 595 P.2d 735, rev. denied September 11, 1979, as follows:
“K.S.A. 1978 Supp. 66-118d limits judicial review of an order by the commission to determining whether the order is ‘lawful’ or ‘reasonable.’ Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. ¶ 1, 544 P.2d 1396 (1976). A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 396-7, 565 P.2d 597 (1977). An order is ‘lawful’ if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. ¶ 1, 561 P.2d 779 (1977). An order is generally considered ‘reasonable’ if it is based on substantial competent evidence. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 2.
“The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. at 511. Since discretionary authority has been delegated to the commission, not to the courts, the power to review does not give the courts authority to substitute their judgment for that of the commission. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). The commission’s decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experience as statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 48-9, 386 P.2d 515 (1963). Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975); Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, Syl. ¶ 5, 527 P.2d 1065 (1974).”
In considering whether an order of the Commission is based on substantial competent evidence and thus reasonable, our Supreme Court has stated that substantial competent evidence is that which possesses something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can reasonably be resolved. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 3, 565 P.2d 597 (1977).
A brief description of the part of the Bell System that is involved, in this rate hearing is useful. AT&T is comprised of the long lines department, which operates the long distance network interconnecting the territories served by the operating companies and which provides foreign connections, and of the general department, which provides advice and assistance to the operating companies under the license contract agreement. Western Electric Company is a wholly owned subsidiary of AT&T and manufactures, purchases, repairs and distributes telecommunications apparatus used by the operating companies. Bell Telephone Laboratories is owned 50 percent by AT&T and 50 percent by Western Electric and conducts research, development and design work for the system. In turn, there are twenty-three operating companies that provide telephone service and facilities within their respective territories. Southwestern Bell is one of those companies and is a wholly owned subsidiary of AT&T.
In our analysis of this case, we start with the well-established principle that all rates fixed by the Commission are prima facie reasonable unless or until changed or modified by the Commission or by court order. K.S.A. 66-115. For several years the Commission has approved a license contract expense of one percent of revenues, the last such order being in 1977 (Docket No. 107,330-U, 19 Pub. U. Rep. 4th 1). Thus, the burden was on Southwestern Bell to show that the one percent level was no longer just or reasonable. Did Southwestern Bell meet its burden?
Southwestern Bell is a wholly owned subsidiary of AT&T. As such, payments under the license contract are subject to the provisions of K.S.A. 66-1403:
“In ascertaining the reasonableness of a rate or charge to be made by a public utility, no charge for services rendered by a holding or affiliated company, or charge for material or commodity furnished or purchased from a holding or affiliated company, shall be given consideration in determining a reasonable rate or charge unless there be a showing made by the utility affected by the rate or charge as to the actual cost to the holding or affiliated company furnishing such service and material or commodity. Such showing shall consist of an itemized statement furnished by the utility setting out in detail the various items, cost for services rendered and material or commodity furnished by the holding or affiliated company.”
The purpose of this provision is to enable the Commission to determine whether a public utility’s investment, rate base, or operating expenses have been inflated by charges by its affiliates, which include unreasonable profits to such affiliates, so that the Commission may disallow the unreasonable part of such charges, if any, in determining the reasonableness of the public utility’s rates. The statute requires only such character and amount of itemization and detail of the actual cost of commodities or services sold or furnished to the public utility by its affiliates as would be practicable and reasonable under the conditions and circumstances of the particular case involved. Southwestern Bell Tel. Co. v. State Corporation Comm., 169 Kan. 457, Syl. ¶ 1, 219 P.2d 361 (1950). In that case, the Commission had refused to give any consideration to payments made by Southwestern Bell to AT&T and Western Electric because of a perceived lack of detail in the showing of the affiliate’s actual costs. The Court held the showing to be sufficient for consideration and returned the matter to the Commission for a determination of the reasonableness of the payments.
In Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P.2d 515 (1963), the Court stated at p. 83:
“The fact that transactions take place between affiliated Companies is a matter justifying close scrutiny, but the matter should not be given any consideration in the absence of evidence of unfair dealing.
“In Southwestern Bell Tel. Co. v. State Corporation Comm., 169 Kan. 457, 219 P.2d 361, this court considered the proof necessary to establish the reasonableness of affiliated company transactions. Once the Company had established such proof, the Commission must abide by the results unless it wishes to introduce evidence to the contrary.”
In the present case, Southwestern Bell takes the position that it has met its burden of showing that the one percent level was no longer just and reasonable simply by making the showing required by K.S.A. 66-1403. It argues that once the actual cost to AT&T of providing the services is shown, the reasonableness of Southwestern Bell’s payments for those services must be presumed absent evidence of unfair dealings.
We do not agree. Making the showing required by K.S.A. 66-1403 is only the first step that a utility must take in meeting its burden for a change in rates based on increased expenses growing out of affiliate transactions. As we view K.S.A. 66-1403, no charge by a holding or affiliated company is to be given consideration in determining a reasonable rate unless there is a showing of actual cost to the holding or affiliated company of furnishing the service. After such a showing is made, the Commission has still to determine the reasonableness of the charge based on the evidence produced by the utility. The utility does not meet its burden of showing the charge to be reasonable simply by showing the actual cost to the affiliate providing the service.
Such a reading is consistent with the purpose of K.S.A. 66-1403 as interpreted in Southwestern Bell, 169 Kan. 457, and is not altered by the statement, set out above, in Southwestern Bell, 192 Kan. at 83. The burden does not shift to the Commission until the utility makes a showing of the reasonableness of its expenses. In the present case, as in most, this requires more than simply showing the actual cost to the affiliate of providing the service expensed. The reasonableness of the expense to the utility, for ratemaking purposes, will depend, among other factors, on whether the services provided themselves are necessary or beneficial to Kansas ratepayers.
We will not attempt to summarize in detail the record before us, which consists of 3,631 pages of testimony, 93 exhibits, and a pleading file that is 3Vz inches thick. It is necessary, however, to detail some of the testimony in order to have an understanding of this opinion.
Southwestern Bell presented the testimony of two major witnesses that is relevant to a consideration of the license contract agreement. Richard Maskiell, manager of license contract and regulatory matters in the comptroller’s department of AT&T, was the sponsor of an extensive document admitted as exhibit 49. His testimony includes a description of the accounting methods by which separate accounts for each AT&T entity are segregated, a narrative of the internal procedures utilized in determining the cost of a service and the corresponding nature of such service, an explanation of the process by which costs are allocated among the various operating companies, and a description of the budgeting process. Despite this extensive documentation of alleged cost calculation, it is clear that the underlying computations and determinations are subjective decisions in part. Maskiell emphasized that the operating companies have extensive input into budget and program decisions; that the operating companies benefit from the centralization of services provided by AT&T and Bell Laboratories; that there is no duplication of services or costs provided to the operating companies; that the accounting system used by AT&T is sound under general accounting principles; and that there are many safeguards to insure that license contract expenses are reasonable and necessary. It is clear, however, that the Commission was not impressed with the internal procedures which purportedly insure reasonableness of costs. The Commission specifically expressed its reservations of AT&T’s license contract review committee (consisting of the presidents of three operating companies) and also expressed its doubts of “any cost-plus approach adopted by a parent company as a method of expensing funds from a subsidiary to the parent.”
The bottom line of Maskiell’s testimony is that AT&T was experiencing substantial deficits under the one percent agreement and that the “new” agreement, beginning in 1974, was an attempt to allocate total costs more effectively while allowing AT&T to recover the actual costs of its license services. Although the Commission staff made no specific rebuttal of any line item contained in Southwestern Bell’s exhibit 49 that was presented and sponsored by Maskiell, it did attempt to show expenses were inflated by AT&T or not properly allocable by AT&T to the operating companies under the licensing contract in the area of charitable contributions, national advertising costs, quality assurance program costs, Bell Laboratories expenses, patent costs, picturephone services and costs, public relations and employee information costs, anti-trust expenses, and moving costs of AT&T’s headquarters.
The next witness presented by Southwestern Bell was John Keith, assistant vice-president of business office services for Southwestern Bell and sponsor of a document admitted as exhibit 57. Keith’s testimony focuses on the benefits derived from the agreement from the operating companies’ point of view. Exhibit 57 contains the results of a study conducted under Keith’s supervision. Its express purpose was “to attempt to quantify the monetary value of the benefits associated with the [license contract] services.” The study was described as a continuing review process of the value of services received under the lease contract, as previous similar studies were conducted by Keith in 1975 and 1976. The data for the present study were primarily collected in the first five months of 1977. Expressing the view of the impracticability of assessing all four major areas of AT&T services supplied to the operating companies (advice and assistance, patent rights, financial assistance, and research and development), Keith’s study focuses only on the advice and assistance phase. The study was conducted with the assistance of department coordinators at Southwestern Bell who were supplied with instructions and forms to be utilized in identifying license contract services, the benefit derived by Southwestern Bell from such services, and a quantification of the costs incurred if Southwestern Bell were required to provide such services itself. The quantification method basically involved a determination of the number of employees required to provide the service, including a determination of the “level” of employee required and the amount of time each employee would allocate to such service, based on AT&T’s employee classification system and a standardized “loaded” figure which added such factors as equipment and housing to the base salary figure. An example of the methodology used was admitted as exhibit 59. Additionally, the study included an assessment of allegedly necessary “one-time costs” which would be required to provide similar services.
The study identified 531 separate service items within the advice and assistance area. Keith testified his study concluded the license contract service provided by AT&T indicated a savings of $3,563,890 for the Kansas intrastate system, using the license contract allocation method, and that his study did not even include all benefits derived from the agreement in the advice and assistance category. The primary benefits derived from the advice and assistance portion of AT&T’s license contract services, in Keith’s opinion, were: (1) the value of not having to incur total costs in the event of providing similar services, and (2) the value of the advice and assistance provided. Keith’s overall conclusion was that the costs of such services to Kansas are reasonable. Keith testified the Kansas area uses “almost all” of the advice and assistance services. Additionally, Keith concurred with Maskiell’s assertion that the operating companies have substantial input into the nature and amount of services provided and that safeguards exist which insure the necessity of such services.
The Commission commented on the similarity of the present proceeding to the immediate preceding rate case and noted the alleged cost savings are less in the present case, according to Keith’s study. The Commission concluded both the staff’s computation of the cost of the study using Keith’s figures and Keith’s study were suspect and it was not accepted. The Commission appeared to disapprove Keith’s inclusion of one-time costs in the test year which are incurred over a period of one to nine years. The Commission also refers favorably to its prior decision (docket 107,330) in which Keith’s study was criticized concerning the improper mixture of total company and intrastate comparisons, his lack of statistical expertise, and the inclusion of items outside the test year. Further, the Commission, in the prior proceeding, noted the inclusion of $302,000 in one-time costs for development of a new AT&T standard fire extinguisher, apparently finding such figure incredible. Re Southwestern Bell Telephone Company, 19 Pub. U. Rep. 4th at 23-24.
The Commission staff presented testimony by Darrell Bledsoe, a certified public accountant. Bledsoe criticized Keith’s study for several reasons: (1) It improperly includes one-time costs which should be allocated over a longer period of time; (2) it fails to designate services not used in Kansas and specifically sets out programs which were not operational at the end of the test year; (3) it does not eliminate the possibilities of service duplication by the various AT&T entities and does not consider whether costs are properly allocated between the various AT&T entities; (4) it improperly categorizes services — Bledsoe lists four programs included in Keith’s study of “advice and assistance” which Bledsoe believed should fall within a different category of service; (5) it fails to contemplate possible savings which could be realized if Southwestern Bell would provide certain services currently falling within the license contract; (6) Southwestern Bell failed to quantify incremental services rendered to Kansas if the license contract fee is at allocated cost rather than the one-percent figure. Bledsoe proposed retaining the figure of one percent previously approved. He advanced two primary arguments supporting the proposal: (1) The one percent fee allows the Commission to retain a degree of control over AT&T’s revenues; and (2) a thorough cost study, akin to the California report, is impractical. Bledsoe testified in part that:
“Under the new method of determining the license fee payments, AT&T can undertake any project that they desire and charge all of the costs for these projects back down to the operating companies and ultimately to the jurisdictional ratepayers. Without a complete investigation of the costs included in test year expenses, a determination of benefits to jurisdictional ratepayers is impossible. We have been advised by the Director of Utilities that this is not practical. An alternative to such an investigation is an adjustment limiting the license fee to 1% of net revenues. Under the allocated cost method, AT&T does not have jurisdictional restrictions on what they can charge to the individual operating companies. The growth in customers and customer usage as well as tariff increases granted by this Commission in the past years had the effect of increasing the license fee payments from Southwestern Bell Telephone to AT&T. The 1% of net revenues permitted yearly increases in the license fees paid to AT&T and also resulted in some element of control by this Commission as to the amount of such license fee that was paid by jurisdictional ratepayers.”
Considerable discussion was evoked during Bledsoe’s cross-examination regarding the “impracticability” argument of conducting a full study of the license contract expenses. Bledsoe admitted such a study was possible, but maintained its impracticability. He stated that the one-percent figure he recommended was chosen because “AT&T had utilized the one percent for 26 years, [and] that is the sole reason for choosing the one percent.” Bledsoe’s testimony is not specifically mentioned in the Commission’s order.
The staff also presented the testimony of three witnesses concerning the California study of Pacific Telephone & Telegraph Company admitted as exhibit 50. James Pretti, principal financial examiner in the finance division of the California Public Utilities Commission, was responsible for the overall coordination of the audit and preparation of the report. Pretti noted the study took approximately three man-years to complete and that the staff held many interviews with AT&T and Bell Laboratories personnel as well as having audited both entities. A review of the work performed and expenses incurred by Bell Laboratories was deemed necessary in view of the fact that approximately 40 percent of license contract expenses originated there. Pretti identified the two major conclusions reached as a result of the study, testifying:
“1. A significant portion of the BTL charges which are billed to Bell operating telephone companies as part of the License Contract is for work which is related to and is in fact vital to the development of products manufactured by Western Electric Company. It is the Finance Division’s opinion and recommendation that these costs be charged to Western Electric and not to the operating telephone companies as part of the License Contract.
“2. AT&T is the principal, if not sole, stockholder in Bell System companies, and as such, incurs certain expenses which are related to and primarily are for the benefit of its investors rather than the ratepayers of Bell System operating telephone companies. The General Departments of AT&T also engage in certain marketing and engineering activities which are related to products manufactured by Western Electric. The staff has recommended that investor related expenses not be allowed for rate making purposes and that product related expenses be charged to Western Electric rather than to operating telephone companies as part of the License Contract.”
Pretti noted the similarity of Pacific Telephone & Telegraph Company to Southwestern Bell and conceded that Pacific Telephone is 90 percent owned by AT&T and 10 percent by the public, and that the capital structure of Pacific Telephone rather than AT&T is used in computing Pacific Telephone’s rate of return.
Thomas O’Rourke, a California Public Utilities Commission financial examiner who assisted in preparing exhibit 50, testified about certain expenses of AT&T’s general department which should not, in his opinion, have been included as a part of Pacific Telephone’s fee under the license contract.
Thomas O’Rourke also prepared the Kansas analogue to the California report that was admitted as exhibit 66 and is purported to set out the Kansas intrastate allocated expenses for the test year based on data obtained from Southwestern Bell and AT&T. It suggested disallowance of $722,861 from the expenses of AT&T allocated to Southwestern Bell, although some $372,723 of that sum is related to California policy. O’Rourke testified he would suggest disallowance irrespective of such policies.
The final witness concerning the California report was Lloyd Humphrey, California Public Utilities Commission financial examiner who helped to prepare exhibit 50, specifically that portion dealing with allocation of Bell Laboratories expenses between AT&T and Western Electric. Humphrey’s conclusion was that 70.6 percent of all charges for research and development conducted by Bell Laboratories and funded by the operating companies are product related and should be funded by Western Electric and thus excluded under the license contract.
The Commission in its order expressly denied adopting the California study exhibits as the sole reason for supporting the one percent limitation. Southwestern Bell points out a number of evidentiary questions concerning the report. We are of the opinion they go to the weight to be given the evidence and not to its admissibility. It further noted that the first full calendar year (1975) of cost plus billing to Southwestern Bell showed an increase of 75 percent from $2,292,350 (1973) to $4,016,239. In addition, the Commission also took note of its earlier order (Re Southwestern Bell Telephone Company, 19 Pub. U. Rep. 4th at 22-24) in which it discounted an audit of the license review committee, stating that the firm that conducted the audit did not test the reasonableness of expenditures for ratemaking purposes. The auditors again testified in this case that they made no determination of the need or reasonableness of the expenditures.
Although Southwestern Bell appears to have met the requirement of K.S.A. 66-1403, i.e., made a showing of the actual cost to AT&T of providing services under the license contract, we cannot say that the Commission erred in finding that it had failed in its further burden of showing the full amount of the payments to be reasonable. As such, Southwestern Bell failed to meet its burden of showing that the one-percent figure previously allowed, and which was cloaked in a presumption of validity, was no longer just or reasonable.
Southwestern Bell would like more explicit guidelines regarding its burden of proof. We can only state it has a burden to meet, much as it would have in a civil suit, and we can add little, if anything, to the established guidelines. The Supreme Court has previously upheld the finding of a trial court that K.S.A. 66-1403 requires a utility to furnish “only such character and amount of itemization and detail as would be practicable and reasonable in the circumstances of the particular case, having regard to the purpose the statute was intended to serve.” Southwestern Bell Tel. Co. v. State Corporation Comm., 169 Kan. at 473, 474. Southwestern Bell may not meet its burden merely by presenting testimony that the charges are reasonable; and, on the other extreme, it need not prove each item. Its burden of proof is somewhere in between and is met when the trier of fact (Kansas Corporation Commission) is convinced of the reasonableness of the proposed changes. The Commission may not arbitrarily disregard or reject evidence. Based on our examination of the record, we cannot say the Commission did so. Nor may the Commission establish an arbitrary percentage figure for the license fee contract. The one-percent figure that Southwestern Bell was allowed was cloaked in a presumption of validity and reasonableness and it was incumbent upon Southwestern Bell to prove the reasonableness of a change. We cannot say from the record that the Commission was in error in determining that Southwestern Bell failed to meet that burden. The record does not so strongly demonstrate that the services performed benefit Kansas ratepayers to the extent the increased fee imposed by AT&T would require an increase in the rates. Thus, we are unable to say that under the circumstances the Commission’s order is unreasonable.
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Meyer, J.:
On September 26, 1978, a car driven by Jeffrey N. Boydston (appellant) ran a stop sign and struck another car, killing the other driver. On the morning of trial, the State was allowed to endorse five additional witnesses over appellant’s objections. Three of the five witnesses testified. One of the witnesses so endorsed, Manuel Andres, an accident reconstructionist, was allowed to testify over objection as to the rate of speed of appellant’s car based upon the collapsed damage to the cars from photographs taken of the vehicles.
Appellant was found guilty of vehicular homicide (K.S.A. 21-3405) by a jury.
Appellant claims that K.S.A. 21-3405 is void for vagueness and/or violative of due process and equal protection.
K.S.A. 21-3405(1) defines vehicular homicide as:
“[T]he killing of a human being by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.”
In addition to arguing that the statute was unconstitutional, appellant claims that the case requires the jury to be instructed that the material deviation from the standard of care which a reasonable person would observe under the same circumstances lies somewhere between ordinary negligence and wanton conduct.
First, the constitutionality of K.S.A. 21-3405 was discussed in State v. Randol, 226 Kan. 347, 597 P.2d 672 (1979), and the court found the statute to be constitutional, and not vague or indefinite. State v. Randol is controlling. Second, appellant’s contention that an instruction would be needed to advise the jury that a material deviation lies between ordinary negligence and wanton conduct has no merit. Since ordinary negligence is any deviation from the standard of care that a reasonable person would observe under the same circumstances, it follows that a material deviation would be negligence which exceeds ordinary negligence.
Appellant claims the trial court abused its discretion in admitting expert testimony as to the speed of the cars based upon photographs of the damage to the cars.
In Howard v. Miller, 207 Kan. 246, 252, 485 P.2d 199 (1971), the court held that the trial court is vested with wide discretion in receiving opinion evidence. In Miller, the Supreme Court held that there was no abuse of discretion in the trial court’s exclusion of testimony by plaintiff’s accident reconstruction expert as to the speed of defendant’s automobile. In that case the trial court’s action was based upon the fact that the witness had examined defendant’s Buick only from photographs and had used repair estimates on it furnished by others, and because the length of the skid marks was not fully ascertainable.
In viewing the admission of expert testimony, this court must determine whether the facts upon which an expert relies for his opinion afford a reasonably accurate basis for his conclusions as distinguished from mere guess or conjecture. See Myers v. Shell Petroleum Corp., 153 Kan. 287, 302, 110 P.2d 810 (1941); Spraker v. Lankin, 218 Kan. 609, 545 P.2d 352 (1976), and Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978).
In the instant case the accident reconstructionist was not only furnished with photographs of the accident, but he had also been to the location of the accident. Although at that time the cars had been removed, he could still ascertain the point of impact and where the automobiles came to rest. In addition, Exhibit 10, a diagram of the accident scene, which was admitted at the trial, was made known to the witness. It is noted that the photographs of the vehicles concerned which were admitted into evidence were very clear, and unmistakably showed very severe damage. Under the circumstances of this case it was not error for the trial court to permit the accident reconstruction witness to give evidence as to the estimated speed of the appellant’s automobile, considering the facts that were known to him at the time he gave his testimony.
Furthermore, the main cause of the tragic accident in the instant case was the failure of the appellant to stop at a stop sign, and not specifically the amount of speed with which he passed the same. There was evidence from which the jury could have determined that defendant was traveling at a high rate of speed. Such other evidence consisted of the testimony of Officer Van Houten, the first officer to arrive at the scene, who testified that he observed the right side of the vehicle driven by the victim, and the degree of its indentation. He made the further observation that appellant’s vehicle had sustained damage to the front-end “A-frame” which extended beyond the bumper and radiator area. Officer William James testified that the victim’s vehicle had a “U’d” appearance which indicated to him that the vehicle had been struck with a great amount of force. Dr. Bruce Barrick testified that based upon his autopsy, the decedent had died from injuries “consistent with high speed injury,” and while he also testified on cross-examination that such injuries would be consistent with low-speed injuries, the pictures gave more credence to his “high speed” statement. In addition, the pictures of the vehicles indicate high speed because of the extensive damage done to the vehicles. As was noted by the court in Foreman v. Heinz, 185 Kan. 715, 719, 347 P.2d 451 (1959), in discussing photographs admitted in that case, such photographs were “silent but conclusive proof of the fact that at the time of impact at least one of the cars was traveling at a high rate of speed.” Another witness, Warren Hicks, observed that appellant ran a stop sign and this lends considerable support to the jury’s finding that there was a material deviation by the appellant from the standard of care of a reasonable person.
Appellant next complains that the trial court abused its discretion in allowing late endorsement of five witnesses.
“The right of the state to endorse additional witnesses lies in the sound discretion of the trial court, and its ruling will not be disturbed in absence of a showing of abuse of discretion. The test is whether the defendant’s rights have been prejudiced.” State v. White & Stewart, 225 Kan. 87, Syl. ¶ 3, 587 P.2d 1259 (1978).
Here, the trial court arranged for defendant to have time to interview these witnesses who were endorsed the day of trial. Moreover, he stated to defense counsel that after defense counsel had visited with these witnesses that he would grant more time should defense counsel request it. Appellant’s counsel agreed on the time stated for the interview with the witnesses, and did not thereafter request a continuance. He cannot now complain about failing to receive time which he did not ask for, especially in view of the trial court’s offer to grant such time if requested. Moreover, two witnesses testified to minor matters, and the other witness, an expert, was known to the defendant a month before trial.
Appellant’s final claim of error concerns the trial court’s failure to instruct on lesser included offenses. Appellant claims that speeding, failure to yield right of way, failure to stop at a stop sign, and reckless driving, are lesser included offenses of vehicular homicide. Appellant’s claim is without merit.
Instructions on lesser included offenses must be given when the other offenses are either lesser degrees of the same crime, or when all of the elements of the lesser crime are necessary to prove the greater. Obviously none of these crimes claimed by appellant to be “lesser included offenses” are lesser degrees of vehicular homicide. Furthermore, none of those offenses contain elements which are necessary elements of the greater crime of vehicular homicide. As stated in State v. Giddings, 216 Kan. 14, Syl. ¶ 12, 531 P.2d 445 (1975):
“A crime may be said to be a lesser included offense where all of its elements are necessary elements of the greater crime which is charged.”
In the instant case all of the offenses claimed to be lesser included offenses have elements which are not necessary elements of the crime of vehicular homicide. It is clear that a speeding violation is not necessary to prove vehicular homicide. It is further not necessary to prove a defendant failed to yield a right of way or failed to stop at a stop sign in order to prove vehicular homicide. Reckless driving requires willful or wanton disregard for the safety of others. These elements are not required to be proved in order to show a violation of the vehicular homicide statute. Appellant’s assertion that these are lesser included offenses is unfounded.
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Spencer, J.:
This is an appeal by the natural mother of Baby Girl Chance from a decree of adoption entered by the probate division of the District Court of Wyandotte County on July 28, 1978.
It is here asserted: (1) that the trial court erred in failing to make findings of fact and conclusions of law pursuant to K.S.A. 60-252(a) and Supreme Court Rule No. 165, 225 Kan. lxxii; (2) that the natural mother was deprived of a fair hearing before an impartial tribunal; and (3) that the trial court was without subject matter jurisdiction for the reason that the mother’s consent to the adoption was not freely and voluntarily given and was not in proper form when it was executed.
Baby Girl Chance was born March 3, 1978. On March 6, 1978, the mother executed an instrument in writing entitled “Consent to Adoption,” which she acknowledged before a notary public on March 7, 1978. The names of the adopting parents were not shown on the consent form at the time of the mother’s signature and acknowledgment, but were inserted sometime later.
On March 7, 1978, the adopting parents filed their petition to adopt the child, together with the mother’s consent, in the probate division of the District Court of Wyandotte County. On that date there was also filed in these proceedings the mother’s affidavit in which she set forth the facts that she was the mother, the date and place of her birth, and the name of the father of the child, stating the father had denied paternity as well as any interest in what might happen to the child.
On April 7,1978, the mother, then represented by counsel other than present counsel of record, filed her petition in the probate division to set aside her consent to the adoption, alleging it was not freely and voluntarily given; that by reason of the fact that she had not then attained the statutory age of majority she did not have the capacity to enter into such consent knowingly and freely; and that she had been advised by a doctor at the University of Kansas Medical Center that she would have a period of six weeks in which to revoke her consent to the adoption.
On May 3, 1978, the mother, through her then attorney of record, filed application for writ of habeas corpus, wherein she alleged facts substantially as related, and represented that her child was unlawfully restrained by Charles P. Fleming, Jr., who was then and is now counsel of record for the adopting parents and acknowledged as such in the course of those proceedings. That cause was assigned to the Honorable Harry G. Miller, Jr., Judge of Division No. 3 of the District Court of Wyandotte County, who issued an order dated May 3, 1978, on which a hearing was conducted on May 4, 1978. Our review of the transcript of that proceeding reveals the parties stipulated as to certain of the facts, and that appellant’s counsel announced to the court:
“Now, we have agreed to submit this to the court for a habeas corpus hearing jointly, and I have joined Mr. Fleming, as the party who holds the child, which is probably incorrect, but I think by agreement that would be satisfactory between Mr. Fleming and myself.
“The reason we are doing that, of course, is that every week of delay in this particular case would be extremely harmful to either the people who Mr. Fleming represents or to my client. Now, I don’t personally know their name, but that is the primary reason for bringing the action so quickly and requesting such a quick determination.”
Appellant’s counsel also stated to the court:
“Your Honor, if it please the Court, the brief facts are as follows, and our source of contention requests, for this habeas corpus action, is that [the mother] was, in fact, pregnant. Prior to the pregnancy she discussed with Dr. Cameron as to the possibility of giving the child up for adoption. Considering [the mother’s] financial plight at that time, her lack of education background and ability and the possibility that the child would be very well cared for by the adopting parents, which would certainly not be contested in this case, she did relinquish the custody and control of the child by signing an instrument basically known as a consent to the adoption.
“Our primary request and the reason for being here is that [the mother] was advised — we are maintaining she was advised by Dr. Cameron prior to the hearing — or prior to the consent — that for a six-week time period she had the opportunity to withdraw this consent and obtain the child back. At least, that is her understanding of this conversation.
“In addition, at the time the consent was entered into we are maintaining that [the mother] was a girl of age 17 who had — an unwed child who had just undergone childbirth three days prior to that time, was probably under medication and did not really have the knowledge to sign a consent or the ability to sign a consent at that time.
“The difficulty, we feel, of course, is that this is essentially codified under K.S.A. 59-2102, which the Court will have to review. Basically, maintains that the consent must be given by the mother of an illegitimate child, which was done in this case, and majority would not have a bearing as to whether the consent may be given.
“But the difficulty, and what we have to prove, or the Court has to be satisfied, is that this consent was not freely and voluntarily given by [the mother], and as far as I understand it, that is really the only issue for the Court to decide, is whether the consent was freely and voluntarily given by [the mother],
“Other issues as to whether the adoptive parents are good people are not at issue. We would stipulate to that. There’s no question as to that fact.”
That matter proceeded to an evidentiary hearing and briefs were submitted by both parties. On May 11, 1978, judgment was rendered, in relevant part as follows:
“The matter is submitted to the Court on the testimony of [the mother], the deposition of Dr. William J. Cameron, and stipulations of counsel as follows:
“(a) Baby Girl Chance was born March 3, 1978 at the University of Kansas Medical Center.
“(b) The Consent to Adoption was signed on March 6,1978, and acknowledged before a Notary Public in [the mother’s] home on March 7, 1978.
“(c) That on March 7, 1978, the said Consent to Adoption was filed with the District Court, Probate Section, Wyandotte County, Kansas.
“(d) That throughout this period of time [the mother] was seventeen years of age.
“(e) That on February 27, 1978, [the mother] wrote a letter to the proposed adopting parents though they were unknown to her.
“(f) That the proposed adopting parents are suitable as adoptive parents.
“From the evidence, the Court finds as follows:
“1. That the Petitioner initiated the request for adoption several months prior to the child’s birth.
“2. That she had discussed it with her mother, Dr. Cameron, and her own doctor and made her decision to allow the child to be adopted.
“3. That Dr. Cameron did not advise her that she could revoke her Consent at any time before the adoption was final, but said only, in substance, that the adopting parents would probably be on ‘pins and needles,’ until the adoption was final.
“4. That as late as March 20, 1978, she reaffirmed her Consent to Adoption.
“5. That the Petitioner’s Consent to the Adoption, executed on March 6, 1978, was freely and voluntarily given, and was not the result of misunderstanding, fraud or coercion, and it was reaffirmed as late as March 20, 1978.”
The record in the habeas corpus proceedings was offered and admitted in evidence in the adoption proceedings without objection and it now appears as a part of the record on appeal.
On June 2, 1978, present counsel of record for appellant entered her appearance in the adoption proceedings, and on June 6, 1978, filed an instrument entitled “Revocation of Consent to Adoption” and moved to dismiss the adoption proceedings for lack of subject matter jurisdiction. An evidentiary hearing before the probate division on June 13,1978, resulted in a letter decision under date of June 14 directed to counsel for both sides as follows:
“Having heard the testimony submitted and having read the written suggestions of counsel and having familiarized myself with the matters contained in the Habeas Corpus action, No. 78-C-1417, it is my finding that the consent to adoption was freely and voluntarily given by the mother who was nearly 18 years of age and the mother of a child born in 1976.”
It was suggested by appellees at the hearing on June 13th that the issue of whether the mother’s consent to adoption was freely and voluntarily given had been resolved in the habeas corpus proceedings and that principles of res judicata and collateral estoppel should apply to preclude relitigation of the same issue. The trial court did not adopt either theory and ordered the parties to proceed. Appellees did not appeal. It was, of course, necessary that a cross-appeal be perfected in order for appellees to obtain review of rulings adverse to them. See K.S.A. 60-2103(A); Vaughn v. Murray, 214 Kan. 456, Syl. ¶ 5, 521 P.2d 262 (1974).
Appellant directs our attention to K.S.A. 60-252(a) and Supreme Court Rule No. 165. She argues the trial court has not provided supporting findings of fact and conclusions of law upon which this court can base its review. For this reason, she asks that the cause be remanded with directions that the trial court make such findings and conclusions. K.S.A. 60-252(a) provides in relevant part:
“In all actions tried upon the facts without a jury . . . the judge shall find, and either orally or in writing state, the controlling facts.”
Supreme Court Rule No. 165, 225 Kan. Ixxii, provides in relevant part:
“In all contested matters submitted to a judge without a jury including motions for summary judgment, the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision.”
It is well settled that the requirements of K.S.A. 60-252(a) and Supreme Court Rule No. 165 are in part for the benefit of the appellate court; and when the findings and conclusions of the trial court are not adequate to permit meaningful appellate review, this court has no alternative but to remand the case for new or additional findings and conclusions. See Baker University v. K.S.C. of Pittsburg, 222 Kan. 245, 564 P.2d 472 (1977); Henrick son v. Drotts, 219 Kan. 435, 548 P.2d 465 (1976); Mies v. Mies, 217 Kan. 269, 535 P.2d 432 (1975); Martin v. Hinnen, 3 Kan. App. 2d 106, 590 P.2d 589 (1979). See also Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 598 P.2d 188 (1979).
The only specific findings entered by the judge of the probate division are “that the consent to adoption was freely and voluntarily given by the mother who was nearly 18 years of age and the mother of a child born in 1976” and that the mother of the child “has agreed in writing to said adoption by the Petitioners.” There is also the general finding in the decree of adoption that the allegations of the petition are true. There it was alleged that the mother had by her duly executed and acknowledged written instrument “freely and voluntarily consented to the adoption of the said child by these Petitioners.” While the issue of whether the consent to adoption was freely and voluntarily given was the ultimate issue to be decided at the hearing on June 13, the identical issue had been presented in the habeas corpus proceedings wherein the district judge made findings of fact and conclusions of law clearly sufficient to satisfy the requirements of the statute and the rule. Although the judge of the probate division did not specifically adopt the findings of the court in the habeas corpus proceedings as his own, it is apparent he considered that record and entered his judgment, at least in part, on the basis of that evidence.
Appellant argues that no credence is to be given the habeas corpus proceedings as that court was without jurisdiction. This, it is argued, is because the adoption proceedings were then pending and the validity of the mother’s consent to adoption was obviously an issue in those proceedings.
Since January 10, 1977, probate courts as they previously existed have been abolished and all matters then pending or thereafter commenced, which by their nature were deemed “in probate,” are actions and proceedings in the district court of the county in which such court is located. K.S.A. 1979 Supp. 20-335. We recognize that custody and adoption proceedings are separate. In re Nelson, 202 Kan. 663, 667, 451 P.2d 173 (1969). However, it was the appellant who sought by means of habeas corpus a determination by another judge within the same jurisdiction of the validity of her consent to the adoption. It was the appellant who requested and was granted in that proceeding a prompt hearing in order that there could be a “quick determination” of “the only issue for the Court to decide” of whether “the consent was freely and voluntarily given by [the mother].” Having done so and having acquiesced in the admission of the record of those proceedings as evidence in the adoption proceedings, such may not now be ignored. In view of what has transpired and the present state of the record on appeal, we find sufficient compliance with K.S.A. 60-252(a) and Supreme Court Rule No. 165.
It is next argued that appellant was deprived of a fair hearing before an impartial tribunal. The issues to be determined in this cause were factual in nature and obviously the court must be fair and impartial. See, e.g., In re Estate of Millar, 185 Kan. 510, 516, 345 P.2d 1033 (1959); Harrison v. Harrison, 48 Kan. 443, Syl., 29 Pac. 572 (1892). A judge has an ethical duty to be patient, dignified and courteous to litigants, lawyers, and others with whom he deals in his official capacity, and to accord to every person legally interested in a proceeding or his lawyer full right to be heard according to law. Supreme Court Rule No. 601, Canons 3 A (3) and (4), 225 Kan. cxx. See In re Sortor, 220 Kan. 177, 551 P.2d 1255 (1976).
While the extracted portions of the proceedings as reflected in appellant’s brief indicate that perhaps the trial judge in the probate division was somewhat abrupt and perhaps not as patient as he might have been in some of his comments and rulings, our review of the entire record on appeal reveals that she has been granted a full and fair hearing on all of the issues presented.
It is urged that it was error for the court to uphold the validity of the mother’s consent to the adoption. In this connection appellant argues the court did not have jurisdiction over the subject matter of this proceeding pursuant to K.S.A. 59-2102, pointing out that adoption statutes are to be strictly construed in favor of maintaining the rights of the natural parents in controversies involving termination of the parent-child relation (In re Sharp, 197 Kan. 502, 504, 419 P.2d 812 [1966]); and that consent by the natural parents to the adoption of their child where required by statute is regarded as an essential requisite to jurisdiction of the court to render a valid decree of adoption. In re Marsolf, 200 Kan. 128, 434 P.2d 1010 (1967). She summarizes her attack on the jurisdiction of the court by issues presented as follows: (1) She did not knowingly and intentionally relinquish her child; (2) she did not intentionally consent because she did not understand the legal finality of her act; and (3) she did not knowingly consent because she was never informed of the legal dimensions of her act.
To be free and voluntary, a consent must be to all the legal consequences of the adoption with an understanding of the meaning and effect thereof. Bilderback v. Clark, 106 Kan. 737, 742, 189 Pac. 977 (1920); 2 C.J.S., Adoption of Persons § 68 (b), p. 494; 2 Am. Jur. 2d, Adoption § 44, p. 895. Whether a consent to adoption was freely and voluntarily given or was tainted by fraud, duress, undue influence, mistake or lack of understanding necessarily depends on the facts and circumstances of each case. As such, these issues are to be determined by the trier of fact who has the best opportunity to weigh the evidence and test the credibility of witnesses. The evidence as reflected in this record clearly supports findings made in the habeas corpus proceedings and the ultimate finding by the judge of the probate division that the mother’s consent to the adoption of her newly born child was freely and voluntarily given. Such will not be disturbed on appellate review. See Koemer v. Custom Components, Inc., 4 Kan. App. 2d 113, Syl. ¶ 3, 603 P.2d 628 (1979). It is not the function of this court to weigh conflicting evidence or redetermine questions of fact and our only concern is with evidence which supports the trial court’s findings and not with evidence which might have supported contrary findings. Addis v. Bernards, Inc., 226 Kan. 241, Syl. ¶ 2, 597 P.2d 250 (1979); Dick King Insurance, Inc. v. McBratney, 225 Kan. 675, 676, 594 P.2d 175 (1979).
Finally, appellant contends her consent was invalid because the consent form did not contain the names of the adopting parents when she signed and acknowledged that instrument.
There is divided authority as to the validity of “general” or “blanket” consents and there are persuasive arguments for and against. Professor Marvin E. Larson considered this problem in his article on adoption procedures in Kansas and concluded in part:
“It would appear that the general intent of the legislature was to limit the consent of a parent to a particular adoption, since the legislature has provided specific limitations and specific methods for doing that which otherwise could be done with a general consent. The general consent is the greatest single tool of the ‘gray’ or ‘black market’ operator in babies. It seems very doubtful that the legislature intended that any person or unauthorized agency might place children for adoption by obtaining a general consent from the mother or parents to be subsequently delivered to the adoptive parents when the legislature has so carefully set out the procedure for the placement of children by authorized and state agencies, and for the procedure to be followed by parents in relinquishing children.” Larson, Adoption Procedure in Kansas, 19 J.B.A.K. 332, 340 (1951).
See also In re Adoption of a Baby Girl, 248 Iowa 619, 80 N.W.2d 500 (1957); Las Vegas Sun v. Franklin, 74 Nev. 282, 329 P.2d 867 (1958); In re Holder, 218 N.C. 136, 10 S.E.2d 620 (1940).
Although we find Professor Larson’s analysis to be persuasive, we are not convinced that such is the law of this state. The purpose of our adoption statutes as applied to minor children is to provide for the welfare of such children, and the statutes should be liberally construed to effect that purpose. While natural parents may specify the person or persons they wish to adopt their child, we recognize that regardless of the personal desires and expressed wishes of the natural parents, it is the court which in the final analysis must make a judgment as to whether any proposed adoption is to be allowed. K.S.A. 59-2278. We believe it to be common knowledge, particularly among the bench and practicing bar of this state, that at least as often as not decrees of adoption are entered under circumstances where persons whose consent is required remain unaware of the identity of the adopting parents. We believe this practice to be an outgrowth of a generally recognized policy which so far considers it to be in furtherance of the best interests and the future well-being of the child that he or she be reared in an atmosphere as near as possible to that of a child born to the adopting parents. In support of this position, see In re Adoption of a Minor Child, 127 F. Supp. 256 (D.D.C. 1954); Johnson v. Adoption of Johnson, 149 Ind. App. 611, 274 N.E.2d 411 (1971); Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175 (1957); McKinney v. Weeks, 130 So. 2d 310 (Fla. D.C. App. 1961); In re Adoption of Jackson, 89 Wash. 2d 945, 578 P.2d 33 (1978).
It is our opinion that the language of K.S.A. 59-2102 which provides “consent must be given to such adoption” is not to be construed as a requirement that consent to an adoption must be given to specifically named persons. The record before us does not indicate that the mother at any time inquired or expressed any desire to learn the identity of the persons who were to adopt her child. Absent such; we conclude that the completion of the blanks in the consent to adoption form by insertion of the names of the adopting parents after that instrument had been executed and acknowledged by appellant did not invalidate her consent or deprive the court of jurisdiction.
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Swinehart, J.:
This is a consolidated appeal of cases numbered 50,449 and 50,795. No. 50,449 is an appeal from the Pottawatomie District Court’s order dissolving the writs of habeas corpus of petitioners George Shotwell and Albert Grades. The order was entered on August 21, 1978, and filed September 18, 1978. The petitioners filed an appeal to this court on September 18, 1978.
Before the appeal in No. 50,449 was heard, the petitioners-defendants were convicted of theft of property having a value of more than $50 in violation of K.S.A. 21-3701. On November 10, 1978, Grades was sentenced to a minimum of three and a maximum of ten years; Shotwell, to a minimum of six and a maximum of twenty years, under the enhancement statute. Journal entries were filed on January 12, 1979, and defendants appealed in case No. 50,795 on January 24, 1979.
The primary question on appeal is the same in both cases; that is, whether the defendants’ first trial resulting in an acquittal on the burglary charges and a mistrial on the theft charges barred their second trial on the theft charges on the grounds of res judicata and double jeopardy.
Defendants George Shotwell and Albert Grades were tried for the burglary and theft of property having a value of more than $50 of the Hines Farm Center in Wamego on or about May 20, 1978. The defendants’ trials were consolidated and held in the Pottawatomie District Court on July 5, 6, and 7, 1978. The jury acquitted the pair on the burglary charges and a mistrial was declared on the theft charges after the court was advised that the jury was hopelessly deadlocked.
Defendants filed writs of habeas corpus while they were awaiting retrial on the theft charges. The writs were dissolved after a hearing on August 21, 1978, and defendants were remanded to the custody of the sheriff for retrial.
After a change of venue to Wabaunsee County, the defendants were tried and convicted on the theft charges. Unlike their first trial, where the defendants took the stand to deny their involvement in the criminal activities, they did not testify in Wabaunsee County.
The defendants contend that they should not have been retried for the criminal theft counts of the information on the grounds of res judicata, collateral estoppel and double jeopardy. The starting point for the inquiry is found in the criminal code of Kansas. K.S.A. 21-3701 provides:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
“(a) Obtaining or exerting unauthorized control over property;”
K.S.A. 21-3715 provides:
“Burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.”
K.S.A. 22-3423 provides:
“(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:
“(d) The jury is unable to agree upon a verdict ....
“(2) When a mistrial is ordered, the court shall direct that the case be retained on the docket for trial or such other proceedings as may be proper and that the defendant be held in custody pending such further proceedings, unless he is released pursuant to the terms of an appearance bond.”
The Judicial Council note following K.S.A. 22-3423 states: “A properly ordered mistrial does not prevent a subsequent trial on the same charge, even though the order is made after the defendant has been placed in jeopardy.” Indeed, Kansas has long recognized the rule that jeopardy does not attach in a legal sense when a jury has been dismissed because of its failure to agree on the verdict, and as a result, the defendant may be retried a second time on the same charge. State v. Crowley, 220 Kan. 532, Syl. ¶ 2, 552 P.2d 971 (1976); State v. Johnson, 219 Kan. 847, Syl. ¶ 7, 549 P.2d 1370 (1976); State v. McKay, 217 Kan. 11, Syl. ¶ 4, 535 P.2d 945 (1975).
The double jeopardy law in Kansas is embodied in K.S.A. 1979 Supp. 21-3108. The sections most relevant to this appeal are:
“(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
“(c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: (i) The illness or death of an indispensable party; or (ii) the inability of the jury to agree; or (iii) the impossibility of the jury arriving at a verdict. A defendant is in jeopardy when he or she is put on trial in a court of competent jurisdiction upon an indictment, information or complaint sufficient in form and substance to sustain a conviction, and in the case of trial by jury, when the jury has been impaneled and sworn, or where the case is tried to the court without a jury, when the court has begun to hear evidence.
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
“(a) Resulted in either a conviction or an acquittal and the subsequent prose cution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless such prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began; or
“(Jo) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution; or
“(c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of . . . (ii) the inability of the jury to agree . . . and the subsequent prosecution is for an offense of which the defendant could have been convicted if the former prosecution had not been terminated improperly.”
In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979), contains an extensive analysis of double jeopardy law as it exists in Kansas which will not be repeated here, except to note that there the court analyzes K.S.A. 1979 Supp. 21-3108(2)(a) and concludes that it incorporates both the compulsory joinder rule, formerly K.S.A. 62-1449, and the constitutional “identity of elements rule,” i.e., where each offense requires proof of a fact not required by the other, double jeopardy is not a bar. Although the defendants make no argument as to 21-3108(2)(a), the State properly notes that it complied with this section by joining both crimes in one trial. Furthermore, defendants concede that “in theory the State is free to retry them on the theft charge because the legal elements which must be proved for a conviction of theft are different than those legal elements which must be proved for a conviction of burglary.” By this concession, defendants correctly recognize that burglary and theft have been determined to be separate offenses with different elements. Cf. State v. Edwards, 221 Kan. 405, 406-407, 559 P.2d 807 (1977); State v. Pruitt, 216 Kan. 103, 106, 531 P.2d 860 (1975).
Based upon a review of K.S.A. 1979 Supp. 21-3108(l)(c), K.S.A. 22-3423, and the cases construing them, the trial court properly allowed retrial on the theft charges and, as such, the defendants’ convictions should be affirmed because no double jeopardy has occurred.
By implication defendants reject this conclusion and assert that the inquiry must not end there. They contend that 21-3108(2)(b) is the critical provision because the only way that the State was able to provide sufficient evidence upon which to convict them of the theft charges at the second trial was by reference to an earlier alleged burglary at the Hines Farm Center. Since they had already been acquitted of this charge, they could not, in effect, be tried on that evidence again. 21-3108(2)(b) has not yet been construed by the Kansas courts.
The Judicial Council describes the purpose of the section as defining “the scope of res judicata as it applies when the subsequent prosecution is for a different offense.” The illustrative example given in support of this proposition is Sealfon v. United States, 332 U.S. 575, 92 L.Ed. 180, 68 S.Ct. 237 (1948), cited in defendants’ brief. In Sealfon, the defendant was previously acquitted of conspiracy to defraud by presenting false invoices and making false representations to a rationing board. He was later prosecuted for aiding and abetting the uttering of the same false invoices, and the Supreme Court reversed his conviction despite the fact that the offenses were separate and distinct, because the jury had earlier determined a fact necessarily inconsistent with that required to convict the defendant as an aider and abetter.
Other commentary may be found in Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 Washburn L.J. 179 (1970), where the scope of 21-3108(2)(b) as well as (1 )(b) and (3)(b) was stated to be terminations of former proceedings by final order or judgment, thereby incorporating the doctrine of res judicata. Spring continues his discussion as follows:
“The only distinction between the three res judicata subsections lies in the restriction of the doctrine under 21-3108(2)(b) and 21-3108(3)(b) to final orders or judgments in the former prosecution necessarily requiring determinations of fact inconsistent with facts necessary to a conviction in the subsequent prosecution. In contrast, under 21-3108(l)(b) prior determinations of either fact or law may operate as a bar. The reason for the distinction would appear to be, in the case of 21-3108(2)(b), the complexity of legal issues which may arise when different crimes are involved, as opposed to the case of a prosecution for the same crime on the same facts.” 9 Washburn L.J. at 188.
Therefore, we must analyze the language of 21-3108(2)(b) to determine whether the defendants’ cases fall within it, as both commentaries already referred to above suggest otherwise. Here the different crime was burglary and the original proceedings on the charges were terminated by final judgments, acquittals, but clearly did not require a determination inconsistent with any fact necessary to a theft conviction in the second trial.
A conceivable alternative interpretation is that the retrial on the theft charges after mistrial due to a hung jury is not even a “subsequent prosecution” within the meaning of the statute so that 21-3108(2)(fc) is not applicable. This is consistent with the view that double jeopardy does not attach in a legal sense where a mistrial is declared due to a hung jury.
Finally, we consider how many categories of 21-3108 may encompass a given case. In other words, are the provisions mutually exclusive? We find 21-3108(l)(c) is the relevant section in this action, and we further find that 21-3108(2)(b) is not applicable. Defendants’ arguments therefore are without merit.
Defendants’ real complaints are that the State improperly introduced evidence (e.g., crowbars) of, or at least improperly alluded to, a burglary of the Hines Farm Center for which defendants had already been acquitted. They argue that in this case there could be no theft without burglary, nor any burglary without the intent to commit theft. They further contend that the only critical decision facing the jury was who committed the unlawful acts and if an ultimate fact in both cases was resolved in the first trial in defendants’ favor, it may not be relitigated, relying on Ashe v. Swenson, 397 U.S. 436, 25 L.Ed.2d 469, 90 S.Ct. 1189 (1970), and United States v. Kramer, 289 F.2d 909 (2nd Cir. 1961) for support. Ashe v. Swenson espoused the “collateral estoppel” doctrine and is distinguishable because it involved multiple prosecutions for an alleged robbery of several victims:
“ ‘Collateral estoppel’ . . . means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit ....
“The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ Sealfon v. United States, 332 U.S. 575, 579. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.” Ashe v. Swenson, 397 U.S. 443-444.
The difficult task, however, is analyzing the general verdicts rendered by the jury in the first trial. Who can successfully unravel the thought processes and state of mind of the jurors to interpret the meaning of their general verdicts? For example, the State argues that the jury in the first trial might have believed the defendants did not enter the building with intent to steal, but formed the intent after entering. Moreover, Kansas recognizes inconsistent verdicts. State v. Shultz, 225 Kan. 135, 587 P.2d 901 (1978).
Under the facts of this case, we find that where the burglary and theft arose out of the same incident, were charged as separate counts in the same information, and the trial thereon resulted in acquittals on the charge of burglary and properly authorized mistrials on the theft counts, retrial on the theft counts does not constitute a subsequent prosecution for theft under K.S.A. 1979 Supp. 21-3108(2)(b). Rather, the retrial is permitted under 21-3108(l)(c) and double jeopardy is not a bar to prosecution. This is so even though evidence used in the original prosecution of burglary is introduced in the retrial, so long as the evidence is used only to support the contention that the property which is the subject matter of the theft charges was removed from the possession of the owner without his permission.
The appeal in case No. 50,449, the habeas corpus appeal, is now moot and dismissed. Convictions are affirmed in case No. 50,795. | [
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Swinehart, J.:
Plaintiff Eugene Crowley brought a medical malpractice action against defendant James H. O’Neil. After a trial in Wyandotte District Court, the jury returned a verdict in favor of the defendant.
The issues on appeal are: (1) whether the trial court erred by instructing the jury according to PIK Civ. 2d 15.10 (1977) which requires that on questions of a medical or scientific nature concerning the standard of care of a physician, the jury may only find the requisite standard of care through the evidence of expert witnesses; and (2) whether the use of the word “accident” by a surgeon in medical records, completed after surgery has been performed, establishes a prima facie case of negligence on the part of the physician.
In June of 1974, the plaintiff was admitted to St. Mary’s Hospital in Kansas City, Missouri, complaining of severe stomach pains. After a series of medical tests it was determined that he had a nonfunctioning diseased gallbladder. On June 20, the defendant, Dr. O’Neil, performed a cholecystectomy on Mr. Crowley, i.e., he excised the diseased gallbladder which was described as extra thick. Dr. O’Neil testified that dissection of the gallbladder was difficult and the cystic duct which had to be severed during the surgery was not readily discernible. During the surgical procedure, the common duct, which was abnormally small, was inadvertently divided. Dr. O’Neil repaired the common duct with end-to-end anastomosis and a polyetheylene catheter was inserted proximal to the anastomosis close to the site of the splint.
As a result of this division of the common bile duct, the plaintiff was subjected to extended hospital care on several occasions, additional surgery, and other damages for the time he was away from his employment. Specifically, in December, 1974, the plaintiff was again admitted to St. Mary’s Hospital with abdominal pain. Since Dr. O’Neil was retiring from his medical practice in January of 1975, plaintiff was referred to Dr. Joseph Cochrane. In March of 1975, the plaintiff was referred to Dr. Arthur E. Prevedel who performed common duct surgery on the plaintiff in Denver, Colorado.
At trial the plaintiff offered no expert medical testimony that Dr. O’Neil had not met the requisite standard of care of a surgeon while performing the cholecystectomy. In fact, his only medical witness was Dr. O’Neil. Plaintiff also introduced medical records compiled by Dr. O’Neil stating that he had “accidentally” cut the bile duct.
Dr. Cochrane appeared as a defense witness and opined that Dr. O’Neil had not been guilty of any professional negligence while performing the gallbladder surgery on the plaintiff.
Among its instructions, the trial court included PIK Civ. 2d 15.10 (1977):
“In determining whether a physician used the learning, skill and conduct required of him, you are not permitted to arbitrarily set a standard of your own or determine this question from your personal knowledge. On questions of medical or scientific nature concerning the standard of care of a physician, only those qualified as experts are permitted to testify. The standard of care is established by members of the same profession in the same or similar communities under like circumstances. It follows, therefore, that the only way you may properly find that standard is through evidence presented by physicians called as expert witnesses.”
The jury returned a verdict in favor of the defendant on July 11, 1978, and the plaintiff appeals.
The plaintiff states three separate issues in his brief on appeal. (1) When a treating physician enters written memos on his patient’s record that he has “accidentally” done something to his patient, is this prima facie evidence of negligence on the part of the physician? (2) When a treating physician records that he has “accidentally” damaged his patient in the course of the care and treatment, does the patient-plaintiff need an expert medical witness to establish this action was less than the medical standard of care? (3) Did the trial court commit error in giving the PIK Civ. 2d 15.10 (1977) instruction in light of all the evidence before the court and jury? However, plaintiff’s basic contention is that the defendant, in effect, “admitted” that he negligently severed the common bile duct while performing the cholecystectomy on the plaintiff. This alleged “admission” of negligence is based upon an entry made by the defendant in at least three of the plaintiff’s medical records that the dissection of the common bile duct was “accidental.” Plaintiff, therefore, argues that it was not incumbent upon him to introduce expert testimony to establish the requisite standard of care owed by a physician to a patient.
We first consider whether the trial court improperly instructed the jury pursuant to PIK Civ. 2d 15.10 (1977).
The long standing rules regarding medical malpractice in this state are well known. A physician has a duty to possess and exercise that reasonable degree of learning and skill which is ordinarily possessed by members of his profession and of his school of medicine in the community in which he practices or in similar communities. Webb v. Lungstrum, 223 Kan. 487, 575 P.2d 22 (1978); Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 3, 574 P.2d 136 (1977). The physician also has the duty to exercise such learning and skill with ordinary care and diligence. Goheen v. Graber, 181 Kan. 107, 309 P.2d 636 (1957). See also PIK Civ. 2d 15.10 (1977) and cases cited therein.
A physician or surgeon is presumed to have carefully and skillfully treated or operated upon a patient. Moreover, there can be no presumption of negligence from the mere fact of an injury or adverse result. Webb v. Lungstrum, 223 Kan. at 489; Tatro v. Lueken, 212 Kan. 606, 611, 512 P.2d 529 (1973); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, clarified and rehearing denied 187 Kan. 186, 354 P.2d 670 (1960).
Of course, a different rule would apply in res ipsa loquitur cases, but there has been no contention regarding res ipsa loquitur in this action. In fact, the plaintiff has specifically described the negligent act he believes warrants a finding of malpractice, i.e., the severance of the common bile duct.
There is no dispute between these litigants as to the above cited rules. The main disagreement surrounds the role that expert testimony plays in a medical malpractice case. Expert testimony is ordinarily required to establish negligence or a lack of reasonable care on the part of a physician in his performance of surgical procedures and in the care and treatment of his patients. Webb v. Lungstrum, 223 Kan. at 490; Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961); see PIK Civ. 2d 15.10 (1977) and cases cited therein.
“However, this rule does not give the members of the medical profession a monopoly on common sense, and the rule is limited to those matters clearly within the domain of medical science. When, in a given case, the diagnosis, treatment or care of a patient brings such bad results that lack of reasonable care would be apparent, and using the common everyday knowledge of persons generally, such facts may be testified to by persons other than physicians. (Goheen v. Graber, 181 Kan. 107, 112, 309 P.2d 636 [1957]). This is referred to as the common knowledge exception.” Webb v. Lungstrum, 223 Kan. at 490.
Accord, Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539 (1973); Tatro v. Lueken, 212 Kan. 606. For example, lack of reasonable care was established by lay testimony, and such testimony was sufficient to establish a prima facie case of negligence in Bernsden v. Johnson, 174 Kan. 230, 255 P.2d 1033 (1953) (a breathing tube was lodged in plaintiff’s throat), and Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P.2d 472 (1957) (gauze was left in the body of a patient after an operation).
Medical malpractice cases in which there is inadvertent surgical injury to a neighboring healthy portion of a person’s body, such as happened here, are distinctive from other malpractice cases only in a factual and not a legal sense. Traditional rules regarding malpractice are therefore generally applied, e.g., rules regarding the necessity of expert testimony. (See Annot., 37 A.L.R.3d 464 and cases cited therein.) In Collins v. Meeker, 198 Kan. 390, 424 P.2d 488 (1967), the court considered a summary judgment which was entered in favor of three defendants who had performed a hernia operation upon plaintiff. Plaintiff stated that he did not intend to produce expert evidence that two of the doctors were negligent in rebuilding the external inguinal ring so tightly that it interfered with the supply of blood to and from his left testicle and the flow of the secretions from it. The court could not say that any alleged negligence negatived the need for expert testimony in the case, stating further:
“[W]e are forced to conclude that a hernia operation, while it may be fairly common, is nonetheless an intricate and delicate procedure requiring considerable dexterity and intimate knowledge of the groin area itself and the organs which are therein located. The operation, in our opinion, is far too complex and technical, and the possible results too numerous and unpredictable, to permit lay witnesses to express opinions as to the proficiency with which the operation has been performed or to permit a jury to speculate as to the adequacy and skillfulness of its performance solely in the light of their common knowledge and experience.” 198 Kan. at 399.
In a related portion of that opinion (distinguishable from the facts of this case because it involved the doctrine of res ipsa loquitur) the court considered a claim of negligence when one of the defendants cut into the spermatic cord of the plaintiff during exploratory surgery. The court rejected the plaintiff’s contention that res ipsa loquitur was applicable and found rather that expert medical testimony was necessary to establish negligence on the part of the surgeon because it was not a case where common knowledge indicated that the injury would not have occurred if reasonable medical or surgical care had been used. In Tatro v. Lueken, 212 Kan. 606, the court again considered whether res ipsa loquitur was applicable in a case where the plaintiff’s other wise healthy bladder was injured during a hysterectomy. The court cited Collins v. Meeker and rejected plaintiff’s reliance on res ipsa loquitur because it felt the intricacies of an abdominal hysterectomy were at least comparable to or perhaps more complex than a hernia operation. In any event, in Tatro there was expert medical testimony to support the plaintiff’s claim. We again reemphasize that the discussions in Collins v. Meeker and Tatro v. Lueken involved a res ipsa loquitur theory which has not been urged in the present case. Yet these cases demonstrate an extreme reluctance to usurp the province of medical experts regarding surgical techniques and injuries involving parts of the anatomy not within the everyday knowledge of persons generally.
Here, by its refusal to delete the instruction regarding the need to establish the standard of medical care by expert medical testimony, the trial court found that the injury sustained by the plaintiff during the cholecystectomy was not within the common knowledge generally held by lay persons. This finding may be supported by quick resort to the record. Without detailing the procedures and the parts of the anatomy involved in the operation, it is clear that the particular parts involved, i.e., the common bile duct, the gallbladder, the cystic duct, etc., are not well known to lay people. Additionally, the crucial factors involved here were the proximity of the common bile duct and the cystic duct to the gallbladder itself and the technique required to remove the diseased gallbladder, which included severing the cystic duct. We do not believe that jurors could be expected to know without expert medical testimony whether the dissection of the common bile duct was negligence or whether it was necessary in order to remove the gallbladder. While the cholecystectomy itself might be a common operation, the surgical procedure is still complex to untrained minds. Furthermore, the testimony provided by the defendant and other medical witnesses established that the plaintiff had an abnormal anatomy in that the common bile duct was unusually small — an abnormality that could not have been ascertained until the operation was underway. In fact, Dr. O’Neil testified that he had never seen a common duct of such small diameter, and he had performed perhaps seven to eight hundred of these operations during his medical career.
In light of the above cited authority and the evidence adduced at trial, the trial court properly refused to delete the instruction regarding the necessity of expert medical opinion to establish the requisite standard of care in this action.
It is difficult to cull from the briefs the precise nature of the plaintiff’s argument with respect to the defendant’s use of the word “accident” in plaintiff’s medical records. If, as plaintiff has framed the issue, the use of the word “accident” merely establishes a prima facie case of negligence against the defendant, it would still be possible for the defendant to present evidence refuting such an allegation. Then the jury would determine whether the defendant had sufficiently refuted the plaintiff’s prima facie case. In reality, however, the plaintiff seems to contend that the use of the word “accident” in the medical records by the defendant was tantamount to an admission of medical malpractice on his part, thereby obviating the need for expert medical testimony and requiring a directed verdict or judgment notwithstanding the verdict for the plaintiff. In his brief the plaintiff cites definitions from several Kansas cases to support his contention. The defendant cites his own definitions of “accident” from workmen’s compensation cases and from Black’s Law Dictionary.
We believe the crucial question on appeal is whether Dr. O’Neil’s use of the word “accident” to describe the severing of plaintiff’s common bile duct during the cholecystectomy establishes his negligence as a matter of law. To hold O’Neil’s statements in the records constituted an admission of negligence would be inappropriate because the medical records should not be read in a vacuum. The defendant testified as to their significance and as to what he meant by the word “accident.” This testimony was elicited by both counsel. While defendant admitted that severance of the common bile duct was accidental or inadvertent, he in no way conceded that the severance could not have occurred without his negligence. The expert called by the defendant agreed that while the occurrence was inadvertent, it was not tantamount to negligence. Therefore, even if the plaintiff, through the introduction of the records, had made a prima facie case of negligence, and the burden had shifted to the defendant to refute this contention, the jury could have found on the basis of the testimony offered that the defendant’s actions were not negligent. The fact that the common bile duct was abnormally small on this particular individual, a fact that could not have been known until the actual surgery was performed, may not be disre garded either. While the dissection of the common bile duct during the removal of a gallbladder is extremely rare, in this instance medical testimony established that the abnormal anatomical feature of the plaintiff’s common bile duct removed this particular cholecystectomy from the ranks of the normal.
To isolate the word “accident” and to attempt to ascribe some legal significance to it or to rely upon the definitions reported in the parties’ briefs are inappropriate in this action where the evidence is viewed as a whole.
While cases exist where the severance of the common bile duct during a cholecystectomy does constitute negligence, see Guillen v. Martin, 166 Cal. App. 2d 172, 333 P.2d 266 (1958), that case still recognized that it is within the province of the jury to determine whether or not such an action constituted negligence. There the court found that there was sufficient evidence to conclude that defendant had severed the common bile duct and that plaintiff could rely upon res ipsa loquitur (again not an issue in our case) to make a prima facie case regarding its allegation of negligence. However, the court also acknowledged that another jury might have reached the opposite conclusion.
The second issue requires application of the traditional standard of review with respect to jury verdicts, that is, was there substantial competent evidence to support the jury’s verdict. Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 596 P.2d 816 (1979); Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 581 P.2d 372 (1978). We find there was substantial competent evidence to support the jury’s verdict.
Judgment is affirmed. | [
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Parks, J.:
Harvie Goza was hired by Mr. Lambeth, the owner of a truck wholesale business, to drive a truck tractor and semitrailer containing eight used truck engines to Chicago. The engines weighed in excess of two tons. The truck tractor and trailer each displayed one of Mr. Lambeth’s dealer plates which had been issued to him by the State of Kansas pursuant to K.S.A. 8-136. On January 22, 1979, Goza, while en route to Chicago, was stopped on Highway 56 in Johnson County and issued a citation for ■carrying over 4,000 lbs. in violation of K.S.A. 8-136(a). Goza was convicted in a bench trial of violating that statute and he appeals.
The statute governing the use of “dealer plates,” K.S.A. 8-136(a), provides in part:
“A manufacturer of or dealer in motor vehicles, trailers, or semitrailers, demonstrating, displaying or exhibiting any such vehicle upon any highway in lieu of registering each such vehicle, may obtain from the division of vehicles, upon application therefor upon the proper official form, and payment of the fees required by law, and attach to each such vehicle, one (1) plate which shall bear thereon a distinctive number, also the name of this state, which may be abbreviated, and the year for which issued, together with the word ‘dealer’ or a distinguishing symbol indicating that such plate is issued to a manufacturer or dealer, and any such plate so issued, may during the calendar year for which issued, be transferred from one such vehicle to another owned or operated by such manufacturer or dealer. Such plate may be used in lieu of a regular plate for private automobile or service car, demonstrator, towing other motor vehicles and for all other purposes incidental to dealer’s motor vehicle business, except commodities are not to be hauled in excess of two (2) tons, when such commodities are hauled on regular routes or for jobbing or distribution, same will require regular registration tags and be subject to rules and regulations of the state corporation commission, including the use of said registration plate on substitute vehicles owned by a dealer but loaned to an owner when the dealer is engaged in repairing said owner’s vehicle . . . (Emphasis supplied.)
Defendant seeks reversal of his conviction claiming error in the trial court’s construction of the emphasized portion of the statute, which shall be referred to as the exception clause in the remainder of this opinion.
Defendant contends that K.S.A. 8-136(a) should be strictly construed against the State and when so construed a dealer plate may be used for the enumerated purposes (in this case — incidental to dealer’s business) except that commodities weighing in excess of two tons may be hauled on a dealer plate if not on regular routes, or for jobbing or distribution. The State, in conformity with an opinion issued by the Division of Motor Vehicles of the Department of Revenue, contends that the statute should be construed to limit the use of dealer plates to the hauling of two tons or less and further to prohibit dealer plates from being used when hauling commodities on regular routes or for jobbing or distribution. The trial court, without reference to the two-ton limit, found the defendant guilty of transporting commodities (engines) “for the purpose of distributing those items to a purchaser.” (Emphasis added.)
The parties concede that the terms “regular routes” and “jobbing” are not applicable to this case and agree that the engiñes are commodities, but offer conflicting definitions for “distribution.” Defendant relies on the definition found in Black’s Law Dictionary, which is “. . . the giving out or division among a number, sharing or parcelling out . . . .” He argues that the term “distribution” in K.S.A. 8-136(a) does not include “delivery” of merchandise incidental to its sale. The State, following The American Heritage Dictionary of the English Language definition of distribution — “. . . the process of marketing and merchandising goods . . .” — argues that Mr. Lambeth was marketing the engines within the vernacular usage of the term. The arguments of the parties demonstrate how unclear the statute is both structurally and definitionally. Nowhere in the act is there a definition of “regular routes,” “jobbing,” or “distribution.” Moreover, the structure of the exception clause is such that it is not clear whether it should be interpreted to mean (a) commodities are not to be hauled in excess of two (2) tons, or (b) commodities are not to be hauled in excess of two (2) tons when such commodities are hauled on regular routes or for jobbing or distribution.
The foremost rule of statutory construction is that the intent of the legislature governs. Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 332, 552 P.2d 1363 (1976). Defendant urges us to apply the rule of strict construction of penal statutes to K.S.A. 8-136(a) because it carries a criminal penalty (K.S.A. 8-149). See State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 300-301, 398 P.2d 1011 (1965). Fundamental to the application of this rule, however, is discernment of the legislative intent from the face of the statute itself without the aid of outside facts and circumstances. The ambiguities of the terms of the exception clause, however, make it impossible to determine with any reasonable degree of certainty what the legislature intended. See State v. O’Connor, 186 Kan. 718, 721, 353 P.2d 214 (1960).
The constitutionality of the exception clause of K.S.A. 8-136(a) was neither raised before the trial court nor on appeal. Our courts generally refrain from deciding issues not addressed by the litigants, but in State v. Nelson, 210 Kan. 439, Syl. ¶ 4, 502 P.2d 841 (1972), our Supreme Court discussed the guidelines for consideration of such cases and held:
“The constitutionality of a statute should be considered in any action where it is necessary in order to determine the merits of the action or where the issues cannot be intelligently decided without doing so, notwithstanding the failure of the parties to raise the constitutional question, failure to plead the question, or failure to present the question to the trial court.”
Goza’s conviction can not be intelligently reviewed because the exception clause of this statute is so vague that it can not be administered by the courts, and what the intended meaning of K.S.A. 8- 136(o) might be we can only speculate, as no guide is provided us within the act. State v. O’Connor, 186 Kan. at 720. We therefore hold that this statute falls within the purview of the Nelson rule and is subject to constitutional scrutiny.
The test to determine whether a statute is unconstitutionally vague and indefinite was stated in State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977). There the court said the test is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart, the test for vagueness is a commonsense determination of fundamental fairness.
We are not unmindful of the presumption of constitutionality which must be accorded all statutes (Kirby, 222 Kan. at 4), but we must conclude that the exception clause of K.S.A. 8-136(a) uses terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. It therefore violates the first essential of due process of law and is unconstitutional.
It now becomes necessary to determine whether the exception clause of K.S.A. 8-136(a) is severable from the remainder of the statute. The legislature recognized the possibility that a portion of one of the statutes within the registration act might be unconstitutional and has expressly stated its intent that in such a situation the balance of the statute should be upheld. (K.S.A. 8-131b.) See State v. Next Door Cinema Corp., 225 Kan. 112, 119, 587 P.2d 326 (1978). Accordingly, that portion of the statute which reads, “. . . except commodities are not to be hauled in excess of two (2) tons, when such commodities are hauled on regular routes or for jobbing or distribution, same will require regular registration tags and be subject to rules and regulations of the state corporation commission, . . is severable.
Judgment is reversed and it is ordered that the defendant be discharged from further prosecution in this action. | [
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Parks, J.:
This is an appeal from a conviction of making a false writing, contrary to K.S.A. 21-3711.
Early in January, 1978, Robert Bachman, an employee of the First National Bank in Wichita, picked up a Master Charge card from the defendant, Jeanette Conner, because her account was over the limit and delinquent. On March 10 Bachman told defendant in a telephone conversation that a sale at the Aloha Motel had come through on her account. As a result of this conversation, Bachman left a note for Lynne Gable, secretary for William Rogers, the bank card officer and head of security, advising that Jeanette Conner had said she didn’t have another card nor had she charged anything at the Aloha Motel. Based on this note, Mr. Rogers directed Jo Ann Sabastin to make out a “lost and stolen” report on the morning of March 13.
Later that day, Ms. Conner came into the Master Charge office to meet with Rogers. Mr. Rogers admitted that during his afternoon conversation with the defendant he did not personally show the report made by Sabastin to the defendant. While the defend ant was waiting for Tom Davis to take handwriting samples, Jo Ann Sabastin told defendant that she was going to take some identification information to complete her lost/stolen report. Sabastin obtained defendant’s name and date of birth and put them on the report. The report was in front of Sabastin at the time she was furnished the information by the defendant; however, Mrs. Sabastin testified that she did not know whether the defendant saw the report. Mr. Davis also testified that certain notations on the face of the report were his; that he did not show his copy of the report to the defendant or ask her to adopt it as her own.
At a subsequent interview with bank employees and a police officer, defendant admitted having made the unauthorized purchases. This action was commenced, charging defendant with making a false writing. At trial the State introduced the lost/stolen reports into evidence as the alleged false writings under K.S.A. 21-3711. The jury returned a verdict of guilty of the crime charged and this appeal followed. As one point on appeal, defendant contends the court erred in overruling her motion for judgment of acquittal in that the State failed to present sufficient evidence to prove all elements of the crime charged. We agree.
Where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the court that a rational fact finder could have found the defendant guilty beyond a reasonable doubt? State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979), following Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979). The State has the burden of establishing every essential element of the offense. State v. Williams, 196 Kan. 274, 285, 411 P.2d 591 (1966); State v. Wood, 188 Kan. 833, 840, 365 P.2d 1080 (1961).
K.S.A. 21-3711 provides:
“Making a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action.”
Since it is undisputed that defendant did not make the lost/stolen report, the issue is whether there was sufficient evidence to convict the defendant of causing the written instruments to be made with knowledge that the report falsely stated a material matter within the meaning of the statute.
It is a fundamental rule that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operation. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read so as to add or to substract from that which is readily found therein. State v. Floyd, 218 Kan. 764, 766, 544 P.2d 1380 (1976); Esters v. State, 1 Kan. App. 2d 503, Syl. ¶ 3, 571 P.2d 32 (1977).
The clear import of K.S.A. 21-3711 is that a person must make or cause to be made a written instrument with knowledge that such writing falsely states or represents some material matter and with intent to defraud or induce official action. Knowledge means actual information of fact — the actual state of knowing — and not opinion, speculation or constructive notice. 60 Am. Jur. 2d, Perjury § 9. Here there was no evidence defendant saw the written instrument or was made aware of its contents. The only information furnished by defendant which she was aware would be included in a report was her name and date of birth; there is nothing to indicate that this information was false. Certainly there could be no criminal intent on the part of the defendant unless it was shown that she had knowledge of the contents of the reports. State v. Miller, 132 Kan. 474, 478, 296 Pac. 714 (1931).
The burden was on the State to prove beyond a reasonable doubt that the defendant had knowledge that the writing falsely stated some material matter.
We are convinced that a rational fact finder could not have found, beyond a reasonable doubt, that defendant had such knowledge. Accordingly, we hold the evidence was insufficient to establish the crime defined in K.S.A. 21-3711.
The conclusion we have reached makes it unnecessary for us to consider the other alleged errors. For the reasons set forth, the judgment is reversed. | [
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Spencer, J.:
This is an action by plaintiffs to determine the reasonableness of action taken by defendants in rezoning a portion of plaintiffs’ property. The trial court sustained defendants’ motion for summary judgment for the reason that plaintiffs’ petition was not filed within thirty days as required by K.S.A. 60-2101(a) [now 1979 Supp. 60-2101(d)]. Whether such was proper is the sole issue on appeal.
Plaintiffs filed their petition on October 8, 1974, wherein they alleged that they were owners of certain land located in Aubry Township in Johnson County; that the Zoning Board for Aubry Township recommended to the Board of County Commissioners of Johnson County that plaintiffs’ land be rezoned, which recommendation was adopted on April 11,1974; and that the acts of defendants in doing so were unreasonable, arbitrary, capricious, and should be set aside.
Defendants argue that plaintiffs’ action was merely an “attempted appeal” and was therefore governed by either K.S.A. 19-223 or K.S.A. 1979 Supp. 60-2101(d), both of which require filing a notice of appeal within thirty days of the challenged administrative action. Plaintiffs argue their action was brought pursuant to K.S.A. 19-2913 to contest the reasonableness of the decision to rezone the land; that 19-223 and 60-2101(d) are inapplicable to a direct action commenced pursuant to 19-2913; and that the time limit governing the commencement of such an action is the five-year limitation provided in K.S.A. 60-511(5). All are in agreement that the statutory authority under which defendants enacted zoning regulations affecting plaintiffs’ land is contained in K.S.A. 19-2901 through 19-2913. K.S.A. 19-2913 provides:
“That any and all acts and regulations provided for or authorized by this act shall be reasonable and any person having an interest in property affected may have the reasonableness of any such act or regulation determined by bringing an action against the county commissioners in the district court in the county in which such township is situated.”
The trial court adopted defendants’ argument and reasoned that K.S.A. 19-2913 merely provides the statutory right to have decisions of the zoning board and of the county commissioners reviewed by the district court, but that such may be accomplished only by way of appeal under K.S.A. 19-223 or K.S.A. 1979 Supp. 60-2101 (d).
K.S.A. 1979 Supp. 60-2101(d) provides:
“A judgment rendered or final order made by an administrative board or officer exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means of perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such board or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such board or officer to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered. The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require. A docket fee shall be required by the clerk of the district court as in the filing of an original action.”
This statute authorizes the review of decisions of administrative bodies which exercise quasi-judicial or judicial functions. It is an omnibus statute which authorizes review only if no special statute authorizes an appeal. Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978); Schulze v. Board of Education, 221 Kan. 351, 559 P.2d 367 (1977).
Defendants correctly assert that the board of county commis sioners was exercising a quasi-judicial function in adjudicating an application to rezone plaintiffs’ land. Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978). However, 60-2101(d) may be utilized by an aggrieved party only if “no other means of perfecting such appeal is provided by law.” This condition could not have been met in this instance. Plaintiffs could have perfected an appeal under the broad provisions of K.S.A. 19-223, which provides:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.”
Neither of the appeal statutes makes reference to K.S.A. 19-2913. Plaintiffs did not file notice of appeal or in any manner attempt to bring themselves within the provisions of either of those statutes. It is apparent this action was not an attempted appeal. Although the relief which plaintiffs seek to obtain may be identical to that which might have been available to them had they filed an appeal within time, it is equally apparent that their action seeking a determination of the reasonableness of the rezoning act is independent of both statutes and is one available to them under the provisions of K.S.A. 19-2913. The fact that such an independent cause of action exists has been recognized by our Supreme Court on numerous occasions. In Appleby v. Board of County Comm’rs, 166 Kan. 494, Syl. ¶ 1, 203 P.2d 224 (1949), it was held:
“In an action under G.S. 1947 Supp. 19-2913, the trial procedure is governed by our code of civil procedure. Defendants may defend the action, demur to plaintiffs’ evidence and appeal if the demurrer is overruled.”
In Bodine v. City of Overland Park, 198 Kan. 371, Syl. ¶ 1, 424 P.2d 513 (1967), the similarity of K.S.A. 12-712 to K.S.A. 19-2913 was noted and it was held:
“K.S.A. 12-712 provides that any ordinance or regulation authorized by the city planning and zoning act (K.S.A. ch. 12, art. 7) 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.”
It was there also stated:
“The statutory proceeding authorized by 12-712, supra, (and 19-2913, supra) is neither a trial de novo nor an appeal in the true sense of the word. When the trial court hears evidence anew in a case of this character, the proceeding resembles a trial de novo, but there the semblance ends.
“It is to be noted the statutes (12-712, supra, and 19-2913, supra) do not set out the procedure to be used in the district court in proceedings of this nature. In Appleby v. Board of County Commissioners, 166 Kan. 494, 203 P.2d 224, the court recognized this fact and held that the trial procedure is governed by our code of civil procedure; that the defendants may defend the action, demur to the plaintiffs’ evidence and appeal if the demurrer is overruled. While the Appleby decision was made prior to the adoption of our new code of civil procedure the basic rule must be the same.” 198 Kan. at 385-386.
Because this is a civil action governed by the code of civil procedure, it follows that the time within which the action must be commenced is as prescribed by K.S.A. 60-511, which provides:
“The following actions shall be brought within five (5) years:
“(5) An action for relief, other than the recovery of real property not provided for in this article.”
We conclude that time limits for filing appeal as set forth in K.S.A. 19-223 and K.S.A. 1979 Supp. 60-2101(d) are not applicable to an action commenced pursuant to K.S.A. 19-2913; and that such is an independent action governed by the code of civil procedure and subject to the limitations prescribed by K.S.A. 60-511(5).
Although defendants concede that no cross-appeal has been filed, they contend the district court erred in failing to rule favorably on their motion to dismiss for failure to state a claim. The record does not reflect that the district court actually ruled on the motion. In any event, this issue is not properly before this court for review. K.S.A. 60-2103(h); Vaughn v. Murray, 214 Kan. 456, Syl. ¶ 5, 521 P.2d 262 (1974).
Reversed and remanded for further proceedings. | [
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Parks, J.:
Defendant Ollie Adams appeals from a judgment of the trial court holding him personally liable for debts incurred in the name of Sprink-Co., Inc., a Kansas corporation of which he is the sole stockholder. Sprink-Co. is engaged in selling and servicing large irrigation systems in western Kansas. Plaintiffs are three Kinsley merchants who sold goods and merchandise to SprinkCo. on open accounts.
The corporation had long dealt with plaintiffs and had often purchased goods used to service its customers’ irrigation systems. Terry Schaller, manager of the Kinsley office of the corporation, and other employees of Sprink-Co. ordered the goods. Invoices were sent to Sprink-Co. and payments were made on corporate checks. Plaintiffs had no direct dealing with Adams and two of them, although knowing who he was, did not know him personally. Some of the merchandise which plaintiffs sold to Sprink-Co. was used on a tract of land near Kinsley personally owned by Adams and his wife.
The parties stipulated that there was an agreement, unknown to the plaintiffs, between Adams and Sprink-Co. that any goods and services furnished to Adams’ land and billed to Sprink-Co. were in turn billed to Adams, who would reimburse Sprink-Co. at its Garden City office. The parties also stipulated to the entire amount due on each account from Sprink-Co. to plaintiffs. Although the corporation admitted complete liability and that it would confess judgment to the debt, the plaintiffs sued Adams personally to collect the entire bill, including merchandise and services other than those furnished to Adams’ property.
The trial court found that in selling merchandise to Sprink-Co., the plaintiffs relied on and had a right to rely on the personal credit of Ollie Adams. We are required to determine whether there is substantial competent evidence to support this finding. Gangel v. Benson, 215 Kan. 118, 123, 523 P.2d 330 (1974).
A corporation and its stockholders are presumed separate and distinct, whether the corporation has many stockholders or only one. Debts of a corporation are not the individual indebtedness of its stockholders. Amoco Chemicals Corporation v. Bach, 222 Kan. 589, 593, 567 P.2d 1337 (1977). There are few exceptions to this rule, but a creditor may collect a corporate debt from the sole shareholder if (1) the debt has been personally guaranteed by the shareholder; (2) the corporation is completely bogus (see Sell v. United States, 336 F.2d 467 [10th Cir. 1964]); or (3) the corporation is merely the alter ego of the sole stockholder (Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P.2d 33 [1970]). Clearly, the trial court did not rely upon the second exception cited above, since it held that the corporation was “good.” Additionally, the parties themselves stipulated that the corporation was validly organized. It therefore remains for this court to determine whether there was substantial competent evidence for the trial court to hold Adams personally liable for debts of Sprink-Co. either because he personally guaranteed the debts or because the corporation was the alter ego of Adams.
As a factual matter, there is no evidence to show that plaintiffs relied on Adams’ personal guarantee. All of plaintiffs’ contacts were with the corporation through its office manager, Mr. Schaller. Only one plaintiff knew Adams personally, and he testified that the purchases were made by the employees of the corporation, not Adams. The corporation was billed for all purchases and payments were accepted on corporate checks. The open accounts in the name of Sprink-Co., Inc., had been established by plaintiffs and credit extended to the corporation before Adams purchased the controlling interest in the corporation. The only evidence which even suggests that Adams could have personally guaranteed the debts was that he signed a promissory note to one of the plaintiffs covering the entire debt incurred by Sprink-Co. from that business. This note was not the basis of the suit and was signed several months after the plaintiffs made demand upon the corporation for payment. Additionally, Adams testified that he signed the note, which listed the debtor as “O. B. Adams dba Sprink Co. Inc.,” in his corporate capacity.
The only remaining ground upon which the trial court could have held the majority stockholder liable for corporate debts is that the corporation was merely the alter ego of Adams. The corporate veil will be pierced reluctantly and cautiously (Amoco Chemicals Corporation v. Bach, 222 Kan. at 593. When equity demands, however, the presumed separateness of the corporation from its owners may be disregarded and the shareholders held liable on corporate debts. Kilpatrick, 205 Kan. at 796. The corporate entity will be disregarded as the alter ego of the majority shareholder when the corporation is a mere instrumentality for carrying out the business affairs of the shareholder and when to permit separation of the corporate entity would allow fraud or injustice. Kilpatrick, 205 Kan. at 797.
Eight factors were recently adopted as significant in the decision to disregard the corporate entity: (1) undercapitalization of a one-man corporation, (2) failure to observe corporate formalities, (3) nonpayment of dividends, (4) siphoning of corporate funds by the dominant stockholder, (5) nonfunctioning of other officers or directors, (6) absence of corporate records, (7) the use of the corporation as a facade for operations of the dominant stockholder or stockholders, and (8) the use of the corporate entity in promoting injustice or fraud. Amoco Chemicals Corporation v. Bach, 222 Kan. at 594. These factors are guidelines and not a conclusive test. Service Iron Foundry, Inc. v. M. A. Bell Co., 2 Kan. App. 2d 662, 673-74, 588 P.2d 463 (1978).
Plaintiffs presented no evidence to establish the first six factors, i.e., that this corporation was undercapitalized, that corporate formalities were ignored, dividends unpaid, corporate funds siphoned off, records unkept, or that directors or officers other than Adams were inactive.
As to the seventh, the only evidence which would tend to show Adams used the corporation to further his personal business interests was the fact that some of the goods purchased by Sprink-Co. were used on Adams’ land. However, much of the merchandise was purchased from all three plaintiffs for the benefit of many other customers, and bills were received and paid by Sprink-Co. for those purchases as well. There is nothing to prevent a sole stockholder from employing the services of his corporation as a private customer. Adams agreed to reimburse the corporation for sums expended on this land and repayment of that debt was a matter between the corporation and its customer.
Finally, no fraud upon the plaintiffs was evidenced. The fact that these plaintiffs customarily disregard the corporate status of a business and look at its stockholders in deciding whether credit should be extended, is of no importance in determining whether the corporation or stockholders misrepresented their status to commit fraud upon the creditor.
In short, there is no evidence of any of the eight factors commonly relied on by courts to justify piercing the corporate veil.
The finding of the trial court that defendant, Ollie Adams, is personally liable for the debts of the corporation, Sprink-Co., Inc., is unsupported by substantial competent evidence, and must be set aside.
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Parks, J.:
This is an appeal from an order setting aside a judgment of paternity and order of child support previously entered against defendant.
In January 1973, Donna Jean Smith gave birth to Justin Wade Smith out of wedlock. Three years later Ms. Smith applied for and received Aid to Dependent Children (ADC) payments. At the same time she signed an assignment of support rights to the State Department of Social and Rehabilitation Services (SRS) pursuant to K.S.A. 1978 Supp. 39-709(b) and also signed a form acknowledging her responsibility to cooperate in establishing the paternity of her child and obtaining support for him.
A petition was subsequently filed in the name of Donna Jean Smith as Natural Guardian and Next Friend for Justin Wade Smith, a minor child, to establish the paternity of the defendant. A staff attorney for SRS represented plaintiff in that matter. Default judgment was entered against defendant and he was ordered to pay $80 a month child support. The court further directed that the payments be made to SRS as long as the child received ADC. Defendant failed to make the payments and on February 23, 1977, filed a Motion for Relief of Judgment alleging that the suit was barred by the statute of limitations of K.S.A. 38-1104.
The trial court held that SRS could only enforce the mother’s cause of action granted by K.S.A. 38-1101 and that the suit, brought more than three years after Justin’s birth, was barred by the one year statute of limitation found in K.S.A. 38-1104.
A paternity suit brought by a mother under K.S.A. 38-1101 more than one year after the birth of her child is barred by K.S.A. 38-1104. However, the child has a separate cause of action to enforce his right to support. Doughty v. Engler, 112 Kan. 583, 211 Pac. 619 (1923). This action is a chose which is vested in the child (Lawrence v. Boyd, 207 Kan. 776, Syl. ¶ 2, 486 P.2d 1394 [1971]) and may not be alienated by its parents (Myers v. Anderson, 145 Kan. 775, 778, 67 P.2d 542 [1937]). Any settlement of the child’s nonstatutory right to support (Myers, 145 Kan. at 778) or assignment of the companion duty of support (Grimes v. Grimes, 179 Kan. 340, 295 P.2d 646 [1956]) is ineffective. More importantly, the common law action for support has been exempted from the operation of the statute of limitations of K.S.A. 38-1104. Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974). Thus, resolution of this case depends upon whether this paternity suit brought by the mother as guardian and next friend and represented by SRS could be properly maintained as an action for enforcement of the child’s nonstatutory right to support.
The trial court mistakenly perceived SRS as the real party in interest and the enforcement action of SRS as based on an ineffective assignment. The fact that some financial benefit (in the form of reimbursement for ADC payments) may accrue to SRS from the successful prosecution of an action to enforce the child’s right to support does not deprive the child of its status as the real party in interest. The right sought to be enforced belongs to the child. Lawrence v. Boyd, 207 Kan. at 779-780. The order of support payments to SRS was merely incidental to the right established for the child. It was not a settlement of the type prohibited by Myers and did not compromise the child’s right to support. The action established the child’s paternity and enforced his right to future support while securing the present reimbursement of SRS. Such reimbursement is only for the period that the person is an applicant or recipient of ADC. K.S.A. 1978 Supp. 39-709(b). The real benefit was to the child because once the filial relationship was established, the court had continuing jurisdiction to make modifications in the support order to meet his best interests. Addington v. Addington, 192 Kan. 118, 386 P.2d 219 (1963). Inasmuch as this action was for the nonstatutory duty of support, it was exempt from the limitations of K.S.A. 38-1104. Huss, 215 Kan. 450.
We note that after judgment was entered in this case, K.S.A. 1978 Supp. 39-755 was enacted, thus providing SRS with a means of enforcing child support rights through a suit brought in the name of the State.
The trial court erred in holding that this action was barred by K.S.A. 38-1104. Reversed with directions to reinstate the judgment of paternity and order of support. | [
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Abbott, J.:
The only issue in this appeal is whether the trial court erred in increasing the defendant wife’s alimony payments from her ex-husband to a level below that provided for in the original decree after it had previously reduced the original monthly alimony payment.
The basic facts are not in dispute. The parties to this action were divorced on July 15,1969, after thirty-one years of marriage. Mrs. Carlson was awarded alimony of $225 per month, payable until her death or remarriage or until the further order of the court. On February 24, 1971, an order was entered, reducing alimony payments to $175 per month. Mrs. Carlson subsequently developed physical problems that resulted in her total permanent disability to engage in any substantially gainful employment. Her sole income is the $175 alimony payment and $34.40 per month from social security. Mr. Carlson’s 1977 income tax return showed an income of $22,939. He has remarried. His present wife has a medical problem that prevents her from working.
The trial judge, after hearing evidence, increased alimony payments from $175 to $210 per month. This appeal followed.
K.S.A. 1978 Supp. 60-1610(d) (amended in 1979 without change to subparagraph [d\) provides:
“The decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. The decree may make the future payments conditional or terminable under circumstances prescribed therein. The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without the consent of the party liable for the alimony, if it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree.”
It is that portion of the last sentence reading “beyond what was prescribed in the original decree” that we are here called upon to construe.
Both parties attempt to isolate and seize language found in various Kansas cases to support their respective positions. We do not deem any of these Kansas cases applicable. None of them even remotely consider the question we have before us. For example, Mr. Carlson relies on language concerning modification found in Drummond v. Drummond, 209 Kan. 86, 90, 495 P.2d 994 (1972), that “[a]limony may be modified, but the court cannot increase the award either in amount or by decreasing the time in which the spouse must pay the alimony.” A similar statement appears in Carlton v. Carlton, 217 Kan. 681, 682, 538 P.2d 727 (1975). There it was said that “[t]he statute provides for a modification of the amount of alimony not yet due, except that the amount cannot be increased without the consent of the party liable for the alimony.” (Emphasis original.) Despite plaintiff’s urgings, Drummond and Carlton may not be interpreted as holding that alimony cannot be raised back to a level less than or equal to the amount set in the original decree. Neither case presents factual patterns that are analogous to the case at bar in which defendant seeks to increase alimony back to its original level, and the Court’s general discussion of the statute in each case should not be read as laying down a rule applicable under these circumstances.
By the same token, Mrs. Carlson’s cited case (Rasure v. Wright, 1 Kan. App. 2d 699, 573 P.2d 1103 [1977], rev. denied 225 Kan. 845 [1978]) does not stand for the proposition that alimony may be increased back to the amount of the original award. Again, this Court was merely rephrasing the statutory principles and was not faced with the unique issue it now meets when we stated at 701:
“Subsection (d) provides that the court may award either party an allowance for future support to be denominated as alimony and the court may modify the amounts or other conditions for the payment of any portion of the alimony originally ordered and not already become due. However, said modification is limited where it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree unless consented to by the party liable for said alimony.”
The proper technique of analysis is to study the statutory language and comb its history and background rather than to give tortured interpretations to dicta from dissimilar cases.
What did the legislature intend when it inserted the language in question?
The intent of the legislature must be found from the language of the statute and, when the language used is plain and unambiguous and appropriate to an obvious purpose, the court should follow the intent as expressed by the words used. Rosedale State Bank & Trust Co. v. Stringer, 2 Kan. App. 2d 331, 339, 579 P.2d 158 (1978). Furthermore, it is a basic principle of statutory construction that words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute. Weight Watchers of Greater Wichita, Inc. v. Secretary of Human Resources, 225 Kan. 534, 537, 592 P.2d 887 (1979). Finally, when a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Thomas County Taxpayers Ass’n v. Finney, 223 Kan. 434, Syl. ¶ 2, 573 P.2d 1073 (1978).
In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 (1978); Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d 425, 580 P.2d 1366, rev. denied 225 Kan. 843 (1978). The language dealing with alimony modification is of relatively recent origin; the provision went into effect in 1964 with the “new” code of civil procedure and re placed G.S. 1949, 60-1511, which had stated that an alimony award was final and could not be increased, reduced, or terminated. Our research failed to turn up any record of the circumstances attending its passage except for the fact that it substantially changed the previous law so that modification could now take place. Flannery v. Flannery, 203 Kan. 239, 244, 452 P.2d 846 (1969); Gard’s Kansas C. Civ. Proc. § 60-1610(c) (1963). Dan Hopson, Jr., then a Kansas University law professor, in discussing the concept of divorce under the new code of civil procedure in 33 J.B.A.K. 165 (1964), had the following comments at page 214:
“Judicial imagination in setting the conditions in the original decree is important because of the unique limitation on the courts’ power to modify the award later. Kan. Code Civ. Pro., 60-1610(e) reads in part ‘The court may modify the amounts or other conditions . . ., but no modifications shall be made . . ., if it has the effect of increasing or accelerating the liability for unpaid alimony beyond what was prescribed in the original decree.’
“This prohibition on upward revision will force the court into either of two devices. The court may award a higher amount than it thinks necessary on the correct assumption that if it proves too much the court may reduce the amount, but if it is too little the court may not increase it or the court may try to control the situation through imaginative.conditions. Apparently the court could, in the original decree, order $150 a month so long as the husband’s income was below $10,000, but if it went above $10,000 the alimony payment would be $200. Although this type of decree will possibly increase the husband’s liability, this liability is spelled out in the original decree and that is all the statute requires. The apparent thrust of the limitation is to allow a husband to know the outside limit of his future liability. He need not know the exact future amount. The various decrees, set out above, should all satisfy the statutory limitation.” (Emphasis original.)
Mr. Carlson’s counsel vigorously argues that “original decree” must be construed to mean the decree in effect at the time of modification. In support of that position, he contends that the word “originally” also appears in the same sentence and that if we affirm the trial court the logical result would follow that an alimony award can be modified only once. We cannot agree. In our opinion, the word “originally,” as used by the legislature in the statute, does not require such a result. It merely states that the court may “modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due.” (Emphasis added.) The use of “originally” is limited to the authority of the court to modify alimony that is past due and has no effect on the number of times the court may modify alimony within the guidelines set forth in the statute.
We believe the language of K.S.A. 1978 Supp. 60-1610(d) to be clear and unambiguous, giving the trial court power to modify unaccrued alimony without the consent of the “paying” party unless the modification effectively increases or accelerates “what was prescribed in the original decree.” An interpretation of the statute which would prohibit any increase in alimony payments without consent would make the phrase “beyond what was prescribed in the original decree” meaningless. This interpretation closely conforms to the majority of states which, by statute, authorize the upward and downward modification of unpaid alimony. See generally Annot., 61 A.L.R.3d 520; 24 Am. Jur. 2d, Divorce and Separation § 665, p. 782 et seq.; 2A Nelson on Divorce and Annulment § 17.01 et seq. (2d ed. 1961).
The trial court did not err when it increased the award after having previously decreased the original alimony award.
Pursuant to her request, Mrs. Carlson is awarded attorney fees and expenses in the amount of $1,099 to be paid by Mr. Carlson through the Clerk of the District Court of Stafford County, Kansas.
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Abbott, J.:
This action was brought by the plaintiff, Lilly K. Smerchek, to set aside a real estate sales agreement and to quiet title to the real estate involved. The original second party under the contract was J. R. Hamilton, one of the defendants. Hamilton subsequently assigned a one-half interest in the contract to E. W. Haley, the other defendant.
The sole issue is whether the trial judge erred in finding that part of the contract dealing with the defendants’ option to purchase upon the death of plaintiff violated the rule against perpetuities and thus is void.
As we view the case, the question is first whether the agreement is ambiguous and, if not, did the trial court err in its decision which is based on the premise that the defendants’ rights are exercisable after the plaintiff’s death only if her estate or her heirs desire to sell the property. The plaintiff and Hamilton entered into a contract entitled “Option and First Right of Refusal.” The agreement, in pertinent part, reads:
“That party of the first part, for and in consideration of the sum of One Hundred Dollars ($100.00) and other good and valuable consideration, receipt of which is hereby acknowledged by first party, does grant to second party the exclusive option and right of first refusal to purchase the real estate hereinafter described, upon the happening of the following:
“1. In the event that first party, during her lifetime, desires to sell the real estate hereinafter described, the second party shall have the exclusive right to purchase the property on the terms hereinafter set forth.
“2. Upon the death of first party, second party shall have the exclusive right to purchase the property hereinafter described, upon the terms and conditions hereinafter set forth, from the heirs or estate of first party.
“The real estate involved is as follows: [description omitted] together with all improvements situated thereon, for the sum of Fifteen Hundred Dollars ($1500.00) per acre for net, unencumbered acres, which shall include all of the above-described real estate. The option and right of first refusal shall take effect upon second party being notified of first party’s desire to sell, or first party’s death, and the option period shall run from thirty (30) days after receipt of such written notice.”
Over the years, certain basic concepts of law have become firmly established when a contract is alleged to be ambiguous. Parties to a contract should be bound by the strict terminology of that contract unless such terminology is ambiguous or unless there was a mistake involved. Schlatter v. Ibarra, 218 Kan. 67, 74-5, 542 P.2d 710 (1975). Determining whether a written contract is free from ambiguity is a judicial function. Hird v. Williams, 224 Kan. 14, 16, 577 P.2d 1173 (1978). The language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in the sense that the contract may be understood to reach two or more possible meanings. Duffin v. Patrick, 212 Kan. 772, Syl. ¶ 4, 512 P.2d 442 (1973). Once the court decides this question of law and determines the contract to be unambiguous, the intention of the parties and the meaning of such a contract are to be deduced from the plain, general and common meaning of those terms. Duffin at 778.
In the case at bar, the trial court made no finding as to whether the contract was or was not ambiguous insofar as it related to defendants’ right to purchase upon the death of plaintiff. The trial judge did not interpret the agreement in light of the rule against perpetuities when evidence was being taken. That issue appears to have been raised and considered for the first time by briefs received after evidence was taken and the case submitted. Such a finding would not be binding on this Court, in any event, for when a contract is in writing an appellate court has the same opportunity as the trial court to determine the question of ambiguity. Snodgrass v. Bloomcamp, 225 Kan. 65, 67, 587 P.2d 316 (1978).
Plaintiff’s position is that the agreement is ambiguous because the terms “option” and “first right of refusal” (also known as a “right of preemption”) are used loosely, thus confusing what type of interest was actually granted to defendants and when they are entitled to purchase the property. Plaintiff interprets the agreement to mean that defendants have no true option to purchase under the agreement, but only a right of preemption if she should desire to sell during her lifetime, and that defendants’ rights would be no greater upon her death. Under plaintiff’s interpretation, as was adopted by the trial court, her estate or her heirs retain the right to elect whether to ever sell the land, and defendants acquire no purchase rights at all until plaintiff’s estate or her heirs decide to sell and give notice of such decision to defendants.
If plaintiff’s contentions are correct, then the trial court’s decision is correct. An option to purchase and a right of preemption differ significantly, as was set forth in Anderson v. Armour & Company, 205 Kan. 801, 473 P.2d 84 (1970):
“A right of pre-emption differs from an option in that a pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell, but merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption at the stipulated price, and upon receiving such an offer, the pre-emptioner may elect whether he will buy, and if he elects not to buy, then the owner of the property may sell to a third party.” 205 Kan. 801, Syl. ¶ 1.
The rule against perpetuities is not without exceptions, but basically it provides that no future interest in property can lawfully be created unless it will vest within twenty-one years after some life or lives in being at the time of the creation of the interest, plus actual periods of gestation. Trustees of Endowment Fund of Hoffman Memorial Hosp. Ass’n. v. Kring, 225 Kan. 499, 501, 592 P.2d 438 (1979). The rule against perpetuities should not be applied when it is possible for the court to give an instrument a construction leading to its validity. Singer Company v. Makad, Inc., 213 Kan. 725, 732, 518 P.2d 493 (1974). The law favors a construction which will make a contract valid rather than invalid unless that construction is required by the terms of the agreement in the light of surrounding circumstances. Brooker v. Brooker, 214 Kan. 89, Syl. ¶ 3, 519 P.2d 612 (1974). In ruling upon whether a future interest violates the rule against perpetuities, speculation concerning the probabilities of various subsequent developments is not indulged in by the courts, it being a sufficient violation of the rule if an interest might possibly vest beyond the period permitted. In re Estate of Freeman, 195 Kan. 190, Syl. ¶ 2, 404 P.2d 222 (1965). Kansas long ago recognized that contracts very similar to the one in the case at bar are subject to the rule against perpetuities when the right of preemption runs for an indefinite period of time. In Henderson v. Bell, 103 Kan. 422, 424-25, 173 Pac. 1124 (1918), the parties entered into a contract v/hereby the sellers, in the event they decided to sell at any time in the future, agreed to first offer the property to another party at a specified price. The Kansas Supreme Court held the contract void, stating:
“The rule against perpetuities is a part of the law of this state. (Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645.)
“By the contract, if Bell should elect to sell the property, he must first offer it to the Buchanans. The contract, if enforceable, gave to the Buchanans the right to purchase the property at some future, indefinite, unknown time; and Bell can be compelled to convey the property to the Buchanans at such time for the price named. Bell cannot sell the property to any person without first offering it to those holding under the contract. When sold under the contract, the property must be sold at $65 an acre, although at that time it may be worth $1,000 an acre. Bell does not have an absolute, uncontrolled right to sell the property at any time that he may see fit. It follows that the Buchanans and those holding under them, either as assignees or heirs, would hold a right to obtain an interest in the property running for an indefinite period of time. That right would be held in violation of the rule against perpetuities. (Winsor v. Mills, 157 Mass. 362; Starcher Bros. v. Jeff Duty, 61 W. Va. 373; Woodall v. Bruen, 76 W. Va. 193; Gray, The Rule Against Perpetuities, 3d ed., § 330.)”
Here, the defendants argue that the agreement is clear and unambiguous, that defendants possess a right of preemption during plaintiff’s lifetime and acquire an option to purchase the property upon plaintiff’s death. Simply stated, defendants’ position is that upon plaintiff’s death the option to purchase is exercisable by defendants, and the heirs have no choice of whether or not to offer the property for sale after plaintiff’s death; they merely have a right to force plaintiff to exercise that option by giving notice of plaintiff’s death, thereby forcing defendants either to exercise that option within thirty days or lose it. We agree with defendants’ contention. The trial judge found that the defendants hold only a right of preemption during the lifetime of plaintiff. None of the parties question that finding. In our opinion, the agreement provides for an option to purchase on plain tiff’s death. We believe the trial judge erred when he reasoned the heirs might never elect to sell the land and found void as a violation of the rule against perpetuities that part of the contract reading:
“Upon the death of first party, second party shall have the exclusive right to purchase the property hereinafter described, upon the terms and conditions hereinafter set forth, from the heirs or estate of first party.”
The right to purchase is contained in two separately numbered subparagraphs. The first paragraph contains a right of preemption which is “triggered” by plaintiff’s desire to sell during her lifetime. The second paragraph, which was found to be in violation of the rule against perpetuities, does not mention a desire to sell and is not contingent upon the desires of the heirs or estate of the plaintiff — the only event necessary to bring the option contained in subparagraph two into play is plaintiff’s death. A similarly constructed instrument was interpreted by the Arizona Court of Appeals in Tovrea v. Umphress, 27 Ariz. App. 513, 556 P.2d 814 (1976). The instrument there provided in pertinent part:
“ ‘(1) If First Party [Della] shall desire to sell or dispose of said premises, or any interest therein, or part thereof, she shall before selling or disposing of or attempting to sell or dispose of said premises, or any interest therein, or part thereof, give written notice of such desire to First [sic] Party, and Second Party [Tovrea Packing Company] may within fourteen (14) days after the receipt of such notice, exercise its said option .... If, under the circumstances and within the time and manner aforesaid, Second Party shall fail so to exercise said option, the same shall thereupon wholly lapse and determine.
“ ‘(2) In the event First Party does not sell or dispose of said premises as aforesaid during her lifetime, and if Second Party’s said option shall not theretofore have lapsed and determined, as provided in the foregoing paragraph (1) hereof, then Second Party, within one year after the death of First Party, may exercise its said option by giving written notice of its intention so to do to the executor or administrator of the estate of First Party.’ ” 27 Ariz. App. at 515.
The Arizona court interpreted this language to create a two-part legal effect; a preemption during the first party’s lifetime and an option for one year after her death. The Arizona court held that such an agreement did not violate the rule against perpetuities or the rules against restraints on alienation.
Tennessee had occasion to consider an analogous clause in Hall v. Crocker, 192 Tenn. 506, 241 S.W.2d 548 (1951). The Tennessee Supreme Court was asked to interpret the following language in a deed:
“ ‘It is hereby expressly agreed and understood that should the said Leehentz Bowles desire to sell this land or should she die then the said W. L. Morris or his legal representatives shall have the exclusive right to buy the same at the actual cost of improvements on said land should he so desire.’
“ ‘To have and to hold to the said Leehentz Bowles her heirs and assigns forever.’ ” 192 Tenn. at 508-09.
In holding the clause not void as in violation of the rule against perpetuities, the court held:
“If the option in question had stopped with an option to buy when it was said that the said ‘Bowles desire to sell this land’ then unquestionably this option would have been violative of the rule against perpetuities and void because she might desire at any time to sell it and yet she or her heirs might never desire to sell it. Such contracts are universally held to be within the inhibition of the rule against perpetuities. A contract which by possibility may not take effect until after lives in being and 21 years and the period of gestation is ipso facto and ab initio void. In other words the interest is void for remoteness if, at its creation, there exists a possibility that it may not take effect during any fixed number of now existing lives, nor within 21 years and the period of gestation after the expiration of such lives, even though it is highly probable or indeed almost certain, that it will take effect within the time prescribed. The language used in the option in the instant case though goes further and fixes a definite time within this prescribed period when the optionee may exercise this option. The language of the contract says that ‘should die’ that then Morris or his representatives have the exclusive right to purchase this land. This is a fixed time within the prohibitive period. Of course under the laws of nature Mrs. Bowles must die and she is a party living when the contract is made and the option must be exercised when she dies or in her life if at all, consequently the option in question does not violate the rule against perpetuities.” 192 Tenn. at 510-11.
It seems improbable defendant Hamilton would have agreed to the option with the plaintiff if the possibility had existed that he personally never would be able to purchase the property — the likely result if plaintiff’s heirs were to have the right to decide not to sell the property for another generation. Furthermore, plaintiff’s counsel at trial seemed to agree with this construction when he stated:
“The contract specifies upon the death of Mrs. Smerchek, the estate shall offer it to John Hamilton, and he has 30 days in which to turn it down. Now, if that isn’t in the contract, then my name isn’t Craig Irwin.”
Plaintiff also argues that the conjunction “and” used between the terms “exclusive option and first right of refusal” throughout the instrument indicates the two are nonseverable and that the right of first refusal applies to both triggering events. As we view the caption of the instrument, it calls for both an option and a first right of refusal. Under plaintiff’s interpretation, no option would be created by the agreement, only a first right of refusal. In any event, this argument is largely academic, for the true nature and character of a document is not determined by the name attached thereto but by the intent of the parties as reflected by the terms or the contents thereof. Atlas Industries, Inc. v. National Cash Register Co., 216 Kan. 213, Syl. ¶ 2, 531 P.2d 41 (1975).
We are of the opinion that defendants or their heirs have an absolute right under the agreement to purchase the property upon the death of plaintiff whether or not plaintiff’s heirs or her estate desire to sell. If the clause violates the rule against perpetuities, it must be by virtue of its reference to “terms and conditions hereinafter set forth” which provide that the option to purchase will expire thirty days after written notice is delivered to defendants. The general rule is that if the purchase option must be exercised or expire within the period limited by the rule it does not violate the rule. Shirley v. Van Every, 159 Va. 762, 167 S.E. 345 (1933); Rice v. Lincoln & N. W. R. Co., 88 Neb. 307, 129 N.W. 425 (1911); see also Annot., 66 A.L.R.3d 1294.
The question in this case then becomes whether the option to purchase would expire within the period permitted by the rule against perpetuities. There is authority that when landowners have it within their power to terminate an option within the allotted time by giving notice, such as either the heirs or the estate in this case can do, then the rule against perpetuities would not apply since the agreement does not indicate that the parties intended the option to continue for an unlimited time. Hidden Meadows Development Co. v. Mills, 29 Utah 2d 469, 511 P.2d 737 (1973). The contract before us supports such a construction. As we view the contract, it simply provides that upon the death of plaintiff, defendants have an absolute right to buy the property; and in the event they are not aware of the death, plaintiff’s heirs or her estate must trigger the purchase by giving written notice. We need not adopt that view, however, as we believe this issue to be controlled by Singer Company v. Makad, Inc., 213 Kan. at 732-33:
“It seems generally to be agreed, as our own cases may be said to witness, that the rule against perpetuities should not be applied where it is possible for the court to give an instrument a construction leading to its validity. The rule is phrased in Wong v. DiGrazia [60 Cal. 2d 525, 35 Cal. Rptr. 241, 386 P.2d 817] in these words:
“ . . Both the California cases, and those of a majority of other states, hold that a document should be interpreted if feasible to avoid the conclusion that it violates the rule against perpetuities.’ (pp. 539, 540.)
“Supporting this principle of construction, see Restatement, Property, § 375; Belfield v. Booth, 63 Conn. 299, 27 A. 585; Edgerly v. Barker, 66 N.H. 434, 31 A. 900; Plummer v. Roberts, 315 Mo. 627, 287 S.W. 316.
“We think it not unreasonable to assume that in the hurried, competitive atmosphere of today’s commercial world, experienced business people dealing at arm’s length for rental space in any modern shopping area would not contemplate entering into a lease arrangement contingent on events which might not transpire until twenty-one years had gone by.
“The conclusion at which we arrive in this case is consistent with past decisions of this court to the effect that where no time has been stated for performing an act which is to be done, the law will imply that performance is to be accomplished within a reasonable time, and the want of a stipulation as to time does not necessarily render the agreement void. (Leis v. Sinclair, 67 Kan. 748, 74 Pac. 261; Eakin v. Wycoff, 118 Kan. 167, 171, 234 Pac. 63; Price v. Brodrick, 183 Kan. 71, 325 P.2d 387.)
“In Campbell v. Wamberg, 133 Kan. 246, 299 Pac. 583, the principle was expressed with respect to the exercise of an option. There, the will executed by the testator provided essentially that his sons, in specified priority, should have the right to purchase their sisters’ interest in the real estate, but no time was fixed for exercising the options. The holding of the court on that point is encompassed in Syllabus 1:
“ ‘Where a person has an option to purchase property at a specified figure, and no time is fixed for the exercise of the option, a reasonable time is implied, and what length of time is reasonable is governed by the circumstances of the particular case.’
“A testamentary option to purchase real estate was likewise the subject of controversy in In re Estate of Maguire, 204 Kan. 686, 466 P.2d 358. In that case we said that ‘where no time limit is specified for the exercise of a testamentary option, it must be exercised within a reasonable time.’ (p. 690.)
“Our cases are consonant with the general rule found in 17 A C.J.S., Contracts, § 503(1), p. 779:
“ ‘Where a contract fixes no definite time for performance the law usually implies that performance shall be within a reasonable time, and this rule applies to the performance of a condition precedent, or of an act dependent on the will of the promisor.’ ”
Applying the Singer reasonable-time rule here, it is clear that a reasonable time for notice would be well within twenty-one years of plaintiff’s death. It is doubtful, in fact, whether it would be necessary for notice to be given defendants before they could exercise their option after the death of plaintiff. If notice by the heirs should be construed to be necessary, defendant Hamilton could go into court and compel plaintiff’s heirs to give notice after she died. To allow otherwise would circumvent the purpose of the option by allowing the heirs to defeat the option simply by withholding notice of death.
Reversed and remanded with direction to enter judgment for the defendants. | [
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Abbott, J.:
This is an appeal from that part of a judgment in a divorce action awarding to the plaintiff, Nancy Wachholz, all of the interest of the defendant, John Wachholz, in and to seventy acres of land in Johnson County, Kansas.
The seventy acres were purchased by the parents of Nancy Wachholz who conveyed it to themselves, Nancy Wachholz and John Wachholz as joint tenants with the right of survivorship. Nancy Wachholz’s and John Wachholz’s interest in the land resulted from gifts from Nancy’s parents except for the sum of $3,942.64 plus interest which was paid by Nancy after the parties separated and this action was filed. The various gifts appear to have been made specifically one-half to John and one-half to Nancy.
John Wachholz asserts that under K.S.A. 1978 Supp. 23-201 his interest is separate property by reason of the gifts from Nancy’s parents to him and thus not subject to division pursuant to K.S.A. 60-1610(c). The parties do not question that the method by which the property was acquired and the fact that it was held by them as joint tenants with the right of survivorship might not qualify it as being separately owned property under K.S.A. 1978 Supp. 23-201. By reason of the disposition made in this case, we choose not to raise this issue.
K.S.A. 1978 Supp. 23-201 provides:
“(a) The property, real and personal, which any person in this state may own at the time of his or her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to him or her by descent, devise or bequest, or by gift from any person except his or her spouse, shall remain his or her sole and separate property, notwithstanding the marriage, and not be subject to the disposal of his or her spouse or liable for the spouse’s debts.
“(b) Property, other than property described in subsection (a) or property excluded by a written agreement by the parties, acquired by either spouse after marriage and before commencement of an action for divorce, separate maintenance, or annulment, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy or tenancy in common, shall be marital property. Each spouse has a common ownership in marital property which vests not later than the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment, the extent of the vested interest to be determined and finalized by the court pursuant to K.S.A. 1978 Supp. 60-1610, and any amendments thereto.”
The Kansas Supreme Court construed K.S.A. 23-201 in Harrah v. Harrah, 196 Kan. 142, 409 P.2d 1007 (1966). The statute at that time consisted only of subsection (a). The Supreme Court recognized the difference in purpose of K.S.A. 23-201 and 60-1610, stating that 23-201 had never been applied to uphold the separateness of a wife’s property in a divorce proceeding and that such property was subject to K.S.A. 60-1610. The Court reasoned that K.S.A. 23-201 merely established rights for the wife at the advent of and during marriage while 60-1610 provided for a disposition of the property on dissolution of the marriage.
K.S.A. 1978 Supp. 23-201 has been amended twice since Harrah was decided. The first amendment in 1976 consisted of erasing gender from the statute and had the effect of extending to men as well as women any privileges and benefits conferred by statute. The second amendment became effective July 1, 1978, and added subsection (b). John Wachholz contends that by adding subsection (b) the legislature intended to significantly alter divorce law as it existed prior to the 1978 amendment.
In construing statutes, a number of principles have heretofore been established. The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. State v. Dumler, 221 Kan. 386, Syl. ¶ 1, 559 P.2d 798 (1977); Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 552 P.2d 1363 (1976). In interpreting a statutory provision that is susceptible to more than one construction, it must be given the construction which, when considered in its entirety, gives expression to its intent and purpose. United Parcel Service, Inc. v. Armold, 218 Kan. 102, Syl. ¶ 2, 542 P.2d 694 (1975).
When determining legislative intent of a statute, courts are not limited to a mere consideration of the language employed, but may properly look to the historical background of its enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under various constructions suggested. Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 367, 582 P.2d 1123 (1978); State v. Luginbill, 223 Kan. 15, Syl. ¶ 2, 574 P.2d 140 (1977).
We view the legislative change in K.S.A. 1978 Supp. 23-201 to be a reaction to the decision in United States v. Davis, 370 U.S. 65, 8 L.Ed.2d 335, 82 S.Ct. 1190 (1962), where the United States Supreme Court held that inchoate rights granted to a wife in the separate property of her husband do not reach the dignity of co-ownership and thus the transfer to the wife pursuant to a property settlement agreement of appreciated stock owned solely by the husband was a taxable event.
A similar result was reached concerning Kansas law in Wiles v. C.I.R., 499 F.2d 255 (10th Cir. 1974), wherein it was resolved that a taxable event occurred when appreciated property owned solely by one spouse was transferred to the other pursuant to a Kansas divorce decree. The Kansas legislature reacted by amending K.S.A. 23-201 and adding subsection (b) in what we consider to have been an obvious effort to aid Kansas residents in avoiding the harsh results reached in United States v. Davis and Wiles v. C.I.R. The amended statute went into effect on July 1, 1978, and fifteen days later the Kansas Supreme Court handed down its decision in Cady v. Cady, 224 Kan. 339, 581 P.2d 358 (1978), rejecting Wiles, as it had every right to do under the decision in Davis, holding:
“The filing of a petition for divorce or separate maintenance creates a species of common or co-ownership and a vested interest in one spouse in jointly acquired property held by the other, the extent of which is to be determined pursuant to K.S.A. 1972 Supp. 60-1610(fc) (now K.S.A. 60-1610[c]).” Syl. ¶ 1.
We are of the opinion that Cady and subsection (b) of K.S.A. 1978 Supp. 23-201 provide for the same end result, and that is to make the transfer of property that is acquired during the marriage by either or both spouses and transferred to the other by a divorce decree to be a nontaxable event, even though title is held individually, since it is merely a transfer between co-owners. The reference in subsection (b) to K.S.A. 1978 Supp. 60-1610 is merely to clarify that the extent of the vested interest there created is to be determined by the court in its division of property in the divorce. This is not a novel approach; it has been recognized by others. See Keith (Casey) D. Cohen, 47 J.B.A.K. 275, Property Settlements in Divorce and Kansas Senate Bill #907, where Cohen reviewed Kansas Senate Bill No. 907 (1978 Supp. 23-201) and stated at 283:
“The statute states that marital property gives each spouse common ownership and that such rights vest not later than the time of the commencement of the divorce action. The legislature is thus attempting to counteract Wiles and strengthen the taxpayers’ argument that a property settlement in Kansas is nothing more than a nontaxable division of property. The statute also makes clear that a spouse’s rights in marital property are not merely inchoate but rise to the dignity of co-ownership with vesting not later than the time of commencement of the divorce action. This statute would place Kansas in line with Colorado and Oklahoma.”
In commenting upon the reason for the enactment of the law by the legislature, Mr. Cohen notes as follows at 283-84:
“One can quickly see that the Kansas Legislature’s main purpose in enacting Kansas Senate Bill #907 was to protect Kansans from federal income taxation on property settlement agreements made pursuant to a divorce action.”
As we view the amended statute, it appears to us that the legislature did not intend to alter prior or existing Kansas divorce law, and the addition in 1978 of subsection (b) was solely for the purpose of allowing greater flexibility in the division of property as a result of the termination of a marriage by eliminating the possibility of the division creating a taxable event. In short, the intent and purpose of the legislature in adopting subsection (b) was clearly limited to affecting taxation. It does not, by implication, alter the reasoning or the holding of Harrah.
We have examined the other arguments by John Wachholz, and while not directly responding to them we find them to be without merit. Our examination of the record on appeal causes us to conclude that the trial court did not abuse its discretion in awarding to Nancy Wachholz the interest of John Wachholz in and to the seventy-acre tract in Johnson County.
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Rees, J.:
This appeal arises out of a worker’s compensation claim made by Thomas J. Rose against his employer, Thornton & Florence Electric Company. The Workmen’s Compensation Fund was properly impleaded and it appeals from district court approval of an award for temporary total disability resulting from a second injury. We reverse.
Claimant sustained an injury on September 7, 1973, for which he made a worker’s compensation claim; a permanent partial disability award was entered in due course. He sustained a second injury on January 29, 1975. On November 15, 1978, more than forty-five months after the second accident, the examiner found claimant was totally disabled, had been totally disabled since the date of the second accident, and would continue to be totally disabled for an indeterminate time in the future. The examiner also found the second injury would not have occurred “but for” the preexisting back condition. An award was entered for payment of temporary total disability compensation subject to further order or payment of the statutory maximum of $50,000. The Fund is wholly responsible for payment of the second award. K.S.A. 1979 Supp. 44-567(a)(l). (The current versions of relevant statutes will be cited since they do not substantially differ from those in effect at the time of claimant’s second injury. See Vol. 3 A of K.S.A. 1974 Supp.)
When the subject award for the second injury was entered, compensation for. the first injury remained collectible. Because the award is for temporary total disability, there is no reduction in the amount of compensation to be paid by the Fund which otherwise would occur pursuant to K.S.A. 1979 Supp. 44-510a:
“(a) If an employee has received compensation or if compensation is collectible under the laws of this state or any other state or under any federal law which provides compensation for personal injury by accident arising out of and in the course of employment as provided in the workmen’s compensation act, and suffers a later injury, compensation payable for any permanent total or partial disability for such later injury shall be reduced, as provided in subsection (b) of this section, by the percentage of contribution that the prior disability contributes to the overall disability following the later injury. The reduction shall be made only-if the resulting permanent total or partial disability was contributed to by a prior disability and if compensation was actually paid or is collectible for such prior disability. Any reduction shall be limited to those weeks for which compensation was paid or is collectible for such prior disability and which are subsequent to the date of the later injury. The reduction shall terminate on the date the compensation for the prior disability terminates or, if settled by lump sum award, would have terminated if paid weekly under such award and compensation for any week due after this date shall be paid at the unreduced rate. Such reduction shall not apply to temporary total disability, nor shall it apply to compensation for medical treatment.
“(b) The percentage of contribution that the prior disability contributes to the later disability shall be applied to the money rate actually collected or collectible for the prior injury and the amount so determined shall be deducted from the money rate awarded for the later injury. This reduced amount of compensation shall be the total amount payable during the period of time provided in subsection (a), unless the disability award is increased under the provisions of K.S.A. 1979 Supp. 44-528 and amendments thereto.” (Emphasis added.)
On appeal, the Fund contends claimant’s disability is not temporary total in nature but rather permanent partial disability. The Fund’s argument is centered not on the question of total versus partial disability (see Grounds v. Triple J Constr. Co., 4 Kan. App. 2d 325, 606 P.2d 484 [1980]), but rather on the distinction to be drawn between temporary and permanent disability.
It is the Fund’s position that claimant’s condition, his impairment, is not temporary because it cannot reasonably be expected to improve. We agree.
The material evidence in this case is found solely in the testimony of Dr. Kaufman, an orthopedic surgeon. He examined claimant after the first injury and found him to have permanent partial disability resulting from injury to his back; the disability was evaluated by Dr. Kaufman to be a functional disability of approximately 25%. Dr. Kaufman treated claimant, both in and out of the hospital, following the second injury, an injury described as an aggravation of claimant’s then preexisting condition. It was the doctor’s opinion that as of the date of his last examination of claimant on June 23, 1978, claimant’s functional disability had increased to about 35%. According to Dr. Kaufman, claimant was totally disabled from performing manual labor when last examined. Whether claimant could obtain substantial gainful employment (see K.S.A. 1979 Supp. 44-510c[b][-2]), an issue as to which lay testimony as well as medical or expert testimony may be considered (see, e.g., Conner v. M &M Packing Co., 166 Kan. 98, 100, 199 P.2d 458 [1948]; 3 Larson, Workmen’s Compensation Law § 79.53), is not before us.
Dr. Kaufman testified that although he did not presently recommend surgery, he wished to review claimant’s condition again in another six months or a year; and although claimant’s physical situation quite likely is going to be such that surgery will be called for, recommendation for surgery will not be made until it is medically felt surgery “can do something for him.” However, Dr. Kaufman’s testimony that is most important to decision of the question before us appears in the following questions of claimant’s counsel and the doctor’s answers:
“Q. And do you feel like this is a permanent condition caused by the amount of time that elapsed since the injury?
“A. I think short of an operation that would do things I really wouldn’t expect it to do, probably.
“Q. And you would not recommend an operation at the present time?
“A. Not yet.”
We find this compels the conclusion that claimant’s condition was then found to be permanent and that the doctor would not anticipate the permanency of claimant’s condition to be lessened or altered as a result of surgery.
The purpose of temporary total disability compensation is to compensate an injured worker for loss of wages during the healing period or the time it takes him or her to recover from the injury. 2 Larson, Workmen’s Compensation Law § 57.10; Russell v. Bankers Life Co., 46 Cal. App. 3d 405, 415-416, 120 Cal. Rptr. 627 (1975). Typically, temporary total disability compensation is initially awarded and a later award is made based on permanent disability after the worker’s condition is no longer considered temporary. See K.S.A. 1979 Supp. 44-528. The problem here concerns when temporary disability ends and permanent disability begins.
By virtue of statutory or case law, other jurisdictions have held that an injury is no longer temporary when the maximum point of recovery is reached (Speigner v. McGhee, 55 Ala. App. 384, 390, 316 So.2d 215 [1975]; Subsequent Injuries Fund v. Industrial Acc. Com:, 226 Cal. App. 2d 136, 143-144, 37 Cal. Rptr. 844 [1964]; Sanz v. Eden Roc Hotel, 140 So.2d 104, 105 [Fla. 1962]; Gluck Bros. v. Coffey, 222 Tenn. 6, 13-14, 431 S.W.2d 756 [1968]) or when the injured worker’s condition becomes medically stationary or stable (Continental Casualty Co. v. Industrial Commission, 23 Ariz. App. 294, 532 P.2d 869 [1975]; Johnson v. SAIF, 18 Or. App. 152, 154-155, 524 P.2d 559 [1974]). Additionally, it appears to be generally held that where it is reasonably probable that a worker’s disability will continue for an indefinite or indeterminate period of time, the disability is considered permanent in nature. Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769, 774 (La. App. 1974); Sykes v. Republic Coal Co., 94 Mont. 239, 245, 22 P.2d 157 (1933); Logsdon v. Indus. Comm., 143 Ohio St. 508, 513-514, 57 N.E.2d 75 (1944). No Kansas cases addressing the issue have been found. The reasoning and conclusions of the foregoing foreign decisions are persuasive.
We conclude that maximum recovery and medical stability are key factors in determining the time demarcation between temporary disability and permanent disability.
Our review is limited to questions of law. K.S.A. 1979 Supp. 44-556(c). Findings of fact made by the district court are conclusive if based upon substantial competent evidence; whether substantial competent evidence exists is a question of law. In re viewing the record, we must do so in the light most favorable to the party prevailing below. Makalous v. Kansas State Highway Commission, 222 Kan. 477, 486, 565 P.2d 254 (1977). It is not our function to weigh evidence or consider questions of fact. Deines v. Greer, 216 Kan. 548, 550, 532 P.2d 1257 (1975). Whether an injury is temporary or permanent in nature is a question of fact. Subsequent Injuries Fund v. Industrial Acc. Com., 226 Cal. App. 2d at 144.
We are unable to find substantial competent evidence in the record to support a factual finding that claimant’s condition at the time of entry of the challenged award was temporary. There was no evidence of probable improvement with regard to the permanency of claimant’s condition. The mere possibility of surgery on an uncertain date in the future is not sufficient to sustain a finding that claimant’s condition was temporary, that it would improve. The improbability of a beneficial surgical result for this claimant renders the likelihood of improvement not only merely possible, but clearly speculative. The conclusion to be drawn from the evidence is that claimant’s condition was such that the only reasonable expectation was that it would be permanent; the healing period was over.
The judgment of the district court is reversed and remanded with directions to determine a proper award based on either permanent partial or permanent total disability. Such an award will remain subject to modification pursuant to K.S.A. 1979 Supp. 44-528. | [
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Abbott, J.:
This is an appeal from a judgment in a divorce action modifying an oral separation agreement.
Prior to the petition for divorce having been filed, the parties to the action voluntarily separated and the defendant, Anne Lewis, returned to Iowa to make her home. Before she left Kansas, the parties entered into an oral agreement whereby they provided for the custody and support of their seventeen-year-old son, divided their property, and agreed to waive alimony. Neither party was represented by an attorney at the time. As the result of a previous divorce action between the parties, Mrs. Lewis was aware of the laws of Iowa relating to alimony and property division, but she had not been advised of the Kansas law regarding these matters prior to the time she entered into the oral agreement.
The plaintiff, Donald Lewis, set out the provisions of the oral agreement in his divorce petition. Ignoring the agreement, the defendant answered, requesting that the court divide the property and also requesting alimony. After hearing evidence, the trial court adopted the provisions of the oral agreement except it found that in order to provide a fair division of the parties’ property the settlement should require Donald Lewis to pay to Anne Lewis the sum of $150 per month for a period of three years.
Donald Lewis appeals, raising two issues for our consideration. 1. Donald Lewis contends the court erred in modifying the agreement made by the parties by awarding defendant future support payments. As we read the findings by the trial court, it did not award “future support payments” to Mrs. Lewis. Its adjustment of the parties’ agreement is clearly intended to be a part of the property division, as evidenced by the trial court’s letter of November 29, 1978, and the subsequent journal entry which recites:
“[T]he Court . . . approves the division of the property previously made by the parties hereto and finds to provide a fair settlement of the parties’ property, the settlement should include payment for a period of three years of $150.00 per month from the Plaintiff to Defendant to divide the total property of the parties including Plaintiff’s retirement income. ” (Emphasis supplied.)
Thus, the question presented is whether the trial court erred in its modification of the parties’ agreement.
Mr. Lewis’s argument may be summarized as follows: (1) The parties entered into a separation agreement which provided a full and complete settlement of their interests; (2) the agreement was made intelligently, voluntarily and in good faith; (3) the agreement did not provide for nor has he consented to a modification of the agreement by the court; (4) absent such a provision or consent, the trial court was without power to modify the agreement.
We do not quarrel with plaintiff’s contention that a court is powerless to modify a valid, just and equitable separation agreement, except as to matters authorized by statute, unless the agreement provides for or the parties consent to such power. K.S.A. 60-1610(e) (now K.S.A. 1978 Supp. 60-1610[e]); Rasure v. Wright, 1 Kan. App. 2d 699, Syl. ¶ 3, 573 P.2d 1103 (1977), rev. denied 225 Kan. 845 (1978). As a general rule, a court has no continuing jurisdiction or power of modification over a division of property after entering an original divorce decree. Curtis v. Curtis, 218 Kan. 130, 131, 542 P.2d 330 (1975); Ostrander v. Ostrander, 214 Kan. 859, 522 P.2d 183 (1974); Baird v. Baird, 209 Kan. 604, 607, 498 P.2d 83 (1972); Drummond v. Drummond, 209 Kan. 86, Syl. ¶ 2, 495 P.2d 994 (1972). It is also clear that all separation agreements which are found to be fair, just and equitable by the trial court are merged into the divorce decree and become a judgment of the court. Fiske v. Fiske, 218 Kan. 132, Syl. ¶ 2, 542 P.2d 284 (1975). However, we do not agree that the trial court’s modification of the parties’ agreement here was contrary to the principles set out above.
In our opinion, the answer to plaintiff’s contention is found in K.S.A. 601610(e), which provided in pertinent part: “If the parties have entered into a separation agreement which the court finds to be valid, just and equitable, it shall be incorporated in the decree.” (Emphasis supplied.) Although it appears that no Kansas case has directly addressed the present issue, it is clear that cases dealing with K.S.A. 60-1610(e) have recognized the trial court’s approval of a separation agreement as a condition precedent to incorporation of the agreement into the decree. Kendall v. Kendall, 218 Kan. 713, 716, 545 P.2d 346 (1976); Fiske v. Fiske, 218 Kan. at 135; Baird v. Baird, 209 Kan. at 608; Drummond v. Drummond, 209 Kan. at 92. In Spaulding v. Spaulding, 221 Kan. 574, 577, 561 P.2d 420 (1977), the Court stated: “[I]n finding that an agreement is valid, just, and equitable, as required by the státute, the agreement must be carefully scrutinized.” A necessary corollary of the trial court’s duty to examine a separation agreement as to whether it is valid, just and equitable, is the power to modify such agreement prior to its incorporation into the decree. To hold otherwise would render meaningless the trial court’s power to adjust the interests of the parties in a divorce proceeding. In conformance with the general rule of appellate review of a division of property (Wofford v. Wofford, 214 Kan. 450, Syl. ¶ 1, 520 P.2d 1278 [1974]), our review of the trial court’s modification of a separation agreement made prior to its incorporation in the decree is limited to considering whether the modification constitutes an abuse of discretion.
A finding that it is necessary to add to one party’s share to make an agreement fair is tantamount to finding that an agreement is not just and equitable. In the present case, the trial court obviously gave considerable credence and weight to the parties’ mutual intent manifested in their oral agreement, but felt that an adjustment in the nature of cash payments to Mrs. Lewis was necessitated to offset Mr. Lewis’s retirement income and make the parties’ property division equitable. Such payments may be ordered to effect a just and equitable property division. K.S.A. 60-1610(c). We hold that if a trial court finds that a separation agreement is not just and equitable as required by 60-1610(e), it is free either to reject or make reasonable adjustments to the agreement as provided for by 60-1610(c), provided it does so before entering a final judgment that merges the separation agreement into a divorce decree.
Our review of the appropriate factors to be considered in making a division of property (Parish v. Parish, 220 Kan. 131, 133-34, 551 P.2d 792 [1976]) leads us to the conclusion that the trial court’s addition of the cash payments to the parties’ separation agreement was not an abuse of discretion. See Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
2. Mr. Lewis complains of the admission of certain portions of defendant’s testimony, as such evidence was allegedly introduced to modify the parties’ agreement. The record on appeal does not include the disputed portions of testimony and thus the issue need not be considered by this Court. Farmers Ins. Exchange v. Schropp, 222 Kan. 612, Syl. ¶ 8, 567 P.2d 1359 (1977); Frevele v. McAloon, 222 Kan. 295, 299, 564 P.2d 508 (1977). At any rate, the description of the testimony contained in the parties’ briefs appears to be relevant to other issues in the case and nonprejudicial to the plaintiff.
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Spencer, J.:
Defendant was convicted of felony theft pursuant to K.S.A. 21-3701 and has appealed.
It is contended the trial court erred in admitting defendant’s written statement into evidence. The statement was essentially a confession in which defendant implicated himself in the theft of the property in question. He does not claim he was unaware of what he was doing or that his doing so was an involuntary act on his part, nor does he claim a Miranda violation. Rather, defendant contends the statement was inadmissible because his appointed counsel was not present at the time he prepared the statement and delivered it to the officers.
An evidentiary hearing was conducted and the trial court concluded defendant’s written statement was admissible. If there is substantial competent evidence to support that finding, it will not be disturbed on appeal. State v. Porter, 223 Kan. 114, 574 P.2d 187 (1977); State v. Wilson, 215 Kan. 28, 523 P.2d 337 (1974).
It has been repeatedly held that an accused may waive his right to have counsel present during a police interview both before and after formal charges are filed. State v. Porter, 223 Kan. 114; State v. Smolin, 221 Kan. 149, 557 P.2d 1241 (1976); State v. Barry, 216 Kan. 609, 533 P.2d 1308 (1974). Further, a voluntary statement by an accused is not inadmissible solely because it was given when the accused did not have counsel present. State v. Taylor, 217 Kan. 706, 538 P.2d 1375 (1975); State v. Nichols, 212 Kan. 814, 512 P.2d 329 (1973); State v. Melton, 207 Kan. 700, 486 P.2d 1361 (1971); State v. Brown, 198 Kan. 473, 426 P.2d 129 (1967).
The record in this case reveals the statement in question was prepared by defendant in his own handwriting, only after he had asked and “kept on asking” that he be permitted to do so. It was not prepared during a police interview and no interrogation occurred. At that time, he was advised of his constitutional rights, including his right to have counsel present, and defendant indicated his understanding of those rights. He signed a written waiver and does not contend he was coerced into doing so. The record on appeal clearly reflects substantial competent evidence that defendant voluntarily and intelligently waived his right to have counsel present at the time he made his written statement. See State v. Jones, 220 Kan. 136, 551 P.2d 801 (1976).
It is argued the State’s cross-examination of defendant was improper in that it exceeded the scope of direct examination and was in violation of K.S.A. 60-421.
Defendant chose to testify. On direct examination he was asked to explain to the jury “why you signed that statement; why you wrote it out?” His reply was that he had been asking to write a statement; that he, Chuckie Williams, and Debbie Williams “did a burglary together”; that Debbie was his girlfriend and it was the first time she and her brother had been in jail; that he didn’t want to see Debbie do any time and so he had asked to make a statement; that he had done so to get Debbie off the burglary charge and as “[m]erely protection in a way”; but that the statement was not really true. On cross-examination defendant was asked to explain his reference to the burglary, which he did by saying that he referred to the current charge against him, but that he, Debbie and Chuckie Williams had all been together. When asked to explain what he meant when he said his written statement was as a protection for Debbie, his reply was:
“Because I feel sorry for her — well, I was told my probation was violated at that time, so I feel I was going down anyway ’cause when I was in front of the Judge Lowry last time, he told me don’t come back, so I just said since I’m going, I might as well take the rap for them rather than all three of us going.”
Defendant then testified that both Debbie and her brother had been involved and knew what was going on. When asked why he had been before Judge Lowry before, he replied, “Burglary,” and objection was entered.
K.S.A. 60-421 prohibits cross-examination of an accused concerning prior convictions when such is not within the scope of the direct examination and the accused has not introduced evidence for the purpose of supporting his own credibility. State v. Harris, 215 Kan. 961, 529 P.2d 101 (1974); State v. Motley, 199 Kan. 335, 430 P.2d 264 (1967). However, defendant’s testimony that he, Chuckie Williams, and Debbie Williams “did a burglary together,” and his further explanation as to why he had written and signed the statement, were on direct examination and a defendant cannot avoid cross-examination on matters about which he has testified on direct. When a subject is opened on direct examination, the cross-examination may develop and explore various phases of that subject. State v. Burnett, 221 Kan. 40, Syl. ¶ 1, 558 P.2d 1087 (1976); State v. Ralph, 217 Kan. 457, Syl. ¶¶ 7, 8, 537 P.2d 200 (1975); State v. Pappan, 206 Kan. 195, Syl. ¶ 1, 477 P.2d 989 (1970).
Clearly, defendant, on direct examination, sought to repudiate the statement he had previously given and to explain why the jury should believe his testimony given at trial rather than the contents of his statement. The prosecution was entitled to inquire into the explanation offered by defendant, who had himself opened the door for such inquiry. We find no error on this point.
Finally, it is argued the trial court erred in instructing the jury as to the offense charged. Defendant was charged only with violating K.S.A. 21-3701(d), “Obtaining control over stolen property knowing the property to have been stolen by another.” Although the jury instructions are not included in the record, it appears the trial court instructed the jury alternatively under both 3701(d) and under 3701(a), “Obtaining or exerting unauthorized control over property.”
In charging a jury in a criminal case, it is the duty of the trial judge to define the offense charged, stating to the jury the essential elements of the crime either in the language of the statute or in other appropriate words. State v. Miller, 222 Kan. 405, 565 P.2d 228 (1977); State v. Bandt, 219 Kan. 816, 549 P.2d 936 (1976). On appellate review, instructions to a jury are to be considered in their entirety and each instruction is to be considered in connection with all other instructions in the case. State v. Jerrel, 200 Kan. 415, 436 P.2d 973 (1968); Coleman v. Brotherhood State Bank, 3 Kan. App. 2d 162, 592 P.2d 103 (1979).
This court has not been favored with the text of the instructions given the jury. Therefore, the instructions cannot be considered in their entirety, nor can the exact language employed by the trial court in giving the challenged instruction be scrutinized. It is incumbent upon the party appealing to bring up a complete record of all matters on which appellate review is sought; and when there are questions raised regarding jury instructions, the party appealing must include at least all instructions pertinent to the point in question in the record on appeal. State v. Robertson, 221 Kan. 409, 411, 559 P.2d 810 (1977); State v. Perales, 220 Kan. 777, 779, 556 P.2d 172 (1976).
There was an abundance of evidence to establish defendant’s guilt of the charge against him. The type of instruction as was given in this case is not approved. However, technical errors and irregularities which do not affirmatively prejudice the substantial rights of the party complaining will ordinarily be disregarded and defendant has not demonstrated prejudice. See State v. Mims, 222 Kan. 335, 564 P.2d 531 (1977).
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Swinehart, J.:
This is an appeal from a decision of the district court of Cloud County finding the respondent Willie Geisler a miscreant child pursuant to the juvenile code of Kansas, K.S.A. 1977 Supp. 38-802(c)(l), and ordering him committed to the Youth Rehabilitation Center at Larned.
Two points are raised on appeal; (1) whether the trial court improperly considered evidence not contained in the stipulation of facts entered into by the parties; and (2) whether under the stipulated facts, the State proved beyond a reasonable doubt all of the elements of the crime of assault to support the finding that the respondent was a miscreant child pursuant to K.S.A. 1977 Supp. 38-802(c)(l).
The facts, other than those pertaining to procedural aspects of this case,' are derived from the stipulation of facts entered into by the parties and accepted by the district court on appeal.
On February 23, 1978, the respondent Willie Geisler, then age 17 and a senior at Concordia High School in Cloud County, was speaking with several of his fellow students in the school library. As he was talking in a loud tone, Loren Edmonds, the supervisor, approached the group and asked Geisler to give him his pass so that Edmonds could note Geisler’s deportment thereon should his home room teacher elect to take any disciplinary action regarding the incident. Geisler, in a low, threatening, yet non-angry tone, told Edmonds to “[l]eave me alone, I am graduating and there is going to be assault and battery charges pressed against me.” Edmonds again asked Geisler to give him his pass, but Geisler refused. The conversation between the two then increased in tempo. Geisler began using foul language and refused to cooperate with Edmonds. As a result of Geisler’s behavior, Edmonds became apprehensive and fearful, and therefore requested the vice-principal in charge of discipline, Mr. Genereux, to intervene. At Genereux’s request, Geisler proceeded to Genereux’s office, where Geisler was suspended from school for five days and instructed to leave the building.
Nonetheless, Geisler immediately returned to the library where he confronted Edmonds in a very angry manner and intentionally threatened to harm him both by his actions and statements. Geisler spoke in loud, angry tones and used foul language, indicating to Edmonds that he was going “to get him.” Edmonds was apprehensive of immediate bodily harm and rose from his desk to confront Geisler, who had the apparent ability to inflict bodily harm upon Edmonds. At that time Genereux and another faculty member entered the library and Geisler was directed to leave the facility, which he did.
As a result of his behavior, Geisler was originally charged under the juvenile code with one count of delinquency based upon K.S.A. 21-3419 (terroristic threat), and one count of miscreancy based upon K.S.A. 21-3408 (assault).
After a hearing on the charges on April 10, 1978, the district magistrate judge declared Geisler a delinquent and miscreant youth under the acts charged, and ordered him committed to the Youth Rehabilitation Center at Larned pursuant to K.S.A. 1977 Supp. 38-826(c)(7). Pending placement, the sheriff of Cloud County was ordered to detain Geisler at the county jail. Geisler’s motion for stay of the order was sustained and he filed a notice of appeal to the district court of Cloud County. After Geisler’s notice of appeal was filed, the State amended its petition and dismissed the terroristic threat charge.
On June 21, 1978, Geisler’s appeal was heard in the district court. At the proceeding, the parties presented a written stipulation to the court, and the court agreed to accept it after fully inquiring as to the basis for the stipulation. No witnesses testified at the hearing. In response to a question of the trial judge, the county attorney, Mr. Vernon, recited in his own words the substance of the factual allegations which gave rise to the petition. However, his response included some specific details that did not appear in the stipulation. For example, Vernon stated that Geisler pointed to his chin, inviting Mr. Edmonds to fight. Vernon also related some of the foul language that Geisler allegedly used. No objection was made to the receipt of any of these statements.
The district court found that Geisler was a miscreant child under K.S.A. 1977 Supp. 38-802(c)(l) because his actions established an assault under K.S.A. 21-3408. The court committed Geisler to the Youth Center at Larned pursuant to K.S.A. 1977 Supp. 38-826(a)(7) but stayed his commitment to the Center pending final judgment on the appeal.
The apparent intent of Geisler’s first argument is to preclude consideration by this court of any facts outside of the stipulation.
There is no dispute between the parties that the stipulation was effective and met all the requirements of Supreme Court Rule No. 163, 225 Kan. Ixxi, which provides:
“A court is not required to give effect to stipulations between counsel, or oral admissions of counsel, which are not reduced to writing and signed by the counsel to be charged therewith, or which are not made a part of the record.”
Additionally, a stipulation freely entered into is binding on the trial court and the litigants. State v. Gordon, 219 Kan. 643, 651, 549 P.2d 886 (1976).
The State and respondent entered into a stipulation which was accepted by the trial court after learning no additional witnesses would be called. However, the trial court also elicited certain facts from the county attorney, such as the precise language used by the respondent and certain physical movements that he made during his confrontation with Mr. Edmonds, that were not explicitly described in the stipulation. On the basis of White v. State, 222 Kan. 709, 568 P.2d 112 (1977), the respondent contends that this inquiry was improper because the stipulated evidence was the only evidence that could be considered. White v. State, however, did not hold that no additional evidence could ever be elicited, as respondent suggests. Rather, the court refused to impose a requirement that a trial court must interrogate and advise a defendant represented by counsel regarding the consequences of his plea before it accepts and approves stipulations as to the evidence. In fact, State v. Gordon, 219 Kan. 643, recognizes that stipulations may be limited in scope, although such a situation does not exist here. In any event, the respondent’s suggestion that the trial court erred by receiving the statements of the county attorney is not properly before this court on appeal, as respondent failed to make a timely, specific objection to the admission of those statements at the trial. K.S.A. 60-404; State v. Phipps, 224 Kan. 158, 578 P.2d 709 (1978).
Furthermore, the record is clear that the trial court found that the stipulation alone was sufficient to uphold its finding. Before rendering his decision, the trial judge stated in open court:
“It is the finding of the court that the stipulation of fact as entered into by the parties and further exemplified by the questions of the court, and even without the exemplification of the answers to those questions, the stipulation of facts does in fact sustain the charge of simple assault as that term is defined by the courts of this state.”
Accordingly, the respondent’s first issue is not subject to review upon this appeal.
The respondent complains that under the stipulation submitted by the parties to the district court On appeal, the State failed to prove beyond a reasonable doubt all the elements of the crime of assault.
To be declared a miscreant under K.S.A. 1977 Supp. 38-802(c)(1), a juvenile must have committed an act which would make a person eighteen or over liable for arrest and prosecution for a misdemeanor as defined by K.S.A. 21-3105. The crime of assault, K.S.A. 21-3408, constitutes such an act.
Under the principles of In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1970), the State must prove beyond a reasonable doubt all elements of the charged offense which would constitute a crime if committed by an adult to satisfy the essentials of due process and fair treatment in a juvenile adjudicatory proceeding. Although no Kansas cases have been found directly applying this standard, Pauley v. Gross, 1 Kan. App. 2d 736, 740, 574 P.2d 234 (1977), rev. denied 225 Kan. 845 (1978), acknowledges this requirement.
Therefore, since proof beyond a reasonable doubt is the appropriate quantum of proof to support a finding of miscreancy under K.S.A. 1977 Supp. 38-802(c)(l), the standard of review upon appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational fact finder could have found the defendant guilty beyond a reasonable doubt? State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979); State v. Smith, 4 Kan. App. 2d 149, 603 P.2d 638 (1979).
To determine whether the evidence contained in the stipulation met this standard, the elements of assault must be first considered.
K.S.A. 21-3408 defines assault as:
“An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”
PIK Crim. 56.12, discussed in State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974), and State v. Shuckahosee, 2 Kan. App. 2d 717, 587 P.2d 923 (1978), lists the elements to be proved on an assault charge as:
“1. That the defendant intentionally (threatened) (attempted to do) bodily harm to_;
“2. That he had apparent ability to cause such bodily harm;
“3. That defendant’s conduct resulted in_being in immediate apprehension of bodily harm; and
“4, That this act occurred on or about the_day of _in_County, Kansas.
“No bodily contact is necessary.”
Much of the discussion in the respondent’s brief concerns his contention that assault may only be established when some physical, overt act on the part of the accused has been proven. To support this argument he relies heavily upon Kansas law prior to the enactment of K.S.A. 21-3408. Prior to K.S.A. 21-3408, the definition of assault had been evolving in judicial opinions. The Judicial Council note following K.S.A. 21-3408 states that the definition contained therein was used in PIK Civ. 2d 14.01 for tort actions. It also notes that the status of former Kansas law is unclear, citing State v. Hazen, 160 Kan. 733, 740, 165 P.2d 234 (1946), also relied upon by respondent.
The comment to PIK Civ. 2d 14.01 also draws from State v. Hazen, and as respondent contends, does appear to require a physical action, i.e., assault requires an “apparently violent attempt, or a willful offer with force or violence, to do corporal injury to another, without the actual doing of the injury threatened, as by lifting the fist or a cane in a threatening manner,” 160 Kan. at 740. While several Kansas cases have considered the various elements of assault (see, e.g., State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 [1979], holding that firing a gun at a person is sufficient to constitute a threat; State v. Deutscher, 225 Kan. 265, 589 P.2d 620 [1979], recognizing that an assault charge may be based on an intentional attempt or an intentional threat; State v. Warbritton, 215 Kan. 534, holding that the fear of harm required is fear of harm to the person threatened and not to a third person), none have been found discussing whether mere threatening language is sufficient to constitute an assault.
Secondary authorities drawing from case law from other jurisdictions also support the respondent’s argument that a physical action is necessary. See, e.g., 6A C.J.S., Assault & Battery § 64; 6 Am. Jur. 2d, Assault and Battery § 3.
Despite this established, weighty authority, the definition of assault in the Kansas Criminal Code seemingly contemplates the possibility of an assault conviction based upon threatening words alone, especially in light of the definition of threat contained in K.S.A. 1979 Supp. 21-3110(24): “ ‘Threat’ means a communicated intent to inflict physical or other harm on any person or on property.”
Both parties have relied only upon the stipulation of facts, which they submitted to the district court, to support their arguments. Respondent alleges that the stipulation is defective for two reasons: (1) there was no showing that respondent possessed any “present” intent to inflict physical injury, and (2) there was no showing of an overt, physical act on the part of the respondent.
The stipulation provided that when the respondent returned to the library after being suspended by Mr. Genereux, he, “talking in loud, angry tones and using foul language indicated to Mr. Edmonds that he was going ‘to get him.’ Mr. Edmonds became apprehensive of immediate bodily harm.” Respondent states that this exchange demonstrated a “future” intent on the part of the respondent and that a “present” intent to inflict physical injury is required. State v. Holman, 90 Kan. 105, 132 Pac. 1175 (1913). The State agrees that a “present” intent is vital, but counters that although Geisler’s words alone were somewhat ambiguous, the totality of the circumstances established such an intent. For example, Geisler told Edmonds he would “get him” when Geisler returned to the library and confronted Edmonds immediately after having been ordered to leave the building.
An assault conviction requires “immediate apprehension of bodily harm” (K.S.A. 21-3408) on the part of the assaultee (State v. Warbritton, 215 Kan. 534). The actor need only intend to communicate to the victim a threat to inflict bodily harm and have the apparent ability to do so, resulting in the immediate apprehension of bodily harm. See State v. Deutscher, 225 Kan. 265; State v. Urban, 3 Kan. App. 2d 367, 595 P.2d 352 (1979).
Here the words and conduct of the respondent described in the stipulation are sufficient evidence of his intent to inflict bodily harm that resulted in immediate apprehension of bodily harm on the part of Edmonds.
Consideration of the proposition that an assault conviction requires proof of a physical act on the part of the accused rather than mere words was given above. As noted, the present statute does not by its language clearly impose such a requirement, contrary to the established case authority. In any event, the stipulation recites that after respondent returned to the library “he confronted Mr. Edmonds in a very angry manner and intentionally threatened bodily harm to Mr. Edmonds by his actions and by his statements” (emphasis supplied).
Unfortunately, perhaps, the stipulation is devoid of any specific action that the respondent may have taken. (Examples of such actions were provided in the exchange between the trial judge and county attorney, which is probably why the respondent so adamantly pleads for the court to ignore any evidence in the record not embodied in the stipulation.) Nevertheless, by so stipulating in this conclusory fashion, respondent has admitted he took some action, albeit of an unknown nature, against Mr. Edmonds. Accordingly, there was sufficient evidence to satisfy any requirement of a physical act that may exist to establish that respondent assaulted Mr. Edmonds.
Based upon the evidence contained in the stipulation viewed in the light most favorable to the prosecution, the trial court correctly found respondent guilty of an assault beyond a reasonable doubt.
The judgment of miscreancy is affirmed. | [
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Spencer, J.:
This is an action by a customer-depositor against a depositary-payor bank to recover on various checks alleged to have been wrongfully paid by the bank over forged and restrictive endorsements, and charged to the customer’s account.
Plaintiff sought relief on theories of breach of contract, breach of warranty, conversion, and negligence. Defendant relied on agency and estoppel, and also on the defense embodied in K.S.A. 84-3-405 (l)(h), commonly referred to as the fictitious payee defense. Summary judgment was entered for defendant.
Plaintiff has specified four issues on appeal, all of which, in the final analysis, are contained in the proposition of whether, under the facts of this case, plaintiff might prevail against defendant under any theory of recovery.
K.S.A. 60-256(c) provides for the entry of summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Relevant principles governing the propriety of summary judgment were recently summarized in Fredricks v. Foltz, 225 Kan. 663, 666, 594 P.2d 665 (1979), and, bearing such principles in mind, we consider the record in this case in the light most favorable to plaintiff.
The facts as agreed by the parties are stated in substance. Plaintiff is a farm cooperative engaged in the usual and customary lines of business conducted by farm cooperative elevators, with its principal place of business at Cairo in Pratt County, but with a branch at Cunningham in Kingman County. In 1963 it employed one K.C. Jones, and in 1969 named him manager in charge of daily operations at the Cunningham branch. Plaintiff maintained a checking account with defendant bank in which it regularly deposited and withdrew funds. Shortly after the employment of Jones as its manager of the Cunningham branch, a bank signature card as authorized by plaintiff’s general manager was signed by Jones and delivered to defendant. By this means, Jones, as the only person whose signature appeared on that card, was authorized by plaintiff to represent and act for plaintiff in all its transactions with defendant.
During the period of time commencing September 30, 1969, to and including March 6, 1976, Jones caused to be issued in plaintiff’s name as drawer 101 checks for various amounts to various customers of plaintiff and signed by Jones on behalf of plaintiff. These items were drawn on plaintiff’s regular check forms and, although the named payees were customers of plaintiff, it was never intended that the named payees have any interest in the instruments. The checks so drawn by Jones fall into two categories:
1. 91 checks for a total of $46,564.46 on each of which it appears that Jones wrote the name of the payee on the back in blank and, using a rubber stamp provided by plaintiff, caused each to be endorsed “Pay to the order of First National Bank, Cunningham, Kansas. For Deposit Only, Cairo Co-op Equity Exchange, Farmer’s Co-op.” These checks were presented by Jones on or about their various dates to defendant, where he requested and received cash for each. They were not entered on deposit slips or deposited to plaintiff’s account.
2. 10 checks for a total of $9,229.18 on each of which it appears that Jones wrote the name of the payee on the back in blank and which were presented by Jones on or about their various dates to defendant, where he requested and received cash for each. None of these checks bore plaintiff’s rubber stamp endorsement.
It appears that Jones retained the funds represented by these checks for his own use and, as far as the record reveals, his present whereabouts are unknown.
Defendant was not notified of any restrictions on the authority of Jones to act for plaintiff in its banking transactions at Cunningham, nor was any restriction placed on the amount of cash Jones was permitted to withdraw from plaintiff’s account with defendant. He had full authority to write checks on the account and, as agreed by the parties, “In the mind of the community . . . K.C. Jones was the cooperative in Cunningham, and had authority to transact all business for the Cunningham branch and was authorized to do anything but embezzle.”
In addition to the admitted facts, plaintiff’s evidence reveals it received monthly bank statements from defendant which recorded deposits and withdrawals made to and from plaintiff’s account, together with the checks paid during each accounting period. In response to a request for admissions, plaintiff stated that neither defendant nor any of its officers or employees had actual knowledge of Jones’ scheme to defraud. Plaintiff, however, denied that defendant or its officers or employees did not participate in the scheme in that those persons and others paid money to Jones on checks payable to and endorsed in the name of third parties known by defendant not to be Jones, contrary to the restrictive endorsements, and charged plaintiff’s account for those items.
In his deposition, Dale Parsons, plaintiff’s general manager, indicated plaintiff was concerned that things were not quite right at its Cunningham branch for as long as three years prior to the discovery of the fraud.
Although plaintiff seeks recovery on any one or more of the theories contained in its petition, we deem it unnecessary to analyze this case on a theory-by-theory basis.
Considering first the restrictively endorsed checks, we find that the endorsement “for deposit only” is a restrictive endorsement under K.S.A. 84-3-205, which provides in part:
“An indorsement is restrictive which either
“(c) includes the words ‘for collection,’ ‘for deposit,’ ‘pay any bank,’ or like terms signifying a purpose of deposit or collection . . . .”
The effect of a restrictive endorsement is set forth in K.S.A. 84-3-206, which provides in part:
“(3) Except for an intermediary bank, any transferee under an indorsement which is conditional or includes the words ‘for collection,’ ‘for deposit,’ ‘pay any bank,’ or like terms . . . must pay or apply any value given by him for or on the security of the instrument consistently with the indorsement and to the extent that he does so he becomes a holder for value.”
Under this section, there can be little doubt that defendant, as a depositary-payor bank [K.S.A. 84-4-105(a) and (&)], had the duty to apply the proceeds of the checks consistently with the restrictive endorsements, i.e., to deposit the proceeds in plaintiff’s account rather than to pay cash to Jones. Its failure to do so could, under appropriate circumstances, render the bank liable to its depositor. See Underpinning v. Chase, 46 N.Y.2d 459, 414 N.Y.S.2d 298, 386 N.E.2d 1319 (1979), aff’g 61 App. Div. 2d 628, 403 N.Y.S.2d 501 (1978). However, in this case there are facts and circumstances which preclude the assertion of plaintiff’s claim.
In its conclusions, the trial court correctly noted that it is possible for the parties to vary by agreement the provisions of K.S.A. 84-3-206 and that Jones, while acting within the scope of his employment with plaintiff and pursuant to authority given him by plaintiff, effectively discharged defendant of any obligation it may have had to apply the proceeds of the checks consistently with the restrictive endorsements. This was accomplished by Jones’ request for and his receipt of cash on the various checks. K.S.A. 84-1-102 (3) provides:
“The effect of provisions of this act may be varied by agreement, except as otherwise provided in this act and except that the obligations of good faith, diligence, reasonableness and care prescribed by this act may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.”
It was also concluded by the trial court that, because of the implied or apparent authority of Jones, payments to him were the equivalent of payments to plaintiff and, when money was paid to Jones, the bank was discharged of its obligation on the endorsements although Jones thereafter allegedly misappropriated the funds; and, by reason of all of the circumstances, plaintiff had lost any right to assert noncompliance with the restrictive endorsements. It was also concluded, in addition to everything else, that plaintiff was precluded from asserting claim against defendant on any theory by reason of its own negligence. Because Jones was authorized to represent and act for plaintiff in all its transactions with the bank and because it was Jones who placed the restrictive endorsements on the checks, it was within his apparent authority to waive the effect of the restrictive endorsements on behalf of plaintiff.
K.S.A. 84-1-103 provides that, unless displaced by the particular provisions of the UCC, the principles of law and equity, including the law of agency and estoppel, supplement the provisions of the Code. See Service Iron Foundry, Inc. v. M.A. Bell Co., 2 Kan. App. 2d 662, Syl. ¶ 4, 588 P.2d 463 (1978).
Equitable estoppel is the effect of voluntary conduct whereby one is precluded, both at law and in equity, from asserting rights against another who has relied on such conduct. One asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when there was a duty to speak, induced the one asserting the doctrine to believe certain facts existed. The doctrine is based on the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. Bowen v. Westerhaus, 224 Kan. 42, 45-46, 578 P.2d 1102 (1978); Clawson v. Garrison, 3 Kan. App. 2d 188, 199, 592 P.2d 117 (1979). There is no definite rule as to when the doctrine will be applied; each case must be determined on its own facts. Safeway Stores v. Wilson, 190 Kan. 7, 12, 372 P.2d 551 (1962); Coffey v. Stephens, 3 Kan. App. 2d 596, 597, 599 P.2d 310 (1979).
The undisputed facts are that Jones conducted his fraudulent scheme for more than six years. He received cash from defendant on a total of 91 restrictively endorsed checks without defendant’s knowledge that anything was amiss. Each month during that period, plaintiff received from defendant its canceled checks and a bank statement. Even a cursory examination of these documents would have revealed that the restrictively endorsed checks had been presented and paid but had not been deposited. Plaintiff had the means of ascertaining the facts and Jones’ scheme to defraud from the date the first restrictively endorsed check cleared the bank and was returned to plaintiff. Its failure to do so and to notify defendant of the wrongful acts of Jones amounts to an inducement to defendant to believe the cashing of the restrictively endorsed checks by order of Jones was at least condoned by plaintiff. In our opinion, such conduct precludes the assertion of any claim against defendant by reason of those checks.
Good faith is defined in K.S.A. 1979 Supp. 84-1-201 (19) as “honesty in fact in the conduct or transaction concerned” and requires no actual knowledge or participation in any material infirmity in the transaction. Kaw Valley State Bank & Trust Co. v. Riddle, 219 Kan. 550, Syl. ¶ 4, 549 P.2d 927 (1976). In light of plaintiff’s admissions, it cannot be said that defendant did not act in good faith.
Further support for this position is found in K.S.A. 84-3-406, which provides in substance that any person, who by his negligence substantially contributes to a material alteration of an instrument or the making of an unauthorized signature, is precluded from asserting the alteration or lack of authority against a drawee who pays the instrument in good faith and in accordance with reasonable commercial standards of the drawee’s business. We find this section persuasive because it embodies the principle which is applicable in this case, that a party is estopped by reason of his negligent conduct as against another party who in good faith relies thereon. We note also K.S.A. 84-4-406 which in effect requires a customer who has received a statement of account accompanied by items paid in good faith in support of the debit entries on that statement to exercise reasonable care and promptness in examining the statement and items to discover unauthorized signatures or alterations on the face or back of any item, and to notify the bank promptly after discovery thereof. Failure to do so precludes the customer from asserting against the bank any claim which might otherwise have been proper by reason of such discrepancies. See Coleman v. Brotherhood State Bank, 3 Kan. App. 2d 162, 592 P.2d 103 (1979). Although 4-406 does not specifically refer to the handling of a restrictively endorsed check, it is clearly the intent of the law that a bank customer must exercise reasonable care and promptness in examining the statement of his account and in notifying the bank of improper debits and other discrepancies in the account. This plaintiff failed to do.
Plaintiff is bound by the acts of its agent within the apparent scope of his authority even though no actual authority to perform such acts had been conferred. Apparent authority is that which, though not actually granted, the principal knowingly permits the agent to exercise or which he holds him out as possessing. See Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976).
It is undisputed that Jones was in sole control of plaintiff’s Cunningham branch; that only he was authorized to draw checks on plaintiff’s account; that the only written agreement between plaintiff and defendant (i.e., the signature card) provided in effect that Jones alone was authorized to act for plaintiff “in all its transactions with said Bank”; that Jones had express authority to write checks for cash on plaintiff’s account; and that plaintiff never notified defendant of any restriction on Jones’ authority. Clearly, plaintiff clothed Jones with authority, apparent if not actual, to void the restrictive endorsements and to relieve defendant of its duty to apply the proceeds consistently with such endorsements. See K.S.A. 84-1-102 (3); 84-4-103.
Where, as here, one of two innocent parties must suffer because of wrongdoing of a third person, the one who trusted the third person and placed the means in his hands to commit the wrong must bear the loss. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, Syl. ¶ 7, 528 P.2d 134 (1974); Bicknell v. Jones, 203 Kan. 196, Syl. ¶ 3, 453 P.2d 127 (1969); Mid Kansas Federal Savings & Loan Ass’n v. Binter, 197 Kan. 106, Syl. ¶ 2, 415 P.2d 278 (1966).
As to the ten checks within the second category, we find plaintiff’s reliance on the warranties set forth in K.S.A. 84-4-207 to be misplaced. Those warranties are made only by a “customer or collecting bank.” Since defendant is neither, that statute does not apply.
UCC provisions relevant to the ten checks on each of which Jones had written the name of the payee on the back in blank as an apparent endorsement by the payee are noted:
K.S.A. 1979 Supp. 84-4-401 (1):
“As against its customer, a bank may charge against the customer’s account any item which is otherwise properly payable from that account . . . .”
K.S.A. 84-3-419 (1):
“An instrument is converted when
“(c) it is paid on a forged indorsement.”
Obviously, a check presented and paid by a bank over the forged endorsement of the payee may under proper circumstances render the bank liable for any damage sustained by the true owner of that item. However, K.S.A. 84-3-405 (1) provides:
“An indorsement by any person in the name of a named payee is effective if
“(b) a person signing as or on behalf of a maker or drawer intends the payee to have no interest in the instrument . . . .”
and Official UCC Comment No. 3 to that statute provides in part:
“The following situations illustrate the application of the subsection [(l)(fc>)].
“c. The drawer makes the check payable to P, an existing person whom he knows, intending to receive the money himself and that P shall have no interest in the check.”
Admittedly, Jones had authority to draw checks for and on behalf of his employer on the defendant bank and none of the checks with which we are here concerned lacked validity by reason of the maker’s signature having been forged. It is also admitted that the payees named were fictitious in that it was never intended that the named payees have any interest in the checks. All therefore fall within the provisions of K.S.A. 84-3-405 (1)(b) which carves an exception to the general rule that forged endorsements are ineffective to pass title or to authorize a drawee to pay. As it was intended by the drawer of each of the checks that the named payee have no interest in the instrument, the endorsement by Jones in the name of each payee was “effective” to pass title and each was “properly payable” under the provisions of K.S.A. 1979 Supp. 84-4-401 (1), and the risk of loss shifted to the drawer. See White and Summers, Uniform Commercial Code § 16-8, pp. 541-550 (1972); Clark and Squillante, The Law of Bank Deposits, Collections and Credit Cards, pp. 147-150 (1970); Clark and Squillante, pp. 268-280 (1979 Supp.); General Acc. F.&L. Assur. Corp. v. Citizens F.B.&T. Co., 519 S.W.2d 817 (Ky. 1975). Official UCC Comment No. 4 to K.S.A. 84-3-405 states:
“The principle followed is that the loss should fall upon the employer as a risk of his business enterprise rather than upon the subsequent holder or drawee. The reasons are that the employer is normally in a better position to prevent such forgeries by reasonable care in the selection or supervision of his employees, or, if he is not, is at least in a better position to cover the loss by fidelity insurance; and that the cost of such insurance is properly an expense of his business rather than of the business of the holder or drawee.”
See also Perini Corp. v. First Nat. Bank of Habersham County, 553 F.2d 398 (5th Cir. 1977).
Plaintiff contends summary judgment was improperly granted as there remained the issue of defendant’s negligence. It is to be borne in mind that none of the checks here involved contained alterations or omissions sufficient to alert bank personnel to anything out of the ordinary. As far as defendant was concerned, it was the drawer of the check who stood before the teller’s window and demanded payment in cash. There is nothing in this record to indicate anything other than good faith in the transactions on the part of defendant. Nor is there anything in the record to indicate, or is it even alleged, that defendant’s transactions with plaintiff as conducted by its agent were a departure from reasonable commercial standards of defendant’s business. Moreover, any failure of defendant to exercise ordinary care in handling the various items in question is offset by plaintiff’s own negligence, as previously discussed. Cf. Hanover Ins. Companies v. Brotherhood State Bank, 482 F. Supp. 501 (D. Kan. 1979).
Having considered the record in the light most favorable to plaintiff, we find no genuine issue of material fact remaining and the undisputed facts permit only the conclusion that defendant is entitled to judgment as a matter of law. See Mildfelt v. Lair, 221 Kan. 557, Syl. ¶ 2, 561 P.2d 805 (1977); Young v. Hecht, 3 Kan. App. 2d 510, Syl. ¶ 8, 597 P.2d 682, rev. denied 226 Kan. 793 (1979); Goff v. American Savings Association, 1 Kan. App. 2d 75, Syl. ¶ 4, 561 P.2d 897 (1977).
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Per Curiam.:
This is an appeal by the natural mother of an eight-year-old child from an order prohibiting visitation.
By journal entry filed August 23, 1977, the trial court found the child to be a dependent and neglected child (now a “deprived child” [L. 1978, ch. 158 (K.S.A. 1979 Supp. 38-802[g], -824, -825)]), and committed the child to the secretary of social and rehabilitation services (SRS). (See K.S.A. 1979 Supp. 38-824[b].) Specific terms and conditions of the mother’s visitation with the child were prescribed in an order filed May 3, 1978. By journal entry filed February 8, 1979, after hearings on a State’s “Motion to Terminate Visitation Rights,” the trial court ruled:
“The Court holds that to continue the visitations under present circumstances would be detrimental to the minor child’s health: THEREFORE, until the further order of the Court, such visitations shall not be permitted.”
The last ruling and order is the only trial court action from which appeal has been taken.
The mother’s contention is that the challenged order is tantamount to and effectively constitutes severance of her parental rights and is erroneous for the reason that there has been no finding and adjudication that the mother is unfit to have the custody of the child. (See K.S.A. 1979 Supp. 38-824[c].)
Springing from and incident to the relation of parent and child are various rights, privileges, duties and obligations with respect to each other. K.S.A. 1979 Supp. 38-824(c) empowers our judiciary to order permanent deprivation of a parent’s parental rights when it is found and adjudicated that the parent is unfit to have the custody of his or her minor child.
“Where there is a termination of parental rights under the juvenile code, K.S.A. 1977 Supp. 38-824(c), the sum total of the rights of the parent or parents in and to the child, as well as the rights of the child in and to the parent or parents, are completely terminated; there is a complete and final divestment of all legal rights, privileges, duties and obligations of the parent and child with respect to each other. Roelfs v. Wallingford, Inc., 207 Kan. at 810-811.” In re Wheeler, 3 Kan. App. 2d 701, 702, 601 P.2d 15, rev. denied 227 Kan. __ (1979).
The challenged order is not a permanent, complete and final divestment of the mother’s right of visitation. Aside from the continuing jurisdiction of the trial court under the juvenile code, by its own language the order is effective until further order of the court; future review for possible revision or vacation is implicitly contemplated. Further, the challenged order patently is not one of divestment of all legal rights, privileges, duties and obligations of the mother and child with respect to each other. It affects only the mother’s rights of visitation.. Remaining unimpaired are other parental rights of the mother, e.g., her rights of inheritance under the rules of intestate succession (see K.S.A. 59-507) and her right to veto, withhold consent to, adoption of the child (see K.S.A. 59-2102), and duties, e.g., her duty to support (see K.S.A. 1979 Supp. 38-827[o]; K.S.A. 1979 Supp. 38-828).
The order is not an order of severance of the mother’s parental rights. It is neither tantamount to nor an “effective” equivalent of such an order. That there has been no finding and adjudication that the mother is unfit to have the custody of the child does not render the order erroneous.
The parental right of custody is broad and substantial. Where a child has been committed to the custody of others pursuant to K.S.A. 1979 Supp. 38-824(h), the use of denial of visitation as a practical substitute for parental severance is not to be condoned. The record on appeal satisfies us that the circumstances in this particular case existing at the time of entry of the appealed order were such that the order was not inappropriate. We are confident the trial court, on its own initiative or on the initiative of the mother or others, will continue oversight in this matter and enter appropriate further orders concerning visitation as warranted by changed circumstances.
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Abbott, J.:
This is a direct appeal by defendant, Marvin Bernard Davis, from a jury conviction of aggravated battery (K.S.A. 21-3414). The defendant was also convicted of attempted misdemeanor theft (K.S.A. 1978 Supp. 21-3701 and K.S.A. 21-3301), but does not challenge that conviction. The sole issue on appeal is the sufficiency of the State’s evidence to withstand a motion for acquittal on defendant’s aggravated battery conviction based on his aiding and abetting a third person who shot a security guard.
Bertram O. Heath, Jr., was with the defendant, Davis, at the time a security guard was shot. The two were together at some unspecified time on January 24, 1978, when they made arrangements to meet a friend, Julius Brown, between 10:00 p.m. and 10:30 p.m. Davis and Heath picked up Brown at the prearranged time and drove Brown to his sister’s home, where they waited in the car for about twenty minutes while Brown was inside. The record before us contains no evidence of ownership of the vehicle used by Davis and Heath, but it is evident that Heath was the driver of the vehicle. The three then proceeded to an apartment building at 705 Polk, Topeka, Kansas, where the aggravated battery occurred during the early morning hours of the following day. The apartment building has a security system which requires guests or visitors to press a buzzer to notify a resident of their presence. The resident can then clear them through a locked door at the front of the building. Brown entered the apartment building and Davis and Heath remained outside. The defendant, Davis, later used the buzzer system and joined Brown in apartment 19. Also present was Dennis Talley, who occupied the apartment. Later that evening, or early morning, Heath buzzed the apartment at which time defendant left the building and joined Heath. Shortly after the defendant left, he returned with Heath and entered the apartment by using the buzzer system. Heath, through Brown, requested a Phillips screwdriver on the pretext it was needed to start the car. Talley did not have a Phillips screwdriver so he gave Heath a butterknife. Heath and Davis left the apartment.
At about 1:45 a.m., Randy E. Stone, a security guard, received information from his dispatcher that a resident of the apartment building at 705 Polk had reported hearing sounds, indicating vending machines in the laundry room were being broken into. Stone entered a rear door with his handgun drawn. He observed the defendant standing directly in front of the laundry room door and heard prying noises in the laundry room. The defendant was ordered to assume a position with his hands against the wall. Stone observed at that time that the defendant had only one arm. Defendant told the guard he had just left apartment 19 and was leaving the building. He inquired of Stone what was going on, but he did not assume a position at the wall until he received the third or fourth command to do so.
Heath came out of the laundry room and was placed facing the wall within a foot or two of the defendant. Stone observed that a pop machine had been pried open. He inquired how many people were left in the laundry room and Heath replied there were three more in there. Heath suggested that Stone allow him to attempt to “talk” them out because there would be trouble if the guard himself tried to get them out. There is no other evidence that anyone else was in the laundry room and there was no effort made to talk anyone out of the room. The security guard was constantly turning around to watch for the arrival of a backup unit that he had requested, and on one occasion when he turned back the two men had turned their heads and were staring directly at him while they were against the wall. He told them to face the wall, which they did.
Stone did not hear any conversation or noise being made by either man, nor did he observe anything that he interpreted as a signal. He looked away from the men again and as he did so they both moved away from the wall at the same time and Heath, who was nearest the laundry room door, ran into the laundry room. The defendant remained standing in the hallway, facing Stone from a distance of five or six feet. There is no evidence that the defendant made any attempt to attack Stone or that he failed to obey any orders from Stone after he stepped away from the wall. Within a minute after Heath ran into the laundry room, a hand holding a handgun appeared from the laundry room and four or five shots were fired at Stone. The second shot struck his right arm, rendering him unable to use his gun. Stone did not see who shot him, but he did see the hand holding the handgun and did testify the gun was fired by a man of the same race as Heath. Being unable to defend himself, Stone ran out the back door and when he looked back inside he saw Heath and the defendant running down the hall in the opposite direction. The defendant had remained in the hallway until after Stone was shot and then ran from the scene. The defendant and Heath were later apprehended on 1-70 in Wabaunsee County and were positively identified at trial.
The defendant did not testify at trial and no evidence was presented in his behalf. He moved for judgment of acquittal, which the trial judge denied. The jury returned a verdict of guilty of attempted misdemeanor theft and aggravated battery. He was sentenced to the Secretary of Corrections for an indeterminate term of not less than five nor more than twenty years on the aggravated battery conviction and for a term of one month on the attempted theft conviction with the sentences to run concurrently. The defendant now appeals. He does not object to the instructions that were given to the jury and limits his appeal to the question of whether the trial court erred in overruling his motion for judgment of acquittal on his aggravated battery conviction.
One who acts as a watchman to prevent surprise while others are engaged in committing a crime is deemed, in the eyes of the law, to be a principal therein and is punishable as such. State v. Neil, 203 Kan. 473, Syl. ¶ 1, 454 P.2d 136 (1969). The defendant was obviously convicted of aiding and abetting. The statute controlling liability for the crimes of another is K.S.A. 21-3205, which provides:
“(1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by him as a probable consequence of committing or attempting to commit the crime intended.
“(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.” (Emphasis supplied.)
The State does not seriously contend that the evidence is sufficient to prove the defendant intentionally aided the aggravated battery, and our review of the record on appeal leads us to conclude there is no evidence the defendant did so. Thus, under the facts of this case the question becomes whether it was reasonably foreseeable by the defendant that an aggravated battery would occur as a probable consequence of committing misdemeanor theft or attempting to commit misdemeanor theft. A review of the facts in each case is necessary to determine whether violence is reasonably foreseeable as a probable consequence of committing the crime intended. State v. Edwards, 209 Kan. 681, 686, 498 P.2d 48 (1972). Defendant has a heavy burden, for the necessary intent and foreseeability may be inferred from circumstantial evidence (State v. Sarver, 134 Kan. 98, 100, 4 P.2d 440 [1931]) and is a fact question for jury determination. State v. Edwards, 209 Kan. at 686. The Kansas Supreme Court recently restated the test for granting a motion for acquittal in State v. Taylor, 225 Kan. 788, 792, 594 P.2d 211 (1979):
“This court has spoken repeatedly on the test for motion for judgment of acquittal. In State v. Sanders, 225 Kan. 147, 151, 587 P.2d 893 (1978) this court said, quoting from State v. Gustin, 212 Kan. 475, Syl. ¶ 3, 510 P.2d 1290 (1973):
“ ‘A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.’ ”
Defendant suggests that theft is a crime against property and not a crime of violence; therefore aggravated battery is not a reasonably foreseeable crime resulting from the crime of attempted theft. That argument in felony murder cases was rejected by the Kansas Supreme Court when it considered in State v. Smith, 225 Kan. 796, 594 P.2d 218 (1979), whether the felony is inherently or foreseeably dangerous to human life. In Smith, at 801, the Court adopted a simple but effective method of determining whether the crime is inherently or foreseeably dangerous by “testing both the crime itself and the manner in which it was committed for dangerous characteristics.” The test adopted was first used in State v. Goodseal, 220 Kan. 487, 493, 553 P.2d 279 (1976), where the Court said it would look first at the crime intended to see if it was inherently dangerous to human life, stating:
“[W]here doubt may exist,'we see nothing wrong in considering both the nature of the offense in the abstract and the circumstances of its commission in determining whether a particular felony was inherently dangerous to human life. Some felonies, such as aggravated robbery, viewed in the abstract alone, are of such nature as to be inherently dangerous to human life, while another which seems of itself not to involve any element of human risk may be committed in such a dangerous manner as to be of the same character.
“Hence we hold that the nature of the felony and, where necessary for determination, the circumstances of its commission are relevant factors in considering whether the particular felony was inherently and foreseeably dangerous to human life so as to support a conviction of felony murder. These are questions for the trial court and jury to decide in appropriate cases.”
We see no valid reason why the same rule should not apply in determining whether an aggravated battery committed in pursuance of the intended crime, even though unintended, is reasonably foreseeable as a probable consequence of committing or attempting to commit the crime intended.
To us, this seems to be the reasoning used in State v. Edwards, 209 Kan. 681, where the defendant and three others entered the victim’s house for the purpose of robbing him. During the course of the robbery, while defendant was in another room of the home, the victim was stabbed by one of the other persons. Defendant was charged by virtue of the aiding and abetting statute with aggravated battery, and on appeal he argued that it was not foreseeable that his companion would stab the victim. The Kansas Supreme Court rejected that argument, reasoning:
“There can be little doubt from the evidence that both the robbery and the battery occurred. There was direct evidence that defendant transported Martin to the scene of these crimes. The statement of the defendant, as he viewed Eggleston’s furniture, that they could make a killing and his subsequent statement to the cab driver, that the girls had been insulted, can only be interpreted as indicating some action was contemplated by him and his companions. Robbery is a crime of violence committed by threat or force. There was evidence that defendant participated in the aggravated robbery by taking a radio from the premises. From these facts it may readily be inferred that violence, if necessary, was contemplated when the four entered the house. It might also be inferred that defendant by prearrangement engaged the cab driver in conversation so as to lure him into the next room out of the immediate zone of violence. Since the four visitors left the premises together shortly after the battery occurred and while the victim lay bleeding from stab wounds, a strong inference would arise of joint participation and approval of the criminal acts. Under these circumstances the defendant can hardly be considered an innocent bystander in the whole affair.” 209 Kan. at 684-85.
If a crime is inherently dangerous to human life, it would be foreseeable that an aggravated felony might occur. Misdemeanor theft, however, is not a crime that is in and of itself inherently dangerous. We must therefore look to the circumstances of the commission of the attempted theft to see if it was reasonably foreseeable that an aggravated battery might occur.
In the case at bar the intended crime, misdemeanor theft, was to take place in the early morning hours in a laundry room that the defendant knew to be unoccupied when the theft occurred. A lookout was posted to insure that no one walked into the room while the theft was in progress. While a situation might exist whereby a misdemeanor theft might be inherently dangerous (such as the theft of property from the immediate presence of its owner or others) and thus violence reasonably foreseeable, such was not the case here. The record on appeal does not even hint that the defendant knew or had any reason to suspect Heath had a weapon. True, the defendant had been with Heath most of the evening. Heath, however, had been alone in a car that he controlled and had ample opportunity shortly before the offense occurred to obtain the gun without defendant’s knowledge. We do emphasize that the fact a gun was used is immaterial. If the defendant could have reasonably foreseen any use of force that would have amounted to an aggravated battery, he could have been convicted irrespective of the actual weapon used.
There is no evidence that the defendant and Heath had any plan for escape or had discussed what they would do if discovered. There was no showing that either the defendant or Heath had a propensity for violence or that they normally carried a weapon of any kind. Misdemeanor theft in itself is not a crime of violence, especially when conducted outside the presence of others.
The State argues that the defendant knew the apartment had a buzzer system and therefore it followed that he would know a security guard might be present. No evidence was presented to that effect, and if it is common practice to have an armed security officer present in all apartment buildings that have a “buzzer” security system, this Court is not aware of that fact, nor will it speculate that a criminal defendant would have greater knowledge of that fact. The State then argues that it is reasonably foreseeable that persons committing crimes have an escape plan; and it couples that argument with its argument that the defendant should have known an armed security guard might be present, saying it is foreseeable that an attempted escape or an attempt to avoid apprehension might involve aggravated battery. In our opinion, it is mere speculation to say that a person who with another is planning to commit a misdemeanor theft in an unoccupied room can reasonably foresee in the absence of other facts that the coconspirator will shoot someone in an effort to avoid apprehension.
We likewise reject the State’s arguments that because defendant moved back from the wall at the same time as Heath, the aggravated assault was foreseeable. The fact that defendant did not drop to the floor or run sheds no light on foreseeability. The security guard did not drop to the floor and he was being shot at. The defendant was standing some six feet from an armed security guard in an extremely dangerous situation. A sudden move on the defendant’s part likely would have resulted in his being shot. He did not move until the security guard ran from the building. The record on appeal does not contain evidence of whether the defendant knew or should have known that the security guard had been struck in the arm. Presumably the security guard was still armed when he ran from the building. The defendant then fled. We do not deem the defendant’s acts, whether taken singularly or as a whole, as being sufficient for a reasonable person standing in the defendant’s shoes to foresee or even suspect that an aggravated battery might occur as a result of the attempted misdemeanor theft. The State cannot hold an accomplice liable for a crime totally unforeseeable. State v. Palermo, 224 Kan. 275, 277, 579 P.2d 718 (1978). Based on the evidence, as a matter of law there had to be a reasonable doubt that the aggravated battery was foreseeable by the defendant and the trial court erred in refusing to grant the motion for judgment of acquittal.
Reversed and remanded with directions that a judgment of acquittal be entered on the aggravated battery charge. | [
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Parks, J.:
The landowners, Joseph and Delores Floersch, appeal from a jury verdict in a condemnation action contending that the special verdict is not supported by the evidence.
The measure of damages for a partial taking is governed by K.S.A. 26-513(c), which states:
“If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.”
The testimony of the appraisers as to the “before” value of the landowners’ property ranged from $95,000 to $161,500 and the jury’s finding of a $95,000 before value is not being contested. Although expert testimony as to “after” value ranged from $90,000 to $103,800, the jury found the value after the taking to be $87,000. Thus, the landowners claim that because the jury’s finding of after value is outside the range established by the opinion testimony, the verdict is not supported by the evidence. The condemnor, Kansas Power & Light Company, maintains that there was evidence of comparable sales (at $400 an acre) which, when applied to the property in issue, would result in a figure substantially lower than the after value determined by the jury.
The question on appeal then is two-fold: (1) Can a jury’s verdict be sufficiently supported by the evidence when it falls outside the value range established by the opinion evidence; and (2) if so, is the value set by the jury in this case supported by the evidence?
The first issue would appear to be controlled by Urban Renewal Agency v. Tate, 196 Kan. 654, 658, 414 P.2d 28 (1966), where the court said:
“In an action to determine the value of property condemned, the opinions of witnesses as to the value of such property at the time it is condemned will not be deemed conclusive, but the jury may consider such opinions in connection with all the other testimony in the case, and then determine for itself from all the testimony the value of such property. Stated in other words, it may be said the jury is not bound by the opinion testimony of a witness. The jury is entitled to take into consideration the facts testified to by the witness as to the cost, quality and condition of the property, and come to a different opinion as to its value. The jury is to decide what weight, if any, shall be given to the opinion or evidence of the expert witness, or to the opinion of a nonprofessional witness. The members of the jury are not bound by such evidence, and may exercise their own judgment based upon experience in deciding the question touching which opinion testimony was given.” (Emphasis supplied.)
The Floersches, however, rely on City of Wichita v. May's Company Inc., 212 Kan. 153, Syl. ¶ 4, 510 P.2d 184 (1973), to support their argument that the values set by the jury must be within the opinion evidence. There, the landowner’s only evidence of damage was the testimony of one witness, Gary Dunn, an officer of the corporate landowner. The condemnor’s evidence to support the appraisers’ award consisted of testimony of one of the court appraisers. The May's court found that there was no testimony of the landowner which tended to prove the before or after value of the property; however, it did find that the condemnor had established such values. In May's the only competent evidence pertaining to the value of the property was that of the condemnor’s expert. Thus it was proper, under the facts in May’s, for the court to hold that the verdict of the jury could not stand because it was not within the range of the opinion evidence. This is not to say that in all condemnation cases the jury is limited to the opinion evidence. To the contrary, the ruling means that where, as in the May's case, the only competent evidence as to value is opinion evidence, the jury is bound by such evidence.
In City of Wichita v. Chapman, 214 Kan. 575, 580-581, 521 P.2d 589 (1974), the highest value placed on the property by any of the experts was $45,000; the verdict was for $64,567.66. The city contended that the landowner’s testimony was the only evidence tending to support the verdict and that such evidence was incompetent because it was based on emotional attachment. After citing the rule of May's that a landowner’s testimony is competent evidence, the court affirmed the verdict and said:
“The weight to be attached to all the testimony, including that of Mr. Chapman, was for the jury. The jury is not bound by the opinion testimony of expert witnesses, or to the opinion of a nonprofessional witness, and the jurors may exercise their own judgment based upon experience in deciding the question touching which opinion testimony was given.” 214 Kan. at 581.
We view the Chapman ruling as a reaffirmation of the holding in Tate that the jury should be permitted to consider all the evidence and reach its own conclusion on value. Accordingly, we hold that the jury verdict in a condemnation action is not limited to opinion evidence where other competent evidence is also presented to establish value of the property condemned. In view of the testimony of the appraisers concerning comparable sales, we conclude that based on all the evidence presented to the jury, the verdict was supported by the evidence.
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Swinehart, J.:
Defendant DeVaun C. Adams appeals from an adverse summary judgment arising out of plaintiff’s action for the partition of real estate and defendant’s counterclaim for quiet title.
Plaintiff Gertrude Adams is the widow of W. C. Adams and defendant DeVaun Adams is the son of W. C. Adams. W. C. Adams and his first wife were the owners of the real estate in question. The first Mrs. Adams died intestate and of her interest in the real estate, one-half went to W. C. Adams, her surviving husband, and one-half to DeVaun Adams, her son. W. C. Adams subsequently married the plaintiff Gertrude Adams in 1964, and on June 18, 1968, they executed a quitclaim deed to the property to DeVaun. This deed was not physically delivered to DeVaun Adams.
W. C. Adams owned a safe deposit box which DeVaun Adams and his wife had the privilege of using for the storage of their personal papers. DeVaun was not a co-owner of and never had a key to the box. However, with his father’s permission he could enter the box. W. C. Adams informed DeVaun that the deed to the realty had been placed in the safe deposit box with DeVaun’s other personal property, although DeVaun had never seen it.
Upon W. C. Adams’ death on December 29,1969, his estate was opened and Doyle D. Rahjes was appointed administrator. The administrator performed the duties of his office, filed and published his notice of appointment, filed the inventory and appraisement, litigated the claims, and proceeded to final settlement and discharge. Defendant DeVaun Adams received notice of all proceedings and was a party to them. He verbally called the administrator’s attention to the fact that he was the owner of the disputed property by reason of the aforementioned deed executed by his father and Gertrude Adams, and that the deed was in his father’s safe deposit box. Two searches were made of the contents of the box by thé administrator for the deed, once in the presence of DeVaun Adams and his wife. These two searches did not reveal or discover the missing deed. DeVaun did nothing further during the pendency of the estate proceedings to assert his claim or interest in the property. In fact, his first endeavor in that regard came when the deed was found on December 9, 1971, among his personal property which had been in his father’s safe deposit box and in the possession of the administrator until the estate was closed, at which time the executor released the same to DeVaun. It was only then that DeVaun filed the deed of record and exerted his interest from that time forward by collecting the rents from the tenants. Prior to that time W. C. Adams, his administrator during the pendency of the estate, and Gertrude Adams had exercised exclusive control over the property by collecting the rents. Shortly thereafter plaintiff filed her petition for partition and in his answer DeVaun counterclaimed for quiet title.
The trial court by its summary judgment granted partition of the property and quieted the title in plaintiff, on the ground that the decree of the probate court regarding the property was res judicata. Therefore, in the partition action decree the property was divided according to the respective interests of plaintiff Gertrude Adams and defendant DeVaun Adams, as determined by the probate court.
Before considering the defendant’s allegation that summary judgment was improper because material questions of fact still exist, we will consider the question raised by plaintiff in her brief which concerns the question of jurisdiction of the trial court to consider the quiet title action set up by defendant’s counterclaim. In the counterclaim he asserted that the property was not a part of the W. C. Adams estate because it had been transferred to him by quitclaim deed prior to his father’s death.
If the trial court lacked jurisdiction, then the question raised on appeal by defendant need not be discussed. We will first consider this question of jurisdiction.
As can be seen from the facts set forth above, DeVaun failed to raise an allegation of his ownership to the property in question in the probate court proceedings of the estate of W. C. Adams within the statutory period (K.S.A. 59-2239 [Corrick, 1964]). Accordingly, the plaintiff asserts that the district court was without jurisdiction to entertain DeVaun’s claim of ownership to the realty because the probate court was vested with exclusive original jurisdiction of the cause.
The probate proceedings regarding the W. C. Adams estate were conducted prior to court unification. During all relevant times, K.S.A. 59-2239 provides that all demands against an estate must be filed within nine months (now six months) after the first published notice to creditors required under the provisions of the probate code. “The characterization of the nonclaim statute as a special statute of limitations is found throughout the Kansas cases [citations omitted].” Gano Farms, Inc. v. Estate of Kleweno, 2 Kan. App. 2d 506, 508, 582 P.2d 742, rev. denied 225 Kan. 844 (1978); and that section, rather than a general statute found elsewhere in the civil code, controls the time for asserting a demand against a decedent’s estate. In re Estate of Bowman, 172 Kan. 17, 238 P.2d 486 (1951).
Prior to unification, the general powers of the probate court were set forth in K.S.A. 59-301 (Corrick, 1964). Among other things, they were courts of record and could exercise “such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such courts.” K.S.A. 59-301(12). The long-recognized rule is that the probate court is to administer all property of a decedent because it has exclusive original jurisdiction thereof, Houdashelt v. Sweet, 163 Kan. 97, 180 P.2d 604 (1947), and cases cited therein; and retains such inventoried property under its jurisdiction until appropriate proceedings establish it is not properly an asset of the estate, In re Estate of Bowman, 172 Kan. 17. Furthermore, this exclusive original jurisdiction has been held to encompass the power to determine a question of title to or ownership of property when necessary to final settlement and distribution, unless the probate code expressly provides otherwise. This includes a question regarding title to real estate and applies whether the decedent died testate or intestate. Houdashelt v. Sweet, 163 Kan. at 102, and cases cited therein.
Furthermore, K.S.A. 59-2249 (Corrick, 1964) states:
“The decree shall name the heirs, devisees, and legatees, describe the property, and state the proportion or part thereof to which each is entitled. Said decree shall be binding as to all the estate of the decedent, whether specifically described in the proceedings or not. In the estate of a testate decedent, no heirs need be named in the decree unless they have, as such, an interest in the estate.
“No final decree shall be entered until after the determination and payment of inheritance taxes. When the final decree includes real estate, such decree, or a certified copy thereof, may be entered on the transfer record of the county clerk of the proper county; and when any such decree which includes real estate shall become final, it shall be the duty of the probate court to transmit a certified copy thereof to the county clerk and the county clerk shall enter the name on the transfer record in his office.”
The necessity of recognizing the finality of an order of final settlement is well stated in In re Estate of Bowman, 172 Kan. at 25, and In re Estate of Yetter, 183 Kan. 340, 346, 328 P.2d 738 (1958). The rationale is grounded in the need to protect subsequent purchasers of real property. “Considering and construing the various pertinent provisions of the probate code, we think they disclose a deliberate legislative intent and purpose to provide for an early settlement of titles to real property in order that persons purchasing or dealing therewith might do so with assurance respecting the validity of such titles.” Otherwise titles to realty involved in probate proceedings could be challenged successfully for many years. In re Estate of Bowman, 172 Kan. at 25. The defendant acknowledges that an order of final settlement of the probate court which is not appealed becomes final and conclusive against collateral attack. However, he strongly disputes plaintiff's contention that his claim to ownership was a “demand” under K.S.A. 59-2239 and due to his failure to so claim within the statutory claim period or appeal from the final settlement, he is forever barred from challenging the probate court’s determination of ownership. Rather, he contends that this is a partition action where equitable considerations may be considered and where the code of civil procedure alone controls.
We must first consider whether the defendant’s claim to ownership was a “demand” within K.S.A. 59-2239. Neither party has cited case authority involving the same factual situation as presented here, nor has further research disclosed any. Nevertheless, several analogous cases provide some guidance.
In Gantz v. Bondurant, 159 Kan. 389, 155 P.2d 450 (1945), title to 400 acres of land was in dispute. The administrator of Bondurant’s estate succeeded to an action commenced by Bondurant to recover land from his deceased son’s estate pursuant to an oral agreement between the father and son in which the father paid the consideration for the land. No administration proceedings had ever been held in the son’s estate. However, over one year after the son’s death, his widow obtained a decree of descent from the probate court from which no appeal was ever taken. The court declared:
“The determination of an issue of ownership to real estate is as much a prerequisite to the proper distribution of a decedent’s estate as the determination of any money demand, and a claim to all or a portion of the decedent’s property must be asserted originally in the probate court irrespective of whether the claim be based upon legal or equitable grounds or whether decedent died testate or intestate.” (Emphasis supplied.) Gantz v. Bondurant, 159 Kan. 389, Syl. ¶ 2.
The court relied in part upon Burns v. Drake, 157 Kan. 367, 139 P.2d 386 (1943), which involved an action to enforce specific performance of an oral contract to convey land by “will or deed” while administration proceedings were in progress.
The same rule was applied in In re Estate of Bourke, 159 Kan. 553, 156 P.2d 501 (1945), where the court held that claim to an interest in estate property, whether real or personal, either as a surviving partner or as an individual was a demand covered by the nonclaim statute and failure to exhibit a demand within the statutory time period barred an action to recover the property. Cf. Houdashelt v. Sweet, 163 Kan. 97 (action to set aside deed to real estate and to bring property into an estate).
Here the defendant seeks, in effect, to remove the real estate from the estate of W. C. Adams through his counterclaim, asserting ownership on the basis of the deed he discovered after the close of his father’s estate proceedings. A review of the above authorities compels a conclusion that the defendant’s claim of ownership constituted a demand within the meaning of K.S.A. 59-2239. We find that the district court lacked jurisdiction to consider his counterclaim and the probate court’s order of final settlement cannot be attacked collaterally in the plaintiff’s partition action.
Reading the provisions of the probate code in pari materia further bolsters the position taken by the plaintiff. K.S.A. 59-2252 provides for reopening a proceeding after title to realty has been determined where only service by publication was had within one year after the date of the judgment or decree. This express allowance precludes a similar procedure where personal service was had, as in the instant action.
Here the defendant was aware of the alleged gift of land by deed prior to W. C. Adams’ death. He chose to rely upon the administrator’s statement that the deed did not exist and neglected to file a demand, seek personal access to the contents of the safe deposit box, or otherwise attempt to prove his full ownership interest in the property. He acquiesced in the final settlement and failed to appeal to the district court. Based upon the above authorities, he may not now collaterally attack the decision of the probate court in his counterclaim in the plaintiff’s partition action.
Defendant urges that since his counterclaim was raised in a partition action, which is equitable in nature, the district court had authority to determine title despite the final order of the probate court. K.S.A. 60-1003(d) provides:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests, or may refuse partition if the same would result in extraordinary hardship or oppression.”
Defendant relies upon Hurley v. Painter, 180 Kan. 552, 306 P.2d 184 (1957), which discusses the equitable powers of a district court in a partition action. There the court declared there was nothing in the probate code to deprive a district court of its equitable partition powers. Therefore, a party could not claim the district court was without power to determine ownership interests even though the record title to the real property was in the name of the decedent and the time for asserting claims in her estate had expired. That case may be distinguished, however, because nothing in the opinion indicates that probate proceedings resulting in a final order occurred. It is only stated that a purported will of the decedent was refused probate. Additionally, all the cases relied upon by the court to support its conclusion may also be distinguished from this action. For example, in Ames v. Ames, 170 Kan. 227, 229-230, 225 P.2d 85 (1950), a partition action, the administrator admitted that plaintiff, defendant and decedent were owners of the property in question. There the court stated:
“If this were a partition action in which heirs, as such, sought to carve out and have set aside to them portions of a decedent’s estate the district court would not have jurisdiction. (Felton v. Rubow, 163 Kan. 82, 179 P.2d 935; Houdashelt v. Sweet, 163 Kan. 97, 103, 180 P.2d 604). That, however, is not this case. Here the title to the respective interests of plaintiif (appellee), appellant and their mother had vested in each of them prior to the mother’s death. In asking partition in the instant case appellee simply asserted his own, his defendant brother’s and their mother’s interests as they stood prior to her death and sought to have those interests segregated. In this action appellee and appellant in legal contemplation occupy the same position as complete strangers would occupy towards decedent’s estate. That is also true concerning the other defendants against whom it was sought to have the interests of the cotenants quieted. Under these circumstances the partition action was properly brought in the district court. (Stuart v. Hoatson, 163 Kan. 117, 180 P.2d 609.)”
Further, in Peterson v. Peterson, 173 Kan. 636, 251 P.2d 221 (1952), factually distinguishable from our case, and also cited in Hurley, the court stated the principle as follows:
“[T]he owner of an undivided interest in real property as a tenant in common may maintain an action in the district court to partition such property even though a former owner of one of the undivided interests therein is deceased, and his estate is in process of administration.” 173 Kan. at 640.
Again, unlike here, there was no dispute as to the titled interest of the party seeking partition.
We find under the facts of this case that the district court correctly granted summary judgment as it is clear that the defendant received proper notice in all probate proceedings in which the real property was inventoried as an estate asset, did not object to the petition for final settlement, did not appeal therefrom, and may not now relitigate the question of title.
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Swinehart, J.:
The defendant appeals from a verdict of the district court of Butler County finding him guilty of one count of driving while under the influence of intoxicating liquors and/or drugs as defined by K.S.A. 1978 Supp. 8-1567; one count of transporting an open container as defined by K.S.A. 41-804; and one count of operating a motor vehicle in violation of a restricted driver’s license as defined by K.S.A. 8-245(d). Defendant also appeals from an additional conviction in a consolidated case of one count of operating a motor vehicle in violation of a restricted driver’s license as defined by K.S.A. 8-245(d).
Defendant alleges the trial court erred by failing to grant defendant’s motion for a continuance in order to obtain legal counsel made on the date of his trial, thereby forcing defendant to proceed to trial without an attorney.
On October 5, 1978, the defendant was ticketed in case No. 78-CR-579 for driving a motor vehicle while under the influence of intoxicating liquors or drugs, transporting an open container of alcohol in the motor vehicle, driving a motor vehicle while his operator’s license had been suspended, and resisting an officer in the discharge of his official duty. This latter offense was subsequently dropped. On October 6 he appeared for arraignment in the district court of Butler County. During the arraignment the defendant was not represented by counsel. The court informed the defendant that if he qualified, counsel would be appointed for him. The defendant at first stated that he did not want an attorney appointed for him. However, he did request that the court appoint a Mr. White to represent him. The court declined to honor this request but asked the defendant to complete the necessary indigency papers, which defendant did. The defendant’s affidavit of indigency showed that he possessed a $17,750 automobile which was heavily mortgaged, a $950 bank account and an income of $450 (presumably per month, although the record is not clear on this point). Therefore, the court refused to appoint counsel for him on the ground that his income was too high. At the arraignment the defendant pleaded not guilty to the charges against him.
On November 6, 1978, the trial was continued to December 8, at 9:00 a.m. The record does not reflect the reason for this continuance.
Prior to the scheduled trial date, however, the defendant was arraigned on November 29, 1978, for a new charge in case No. 78-CR-674 arising out of a separate incident. At his arraignment the defendant appeared without an attorney and pleaded not guilty to one count of driving a motor vehicle in violation of a restricted driver’s license, contrary to K.S.A. 8-245(d). At that time the defendant notified the trial court that John White was his attorney in his other case, but White had not yet entered his appearance. The court consolidated case No. 78-CR-674 with 78-CR-579 and notified defendant that trial was set for December 8. Defendant stated that he did not believe his attorney could appear on that date.
In a letter dated December 1, 1978, attorney White notified the trial court that he was representing the defendant and included a motion for a continuance stating that he would be unable to appear on December 8 because he was involved in a jury trial in another county. The court granted a continuance and trial was rescheduled for January 18, 1979. Before the case went to trial, the deposition of Sheriff David Williams, one of the State’s main witnesses, was taken because this witness would be at the FBI Training Academy in Washington, D.C., during the trial. Both the prosecuting attorney and defendant’s counsel, John White, were present and examined the witness.
On January 18, 1979, the defendant and John White appeared before the court. The defendant sought another continuance on the ground that medical problems required immediate attention. He further explained that he and White had had a disagreement and White did not think he could continue to represent defendant. Therefore, defendant had discharged White and had attempted to hire another attorney. However, as the disagreement had occurred only two days before the trial, the new attorney secured by the defendant was not able to appear on January 18. The trial judge verified that an attorney had contacted him by telephone the previous day providing substantially the same information. The court then stated:
“Carl, you know, now we’re back to the same problem. We’re' — We’re set for trial today and I’ve talked to you several times and I told you that regardless of what happened we were going to go to trial. Are you prepared today? I see you’ve got some people with you. Are those your witnesses?”
The court also informed defendant that he had told defendant’s new attorney that the case was getting quite old and it would be heard on the 18th whether or not a new attorney could appear. The defendant, of course, objected to the proceedings.
The court then instructed the defendant as to the procedures that would be followed for trying the case, and defendant told the judge that he understood them. The prosecution presented its evidence, including the deposition of Sheriff Williams. The defendant cross-examined four of the witnesses and presented two witnesses of his own. Both parties agree that the substance of the evidence is irrelevant to the question on appeal. The trial court found the defendant guilty of the remaining charges in both cases and scheduled the matters for sentencing.
In case No. 78-CR-579, the defendant was fined $500 and sentenced to one year in the Butler County jail for driving while under the influence. In addition, he was fined $50 and sentenced to thirty days in the Butler County jail for transporting an open container and fined $100 and sentenced to thirty days in the Butler County jail for driving in violation of a restricted license. The latter two sentences were to run concurrently. In case No. 78-CR-674, defendant was sentenced to thirty days in the Butler County jail for driving in violation of a restricted driver’s license. The sentence was to run concurrently with the sentences imposed in No. 78-CR-579. Sentences were imposed on February 1, 1979, and the amended journal entry embodying the judgment and the sentencing was filed on February 26, 1979. The defendant’s notice of appeal was filed on January 26, 1979.
The precise issue for determination is whether the trial court erred by refusing to grant defendant’s request for a continuance made on the regularly scheduled trial date after learning that defendant’s new attorney could not be available for trial at that time. Implicit in this question is the extent of the defendant’s Sixth Amendment right to counsel.
A continuance may be granted to either party for good cause. K.S.A. 22-3401; State v. Holt, 221 Kan. 696, 561 P.2d 435 (1977). The trial court must exercise its sound discretion in deciding whether to grant or deny a continuance in a criminal proceeding. State v. Williams, 226 Kan. 82, 595 P.2d 1104 (1979); State v. Watie, Heard and Heard, 223 Kan. 337, 574 P.2d 1368 (1978); State v. Holt, 221 Kan. 696. Absent a showing of abuse of discretion which has prejudiced substantial rights of the defendant, the ruling will not be disturbed on appeal. State v. Nelson, 223 Kan. 251, 573 P.2d 602 (1977); State v. Hemminger, 203 Kan. 868, 870, 457 P.2d 141 (1969), cert. denied 396 U.S. 1045 (1970). See State v. Bentley, 218 Kan. 694, 695, 545 P.2d 183 (1976).
When a defendant’s Sixth Amendment right to effective assistance of counsel is involved, careful scrutiny must be afforded the trial court’s action. In Ungar v. Sarafite, 376 U.S. 575, 11 L.Ed.2d 921, 84 S.Ct. 841, rehearing denied 377 U.S. 925 (1964), a lawyer cited for contempt was denied a continuance when his request was made on the date of the contempt hearing. He had argued that his counsel was unfamiliar with the case as he had been contacted only a few days before and had been trying another case. The Supreme Court affirmed the denial of a continuance in light of all the circumstances, noting that Ungar had been given sufficient notice to hire counsel, the evidence was fresh, the issues were limited, the motion for continuance was not made until the day of the hearing, and that Ungar as a lawyer was familiar with the court’s practice of denying continuances.
The court summarized the legal principles supporting its decision:
“The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385 [other cites omitted].” 376 U.S. at 589.
Neither party disputes that the accused’s right to effective assistance of counsel in criminal proceedings under the Sixth Amendment is obligatory upon the states through the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963); that such right is applicable in every criminal proceeding where an indigent accused may be deprived of his liberty, Scott v. Illinois, 440 U.S. 367, 59 L.Ed.2d 383, 99 S.Ct. 1158 (1979); and finally, that a defendant must constitutionally be allowed to exercise this right by conducting his own defense, without the assistance of counsel, whenever he voluntarily and intelligently elects to do so, Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975). However, the defendant has failed to consider that the rules pronounced in these cases which involve indigent defendants might not be squarely applicable in this case where the defendant was not represented by appointed counsel because he was not found indigent. In any event, defendant was still entitled to “a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.” Chandler v. Fretag, 348 U.S. 3, 10, 99 L.Ed. 4, 75 S.Ct. 1 (1954). Without question defendant did not, as the State alleges, knowingly and intelligently waive his right to counsel in order to represent himself as he specifically objected to the trial court’s decision to conduct the trial with the defendant acting pro se.
Did the trial court’s refusal to grant the continuance arbitrarily and unreasonably deny the defendant effective assistance of counsel?
There are no Kansas cases strictly on point. However, a brief review of several cases involving continuances requested due to some problem with counsel is instructive. In State v. Dickson, 198 Kan. 219, 424 P.2d 274 (1967), the Supreme Court held that the trial court did not err in refusing to grant a continuance because there was no showing that any substantial rights of the defendant had been prejudiced by the denial. Two days before trial, defendant’s appointed counsel was notified that he had been fired and that the defendant had retained new counsel. The day before trial all parties appeared in court and the trial court refused the continuance, noting that a jury had been called and witnesses subpoenaed. Appointed counsel tried the case with the hired counsel assisting.
On the morning of the trial, the defendant in State v. Bentley, 218 Kan. 694, 545 P.2d 183 (1976), sought a continuance to obtain other counsel, stating there was a conflict between him and appointed counsel. The Supreme Court found no abuse of discretion in denial of the continuance. There, however, appointed counsel did represent the defendant at trial and there was no showing that he did not adequately represent defendant. Further, there was evidence that defendant had exhibited a propensity for delay.
The cases cited immediately above involved appointed counsel, unlike the instant case. Further, neither of the defendants was forced to proceed to trial pro se. Yet, Ungar v. Sarafite, 376 U.S. 575, certainly does not require a continuance in all cases simply because a defendant might not otherwise be represented by counsel. Although the State in its brief urges that the defendant invited error through his dilatory tactics, his conduct does not appear to rise to the level of that described in State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970), cited by the State.
In State v. Henderson, appointed counsel sought to withdraw from a case three days before the trial date due to a serious ethical conflict. That request and another one made on the morning of the trial were denied. Appointed counsel proceeded to try the case to the best of his ability. The Supreme Court found that defendant had not been denied effective assistance of counsel and that the defendant himself precipitated the situation because he refused to request that another attorney be appointed for him because he wanted to establish prejudicial error for appeal purposes. “One who by his own acts invites error is in no position to complain or take advantage of it on appeal. (State v. Cantrell, 201 Kan. 182, 440 P.2d 580, cert. denied 393 U.S. 944, 21 L.Ed.2d 282, 89 S.Ct. 315).” 205 Kan. at 238. Therefore, the trial court did not abuse its discretion by refusing to allow appointed counsel to withdraw.
A fourth Kansas case also involves appointed counsel, but is helpful. The defendant in State v. Weigand, 204 Kan. 666, 466 P.2d 331 (1970), originally retained his own attorney who represented him for approximately eleven months through all stages of the proceedings to trial. Two weeks before trial, retained counsel was permitted to withdraw for health reasons. Despite defendant’s assurances to the court that he would have new counsel by the trial date, defendant appeared without counsel. Counsel was then appointed, was denied a continuance, and was directed to begin jury selection. Several later requests for continuances were denied. On appeal the Supreme Court found that the trial court had erred by refusing to grant a continuance, and as a result denied the defendant’s right to effective assistance of counsel and violated due process. In reaching its decision, the court stated:
“The right of one charged with crime to be represented by counsel includes a fair opportunity to secure counsel of his own choice. . . . The lack of cooperation by the defendant and his retained counsel in preparing for trial is apparent in this record. Delay in the enforcement of our criminal law should not be permitted or condoned. The prompt disposition of criminal cases is to be commended and encouraged.
“However, the irresponsibility of a defendant and the failure of his retained counsel to prepare for trial cannot justify stripping counsel appointed by the court of sufficient time to acquaint himself with the crime charged. The right to counsel is a matter of substance not form and representation must fulfill the spirit and purpose of the constitutional mandate. (State v. Oldham, 178 Kan. 337, 285 P.2d 775.)
“The right to effective assistance of counsel in the preparation and trial of the case is recognized in all jurisdictions. It includes sufficient time to advise with counsel and prepare a defense. (Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.) Counsel should have opportunity to acquaint himself with the facts of the case and the law. He should be afforded an opportunity to present the facts to the jury in their most favorable light. (Willis v. Hunter, 166 F.2d 721.) . . .
“A trial court should be aware of the propensities of the accused to procrastinate in the hiring of counsel. The court can and should protect itself against the irresponsibility of the defendant. After a reasonable time has been granted to the accused to procure counsel of his own choosing, as was done in this case, the accused should be ordered to appear on a day certain with counsel. If the accused has not obtained counsel on that day counsel should then be appointed to represent him and the trial date should be set with sufficient time to permit counsel to advise with the accused, prepare a defense, subpoena witnesses and acquaint himself with the facts and the law. What time is reasonable will depend upon the circumstances of each case and should be determined by the trial court in its discretion.” 204 Kan. at 670-671.
Here, of course, defendant was found not to be financially unable to employ counsel and so the court could not follow the directive of Weigand. See K.S.A. 22-4501 et seq.; State v. Timmons, 218 Kan. 741, 545 P.2d 358 (1976). Without question, however, the trial court viewed the defendant’s conduct as dilatory. The court was also aware that both prosecution and defense witnesses were present, as they had been on the previously scheduled trial date. Further, the sole testimony of one of the key prosecution witnesses to be introduced as evidence at trial had been secured and preserved by deposition. Defendant’s former retained counsel, John White, had been aware of the use intended for the deposition and had cross-examined the witness. Finally, defendant himself discharged his retained counsel.
Neither party has presented any pertinent authority where denying a continuance resulted in a defendant appearing pro se. However, numerous cases from other jurisdictions discussing this problem appear in Annot., 73 A.L.R.3d 725. Additionally, in State v. Page, 18 Or. App. 109, 523 P.2d 1291 (1974), defendant’s retained counsel had one month to prepare for trial, then received a continuance for an additional month. On the second trial date, the defendant appeared without counsel, who had been discharged the day before, and informed the court he was seeking new counsel. The trial court refused to grant a continuance and proceeded to try the case with defendant acting pro se. The Oregon Court relied upon Ungar v. Sarafite, 376 U.S. 575, to uphold the trial court on appeal. Tl^e court further noted that while a defendant may hire his own counsel, this right could not interfere with the orderly disposition of criminal cases.
All authorities reviewed above stress the need to view each case according to the totality of circumstances and refuse to recognize one strict, simple rule when continuances are requested to retain new counsel. Consequently, it cannot be said that the trial court in this case abused its discretion by denying the defendant’s request for a continuance.
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Abbott, J.:
This is a workers’ compensation case. The real issue presented in this appeal involves the question of whether pursuant to a settlement agreement there can be compensation due a claimant when no award for compensation had been entered prior to the death of claimant from causes unrelated to the injury under consideration.
The appellants are the widow and children (sole heirs) of the deceased claimant, Elmer E. Barncord, Jr. The claimant sustained injury on October 2,1975, in the course of his employment with the Kansas Department of Transportation and never returned to work. Claimant had voluntarily been paid compensation from October 2, 1975, through January 17, 1978, by respondent. A hearing was held on February 3,1978. Respondent agreed voluntarily to continue payments and the claim was continued in order to allow the parties sufficient time to obtain and present medical testimony. There had never been an award of any kind or nature entered and all payments made were made on a voluntary basis. Prior to final submission of the claim to the examiner, claimant agreed to settle the claim with the Workmen’s Compensation Fund which had been impleaded by the employer.
The proposed settlement in the amount of $18,000 plus medical expenses through February 23, 1978, was to have been presented to the director for approval on the afternoon of February 23, 1978. The attorney for the Workmen’s Compensation Fund prepared a worksheet for settlement of the claim; however, the proposed settlement agreement was never submitted to the director for approval, as the claimant suffered heart failure that apparently was unrelated to the injury in question and died unexpectedly on the morning of February 23, 1978, the day of the proposed settlement. The Fund immediately tendered all money due the claimant for unpaid compensation covering the period of time prior to claimant’s death. The parties agree that the claimant and the Fund had reached an oral agreement to settle the claim for $18,000 plus medical expenses through February 23, 1978. No documents were signed, although the Fund had prepared a proposed worksheet and delivered it to claimant’s attorney.
After claimant’s death, his widow and children were substituted as claimants. Claimants, pursuant to K.S.A. 1979 Supp. 44-512a, then served a demand letter on the Fund. The Fund did not honor the demand and a hearing was subsequently had before an examiner on May 15, 1978. The examiner found he did not have jurisdiction over questions involving Kansas law other than workers’ compensation and, as the amount claimed was not due under the workers’ compensation act, recovery was denied. Director’s review was requested and held and the examiner’s order sustained. The District Court of Shawnee County affirmed the director’s decision, and claimants have appealed.
K.S.A. 1979 Supp. 44-510e(h) provides:
“If a workman has received an injury for which compensation is being paid him, and his death is caused by other and independent causes, any payment of compensation already due him at the time of his death and then unpaid shall be paid to his dependents directly or to his legal representatives if he left no dependent, but the liability of the employer for the payments of compensation not yet due at the time of the death of such workman shall cease and be abrogated by his death. ” (Emphasis supplied.)
The Fund takes the position that, since the oral settlement agreement had not yet been approved pursuant to K.S.A. 44-527 and K.A.R. 51-3-1 at the time of claimant’s death, the settlement was not yet due and owing at the time of his death by reason of the well-established rule that the workers’ compensation act covers every phase of the right to compensation and of the procedure for obtaining it, which is substantial, complete and exclusive, and that we must look to the procedure of the act for methods of its administration. E.g., Bitnoff v. Southwest Rendering, 223 Kan. 334, 336, 573 P.2d 1033 (1978).
K.S.A. 44-521 sets out the pertinent statutory authority regarding settlement agreements:
“Compensation due under this act may be settled by agreement; subject to the provisions contained in section 27 [44-527] of this act.”
K.S.A. 44-527 states:
“At the time of making any final payment of compensation, the employer shall be entitled to a final receipt for compensation, executed and acknowledged or verified by the workman, which final receipt may be in form a release of liability under this act, and every such final receipt for compensation or release of liability or a copy thereof shall be filed by the employer in the office of the director within sixty (60) days after the date of execution of such final receipt or release of liability, and if the employer shall fail or neglect to so file such final receipt or release of liability, the same shall be void as against the workman.
“The director shall accept, receipt for, and file every agreement, finding, award, agreement modifying an award, final receipt for compensation or release of liability or copy thereof, and record and index same, and every such agreement, finding, award, agreement modifying an award, final receipt or release, shall be considered as approved by the director and shall stand as approved unless said director shall, within twenty (20) days of the date of the receipt thereof, disapprove same in writing and notify each of the parties of his disapproval, giving his reasons therefor, sending a copy of the same to each of the parties by registered mail: Provided, No proceedings shall be instituted by either party to set aside any such agreement, release of liability, final receipt for compensation or agreement modifying an award, unless such proceedings are commenced within one (1) year after the date any such agreement, release of liability, final receipt for compensation or agreement modifying an award has been so filed and approved by the director.”
K.A.R. 51-3-1 currently provides that:
“Compensable cases may be determined and terminated only by four (4) modes of procedure under the act:
“(a) By filing a settlement agreement, final receipt of and release of liability with the director.
“(b) By hearing and written award.
“(c) By joint petition and stipulation subject to 51-3-16.
“(d) By settlement hearing before an examiner.”
K.A.R. 51-3-1 sets out the exclusive methods by which compensation may be paid, and none of them had been completed here when claimant died.
Claimants argue that the proposed oral settlement agreement itself was a valid contract and that the filing and approval requirements of K.S.A. 44-527 and K.A.R. 51-3-1 are nothing more than administrative formalities which do not destroy the efficacy of the contract. Claimants rely on the often-quoted rules of construction in workers’ compensation cases that the act is to be construed liberally with a view to protecting workers (e.g., Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P.2d 676 [1961]), and also on a number of cases where contracts were considered in workers’ compensation cases. We have read each of the cases cited by claimants, and while space will not permit us to comment on each of them, we do offer comments on what appears to us to be the principal cases relied on by claimants.
Our examination of Dotson v. Manufacturing Co., 102 Kan. 248, 169 Pac. 1136 (1918), and Odrowski v. Swift & Co., 99 Kan. 163, 162 Pac. 268 (1916), convinces us that those decisions must be viewed in the limited context of defining whether a release fell within the confines of the statute then in effect which allowed a court to cancel an agreement entered into by reason of fraud or undue influence. In addition, the question before us is further distinguishable bécause the current worker’s compensation act requires approval of “every agreement ... or release of liability.” K.S.A. 44-527. To accept claimants’ interpretation of Dotson and Odrowski would effectively prevent any interference with the parties’ oral contract for settlement of a workers’ compensation claim and would render the statutes allowing disapproval of such agreements by the director meaningless, a construction not in the best interest of the worker and contrary to legislative intent.
Claimants also rely on a statement from Drennon v. Braden Drilling Co., Inc., 207 Kan. 202, 208, 483 P.2d 1022 (1971):
“The section of the workmen’s compensation act pertaining to procedure is K.S.A. 44-523. It provides in part that the director or court in a workmen’s compensation proceeding shall not be bound by technical rules of procedure, and that they shall act reasonably without partiality. The fair implication of the workmen’s compensation act is that any procedure which is appropriate and not prohibited may be employed. [Citation omitted.]”
In Drermon, the Court held the fact that the Kansas workers’ compensation act was silent on the subject of voluntary dismissals does not preclude such a procedure from being utilized where appropriate. In the case at bar, however, the statute is not silent; it requires the approval of a settlement agreement.
Claimants also contend that even should the statutes apply, they are merely procedural formalities and do not affect the efficacy of the agreement in relation to K.S.A. 1979 Supp. 44-510e(h). This precise issue has never been decided by a Kansas appellate court. Claimants argue that the Kansas Supreme Court recognized that principle in Lutz v. Gehring Contractor-Builder, Inc., 188 Kan. 690, 366 P.2d 281 (1961). In Lutz, the claimant’s widow and child (sole heirs) claimed the respondent and respondent insurance carrier had agreed to settle a workmen’s compensation claim with the decedent prior to the decedent’s death from natural causes before the settlement was approved. The Court, however, avoided determination of the issue, because the examiner and the district court both found no evidence that an agreement between the parties had been reached, stating:
“We adhere to the pronouncement that the weight to be given evidence is for the district court. It having been found that there was no agreement it is neither necessary nor required that we here consider the effect of an agreement, such as is claimed by appellants, under the Workmen’s Compensation Act.” (188 Kan. at 692.)
Although no case on point has been decided’ the statute and its interpreting administrative rules shed light on the legislative intent of the approval requirement. K.S.A. 44-521 allows settlement by agreement subject to the provisions of K.S.A. 44-527 which requires the filing, recording and approval of all such agreements. The twofold purpose of the statute was explained in K.A.R. 1975 Supp. 51-3-2:
“The settlement agreement, final receipt and release of liability is made up in a form prepared for the purpose of aiding the director in determining if proper compensation has been paid, and in order that the settlement may be disapproved if proper compensation has not been paid. The information is also used for statistical purposes. . . .
“K.S.A. 44-527 provides in substance that the employer is entitled to a final receipt for the compensation paid at the time of final payment and that such final receipt shall be filed in the office of the director within sixty (60) days after its execution. The intent and purpose of these two (2) sections is that the director have the opportunity of passing upon the settlement agreement made under K.S.A. 44-521, and the amount of compensation paid . . . .”
K.S.A. 44-527 creates a presumption of approval by stating that agreements not disapproved within twenty days of their receipt will be considered approved. In the case at bar, however, to say that an agreement not approved by the director or an examiner is “already due” undercuts the purpose of the approval requirement, which is to ensure that no agreement is allowed unless the worker is provided fair and adequate compensation.
Authorities from other jurisdictions are of limited use in statutory interpretation in workers’ compensation cases due to the variance in workers’ compensation acts in each state. General rules, however, have been noted by several commentators. 3 Larson, Workmen’s Compensation Law § 82.60 (1976) states:
“If the statute requires that a settlement have Commission approval, a settlement lacking such approval amounts to nothing more than a voluntary payment of compensation. . . . [I]t does not give rise to an ‘award’ . . . .”
8 Schneider, Workmens Compensation Text § 1867 (1951), is in accord:
“An agreement for the compromise or settlement of a compensation claim is generally regarded as something more than an ordinary contract between individuals. Under the provisions of most of the Workmen’s Compensation Acts, agreements to compromise or settle claims, until approved by a court or some other competent authority, lack contractual force even though the parties thereto have done all that would be necessary to constitute a binding contract between them under the law of contracts.”
8 Schneider, Workmens Compensation Text § 1870 (1951) is more specific:
“Under the statutes of most states, compromise agreements must be approved by either a court or some administrative authority of competent jurisdiction before it is valid and enforceable.
“The parties are not bound by an agreement as to compensation unless the agreement is properly approved in accordance with the statutory provisions. The assent of the board is required to the end that ‘no injustice be done either party or the public.’
“It is held in New Jersey in accordance with the general rule that an agreement between the employer and employee is efficacious only when approved, and it is the duty of the commissioner to see that the rights of the employee are protected under such agreement. ‘Once the litigants have appeared before the Deputy Commissioner and he has performed his duties there would seem to be no reason in public policy why such a settlement should not have the same effect as any judgment arrived at after a complete litigation of the issues.’ It has also been held that no matter what the parties may agree to in a proceeding for compensation, and no matter how final and conclusive their agreement may be in terms, ‘it will have no binding effect at all without the approval of the bureau.’ ”
See also Trahan v. Liberty Mutual Insurance Company, 188 So. 2d 435 (La. App. 1966); Coal Co. v. Comp. Com’r., 119 W. Va. 581, 195 S.E. 528 (1938).
We conclude that the settlement amount was not due claimant as of the date of his death for the reason that it had not yet been presented to the director in a form recognized by statute, and it thus became abrogated by virtue of K.S.A. 1979 Supp. 44-510e(b).
As a result of our holding, it is not necessary to consider claimants’ other contention that the Fund could be assessed a penalty pursuant to K.S.A. 1979 Supp. 44-512a, which in any event appears to be controlled by Hall v. City of Hugoton, 2 Kan. App. 2d 728, 587 P.2d 927 (1978).
Affirmed. | [
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Swinehart, J.:
This is an interlocutory appeal by the State, pursuant to K.S.A. 1979 Supp. 22-3603, from the district court’s order suppressing the results of a blood test.
During the early morning hours of July 15, 1978, Trooper Fred Waller of the Kansas Highway Patrol responded to a report of an injury accident occurring approximately ten miles south of Lawrence. Upon arriving at the scene of the accident, Waller observed two vehicles which were extensively damaged. The occupants of one of the vehicles, two young women, were deceased. Three persons were found in the other vehicle, including the defendant who appeared to be the driver. Waller and other law enforcement officers helped ambulance personnel extract defendant and the other occupants from the car. Trooper Waller noted that the vehicle smelled of alcohol and saw beer bottles on the floor of the car. From an examination of the scene, Waller concluded the accident had been a head-on collision and that defendant’s car had crossed the center line before colliding with the other vehicle. This conclusion was bolstered by statements made to Waller by a truck driver that the car driven by defendant had followed his truck in the northbound lane for several miles before the accident, and that defendant had swerved into the southbound lane several times during that distance in an apparent attempt to pass. There were no skid marks from either car. From the above circumstances, Waller believed probable cause existed that defendant had been driving while intoxicated (K.S.A. 1979 Supp. 8-1567), and felt a blood test was warranted.
Waller was informed by his supervisor, Sergeant Gerald Cares, that he should place defendant under arrest and charge him with violation of K.S.A. 1979 Supp. 8-1567 prior to requesting a blood sample. Waller did not verbally inform the defendant he was under arrest, but requested Deputy Sheriff Armbrister to accompany defendant to the hospital and try to obtain his consent to a blood sample. Armbrister assumed defendant was under arrest.
Defendant was extensively injured as a result of the accident, and complained abusively of his injuries at the hospital. Deputy Armbrister testified he asked defendant if he would verbally agree to having a blood sample taken and defendant consented. Trooper Waller also testified that defendant agreed to the sample. When the nurse began to extract the blood from defendant’s ankle, he began to struggle and both Waller and Armbrister had to hold him down in order to complete the process. Defendant testified he remembered nothing of the blood test or his alleged consent.
Neither hospital personnel nor defendant were informed that defendant was under arrest, although defendant testified that his doctor informed him that the sheriff’s permission was required prior to his release. Defendant was not released to police custody and charges were not filed until September 21, 1978. Defendant was charged with two counts of vehicular homicide, K.S.A. 21-3405, driving while intoxicated, K.S.A. 1979 Supp. 8-1567, and driving left of center, K.S.A. 8-1514. Defendant filed a motion to suppress the results of the blood test, which was sustained by the trial court at the conclusion of the hearing. The State has appealed, contending that: (1) There was probable cause to arrest defendant; (2) defendant was properly placed under arrest; and (3) defendant voluntarily consented to the blood sample.
1. Probable cause for an arrest without a warrant exists when the facts and circumstances known to the arresting officer are sufficient to warrant a man of reasonable caution to believe a crime has been or is being committed. State v. Coe, 223 Kan. 153, Syl. ¶ 4, 574 P.2d 929 (1977). It is only necessary that the evidence lead the officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information. State v. Stewart, 225 Kan. 410, 412, 591 P.2d 166 (1979).
K.S.A. 22-2401 provides in relevant part:
“A law enforcement officer may arrest a person when:
“(c) He has probable cause to believe that the person is committing or has committed
“(2) A misdemeanor, and the law enforcement officer has probable cause to believe that:
“(i) Such person will not be apprehended or evidence of the crime will be irretrievably lost unless such person is immediately arrested . . .
A review of the present case indicates Trooper Waller had sufficient probable cause to arrest the defendant for violation of K.S.A. 1979 Supp. 8-1567, considering the smell of alcohol coming from defendant’s car, the presence of beer bottles therein, the information received from the truck driver at the scene of the accident, the apparent circumstances of the collision, and the necessity of obtaining a blood sample within a relatively short period of time. The trial court properly found that probable cause existed for defendant’s arrest.
2. The issue of whether defendant was under arrest is crucial in determining whether the “implied consent” statute, K.S.A. 1979 Supp. 8-1001, applies. Those provisions become operative only after a person is arrested or otherwise taken into custody. State v. Mezins, 4 Kan. App. 2d 292, 294, 605 P.2d 159, rev. denied March 14, 1980. Before arrest, K.S.A. 1979 Supp. 8-1001 has no application and a person may voluntarily agree to a blood test but is free to refuse. State v. Gordon, 219 Kan. 643, 647, 549 P.2d 886 (1976).
In the present case, the trial court found there was no arrest of defendant.
K.S.A. 1979 Supp. 22-2202 provides in relevant part:
“(3) ‘Arrest’ means the taking of a person into custody in order that such person may be forthcoming to answer for the commission of a crime. The giving of a notice to appear is not an arrest.”
No Kansas case appears to have directly confronted the issue of what constitutes an arrest. The following is found in 6A C.J.S., Arrest § 43, pp. 99-103:
“In order to constitute an act of arrest, there must be an intention or a purpose to take a person into the custody of the law, under a real or pretended authority, and an actual or constructive seizure or detention of such person, which is so understood by the person arrested. Accordingly, there must be an intention to effect an arrest and such intention must be evidenced by some unequivocal act, or by using words indicative of arrest. It is not necessary that formal or particular words be used, or that there be a booking at a police station, for the fact of arrest may be shown by surrounding facts and circumstances. However, the words used or not used at the time of arrest are relevant to the question of whether there was in fact any arrest.
“A person’s subjective belief or feelings are not controlling on the question as to whether he was under arrest at a particular time, although it is a factor to be considered, and the test is what a reasonable man, innocent of any crime, would have thought had he been in the same position.
“It is generally held that the custody or control, the assumption of which is involved in an arrest, imports an actual restraint or detention of the person arrested, or a significant restraint of his freedom of movement by effectively preventing him from exercising his freedom to depart, or compelling him to move in accordance with the arrestor’s instructions. There is no arrest in the absence of the requisite restraint of liberty. On the other hand, however, it has been held that the detention or custody may be merely constructive, not actual.
“The mere utterance of words indicative of an arrest is not sufficient to constitute an arrest, and while the announcement of an arrest may indicate that an arrest has been made, in determining when an arrest was made, the time of the announcement is not controlling. A reading or verbal proffer of a warrant, without more, is not sufficient to constitute an arrest, and the same is true where there is a mere personal service of process alone.
“An arrest is consummated only when there has been a taking of possession of a person by manual caption or otherwise, but the requisite control may be assumed without force, or without any visible physical restraint, and in any manner by which the subject of the arrest is brought within the power or control of the person making it. Thus, an act which indicates an intention to take a person into custody and subjects such person to the actual control and will of the actor constitutes an arrest. A manual touching is not necessary where the subject of the arrest submits thereto or is otherwise actually subjected to restraint. Where, however, the person resists arrest, some manual touching of the body has been held necessary to consummate the arrest. Actual physical restraint of the subject by laying hands on him is ordinarily i.n arrest, as where a person is handcuffed, but in the absence of an actual laying on of hands, the restraint must be manifested in some unequivocal form.”
See generally State v. Green, 111 Ariz. 444, 446, 532 P.2d 506 (1975); People v. Ussery, 24 Ill. App. 3d 864, 867, 321 N.E.2d 718 (1974); Reed v. State, 199 So. 2d 803 (Miss. 1967), cert. denied 390 U.S. 413 (1968).
The Indiana Supreme Court has held, in determining the legality of a search and seizure of an automobile, that an arrest was not consummated at the time when the defendant was in the hospital and told he was under arrest by an officer, who subsequently went into another room and made out a traffic citation which was not presented to defendant until a later time. Machlan v. State, 248 Ind. 218, 225, 225 N.E.2d 762 (1967).
In Bouldin v. State, 26 Md. App. 545, 553, 338 A.2d 404 (1975), the court held an arrest of an unconscious defendant in a hospital was effectuated where there were sufficient grounds for an arrest coupled with the arresting officer’s intent to detain the suspect, but added that “if conditions warrant the prerequisite verbal or physical communications, the intent to arrest should be communicated to the arrestee.” See also State v. Gordon, 219 Kan. at 647.
In the present case, defendant’s condition was described as semiconscious by Deputy Armbrister. The record is unequivocal that defendant was never verbally informed he was under arrest; that he was never given his Miranda warnings; and that he was never issued a traffic citation while at the hospital. Although defendant was informed by his doctor that the sheriff’s permission was required prior to his release, the record clearly indicates that the hospital personnel were not informed of defendant’s alleged arrest at the time the blood sample was taken and that defendant was not ultimately released to police custody. While no one of the above factors is controlling, it is clear that the trial court properly determined that defendant was not placed under arrest.
3. The trial court additionally found that defendant did not voluntarily consent to the blood test.
Broadly stated, the issue regarding the voluntariness of defendant’s alleged consent to the blood test is whether there is involved an impermissible search of the seized person. See State v. Garner, 3 Kan. App. 2d 697, 699, 600 P.2d 1166 (1979), aff’d 227 Kan. 566, 608 P.2d 1321 (1980). Absent a voluntary consent to a blood test, there is no valid waiver of an accused’s Fourth Amendment rights. State v. Brunner, 211 Kan. 596, 604, 507 P.2d 233 (1973). Where the State attempts to justify a search by the consent of the defendant it has the burden of proving that the consent was freely and voluntarily given. State v. Stitzel, 2 Kan. App. 2d 86, Syl. ¶ 3, 575 P.2d 571 (1978). Finally, the existence and voluntariness of consent is a question of fact to be decided in light of attendant circumstances by the trier of facts (State v. Chiles, 226 Kan. 140, 145, 595 P.2d 1130 [1979]), and the trial court’s determination of admissibility will be upheld on appeal if supported by substantial competent evidence. State v. Brunner, 211 Kan. at 601.
A prolonged discussion is unwarranted. As the trial court noted, the facts of the instant case bear a striking similarity to those in State v. Gordon, 219 Kan. at 648. Taking the evidence as a whole, especially considering the various officers’ descriptions of defendant’s apparent physical and mental condition and de fendant’s own testimony that he remembered nothing of the blood test, the trial court’s determination regarding voluntariness is amply supported by substantial competent evidence.
Judgment is affirmed.
. No case found has had occasion to define the phrase “or otherwise taken into custody” found in K.S.A. 1979 Supp. 8-1001. It is to be noted that the definitions section for the Kansas Code of Criminal Procedure defines “[c]ustody” as “the restraint of a person pursuant to an arrest or the order of a court or magistrate” (K.S.A. 1979 Supp. 22-2202[7]), and that definition is accepted for terms of this case. See also discussion in State v. Brunner, 211 Kan. 596, 599-601, 507 P.2d 233 (1973), as to what constitutes “in custody” for purposes of determining whether custodial interrogation occurred. In the present case, there is no indication that defendant was restrained by order of court or magistrate. Therefore, this opinion focuses solely on the issue of whether defendant was under arrest.
. Although neither party has raised any constitutional argument, it may be noted that the constitution also requires a lawful arrest, absent a valid search warrant or voluntary consent, to justify the taking of a blood sample as an incident thereto. State v. Garner, 227 Kan. 566, 608 P.2d 1321 (1980). | [
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Rees, J.:
Plaintiffs appeal from an order of dismissal reciting the ground for dismissal to be that “the action was not timely commenced as required by K.S.A. 60-203.”
On April 25, 1977, plaintiffs filed a petition in the Wyandotte County District Court seeking personal judgments against defendant, recovery for personal injuries and property damage arising out of an automobile accident that occurred on April 25, 1975, in Wyandotte County. The accident involved an automobile driven by defendant and an automobile owned and driven by plaintiff Sabino Davila. Plaintiff Diana Davila was a passenger in the latter automobile. The petition alleges “defendant is a resident of Wyandotte County, Kansas.”
K.S.A. 60-203 states:
“A civil action is commenced by filing a petition with the clerk of the court, provided service of process is obtained or the first publication is made for service by publication, within ninety (90) days after the petition is filed; otherwise the action is deemed commenced at the time of service of process or first publication. An entry of appearance shall have the same effect as service.”
It has been held “that jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance.” Haley v. Hershberger, 207 Kan. 459, 463, 485 P.2d 1321 (1971).
Summons was issued, apparently to the Wyandotte County sheriff, on April 26, 1977, for personal service on defendant; the return, dated April 27, 1977, and filed April 28, 1977, showed no service. Alias summons was issued to the Jewell County or Jefferson County sheriff on April 14,1978, for personal service on defendant; the return, dated April 24, 1978, and filed April 25, 1978, showed no service. No other issuance of summons is reflected by the record on appeal.
We gather from the appearance docket included as a part of the record on appeal that the mechanics for constructive service of process, service by publication, were initiated by the filing on July 20, 1977, of an affidavit for publication service as called for by K.S.A. 60-307(d). No proof of publication has been filed with the court by the publisher but the record on appeal includes a 1978 motion of plaintiffs that has attached to it a copy of proof of publication, in affidavit form, reflecting publication of notice on a single date, July 22, 1977, in a newspaper printed and published in Wyandotte County and which newspaper is authorized by law to publish legal notices. See K.S.A. 60-307(e). There is no showing in the record on appeal of compliance with the K.S.A. 60-307(f) requirement that a copy of the publication notice be mailed to the defendant. K.S.A. 60-307(e) requires publication once a week for three consecutive weeks. K.S.A. 60-307(g) provides that:
“Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in [K.S.A. 60-307] (e) and (f) ... r
Clearly, publication service has not been obtained; is not to be “deemed complete.” Further, constructive service upon defendant by utilization of the K.S.A. 60-307 procedure would not support subject matter jurisdiction for entry of personal judgments against defendant for plaintiffs’ injuries and damages arising out of the automobile accident since K.S.A. 60-307(b) explicitly provides that publication service “shall not warrant a personal judgment against [the] defendant.”
To this date there has been no perfected personal or completed constructive service of process upon defendant.
On June 19, 1978, the defendant filed a motion to dismiss in which he relied upon five of the seven defenses set forth in K.S.A. 60-212 (b); the two omitted defenses were improper venue and failure to join a necessary party. How defendant became aware plaintiffs had filed anything in court and why he was motivated to file his motion is not reflected in the record on appeal.
Ultimately, the trial court entered its order of dismissal.
In regard to limitations, K.S.A. 60-510 provides that:
“Civil actions . . . can only be commenced within the period prescribed in [K.S.A. 60-511 et seq.], after the cause of action shall have accrued.”
Plaintiffs concede this is an action coming within the two-year limitations period set by K.S.A. 60-513, but they contend the relevant facts are such that by operation of K.S.A. 60-517 there has been a tolling of limitations as to defendant. It is claimed defendant has absconded or concealed himself subsequent to April 25, 1975, the accident date.
No evidentiary proceedings took place in the trial court. When the trial court ruled on defendant’s motion to dismiss, the only possibly relevant information available to it was the information we have set forth above, excluding the copy of the publisher’s proof of service, and an affidavit of one Ed Bruns filed May 15, 1978. The Bruns affidavit, even if cognizable, is material only with respect to the question of tolling and will not be set forth. It is not material to our decision.
The trial court’s stated ground for its dismissal of plaintiffs’ claim causes us uncertainty. If “the action was not timely commenced,” it was by reason of noncompliance with the relevant parts of our statute of limitations, K.S.A. 60-510 et seq., not noncompliance with K.S.A. 60-203. Whether under the facts the tolling provision of K.S.A. 60-517 is applicable is not material.
For a court to act upon a claim for relief presented to it, the court must have subject matter jurisdiction and jurisdiction over the person of the parties. Here the trial court had personal jurisdiction over the plaintiffs; they subjected themselves to the trial court’s jurisdiction by filing their petition in that court. Service of process would result in jurisdiction over the person of defendant for exercise of the trial court’s subject matter jurisdiction, the power to enter and enforce personal judgments founded upon defendant’s alleged tortious conduct. The completion of service by publication, if there were such here, would result in jurisdiction over the person of defendant for exercise of the trial court’s power to enter and enforce a judgment or judgments affecting property, res or status. See K.S.A. 60-307(b). This latter jurisdiction is in rem, not in personam. Lillis v. Lillis, 1 Kan. App. 2d 164, 165, 563 P.2d 492 (1977). So far as is pertinent in this case, K.S.A. 60-203 provides that commencement of an action requires the filing of a petition and the obtaining of service of process; the obtaining of service of process is the obtaining of jurisdiction over the person of the defendant. In this case, service of process has not been obtained; the case has not been commenced for the purpose of fixing the time of its commencement.
Whatever may have been meant by the trial court’s statement of the ground relied upon by it for dismissal, the case was properly dismissed for the reason that service of process had not been obtained on defendant — there was, and is, lack of jurisdiction over the person of the defendant.
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Abbott, J.;
This is an appeal by the plaintiff, David R. Richard, from the denial of his claim against the estate of his deceased uncle, Alphonse Richard, for specific performance of an alleged oral contract.
The parties do not challenge the sufficiency of the evidence supporting the trial court’s rejection of the oral contract claim. Nor is there any issue in this appeal concerning the propriety of James S. Phillips, Sr., having acted as attorney for both the proposed ward, Alphonse Richard, and David R. Richard in an earlier guardianship and conservatorship proceeding. The sole issue is whether or not James S. Phillips, Sr., was guilty of ethical misconduct that should have resulted in his disqualification and, if so, whether that misconduct amounts to reversible error.
The record in this case spans more than 1200 pages. There is considerable conflict about what actually took place and also conflict between statements made to this Court and statements appearing in the record. We will attempt to set out the facts in chronological order as they appear to us from the record, beginning with a brief overlay of the events which the parties agree have occurred.
David Richard was living with his wife and two small children in Wichita in the late 1960’s while working and attending college. During the time he was in Wichita, he was represented in several matters by James S. Phillips, Sr. The nature and extent of the representation is in dispute. Alphonse Richard, David’s uncle, was an elderly man in poor health who owned considerable real estate near Brewster, Kansas. He phoned David in Wichita and made arrangements for David and his family to move to Brewster to participate in the farming of his land.
As the health of Alphonse Richard deteriorated, David suggested that James S. Phillips, Sr., be retained to prepare a general power of attorney whereby David would have authority to act in behalf of Alphonse. Alphonse requested David to contact Phillips; the power of attorney was prepared and Alphonse Richard executed it. Phillips later represented Alphonse (who had again enlisted David’s aid in contacting Phillips) in a farm tenancy eviction action.
A relative of Alphonse’s commenced an action on October 8, 1976, petitioning for her appointment as guardian and conservator for Alphonse. David once again contacted Phillips who undertook the defense opposing the appointment. Alphonse Richard died on March 6, 1977, in the midst of the guardianship and conservatorship proceeding. David petitioned for and was granted status as special administrator of the estate. On April 7, 1977, the court appointed Phillips to serve as co-counsel to the coadministrators of the estate. It is apparent from the court’s comments that each of the two factions selected an administrator, and the judge used the term “appoint” as to the lawyer for each faction to signify his acceptance of the parties’ compromise agreement. David later employed Thomas Oglevie as his counsel and then filed a claim against the estate, alleging that he was entitled to specific performance of an oral contract by Alphonse Richard to convey his property to David. David did not object to Phillips’ serving as co-counsel for the estate until midway through the trial of his claim when an objection was lodged to Phillips’ cross-examining David’s wife and a motion was made to have Phillips disqualified.
Prior to a ruling on the motion to disqualify, Phillips assured the trial judge that he had never represented Mrs. Richard “in this case.” He further assured the court that he had never advised David on legal matters involving Alphonse Richard’s estate and that his past representation of David was in “other matters unrelated to this case.” Although there is other controversy between David and Phillips, we are of the opinion the crux of David’s complaint stems from statements made by Phillips after David’s counsel, Oglevie, had informed the court David would testify that he had discussed the claim with Phillips and thought Phillips had given David legal advice concerning the claim. David did so testify later. The trial judge specifically inquired of Phillips about the claim and the following colloquy took place:
“THE COURT: Have you actuálly advised Mr. David Richard concerning this claim that he is now filing against the estate?
“MR. PHILLIPS: This claim for specific performance of this contract or this claim against the estate, absolutely not.
“MR. OGLEVIE: Well Judge, David Richard tells me otherwise.
“MR. PHILLIPS: Well, its not correct.
“THE COURT: If Mr. Phillips is going to sit there and tell me he has not represented Mr. David Richard concerning the filing of this claim or anything to do with this particular claim, I see no particular objection to him continuing in the matter. As I say, I have wondered about the whole relationship, but being late, I really have not had much of an idea who represented who or when.
“MR. PHILLIPS: Well, I represented Mr. Alphonse Richard as far as I’m concerned in the guardianship case, and I represented him-prior to the petition to appoint a proposed conservator and a proposed guardian. I had every right to represent him, he asked me to represent him, and I did represent him as far as I’m concerned.
“In this case, I have never advised any one of the heirs, and especially David Richard, to file this claim or had anything to do with it. The first time I knew about it was when I received a copy from Mr. Oglevie through the mail.”
The trial was to the court with the judge sitting as the trier of facts and in that capacity he had to decide whether he would believe David Richard and his wife. The trial judge was thus assured by the Richards’ lawyer, or former lawyer, that David Richard was not being truthful on crucial evidence. As an officer of the court, Phillips’ statements to the court are considered to be the equivalent of being given under oath. State v. Barrett, 207 Kan. 178, 184, 483 P.2d 1106 (1971).
Although not as significant as the above, prior to a ruling on the motion to disqualify Phillips, David’s lawyer (Oglevie) stated that the question of conflict of interest had been raised by Judge Birney in the guardianship proceeding. Phillips informed the court that, “Judge Birney never at any time, and I’ve got the transcript, objected to me representing Mr. Richard all through that proceeding.” In his brief, counsel misconstrues Judge Birney’s position in the guardianship proceeding. Judge Birney was considering a motion by Phillips to remove Alphonse Richard’s guardian ad litem and appoint Phillips. Judge Birney rather forcefully and bluntly pointed out the potential conflict of interest and denied the motion. Phillips somehow construes that action as approval by Judge Birney that he did not have a conflict. The only significance this has to this case is that Judge Birney has retired and the trial judge stated on the record that he had not read the transcripts of prior hearings and thus was relying in large part on statements of counsel in ruling on the motion to disqualify.
Much of the record and the briefs of both parties are devoted to attempting to prove or disprove whether Phillips represented David Richard after David moved from Wichita to the farm. As will be seen later, the record clearly and unquestionably proves that he did. Phillips, in his brief and in various affidavits filed, as well as in statements made at oral argument, took the position that he never represented David Richard after David left Wichita except as mere scrivener of the power of attorney, and that he never discussed David’s move to the farm with David prior to David’s leaving Wichita. Surely Phillips, somehow, misunderstood or poorly expressed his position.
Without unduly prolonging this opinion, the record unequivocally shows that Phillips first entered the guardianship case as attorney for David R. Richard only. He filed pleadings as David’s lawyer and verified at least one of them in David’s behalf. He later entered an appearance on behalf of Alphonse Richard. Thereafter, he signed and filed pleadings identifying himself as the attorney for both David and Alphonse Richard. He specifically filed a pleading on David’s behalf, requesting a protective order to prevent David from having to answer fiscal questions concerning his action in operating the farm for Alphonse Richard. This takes on significance because David’s deposition was taken wherein it appeared David was claiming he was to end up owning the farm in return for helping Alphonse, and in later proceedings in the conservatorship, opposing counsel so informed the court in Phillips’ presence.
After Alphonse Richard’s death on March 6, 1977, his sister filed a petition for appointment of her son and herself as coadministrators of the estate. Phillips, as David’s lawyer, then filed a petition to appoint David special administrator to operate the farm, and David was so appointed. Other pleadings were prepared, signed and filed by Phillips as lawyer for David and two other persons who are apparently his sisters. The parties then agreed to the appointment of two people, one suggested by Alphonse Richard’s sister and one suggested by David and his two sisters, as coadministrators, with each side’s lawyer acting as co-counsel. That order conclusively shows that Phillips was representing David and that the appointments were made with consent of counsel. Phillips, as David’s attorney, next closed out the special administration of the estate. A claim for special administrator’s fee was then prepared on David’s behalf on legal paper bearing Phillips’ name and address.
On September 2, 1977, Thomas Oglevie filed the claim for David that is the subject of this appeal. Phillips did not and has not to this day requested permission to withdraw as David’s attorney of record.
In October of 1977 the coadministrators filed a petition alleging that Phillips had actually represented David in the guardianship and conservatorship proceedings, that David had wrongfully used Alphonse’s money to pay Phillips, and praying that David be ordered to repay that money to the estate. Phillips himself, as attorney for the estate, prepared notices setting for hearing David’s claim for special administrator’s fee, claim for services in the guardianship, and the estate’s counterclaim in the amount of $17,774.64 against David for improper expenditure of funds. We also note the transcripts contain admissions by Phillips that he did represent both David and Alphonse Richard at various times after David moved to the farm and up to the date of Alphonse’s death.
The trial judge, after reviewing a portion of the various records available to him and hearing argument of counsel, declined to disqualify Phillips. Generally it is within the sound discretion of the trial court to determine from all the circumstances whether alleged misconduct of counsel may have influenced a verdict, and its conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly error. Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 443, 581 P.2d 372 (1978); Miller v. Braun, 196 Kan. 313, 316, 411 P.2d 621 (1966). Although the case at hand was tried to the court and had no jury involved, the district court’s discretion remains the same. See Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 259, 531 P.2d 428 (1975). In an action tried to the court, the Kansas Supreme Court in Mildfelt v. Lair, 221 Kan. 557, 569, 561 P.2d 805 (1977), upheld a trial court’s decision not to disqualify an attorney for an alleged conflict of interest when the evidence showed no abuse of discretion on the part of the court. Therefore, plaintiff shoulders the formidable burden of showing that the trial court’s ruling amounted to an abuse of discretion.
As we construe the position of the estate, it consists of three sequential arguments: (1) that no attorney-client relationship existed between Phillips and David Richard; (2) that if such a relationship should be found (and we have so found), Phillips’ representation did not involve a conflict of interest; and (3) that if we are of the opinion there was an ethical infraction, there was not sufficient prejudice to warrant reversal of the district court’s judgment concerning the oral contract.
We emphasize that the Kansas Supreme Court has exclusive jurisdiction to discipline lawyers for violation of our Code of Professional Responsibility. Our concern is whether any alleged violations resulted in the denial of a fair trial to David Richard. The record conclusively and overwhelmingly establishes an attorney-client relationship. The record is replete with pleadings prepared for David by Phillips evidencing such a relationship and with Phillips’ own admissions of his representation. Furthermore, an attorney’s responsibility to his client does not end when the client employs a different attorney to present his claim. As this Court held in Alexander v. Russo, 1 Kan. App. 2d 546, 552, 571 P.2d 350, rev. denied September 28, 1977:
“ ‘[I]t has been emphasized that the duty of fidelity and good faith imposed upon the attorney in dealing with his client is founded, not on the professional relation per se, but on the influence created by the relation, and that the duty does not always cease immediately on the termination of the relation but continues as long as the influence created by that relationship continues to exist.’ ”
We turn to the question whether Phillips’ service as co-counsel to the estate of Alphonse Richard created a conflict of interest in violation of the Code of Professional Responsibility. Plaintiff directs this Court to State v. Leigh, 178 Kan. 549, 289 P.2d 774 (1955), quoting at 552:
“It is the honor of the legal profession that its fidelity to its clients can be depended upon, that a person may safely go to a lawyer and counsel with him upon personal and confidential matters with the absolute assurance that the lawyer’s tongue is tied from ever divulging it, and a strict enforcement of this rule requires that an attorney, on terminating his employment, cannot thereafter act as counsel against his client in the same general matter, even though, while acting for his former client, he acquired no knowledge which could operate to the client’s disadvantage in the subsequent, adverse employment, and this rule applies not only to civil, but criminal cases. An attorney cannot be permitted to participate in the prosecution of a criminal case if, by reason of his professional relations with the accused, he has acquired knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith.”
Following closely on the heels of the Court’s decision in Leigh came Wilson v. Wahl, 182 Kan. 532, 539, 322 P.2d 804 (1958). Discussing the propriety of one attorney filing claims against a city and later accepting employment by the city to defend damage actions, which included actions brought by some of his former clients, the Court stated:
“No dishonesty or intentional wrongdoing is imputed to Mr. Wahl, and neither has it been made to appear that any information obtained by him in connection with the preparation of the statutory claims has been used by him in violation of his obligations as an attorney to the disadvantage of any of these plaintiffs. Nevertheless, there is no doubt in our minds, and we have no hesitancy in holding, that under the circumstances he should not have accepted the employment in behalf of the city in defense of the damage actions, and that his doing so constituted a violation of the spirit, if not the letter, of the mentioned Canons of Professional Ethics and the elementary general rules laid down in the authorities cited. When confronted with such a situation, and doubt exists in the mind of an attorney as to the proper course to follow, the doubt always should be resolved in favor of not accepting the employment. An attorney should avoid not only situations where a conflict of interest is actually indicated, but also those in which a conflict is likely to develop.”
An attorney must not represent conflicting interests or undertake duties which are inconsistent. State v. Sullivan & Smith, 210 Kan. 842, 504 P.2d 190 (1972). Based on opposing counsel’s statement, the court and Phillips were aware that Phillips would or should be called as a witness and his testimony would relate to a contested matter, a practice that is prohibited by DR 5-101 (224 Kan. cii) of the Code of Professional Responsibility. It would appear that Phillips was also in violation of DR 5-105 (224 Kan. ciii). David Richard argues the case should be reversed and remanded for a new trial so that he can use discovery and obtain Phillips’ file and call him as a witness. We summarily reject that argument, as nothing prevented that being done in this action. The estate correctly contends that the sole issue at the trial was the validity of the alleged oral contract, so that in this case an ethical examination should be confined only to injurious conduct related to that contract.
Prior to the claimant’s testifying, his former lawyer, as an officer of the court (who now represents the other side), implied to the trier of facts that his former client was not telling the truth. In addition, in a transcript available to the trial judge as part of this case, there is a statement by Phillips to the district judge that he had a thorough knowledge of the agreements made between Alphonse and David Richard. Those questions without doubt pit the lawyer’s credibility against the credibility of his former client in the same case in which the lawyer had represented his former client. The Kansas Supreme Court recently stated in In re Estate of Moore, 219 Kan. 719, 723-24, 549 P.2d 981 (1976) that "[t]he relationship of attorney and client is a sensitive one and an attorney should always guard against putting himself in a position where a conflict of interest may arise or even a position that might give an appearance of conflicting interest.”
In State v. Leigh, 178 Kan. at 552, it is stated:
“[Ajttorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. When an attorney has once been retained and received the confidence of a client, he cannot enter the services of those whose interests are adverse to that of his client or take employment in matters so closely related to those of his client or former client as, in effect, to be a part thereof. The rule is a rigid one, and it is well that it is so. It is designed not only to prevent the dishonest practitioner from fraudulent conduct, but to preclude the honest practitioner from placing himself in a position where he may be required to choose between two conflicting duties.”
“Differing interests” is defined by the Code of Professional Responsibility as including “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.” (224 Kan. cix.)
Our Supreme Court has held that misconduct of counsel that prevents the parties from obtaining a fair trial constitutes reversible error. Smith v. Blakey, Administrator, 213 Kan. 91, 96, 515 P.2d 1062 (1973). When it appears that a violation of the Code of Professional Responsibility has resulted in prejudice to a client or former client to the extent the prejudice created prevented the client or former client from obtaining a fair trial, this Court has authority to grant a new trial.
A client can waive any error created by a violation of the Code of Professional Responsibility in a civil case by failure to object. Although the objection here was lodged long after it should have been, there is nothing in the record to indicate that David Richard or his counsel could have anticipated the questions from the court and answers that would follow, and it is those remarks that are prejudicial. A client may also expressly or impliedly consent to an attorney’s representing adverse interests, but there is no evidence in the record in this case that the client did so. In fact, David Richard’s testimony and Oglevie’s statements to the court indicate David thought Phillips was representing his interests until it became apparent to all concerned that Phillips was not.
Although there is ample evidence to support the trial court if a question of sufficiency of evidence were being presented, that is not the question before this Court. The question here is whether Phillips’ answers to the court under the facts of this case denied claimant a fair trial. We believe they did. The trial judge obviously believed Phillips, who did not testify and thus was not available for claimant to cross-examine; nor could claimant attempt to refresh Phillips’ recollection. Had the trial judge not believed Phillips, he obviously would have removed him from the case.
Under the circumstances of this case, counsel should have voluntarily withdrawn; and upon counsel’s failure to voluntarily withdraw, the trial judge should have removed him. We are of the opinion that David R. Richard was denied a fair trial; therefore, the judgment cannot stand, regardless of any views we may have from our examination of the record before us concerning the merits of the claim against the estate.
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Meyer, J.:
In December, 1976, an automobile was stolen from a dealer’s lot. The dealer’s insurance company, United States Fidelity and Guaranty Company (appellant), paid the dealer for his car, received title to it, and then brought an action in replevin for the car against Henry L. Marshall, d/b/a Marshall’s Portable Service and Body Shop (appellee), who had repaired and painted the vehicle.
It develops that on March 2, 1977, a person calling himself “Aqureleza” brought the car to appellee requesting repairs and a paint job. Appellee never saw “Aqureleza” again.
The trial court granted possession of the automobile to appellant but granted appellee judgment in the amount of $1617.19 on the theory of unjust enrichment.
The issue in this case is whether the trial court erred in granting appellant’s claim for repairs made to the automobile on the theory of unjust enrichment.
It is to be initially noted that appellee cannot avail himself of any statutory remedy. The artisan’s lien statute, K.S.A. 58-201, provides in part:
“Whenever any person at, or with the owner’s request or consent shall perform work, make repairs or improvements on any goods, personal property, chattels, horses, mules, wagons, buggies, automobiles, trucks, trailers, locomotives, railroad rolling stock, barges, aircraft, equipment of all kinds, including but not limited to construction equipment, vehicles of all kinds, and farm implements of whatsoever kind, a first and prior lien on said personal property is hereby created in favor of such person performing such work or making such repairs or improvements and said lien shall amount to the full amount and reasonable value of the services performed, and shall include the reasonable value of all material used in the performance of such services.” (Emphasis added.)
There is no evidence in the present case that appellant either requested or consented to the repairs by appellee as required by the statute. Thus, appellee’s remedy, if any, must be on common law principles.
Likewise, it is to be noted that no true contractual remedy exists for appellee against appellant. The facts indicate a contractual relationship between “Aqureleza” and appellee but the evidence indicates no such relationship between appellant and appellee. Appellee, therefore, relies on the theory of a quasi-contract. Kansas cases have recognized such a theory. In Witmer v. Estate of Brosius, 184 Kan. 273, Syl. ¶ 3, 336 P.2d 455 (1959), it is stated:
“Unlike true contracts, quasi-contracts are not based on the apparent intention of the parties to undertake the performance in question, nor are they promises. They are obligations created by law for reasons of justice founded upon principles of unjust enrichment.”
Cf. Sharp v. Sharp, 154 Kan. 175, 178, 117 P.2d 561 (1941); Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, 465, 507 P.2d 268 (1973); Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 708, 549 P.2d 1376 (1976). However, the issue in the present case has not been dealt with by the Kansas courts and has scarcely been confronted by other jurisdictions.
Finally, it should be noted that a variety of similar terms are engaged by those dealing with the present subject, including the following: quasi-contracts, restitution, constructive contracts, and unjust enrichment. In this regard, the following statement found in 17 C.J.S., Contracts § 6, p. 571, is relevant:
“[T]he terms ‘restitution’ and ‘unjust enrichment’ are modern designations for the older doctrine of quasi contracts, and the substance of an action for ‘unjust enrichment’ lies in a promise, implied by law, that one will restore to the person entitled thereto that which in equity and good conscience belongs to him.”
Though technical distinctions may be found between such terms, no further attempt will be made herein to differentiate between these similar theories.
Appellant relies on the rule stated in the Restatement of Restitution, § 42(2) (1936):
“A person who, in the mistaken belief that he or a third person on whose account he acts is the owner, adds value to the chattels of another, is not thereby entitled to restitution from the owner for the value of his services or the increased value given to the chattels; but if the owner brings an action for their conversion the added value or the value of the services, whichever is least, is deducted from the damages.”
Thus appellant argues that since this is an action seeking replevin, not damages for conversion, appellee cannot recover.
A recent treatise on the subject of restitution states the general rule as follows:
“Ordinarily, one who by mistake improves another’s goods does so at his peril, and cannot hope for restitution.” Douthwaite, Attorney’s Guide to Restitution, § 2.6, p. 76 (1977).
Professor Douthwaite recognizes an exception to the rule, that is, where improvements are made “as a result of a manifestation of the owner’s desire for them, if not an actual misrepresentation by the owner.” However, the present facts do not appear to conform to the exception.
Douthwaite gives the following example and comments:
“Client, mistakenly believing that a chattel belongs to him, works on Owner’s chattel to make it a far more valuable chattel.
“. . . Client should take whatever steps are conceivably practicable to obstruct any attempt on the part of Owner to regain possession, either by self-help or by legal process such as replevin, or so-called claim and delivery. If this comes to pass, Owner will owe him no duty to compensate for the improvements.
“Despite this, and odd though it may sound, if Owner sues in equity for specific restitution of the chattel, the court may well require him to ‘do equity’ by conditioning its decree on compensation. And if Owner sues in tort for conversion, the court will allow Client a setoff for the value of his services, or for the added value to the chattel, whichever is the lesser sum.
“If Client has already sold the chattel as improved, it is likely that Owner will recover only the market value as it was before the improvements were made. But if he sells after learning of another’s ownership, he is no longer an innocent converter and would be liable for the proceeds.” (Emphasis added.) pp. 77-78.
The above comments suggest that the duty to compensate depends on the remedy employed by the owner of the chattel; if replevin or other action to obtain possession is used, there is no duty to compensate; if suing for specific restitution or conversion, such duty arises.
The comments to § 42(2) of the Restatement of Restitution likewise discuss the remedies of replevin and conversion:
“d. The position of the one improving chattels is made less difficult because of the fact that ordinarily he has taken possession of them and the owner of the chattel is not in a position to get them back in specie. The owner’s redress is usually either by an action for conversion or an action of replevin. In the action for conversion the damages as against an innocent improver are reduced by the value of the improver’s labor and materials; in the action of replevin the possessor can ordinarily defeat specific recovery by giving a bond, the damages being the same as in an action for conversion (see § 154).”
Here, the appellant brought an action in replevin and appellee did not defeat specific recovery by giving a bond. He, therefore, is foreclosed from recovery of the value of his labor or materials from the owner.
The closest cases on point appear to be Cahill v. Hall, 161 Mass. 512, 37 N.E. 573 (1894), and Clarke v. Johnson, 43 Nev. 359, 187 Pac. 510 (1920).
The rationale for defeating a claim for repairs mistakenly made to another’s truck was explained in Clarke, 43 Nev. at 365-66:
“The repairs, at the time plaintiff took possession of the trucks, had gone into and become a constituent part of the property. In this situation the owner had no alternative, no choice but to accept the services. This being the fact, there was no implied promise on the part of the owner to pay for the services, nor did the law create one.”
The only relatively recent cases found come from New York and deal with repair claims made by innocent purchasers of stolen automobiles against the true owners. For example, in Eddie’s Auto Body Wks., Inc. v. Lumbermen’s Mut. Cas. Co., 28 App. Div. 995, 283 N.Y.S.2d 306 (1967), the following is stated:
“It is our opinion that plaintiff, deriving its title from a thief, may not assert against the true owner or one standing in privity with the owner any claim for the automobile or the cost of repairs or improvements thereto made without the consent of the owner or its successor in title [cites omitted].”
See also Winney v. Leuci, 189 Misc. 441, 74 N.Y.S.2d 585 (1947).
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Swinehart, J.:
This appeal arose out of a transaction for the purchase of cattle. The Kansas plaintiffs, George Davis, James Habiger and Steven Rupert, appeal from a judgment of the district court of Ottawa County dismissing their petition for lack of jurisdiction over the person of the defendant C. C. Grace, a Missouri resident.
The plaintiffs contend that the trial court erred by holding that the defendant lacked sufficient minimum contacts with Kansas to vest the Kansas courts with personal jurisdiction over him.
Before stating the facts, we note that the issue on appeal is very narrow. However, some of the facts contained in the briefs of both parties go far beyond those necessary to resolve that issue. For example, the defendant states that he made no contract with Davis and Habiger because he was unaware of any partnership agreement that may have existed among the three plaintiffs. The district court set aside its finding on this point and we need not decide that question. As the merits cannot be reached on this appeal, the facts set forth herein address only the in personam jurisdiction question.
In August, 1973, plaintiffs George Davis, James Habiger and Steven Rupert were residents of Ottawa County, Kansas. The defendant C. C. Grace lived on a farm two miles north of Koshkonong, Missouri, near the Arkansas-Missouri border. For over twenty-five years, the defendant had operated a business as an order buyer for cattle which he purchased at Missouri and Arkansas sale barns for buyers in several states, including Kansas, Oklahoma, Minnesota and California. During August plaintiffs had discussed among themselves the possibility of purchasing some cows together, with each man receiving a one-third interest.
Plaintiff Rupert, a farmer in Ottawa County, had purchased approximately 2,000 head of cattle through the defendant over a period of several years prior to the transaction involved in this lawsuit. The record does not reveal how the two men met. In his deposition defendant stated Rupert came to his home in Missouri after learning about the defendant’s work through someone else. In August, 1973, Rupert called the defendant at his home in Missouri about several cattle purchases. During one of these conversations, Rupert told the defendant that he wished to purchase a truckload of cattle and told him the type of cattle he wanted. Rupert telephoned Habiger who was vacationing in Missouri to discuss the matter with him. Habiger then called the defendant in Missouri and spoke with him about the cattle, telling him that they were interested in pregnant cows. The defendánt, however, stated he could not recall whether such a conversation ever took place. Plaintiff Davis never spoke with the defendant about the transaction.
The defendant purchased cows for Rupert’s account with invoice and shipment dates of August 19, August 20, and August 23, 1973. There is some discrepancy in the numerous documents in this record as to exactly which one of these purchases constituted the transaction that gave rise to this suit. However, it would appear from the briefs that the fifty-two cattle which Rupert purchased and later sold a one-third interest in to the other two plaintiffs were received by him on August 20, 1973. Rupert arranged for this transaction by a telephone call made from his home in Kansas to the defendant’s home in Missouri. In his deposition the defendant stated the transaction in question was completed on the basis of a telephone call he received on August 22, 1973, in Batesville, Arkansas, the location of the sale barn where he purchased the cattle for Rupert, but the briefs indicate the call was received in Missouri. Regardless of which dates or which location the defendant received the order, it is clear that the defendant received the calls outside the State of Kansas, and never personally entered the state after purchasing the cattle and arranging for their shipment to Minneapolis, Kansas. After purchasing the cattle in Arkansas the defendant sent the cattle directly to Minneapolis by an independent trucker whom he had hired f.o.b. freight collect. Rupert had the right to inspect the cows and if he decided to reject them, they were to be returned to the defendant within a reasonable time. Rupert paid the trucker for delivery of the cows and also gave him a check to return to the defendant to cover the purchase price and the defendant’s commission.
The defendant also sent negative brucellosis test reports along with the cows when shipped. Apparently some discrepancies between the numbers on the cows tested and the numbers on the test reports existed. In any event, certain cows in the herd were later found to have brucellosis and, as a result, were sold. Eventually, the plaintiffs sold the entire herd when they were unable to alleviate the infection.
Plaintiffs’ first attempt to file suit in the district court of Ottawa County failed when the court found in July of 1975.that service of process on the defendant did not comply with law. New summons was later duly served on the defendant. The defendant answered, specifically contending that the district court of Ottawa County had no subject matter or personal jurisdiction. Before the court reached any determination on those questions, the plaintiffs were allowed to amend their petition to allege additional causes of action. In essence, they pleaded that the defendant breached a contract he entered into with the plaintiffs for the purchase of cattle, and that he further breached his implied warranty of merchantability because the cows were infected with brucellosis. Therefore, the plaintiffs sought inciden tal and consequential damages of $14,257.64. Count II was based on alleged fraudulent conduct on the part of the defendant in that he knowingly sent false and fraudulent brucellosis test reports with the fifty-two cattle and therefore the plaintiffs sought punitive damages of in excess of $10,000. Alternatively in Count III the plaintiffs sought $14,257.64 if it were determined that the defendant was an agent for the plaintiffs and that he negligently performed that agency. In answer to the amended petition, the defendant again, among other things, denied that the court had jurisdiction of the subject matter or over him.
After conducting much discovery, the defendant filed a motion to dismiss against each of the plaintiffs on the grounds that the court had no personal jurisdiction over him and that the amended petition was barred by the appropriate statute of limitations. In a journal entry filed on September 25, 1978, which incorporated a letter opinion dated September 6, 1978, the trial court dismissed the plaintiffs’ action for lack of personal jurisdiction over the defendant. In the incorporated opinion letter the trial court had found that the alleged contract between the parties was made in Missouri. The court also found that the defendant did not have the necessary contacts in Kansas to satisfy due process requirements under the Fourteenth Amendment, and therefore, long-arm jurisdiction could not be established over him under K.S.A. 60-308(h)(l) or (5). In addition, the court found that there was no partnership among the plaintiffs or joint venture regarding the transaction alleged in the amended petition. Later in a journal entry filed on December 14, 1978, the court altered and amended the September 25 journal entry on the motion of plaintiffs and struck that portion of the memorandum decision finding that no partnership existed among the parties. Plaintiffs appealed on October 13, 1978.
Two questions must be addressed to determine whether the trial court properly concluded that it lacked personal jurisdiction over the defendant. First, did the transaction giving rise to the plaintiffs’ suit fall within any of the provisions of K.S.A. 60-308(h), the Kansas long-arm jurisdiction statute? On appeal the plaintiffs submit that the transaction is encompassed within section (h)(5) (the contract provision). Second, if any of the provisions of K.S.A. 60-308 are met, would the exercise of in personam jurisdiction by the Kansas district court over the defendant afford him due process of the law under the Fourteenth Amendment? The trial court concluded that the transaction could not be constitutionally encompassed within 60-308(h)(5) or (h)(1) (doing business provision), because the defendant lacked the requisite minimum contacts with Kansas to satisfy the due process requirements and the unilateral activities of the plaintiffs in Kansas were not sufficient to confer jurisdiction upon the Kansas courts.
K.S.A. 60-308(h)(l) and (5) read as follows:
“(b) Submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
“(1) The transaction of any business within this state;
“(5) Entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state;”
Plaintiffs urge that the defendant has submitted himself to the jurisdiction of the Kansas courts because he entered into a contract with the plaintiffs, Kansas residents, to purchase cows in their behalf. The offer was made over the telephone by Rupert in Kansas and accepted by telephone by the defendant in Missouri. Defendant agreed to buy the cows and have them and their brucellosis test reports transported to Kansas f.o.b. freight collect by an independent trucker he was to hire. Further, the plaintiff Rupert was to inspect and then to accept or to reject the cows in Kansas and pay the trucker for his services. Rupert was also to deliver to the trucker the defendant’s fee, a check drawn on a Kansas bank account, which included payment for defendant’s services, as well as the sums he advanced for the cows. Undoubtedly, this transaction falls within the literal language of K.S.A. 60-308(h)(5). The place where the contract was actually made, which is discussed at great length in the plaintiff’s brief, is really irrelevant to this initial inquiry.
Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P.2d 1248 (1974), was the first case to construe 60-308(b)(5). The court found that subsection, a 1971 amendment, was intended to broaden the effect of the statute. That is, 60-308(h)(5) was designed to escape the rather narrow definition that had been placed upon subsection (h)(1). Misco-United Sup ply and the other Kansas cases which have applied 60-308(b)(5) do not always clearly differentiate between the two issues as considered on this appeal, i.e., whether both the statutory and constitutional requirements were met. In fact, Misco is decided upon the due process requirements. Those arguments in Misco and its progeny will be discussed later. Undoubtedly the transaction between the parties herein falls within the scope of K.S.A. 60-308(b)(5) on its face.
In enacting K.S.A. 60-308, the legislature intended to extend the jurisdiction of Kansas courts to the full extent authorized by the due process clause of the Fourteenth Amendment to the United States Constitution. Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849; White v. Goldthwaite, 204 Kan. 83, 460 P.2d 578 (1969); Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 (1968); Rosedale State Bank & Trust Co. v. Stringer, 2 Kan. App. 2d 331, 579 P.2d 158 (1978). Therefore, this court must also be satisfied that the district court’s exercise of jurisdiction over the defendant does not violate his constitutionally protected right of due process.
The power of a state court to render a valid personal judgment against a nonresident defendant is limited by the due process clause of the Fourteenth Amendment. Kulko v. California Superior Court, 436 U.S. 84, 91, 56 L.Ed.2d 132, 98 S.Ct. 1690 (1978). In a recent opinion, World-Wide Volkswagen Corp. v. Woodson, _ U.S. __, 62 L.Ed.2d 490, 100 S.Ct. 559 (1980), the United States Supreme Court reaffirmed the ability of a state court to exercise personal jurisdiction over a nonresident defendant only so long as there exist “minimum contacts” between the defendant and the forum state. World-Wide Volkswagen Corp. v. Woodson, 62 L.Ed.2d at 498, relying upon Internat. Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L.Ed. 95, 66 S.Ct. 154 (1945). The minimum contacts requirement protects a nonresident defendant from the burden of litigation in an inconvenient or distant forum and also ensures that the individual states do not exceed the limits imposed due to their status as coequal sovereigns under our federal system. World-Wide Volkswagen Corp. v. Woodson, 62 L.Ed.2d at 498.
The minimum contacts requirement applied to foreign corporations in Internat. Shoe Co. v. Washington has also been applied to natural persons. See Annot., 20 A.L.R.3d 1201. “The differences between individuals and corporations may, of course, lead to the conclusion that a given set of circumstances establishes state jurisdiction over one type of defendant but not over the other.” Shaffer v. Heitner, 433 U.S. 186, 204, n. 19, 53 L.Ed.2d 683, 97 S.Ct. 2569 (1977).
Mechanical or quantitative criteria are insufficient to determine whether the contacts justify subjecting a nonresident defendant to the jurisdiction of a state court. Rather, the nature and quality of the activity must be examined to determine whether due process has been afforded. Internat. Shoe Co. v. Washington, 326 U.S. at 318, 319. In every case there must be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Further, unilateral activities of those claiming some relationship with the nonresident defendant are insufficient to satisfy the requirement of contact with the forum. Hanson v. Denckla, 357 U.S. 235, 253, 2 L.Ed.2d 1283, 78 S.Ct. 1228 (1958).
World-Wide Volkswagen Corp. v. Woodson expounded upon some of these accepted principles by discussing the role of “foreseeability” as a criterion for establishing in personam jurisdiction. Apparently “foreseeability” is a factor to be considered in determining whether a nonresident defendant has purposefully availed itself of the privilege of conducting its business within the forum. Although finding foreseeability of injury in thé forum was not sufficient for personal jurisdiction under the due process clause, the court acknowledged that it was not wholly irrelevant. “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 62 L.Ed.2d at 501. Given the pattern of defendant’s cattle transactions with plaintiff Rupert and additional residents of Kansas and other states, defendant seemingly meets this standard.
Furthermore, World-Wide Volkswagen Corp. v. Woodson provided that if the sale of the product is not an isolated one, “but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States” if the product has caused injury there. World-Wide Volkswagen Corp. v. Woodson, 62 L.Ed.2d at 501-502. Even though defendant here did not own the cattle in question, certainly his “services” are sufficiently analogous to the sale of products to adopt the rationale of World-Wide Volkswagen to this lawsuit.
Three cases decided by the Kansas courts which address the due process problems relating to in personam jurisdiction are instructive. In Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, the plaintiff, a Kansas corporation with its principal place of business in Wichita, sold the defendant, an Illinois corporation, five tank liners. The court declined to find that Kansas had personal jurisdiction over the defendant corporation consistent with the due process provisions of the Fourteenth Amendment, because the defendant lacked sufficient contacts with the state. The court emphasized that the entire performance of the contract occurred outside of Kansas. No manufacturing was performed here and none of the goods in question were ever brought into the state. Furthermore, none of the defendant’s personnel had ever been here. The only actual contact of the defendant with Kansas was a phone call to plaintiff in Wichita to place its order. “In effect, plaintiff corporation merely acted as a clearing-house for what was essentially an out-of-state transaction.” 215 Kan. at 854. Additionally, the court could not find that the defendant purposefully availed itself of the privilege of conducting any activity here. The mere placing of an order for goods by phone with a Kansás resident was insufficient to invoke the benefits and protections of Kansas law. Finally, the court observed that no substantial hardship would result from denying jurisdiction.
In Prather v. Olson, 1 Kan. App. 2d 142, 562 P.2d 142 (1977), and Rosedale State Bank & Trust Co. v. Stringer, 2 Kan. App. 2d 331, this court relied upon the factors set forth in White v. Goldthwaite, 204 Kan. 83 (a K.S.A. 60-308[fe][l] case), which must coincide to determine whether in personam jurisdiction may constitutionally be exercised over a nonresident defendant. In both Prather v. Olson and Rosedale State Bank & Trust Co. v. Stringer, jurisdiction had been invoked under both 60-308(fe)(l) and (h)(5). The test set out in White v. Goldthwaite, 204 Kan. at 88, is as follows:
“From the foregoing cases it appears there are three basic factors which must coincide if jurisdiction is to be entertained over a nonresident on the basis of transaction of business within the state. These are (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.”
Prather v. Olson involved a Kansas plaintiff who had entered into a tax shelter cattle leasing program with a nonresident defendant. The court concluded that the contacts which occurred in Kansas were both more numerous and significant than those described in Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849. The plaintiff in Prather v. Olson had learned of the defendant’s program through friends in Kansas and the defendant’s accountant, plaintiff’s neighbor, had discussed the program with plaintiff in Kansas. The plaintiff also paid for the cattle and received his bill of sale for them here. Lease payments were made to the plaintiff and he had assented to two extensions of the lease in Kansas. The court found that the defendant initiated the transaction by mail and through his accountant, but initial contact alone did not appear to be an indispensable element when the other contacts were sufficient. Indeed, elsewhere it has been held that initial contact is not decisive. Pedi Bares, Inc. v. P &C Food Markets, Inc., 567 F.2d 933, 937 (10th Cir. 1977). Note also that in Prather as in this case the nonresident individual defendant was a seller who stood to gain economic advantage from this state through his business transactions.
In Rosedale State Bank & Trust Co. v. Stringer, 2 Kan. App. 2d 331, a loan was made in Kansas from a Kansas bank. The loan sum was deposited in and subsequently withdrawn from the plaintiff Kansas bank. When the loan was due, a renewal note was executed by the nonresident defendant in Missouri. The court found that the location of the execution of the renewal was immaterial as the parties intended that the note was to be delivered and accepted by the Kansas bank and that all payments were to be made there. The agreement would also have substantial effect in Kansas. The court distinguished Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, stating that the transaction before it was not a unilateral agreement for payment as was the Misco-United transaction. Therefore, the court found sufficient contacts to support in personam jurisdiction over the nonresident defendant in Kansas.
The Goldthwaite test appears entrenched in Kansas case law as the standard for determining whether the exercise of in personam jurisdiction over nonresident defendants would offend their constitutional right to due process. Although this test had been stated differently in other jurisdictions, it nonetheless appears to accord with the most recent pronouncements by the United States Supreme Court on the subject.
Therefore, this test should be applied to the case at bar as follows:
(1) Although it is not clear from the record who initiated the continuing buyer/seller relationship between Rupert and the defendant several years prior to the transaction in question, and despite the fact that the plaintiff Rupert initiated the contact with the defendant in this particular case, the defendant was required to perform a substantial part of the contract in Kansas. Defendant was responsible for delivery into the State of Kansas the cattle and the brucellosis test reports through an independent trucker whom he hired for that purpose. In addition, the defendant was required to return the cattle to himself if the cattle were rejected by the plaintiffs. Under the facts of this case, upon the acceptance of the cattle by plaintiffs in Kansas, the defendant had completed the performance of his part of the contract. And the trucker might be appropriately viewed as defendant’s agent. Further, any failure to so deliver the cows or accept their return would undoubtedly have constituted a breach of defendant’s contract with plaintiff Rupert, even though defendant was not to personally deliver them. Therefore, the first factor in Goldthwaite is met.
(2) The second factor is easily satisfied. Clearly, the plaintiffs’ claim that the cows were not free from brucellosis as reported in the test reports arose from the agreement between the parties.
(3) The nonresident defendant was an individual who regularly carried on similar business transactions not only with plaintiff Rupert, but also with other Kansas residents. Although defendant obtained the cattle for his buyers from states other than Kansas, unlike World-Wide Volkswagen, it was completely foreseeable that their ultimate destination was within this state and he could anticipate that any complaints regarding them would originate here. Furthermore, defendant could be deemed to be invoking the benefits and protections of the laws of this state because he was substantially performing part of his contract here (delivering the cows). He also was deriving substantial economic gain from his Kansas transactions. His payments were to be received through a Kansas bank by his agent in Kansas. Defendant should not be allowed to insulate himself from suit in Kansas simply because he never personally entered the state.
Additionally, defendant is a nonresident individual, not a corporation, who regularly engaged in commerce with Kansas residents, and it would not appear to cause substantial hardship to force him to defend in this state. Regardless of where the trial is held, witnesses for the parties will likely be compelled to come from Kansas, Missouri and Arkansas. Therefore, Kansas appears to be as convenient a forum as any of the possibilities. (For an extensive discussion of cases on the subject from foreign jurisdictions, see Annot., 23 A.L.R.3d 551.)
Therefore, these considerations satisfy the third factor in Goldthwaite, and on this basis the judgment of dismissal is reversed and the case is reinstated for further proceedings. | [
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Abbott, J.:
This is an appeal in a personal injury accident arising out of a multi-vehicle collision from an order sustaining defendants’ motions for summary judgment and entry of judgment pursuant to K.S.A. 60-254(fc).
The accident in question occurred on Metcalf Avenue in Overland Park. Metcalf is a four-lane highway (two lanes north, two lanes south) and is divided at the site of the accident by a solid double yellow line. The four vehicles involved were all traveling in the center, northbound lane at the time of the accident. All witnesses described the traffic as heavy that morning.
Plaintiff was operating a motorcycle. Directly in front of him was a car driven by defendant Gray who is not involved in this appeal. In front of Gray’s car was a vehicle operated by Dick Peugeot who was not named as a defendant in the lower court and is not a party to this appeal. In front of Peugeot’s car was another vehicle which has never been identified and which will be referred to as the uninsured motorist. Basically stated, the accident occurred when the uninsured motorist stopped and made a left turn across the southbound lanes into a bank driveway located on the west side of Metcalf. Peugeot had stopped behind the uninsured motorist and had started forward when he was struck from the rear by Gray’s vehicle. Plaintiff was unable to stop his motorcycle and, in turn, collided with Gray’s vehicle, sustaining serious injury. None of the vehicles came into contact with the uninsured motorist. Plaintiff filed suit against the two insurance companies that provided him with uninsured motorist coverage and against the defendant Gray. The action against Gray is still pending in the district court.
The two insurance companies moved for summary judgment on the basis that: (1) the uninsured motorist provisions of the respective policies did not extend to provide coverage in the instant case since the policies required contact between the insured’s motor vehicle and the uninsured motorist’s vehicle and it was stipulated that no such contact occurred; and (2) as a matter of law, the documents, depositions and pleadings on file conclusively showed that the uninsured motorist was not negligent in any respect.
The trial court sustained the motions on both grounds. On appeal, plaintiff contends the court erred in both respects. As to the “physical contact” provision issue, plaintiff correctly argues that in view of a decision handed down by the Supreme Court after the trial court’s decision the physical contact provision of the insurance policies is void and unenforceable. Simpson v. Farmers Ins. Co., 225 Kan. 508, 515, 592 P.2d 445 (1979). Defendants concede Simpson is controlling, but maintain that the judgment should be upheld on the basis that the trial court properly entered summary judgment in that plaintiff failed to establish a prima facie case of negligence on the part of the uninsured motorist.
The rules governing summary judgment are well-established. Summary judgment is authorized if the pleadings, depositions, answers to interrogatories and affidavits, if any, show that no genuine issue of material fact remains, and a party is entitled to judgment as a matter of law. Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 3, 605 P.2d 545 (1980). In considering a motion for summary judgment, a trial court must give to the party against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. Steere v. Cupp, 226 Kan. 566, 575, 602 P.2d 1267 (1979). Although plain tiff’s pleadings in this case are to be given a liberal construction (Citizens State Bank v. Gilmore, 226 Kan. 662, 664, 603 P.2d 605 [1979]), allegations made in the pleadings and briefs will not sustain a genuine issue of fact when opposed by uncontradicted affidavits or depositions supporting a motion for summary judgment. Farmers Ins. Co. v. Schiller, 226 Kan. 155, 158, 597 P.2d 238 (1979). An appellate court will read the record in the light most favorable to the party who defended against the motion for summary judgment. Fredricks v. Foltz, 225 Kan. 663, 666, 594 P.2d 665 (1979). Normally, the presence or absence of negligence in any degree is not subject to determination by the court on summary judgment, for such determination should be left to the trier of facts. It is only when it can be said that reasonable men cannot reach differing conclusions from the same evidence that the issue may be decided as a question of law. Welch v. Young, 225 Kan. 189, 192, 589 P.2d 567 (1979); Pedi Bares, Inc. v. First National Bank, 223 Kan. 477, Syl. ¶ 3, 575 P.2d 507 (1978).
Depositions were taken of plaintiff, Peugeot and Gray. Plaintiff did not see the uninsured motorist; he admitted that his pleadings were based on statements made to him by others after the accident. Gray did observe the uninsured vehicle prior to impact. She, however, could not say whether the uninsured vehicle had its brake lights or its turn signals on; neither could she say whether it was stopped or only slightly moving when she first noticed it, nor was she aware of the manner in which the uninsured motorist came to a stop or near stop. She did see it complete its left turn into a bank driveway after impact. Peugeot testified the uninsured motorist came to a “normal” stop before making the left turn and that the uninsured motorist was not involved in the accident in any way. Peugeot testified he made a normal stop some six to eight feet behind the uninsured motorist and he did not have to brake hard in order to do so. Peugeot stated he did not specifically remember any turn signals, but “I knew the car was turning. So there must have been a signal.” Peugeot indicated that he had no difficulty either in ascertaining the uninsured motorist’s intent to stop and turn left or in stopping behind the uninsured motorist. Peugeot, according to his testimony, had stopped behind the uninsured motorist for at least a few seconds and possibly considerably longer before traffic cleared in the southbound lanes and the uninsured motorist started his left turn. Peugeot apparently did not turn on his vehicle’s blinkers and had taken his foot off the brake when the impact occurred, so his brake lights were not activated immediately prior to the collision. As the uninsured motorist began to turn, Peugeot’s vehicle began to move forward and was struck from the rear by Gray’s car. Peugeot’s vehicle was knocked forward some sixty feet, but the uninsured vehicle was not involved as it had already moved out of the northbound lanes.
Plaintiff relied on seven acts of negligence on the part of the uninsured motorist that he placed in issue in the pretrial order: (1) improper stop, (2) improper and illegal turn under the conditions existing, (3) failure to signal the turn as required by law, (4) driving at an unsafe speed for the conditions then and there existing, (5) failure to obey traffic signal (yellow lines on street), (6) driving across a divided highway where prohibited, and (7) failure to signal for a stop as required by law.
As we construe plaintiff’s allegations of negligence, they fall into four categories, and under our applicable scope of review the question before us is whether reasonable persons could reach different conclusions from the evidence presented to the trial judge.
1. Improper Stop
Summary judgment was proper as to plaintiff’s allegation of improper stop. Peugeot’s deposition unequivocally states that the uninsured motorist made a normal stop, and plaintiff failed to controvert that testimony either by appropriate deposition or by affidavit. If the uninsured motorist had a right to make a left turn at the place the left turn was made, then he had a right to stop and wait for traffic to clear before making the turn. The record contains no evidence from which a reasonable person could conclude that the uninsured motorist stopped in a negligent manner.
2. Failure to Signal
As to the uninsured motorist’s failure to signal a turn or a stop, Peugeot’s deposition indicates he does not specifically remember any signals but he knew that the car was turning and that it made a normal stop. His testimony cannot be construed to imply that the uninsured motorist did not signal either for a left turn or for a stop. Plaintiff did not see the uninsured motorist and Gray could not say whether the vehicle’s turn signals, brake lights or any other lights were on. There is no evidence that the uninsured motorist did not properly signal for a left turn or for a stop. Even assuming a violation of the signal statutes, it appears from the testimony that such a failure could not be a proximate cause of the accident.
3. Unsafe Speed
Plaintiff contends the uninsured motorist was negligent in driving at a slow rate of speed and stopping in the middle of a highway during rush hour traffic. K.S.A. 8-1548(a) provides:
“No person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety, nor without giving an appropriate signal in the manner hereinafter provided.” (Emphasis added.)
Assuming that a left turn was proper, there is no evidence in the record indicating that the stop and turn were made in other than a normal and safe fashion.
4. Improper and Illegal Turn
All parties agree that two solid yellow lines separated the northbound and southbound lanes of traffic, and that the uninsured motorist crossed these lines in making a left turn into the bank driveway. A left turn over double yellow lines is permitted by K.S.A. 8-1514, 8-1519, 8-1520, and by virtue of section 3A-7 of the Manual on Uniform Traffic Control Devices for Streets and Highways. The legislature authorized the secretary of transportation to adopt a uniform system of traffic control devices and where applicable, as here, the regulations have the force and effect of law. Waits v. St. Louis-San Francisco Rly. Co., 216 Kan. 160, Syl. ¶ 11, 531 P.2d 22 (1975).
Plaintiff contends the turn was illegal under K.S.A. 8-1524, which provides:
“Whenever any highway has been divided into two (2) or more roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so construed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway unless directed or permitted to use another roadway by official traffic-control devices or police officers. No vehicle shall be driven over, across or within any such dividing space, barrier or section, except through an opening in such physical barrier or dividing section or space or at a cross-over or intersection as established, unless specifically prohibited by public authority. ” (Emphasis added.)
Of the two obvious errors in the statute, one deserves comment. The word “construed” is an error. It should read “constructed.” The predecessor statute, G.S. 1961 Supp. 8-539a, used the word “constructed.” The Uniform Vehicle Code Ann. § 11-311 (1967), which is identical to K.S.A. 8-1524, used the word “constructed.” K.S.A. 8-1524 became law by virtue of L. 1974, ch. 33, art. 15, which used the word “constructed.” When volume 1, K.S.A., was reprinted in 1975, an error was made and “constructed” was inadvertently changed to “construed.”
We do not view K.S.A. 8-1524 as urging a different result when it is considered with K.S.A. 8-1514, 8-1519, 8-1520 and section 3A-7 of the Uniform Traffic Manual. Legislative intent seems to be clear that a left turn into or from an alley, private road or driveway was contemplated and authorized by the legislature. The only reported case we have found considering a similar issue is Boggus v. Miller, 388 S.W.2d 240 (Tex. Civ. App. 1965). In that case, the State of Texas considered a statute nearly identical to K.S.A. 8-1524 (Tex. Civ. Code Ann. art. 6701d § 62 [Vernon]) and determined that it is negligence per se to turn left across double yellow stripes. That case is distinguishable in Kansas, as the Texas section on no-passing zones (§ 58[b]) differs from our no-passing zone statute (K.S.A. 8-1520) in that Texas permits left turns in a “no-passing zone marked by signs only” whereas the Kansas statute allows left turns in no-passing zones without qualification. While we do not consider it authority for our decision, or even persuasive, we do note that our holding in this case is consistent with the Kansas Driving Handbook issued by the State of Kansas to Kansas motorists, student drivers and other persons preparing for the driver’s license examination.
The trial court did not err in entering summary judgment in favor of the two insurance companies.
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Spencer, J.:
In this action plaintiff seeks to enforce an order of the Circuit Court of Jackson County, Missouri, which awarded fees to her as the Missouri plaintiff’s attorney. To accomplish this, plaintiff invoked the provisions of the Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 et seq., and secured the issuance of garnishment against defendant’s employer. Defendant’s motion to dismiss, to quash garnishment, and to discharge the garnishee was denied and the garnishment was allowed to proceed.
Defendant has appealed and here asserts there was never a judgment in favor of plaintiff in this cause as she was not a party to the Missouri action, and that plaintiff failed to comply with the specific provisions of K.S.A. 60-3002 and 60-3003, rendering the Missouri judgment of no effect in Kansas.
Plaintiff, a Missouri attorney acting pro se, filed her verified petition for registration of foreign judgment in the District Court of Wyandotte County in which it was alleged in substance that on May 9, 1977, the Circuit Court of Jackson County, Missouri, entered a decree adjudging that defendant pay plaintiff the sum of $1,200, of which amount only $100 had béen paid. An authenticated copy of the journal entry setting forth the Missouri judgment was attached and made a part of the petition.
By its decree, the Missouri court dissolved the marriage of petitioner Jerald L. Frerking (defendant in this action) and respondent Billie Jean Frerking. The decree also provided:
“IT IS FURTHER ORDERED AND ADJUDGED by the Court that petitioner pay to respondent as respondent’s attorney’s fees the sum of One Thousand Two Hundred and 00/100 ($1,200.00).
“IT IS FURTHER ORDERED AND ADJUDGED by the Court that said attorney’s fees be paid directly to M. Sperry Hickman, attorney for respondent, and in default thereof, that execution issue therefor.”
On the date the petition was filed in the District Court of Wyandotte County, the clerk of that court directed a letter to the defendant advising him that plaintiff in this cause had filed the foreign judgment against him, and advising him also of the name and post office address of plaintiff as the judgment creditor.
Of initial concern is whether we are in fact dealing with a foreign judgment as defined by K.S.A. 60-3001, which provides:
“In this act ‘foreign judgment’ means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state: Provided, No judgment of any court of this state shall be deemed to be a foreign judgment in any other court of this state.”
Defendant argues that, since plaintiff here was neither plaintiff nor defendant in the Missouri proceedings and has never been a party to any action against defendant, she is not a judgment creditor of defendant. The Missouri statute with which we are concerned provides in relevant part:
“The court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under sections 452.300 to 452.415 [the Missouri Dissolution of Marriage Act] and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.” Mo. Ann. Stat. § 452.355 (Vernon); emphasis added.
The fact that the Circuit Court of Jackson County, Missouri, is a court of general jurisdiction and had jurisdiction of the parties and the subject matter is not questioned. Nor do the parties question the authority of the Missouri court to enter the order regarding attorney fees and to direct that they be paid directly to this plaintiff. Missouri Supreme Court Rule No. 76.01 provides:
“The party in whose favor any judgment, order or decree is rendered, may have an execution in conformity therewith.”
As it appears this plaintiff is one in whose favor an order was rendered, which she was entitled to enforce in the State of Missouri in her name by execution in conformity therewith, we hold that such is a foreign judgment as defined by K.S.A. 60-3001. As such, it is entitled to recognition, force and effect in the courts of this state to the same extent and with as broad a scope as given it by law or usage in the courts of the State of Missouri. U.S. Const. Art. IV, § 1; National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 60, 587 P.2d 870 (1978); Hicks v. Hefner, 210 Kan. 79, Syl. ¶ 1, 499 P.2d 1147 (1972); Fischer v. Kipp, 177 Kan. 196, 197-98, 277 P.2d 598 (1954). Cf., Alexander Construction Co. v. Weaver, 3 Kan. App. 2d 298, 594 P.2d 248 (1979).
It is next argued that the requirements of K.S.A. 60-3002 were not complied with in that the judgment was filed pro se and not by a licensed Kansas attorney. It is a well-settled principle of law that a party to a civil action may appear either pro se or through counsel. See 7 Am. Jur. 2d, Attorneys at Law § 6, p. 46; Annot., 67 A.L.R.2d 1102, 1103; Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 829, 6 L.Ed. 204 (1824); and Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899 (1934).
Supreme Court Rules No. Ill and No. 115 (225 Kan. lx-lxi) contemplate that a civil litigant may appear either through an attorney or on his own behalf. Such is also recognized in that portion of K.S.A. 1979 Supp. 7-104 (relating to attorneys from other states) which provides:
“[B]ut nothing in this section shall be construed to prohibit any party from appearing before any of said courts, tribunals or agencies, in his or her own proper person and on his or her own behalf.”
The provisions of K.S.A. 60-3003(b) also contemplate an appearance pro se by reference to “the judgment creditor’s lawyer, if any, in this state.” We conclude that whatever plaintiff was entitled to cause .to be done under the provisions of K.S.A. 60-3002 through an attorney licensed to practice law in the State of Kansas, she was entitled to do in her own behalf notwithstanding she is an attorney licensed in the State of Missouri.
Finally, it is argued that, since there was not an affidavit filed as provided by K.S.A. 60-3003(a) setting forth the name and address of the “real judgment creditor, namely Billie Jean Frerking,” the Missouri judgment has no effect in Kansas. In light of what has been said, it is the plaintiff who is the real judgment creditor of defendant and it would appear that the Missouri client would have no interest in these proceedings. It should suffice to note that the petition with which the authenticated copy of the Missouri decree was filed clearly set forth the names and post office addresses of the judgment debtor and of this plaintiff as the judgment creditor, and was duly verified by plaintiff. We hold this to be sufficient compliance with the statute.
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Rees, J.:
Plaintiff, an adult daughter of defendants, brought this action seeking recovery of money alleged to be due and owing for services rendered to and for her parents during a 52 week period when defendant Laura Cannedy was wholly or partially incapacitated while recuperating from an accident-caused back injury. Upon trial to the court, plaintiff was granted judgment. Defendants appeal.
The trial court’s oral decision may be interpreted as finding for plaintiff on a theory of a contract implied in fact, a contract implied in law, or quantum meruit. The journal entry recites “doctrine of implied contract” and “doctrine of quantum meruit” as the bases for plaintiff’s entitlement to recover. Defendants attack the trial court decision, contending: (1) Services rendered by a child for his or her parents are presumed gratuitous and plaintiff failed to overcome the presumption; and (2) the trial court erred in applying the preponderance of the evidence stan dard of proof when it should have required proof by clear and convincing evidence. The amount of the judgment is not contested.
With variations, the presumption upon which defendants rely has been recognized in Kansas since the early case of Ayres v. Hull, 5 Kan. *419, *421-422 (1870). There it is said:
“It may be stated, as a general principle of almost universal application, that when one person does work for another, with the knowledge and approbation of that other, the law will imply a promise on the part of the person benefited thereby to make a reasonable compensation therefor. But, if the relation of the parties is such as to show some other inducement than a pecuniary one for the labor, then the law will not imply a promise to pay for such services. As, where a daughter remains in the family of her father after her majority, performing her share of the ordinary labors of the household, and receives in return her maintenance, and the comfort and protection of the family relations, she will, in the absence of proof of some other understanding, be presumed to have done the work gratuitously, and without the expectation of pecuniary reward.”
In accord, see Nelson v. Peterson, 147 Kan. 507, 509, 78 P.2d 20 (1938). Another early case is Shane v. Smith, 37 Kan. 55, 58, 14 Pac. 477 (1887), and perhaps the most recent case is Baldwin v. Hambleton, 196 Kan. 353, 360, 411 P.2d 626 (1966).
In order to overcome the presumption of gratuitous service, the child must affirmatively show the existence of an express contract or show circumstances indicating a reasonable and proper expectation of compensation. Baldwin v. Hambleton, 196 Kan. at 360; In re Estate of Rogers, 184 Kan. 24, 28, 334 P.2d 830 (1959); In re Estate of Nicholson, 167 Kan. 14, 16, 204 P.2d 602 (1949); Nelson v. Peterson, 147 Kan. at 510. It has been stated that the proof required to overcome the presumption must be clear and satisfactory (Shane v. Smith, 37 Kan. at 58), a much higher quality and standard of evidence (Hodge v. Bishop, 150 Kan. 202, 208, 92 P.2d 37 [1939]), or clear, succinct and satisfactory proof (In re Estate of Rogers, 184 Kan. at 29). We do not find that the standard of proof described in the latter three cases differs from the clear and convincing evidence standard of proof referred to in recent cases. See Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, Syl. ¶ 8, 596 P.2d 816 (1979).
We find no error in the trial court’s application of the preponderance of the evidence standard of proof. That standard refers to the quantum of evidence required while the clear and convincing evidence standard refers to the quality of the evidence. Fox v. Wilson, 211 Kan. 563, 579, 507 P.2d 252 (1973); and see Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, Syl. ¶ 7.
There was substantial competent evidence of clear and convincing quality to support the finding of a contract implied in fact, that is, factual circumstances giving rise to reasonable and proper expectation of compensation. Plaintiff did not reside with her parents; she had her own home and family. She testified her father suggested, if not stated, a fixed weekly sum was appropriate compensation for her services. She drove across town to defendants’ home almost every day except Sunday to furnish household services for her parents and personal care for her mother after her mother was released from the hospital. Defendants accepted plaintiff’s services and had the benefit of them. In the mother’s lawsuit against the party responsible for her back injury, one of the claimed elements of damage was $75 per week for the care furnished by plaintiff. Plaintiff attended a conference with her parents’ attorney when this claim was discussed. Under her testimony, she believed she would receive that amount for her services. Plaintiff testified she was informed at a later point in time that she would be paid when her mother received her settlement money. The mother received settlement payment in a sum exceeding her attorney fee, her medical bills and the compensation claimed by plaintiff. It is not for us to reweigh the evidence which concededly included contradictory testimony of the defendants. Stauth v. Stauth, 2 Kan. App. 2d 512, 515, 582 P.2d 1160, rev. denied 225 Kan. 846 (1978).
The judgment of the district court is affirmed. | [
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Parks, J.:
This is an action brought by Allen Stapel against his father, Walter Stapel, for child support allegedly due from September 2, 1965, to Allen’s 18th birthday on October 12, 1977. Allen brought this action a year and eight months after he attained majority. The trial court granted Walter’s motion for summary judgment and Allen appeals.
Allen’s natural parents are Carol Stapel Price Werner and the defendant Walter Stapel. Carol and Walter were divorced in 1962 with Carol receiving custody of Allen and Walter ordered to pay $50 a month child support, later reduced to $30 a month. After their divorce, Carol married Harry Price and Walter married Harry’s ex-wife, Neva. In effect, Harry and Walter traded wives and children but retained support obligations to their biological children.
Eventually Harry fell behind in his payments to Neva and contempt proceedings were held with both couples present. On September 2, 1965, the trial court modified the divorce support orders, ordering Harry to pay only the support already due but no future payments. The court also reduced the child support for Allen to zero when it ordered that Harry Price and Walter Stapel “be relieved from further payment of future support payments for their respective minor children now in the care and custody of Neva Price Stapel and Carol J. Price.” Thus both men were left in the position of being required to support the children they live with, not their biological children.
The responsibility of a court to make child custody and support orders pursuant to K.S.A. 60-1610(o) is completely independent of the child’s ability to bring a common law action for support. The continuing jurisdiction of the court permits it to make discretionary modifications in the support order whenever changed circumstances require (Goetz v. Goetz, 184 Kan. 174, 334 P.2d 835 [1959]; Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465 [1967]) and such an order or modification is not subject to a collateral attack upon its validity. Harder v. Towns, 1 Kan. App. 2d 667, 670, 573 P.2d 625 (1977), rev. denied 225 Kan. 844 (1978). Accordingly, the court had complete authority to modify the support order unless to do so was an abuse of discretion. No such abuse is alleged by Allen and none is apparent.
Allen filed this suit to recover support payments not made since 1965. The trial court granted summary judgment for the father Walter and held that Allen could not maintain as an adult an action for past due support because there was no judgment of support made when Allen was a minor. Allen argues that he may not have had a judgment but he did have a common law cause of action which ripened when he received no support from his father following the 1965 order. Doughty v. Engler, 112 Kan. 583, 211 Pac. 619 (1923).
The precise question of whether an adult can maintain such an action for past support has not been decided in Kansas. In other states where similar causes were litigated, the courts have held that the right of action lies with the person who supplied the support and not with the child. In this case, as plaintiff’s counsel himself agreed, “[T]he plaintiff’s mother, Carol Stapel Price Werner, has been the one solely responsible for the support of Allen Stapel for the last thirteen years.”
The plaintiff in Baker v. Baker, 22 Or. App. 285, 538 P.2d 1277 (1975), attempted to sue her father for support he had allegedly failed to pay during some 14 years of her minority. Conceding that her mother had supported her throughout her minority, plaintiff contended that she had nonetheless been damaged by her father’s failure to meet his parental obligation to the extent that her standard of living had been reduced. The dismissal of plaintiff’s complaint was affirmed on appeal in accordance with the generally accepted rule that where a child has been supported during his minority by a single parent, once that child becomes an adult any right of action for reimbursement from the noncontributing parent belongs to the parent who provided that support and not to the child. See also Hooten v. Hooten, 15 S.W.2d 141 (Tex. Civ. App. 1929); Fower v. Fower Estate, 448 S.W.2d 585 (Mo. 1970); Miller v. Miller, 29 Or. App. 723, 565 P.2d 382 (1977).
We agree with the conclusion reached in Baker and hold that summary judgment for the father in this case was proper. Because no cause of action exists, there is no merit in Allen’s argument that the statute of limitations (K.S.A. 60-515) applies.
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Meyer, J.:
This appeal is from the award of attorney fees in an automobile collision case tried to the court. The collision occurred July 14, 1977, and plaintiff’s petition seeking property damages of $740 was filed September 14, 1977.
Appellant’s (defendant’s) first issue is whether a demand for damages is a prerequisite for recovering attorney fees under K.S.A. 1978 Supp. 60-2006.
There are three requirements for the recovery of attorney fees under K.S.A. 1978 Supp. 60-2006, which are as follows: (1) damages must be less than $750; (2) the party claiming attorney fees must prevail; and (3) the adverse party did not make a tender of damages before the commencement of the action in an amount equal to or greater than the amount recovered.
The purpose of the statute is said to be “the promotion of prompt payment of small but well-founded claims and the discouragement of unnecessary litigation of certain automobile negligence cases.” Stafford v. Karmann, 2 Kan. App. 2d 248, 252, 577 P.2d 836 (1978); Pinkerton v. Schwiethale, 208 Kan. 596, 599, 493 P.2d 200 (1972).
First, we note that K.S.A. 1978 Supp. 60-2006 contains no language to indicate that a demand is necessary prior to the time of filing a case. We find no compelling reasons which would justify us to read something into the statute which is not there. Furthermore, we conclude that the intent of the statute is to require defendants in small cases such as this one to inquire, investigate, and, if warranted, make an offer. The statute obviously contemplates that most defendants will be insured as required by law.
The defendant in the instant case argues that such reasoning would prompt a race to the courthouse because the plaintiff would thus be entitled to attorney fees. A defendant, however, can avoid the payment of fees by being diligent. We believe that the legislature intended by this statute to require such diligence in the hope that in many small cases plaintiff would not even be obliged to employ an attorney.
Defendant next complains that the trial court erred in awarding $1,000 as attorney fees.
The amount of attorney fees awarded under K.S.A. 1978 Supp. 60-2006 is discretionary with the trial court and absent an abuse of discretion, the trial court’s decision will be upheld. Stafford v. Karmann, 2 Kan. App. 2d 248, Syl. ¶ 5. The trial court is to be considered an expert on the matter of reasonable compensation. City of Wichita v. Chapman, 214 Kan. 575, 587-588, 521 P.2d 589 (1974).
Appellee-plaintiff is hereby awarded the sum of $600 as attorney fees on appeal.
We conclude that the trial court committed no reversible error.
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Swinehart, J.:
This is an appeal by Michael Bray, a judgment creditor against the estate of Joseph J. Fink, from an order of the district court of Leavenworth County determining that Monica Fink, the widow of Joseph J. Fink, had a homestead interest in 70 acres of real estate, precluding the sale of the property in whole or in part to satisfy Bray’s $25,000 judgment.
The question on appeal is whether the district court erred by finding that Monica Fink established and had not abandoned a homestead interest in 70 acres of real estate located in Leavenworth County, thereby precluding the sale of the property to satisfy the judgment creditor. The appellant Michael Bray raises the issue in two parts: (1) Whether Monica Fink failed to establish a homestead in the first instance, thereby causing the entire 70 acre tract, even that portion heretofore conveyed, to be subject to the judgment of the creditor. (2) If a homestead was initially created in favor of Monica Fink, whether she subsequently abandoned it, causing the tract still partially owned by her after the conveyance of 24 acres to her daughter and son-in-law to be subject to the judgment of the creditor, Michael Bray.
Joseph J. Fink died testate at his residence in Easton, Leavenworth County, on August 18, 1975. On September 25, 1975, his will was admitted to probate. However, his wife Monica Fink elected to take at law and not under the will, and the probate court, by order dated September 25, 1975, and filed on April 15, 1976, set forth the homestead rights of Monica Fink and decreed her interest in the real property in the estate of Joseph Fink.
In October of 1976, a journal entry of judgment was entered in favor of Michael Bray in the amount of $25,000 against the estate of Joseph Fink, and a journal entry allowing Bray’s claim against the estate and classifying it as a third class claim was entered on April 7,1977. The creditor moved for the sale of real and personal property from Fink’s estate to satisfy the claim.
The real property in question consisted of approximately 70 acres located in Easton, Leavenworth County, which the decedent had owned with his wife, Monica, as tenants in common. The Finks had been married in December of 1940, and had lived on the property together with their children Joseph J. Fink, Jr., and Jeanne M. Fink Wells until approximately 1968. As Monica and Joseph had been experiencing marital difficulties, due largely to Joseph’s excessive drinking, Monica obtained employment at Hallmark Cards in Leavenworth. She lived in a mobile home in Leavenworth for approximately three years, spending a few months with her daughter during that period of time. Later, Monica and her son bought a house on North 5th Street in Leavenworth. Monica paid the $6,000 down payment on the house and in return was allowed to live at the residence with her son’s family rent-free. The deed for the house on North 5th was recorded in the names of her son and daughter-in-law.
When Monica lived in Leavenworth, she would return to the farm in Easton on weekends or at other times to take care of household tasks, and after her husband became ill (about one year prior to his death), she cared for him during the weekends at the farm. During part of this time the decedent was living there with another woman.
Monica did not move back to the farm immediately following her husband’s death, due largely to her job in Leavenworth. Furthermore, the dwelling on the farm was in poor condition and her family did not feel it suitable for habitation. After her intended retirement from Hallmark Cards in 1980, however, she did plan to return.
In September of 1976, Monica deeded 24 acres of the 70 acre tract to her daughter Jeanne and son-in-law Tom Wells. Monica’s son Joseph J. Fink, Jr., and his wife also executed a quitclaim deed to the same property in favor of the Wells. Early in 1977 the house located on the farm was demolished because of its dilapidated condition. Monica cosigned a note so that construction could begin at the site by the Wells. The building permit for construction at the location was also obtained in her name. Monica and her children testified that she intended to move into the basement of the Wells’ home where they were constructing an apartment for her to use after her retirement.
The trial court found in its order that that portion of the real estate which constituted a part of the estate of Joseph Fink was subject to the homestead rights of Monica Fink, and as a result, was exempt from forced sale or any process of law. The creditor filed a notice of appeal from this judgment of the trial court.
We now consider the extent of Monica Fink’s homestead interests, if any, in the 70 acres in Easton.
Article 15, § 9 of the Kansas Constitution sets forth the homestead exemption. The legislature has also enacted several statutory provisions on the subject, e.g., Article 4 of the Probate Code, K.S.A. 59-401 et seq., and K.S.A. 60-2301 et seq.
K.S.A. 1979 Supp. 59-401 reads as follows:
“A homestead to the extent of one hundred and sixty (160) acres of land lying without, or of one (1) acre lying within, the limits of an incorporated city, or a mobile home, occupied by the decedent and family, at the time of the owner’s death, as a residence, and continued to be so occupied by the surviving spouse and children, after such death, together with all the improvements on the same, shall be wholly exempt from distribution under any of the laws of this state, and from the payment of the debts of the decedent, but it shall not be exempt from sale for taxes thereon, or for the payment of obligations contracted for the purchase thereof, or for the erection of improvements thereon, or for the payment of any lien given thereon by the joint consent of husband and wife. The title to the homestead property of a decedent shall pass the same as the title to other property of the decedent.”
K.S.A. 59-2235 describes the procedures to be followed in petitioning the court to set aside the homestead. Property set aside as a homestead is not to be treated as an asset of the estate in the custody of the executor or the administrator. However, title to the homestead is to be included in the final decree of distribution.
K.S.A. 1979 Supp. 60-2301 provides:
“A homestead to the extent of one hundred and sixty (160) acres of farming land, or of one acre within the limits of an incorporated town or city, or a mobile home, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.”
Whether or not a homestead has been created is a question of fact. Waltz v. Sheetz, 144 Kan. 595, 602, 61 P.2d 883 (1936). On appeal, the court will not disturb findings of fact that are supported by substantial competent evidence. McGilbray v. Scholfield Winnebago, Inc., 221 Kan. 605, Syl. ¶ 3, 561 P.2d 832 (1977); Baker v. Ratzlaff, 1 Kan. App. 2d 285, Syl. ¶ 2, 564 P.2d 153 (1977).
In its findings of fact, the trial court did not specifically state whether or not Monica had ever established a homestead in the 70 acres in Easton. However, in its conclusions of law it found:
“There does not appear to be any issue as to whether, at one time, Monica M. Fink did occupy the land and satisfy the requirement for obtaining a homestead exemption.”
This statement in the court’s conclusions of law was backed by adequate factual findings. For example, the court found that after the Finks were married in 1940, they lived together as husband and wife on the 70 acres. The couple lived there with their children until sometime after the children left home. When marital problems developed between Monica and Joseph as a result of his drinking problem, she moved to Leavenworth and found employment at Hallmark Cards, yet generally returned to the farm on weekends to care for Joseph. Therefore, there was substantial competent evidence to support the trial court’s decision that Monica and Joseph had established a homestead in the property at one time.
The creditor in this action urges that if indeed Monica had established a homestead interest in the 70 acres in Easton, she nonetheless had abandoned any interest which she might have had for all or any of the following reasons. (1) She moved to Leavenworth in 1968 prior to Joseph’s death and intended to remain there until her retirement in 1980. (2) In September, 1976, she conveyed an interest in approximately 24 acres of land, on which the residence she had occupied with Joseph was situated, to her daughter Jeanne and son-in-law Tom Wells. She showed no intention of returning to the property except to live on that portion which was conveyed to the Wells and then only in 1980. Furthermore, the fact that the Wells now owned the land on which the residence was to be built was sufficient to remove the homestead interest from the remaining portion of the 70 acres. (3) The farmhouse on the property was demolished in 1977, and Monica did not intend to construct a home on the site; rather, her daughter and son-in-law planned to do so.
Once it has been established that a homestead interest in property exists, then the burden of proof is on the party attempting to defeat that interest to show by positive and clear evidence that the homestead has been abandoned, as there is a presumption that once established the homestead continues unless the contrary is shown. Bellport v. Harder, 196 Kan. 294, 411 P.2d 725 (1966). Whether a homestead has been abandoned is a question for the trier of fact. Waltz v. Sheetz, 144 Kan. 595. Two tests must be met before a homestead interest may be destroyed or abandoned: (1) there must be a removal from the property, and (2) there must be an intent not to return. The parties claiming the homestead interest may properly testify as to their intent regarding a proposed return to the property and such testimony is sufficient to support a finding that the property remains a homestead.
“The personal intention of the person having the homestead to abandon it is therefore essential. (Garlinghouse v. Mulvane, [40 Kan. 428, 19 Pac. 798 (1888)]; and Palmer v. Parish, 61 Kan. 311, 59 Pac. 640 [1900].)” Bellport v. Harder, 196 Kan. at 300.
Furthermore, the homestead laws are to be liberally construed in favor of those claiming it. In re Estate of Dittemore, 152 Kan. 574, 106 P.2d 1056 (1940). As already noted, where the findings of the trial court are supported by substantial competent evidence, they are conclusive on appeal.
The creditor first contends Monica’s move to Leavenworth in 1968 constituted an abandonment of her homestead interest. Two cases cited by the parties discuss whether an absence from the homestead constitutes an abandonment. In Meech v. Grigsby, 153 Kan. 784, 113 P.2d 1091 (1941), a widow and her husband lived together on the property in which she was claiming a homestead interest until 1928. At that time the couple decided to separate because the husband had a drinking problem, making life miserable for his wife. However, the couple never obtained a divorce. The widow lived on another 20 acre tract after the separation, but continued to visit her husband intermittently at his residence. In 1933, the husband became ill and there was evidence, even though somewhat conflicting, that the couple reconciled at that time. In any event, thereafter the wife frequently visited her husband in his home, remaining with him during the day and occasionally overnight. She kept some of her clothing in the home and paid taxes on the property during the last four years of her husband’s life, but did not remain there all the time because her husband continued to drink and had rented some of the rooms to others who also drank. Upon her husband’s death, the widow returned to the residence. The court found that the couple’s decision to live apart did not deprive the widow of her homestead rights in the property because there was sufficient evidence that the separation was due to the husband’s drinking and misconduct.
“In order to constitute an abandonment of the homestead the abandonment must be voluntary. Absence of a wife from the home occasioned by the husband’s abuse does not constitute a voluntary abandonment of homestead rights. It is well established that a wife by living apart from her husband without fault on her part does not thereby divest herself of her homestead rights at his death. (Citations omitted.)” Meech v. Grigsby, 153 Kan. at 787.
Similarly, in this case there was ample testimony that Monica Fink had been driven or forced to leave the house in Easton because of her husband’s drinking problem. Although her relationship with her husband in the last years of his life may not have been as strong as the one described in Meech, nonetheless, the evidence showed that she returned to the home on weekends to care for Joseph and for the house. Additionally, other obstacles prevented her constant occupancy of the premises, e.g., her job, the fact that the decedent lived at times with another woman on the farm, and the dilapidated condition of the residence.
Bellport v. Harder, 196 Kan. 294, also addressed the effect of a temporary absence from a homestead. In Bellport the Harders occupied the alleged homestead property from 1950 until 1958. They then moved to Colorado for health reasons and to seek employment, since none was available in LaCrosse where the home was situated. Apparently, however, the couple did not intend to make Colorado their permanent residence. In fact, the couple continued to seek satisfactory employment in LaCrosse, and in the latter part of 1962, they returned to the home in LaCrosse with their furniture. The couple again moved to Colorado at the end of 1962 because there was no suitable work in LaCrosse and rented their homestead in LaCrosse on a monthly basis, telling the renter that a month’s notice would be given before they moved back. A few months later, the Harders conveyed the property to their daughter. The trial court stated:
“The term ‘occupancy’ as used in the Constitution of Kansas and 60-2301 [substantially the same as K.S.A. 1979 Supp. 59-401] does not necessarily mean ‘actual occupancy’ or physical presence. When a homestead is established, the term ‘occupancy’ contemplates temporary absence. (Citations omitted.)” Bellport v. Harder, 196 Kan. at 298.
Despite the facts presented in Bellport, the Supreme Court affirmed the trial court’s decision that the Harders had not abandoned their homestead prior to conveying it to their daughter, and as a result, she took the property free and clear of the judgment creditor’s lien.
Monica Fink’s absence from her home necessitated by her husband’s conduct is analogous to that of the couple in Bellport v. Harder, for Monica moved to Leavenworth to support herself until her retirement. Although she had indeed removed herself from the premises, she retained an intent to return to the property permanently after her retirement and did return intermittently prior to that tipie until her husband’s death in 1975. Even the facts that she had lived in a mobile home for a while and had provided the $6,000 down payment for her son to purchase a home in Leavenworth where she lived rent-free are not sufficient to override her own testimony that she did intend to return to the farm. The only possible flaw posed by her move was that she did not intend to return to the homestead until 1980, nearly five years after her husband’s death and it is arguable that this is an unreasonably long delay. Nevertheless, the trier of fact had the duty to decide whether the move to Leavenworth resulted in abandonment, and failed to so find.
The creditor next contends that the conveyance of the land to Tom and Jeanne Wells, coupled with the demolition of the farmhouse, constitute sufficient evidence to establish that Monica Fink had abandoned her homestead interest in the tract.
K.S.A. 1979 Supp. 59-401 requires that the residence continue to be occupied by the surviving spouse after the decedent’s death in order to remain wholly exempt from the payment of the debts of the decedent. The trial court concluded that the Wells had designated a living area for Monica’s use after her retirement in the home they were constructing on the 24 acres conveyed to them. In its conclusions of law, the trial court decided that such an arrangement was sufficient to retain the homestead exemption for that 24 acres, and as a result the entire 70 acres would continue, under the unusual facts in this case, to be subject to a homestead right in Monica.
The question of the demolition of the dwelling is really a concomitant part of the conveyance issue and accordingly does not merit much attention. However, the mere fact of demolition alone is insufficient to destroy the homestead where there is evidence that the homestead premises were vacated because they were unfit for habitation, so long as preparations were made within a reasonable time to return to the premises and occupy them as a homestead. The trier of fact must determine the nature of the absence from the property and the intent of the parties. Rose v. Bank, 95 Kan. 331, 148 Pac. 745 (1915).
Matney v. Linn, 59 Kan. 613, 54 Pac. 668 (1898), was relied upon by the trial court and the creditor in this action, but both reached opposite conclusions as to its import in this case. Although this case is factually distinguishable, it nevertheless provides guidance in resolving the contention of the creditor that the conveyance of the 24 acres to Jeanne and Tom Wells destroyed Monica’s homestead interest. Matney v. Linn was a partition action brought by the widower William Matney against the children of his deceased wife Harriet. The property in controversy was a quarter section which was held in Harriet’s name. The Matneys had been married in 1865 and lived on the property as a homestead until 1879 when the property was awarded to Harriet in a divorce decree. In 1881 the parties reconciled and lived together as husband and wife. Prior to this, however, they entered into an agreement that neither of them would have any interest in the property of the other. The agreement also contained other provisions which need not be repeated here. The overall agreement unquestionably evinced an intent that neither party would share any interest in the property of the other during their lives together or upon the death of the other. After the parties began living together, Harriet executed a deed conveying to her son the south half of the premises in question. She later conveyed the north half to her daughter Sarah. While her husband did not join in the deed to Sarah, he consented to it.
The Supreme Court held that after the couple began living together as husband and wife in 1881, William Matney acquired a homestead interest in the quarter section which he and Harriet occupied. However, he enjoyed only a right of occupancy with a restriction upon his wife’s power to alienate the property unless she obtained his consent. His interest did not rise to the level of an estate. The court further found that the deed granting Sarah the north half of the quarter section was valid as there was evidence that it had been made with William’s consent, and as a result, he surrendered the homestead interest which he had enjoyed in that land. However, there was no evidence that Matney consented to the conveyance of the south half to Harriet’s son. The court further found that since it was the north half of the land which contained the family dwelling, barn and other buildings, Matney, by consenting to the conveyance of the north half, also surrendered his homestead interest in the south portion. In so concluding, the court relied upon Peak v. Bank, 58 Kan. 485, 49 Pac. 613 (1897), which had held that a dwelling house is an inseparable part of a homestead and without one, either actual or contemplated, there is no homestead.
On the basis, of Matney, then, the conveyance to Tom and Jeanne Wells, which resulted in them receiving 24 acres free and clear of the judgment lien (see Bellport v. Harder), could conceivably extinguish Monica’s homestead interest in the entire portion of the property. Such a conclusion is possible because Monica did transfer that portion of the property which contained the dilapidated house and the barn, and there was no evidence that she intended to move onto the remaining portion of the property to establish a homestead.
However, the interesting twist in this case is that Monica did intend to return to those 24 acres and live with her daughter and son-in-law after she retired. Although the property was not recorded in her name, she still had cosigned a note so that the Wells could begin construction of a home, and she had also obtained a building permit for such construction in her name. The trial court found that in the unusual circumstances here, Monica retained her homestead interest in the 24 acres conveyed to the Wells as she did intend to live there, despite the fact that the property was being conveyed to them, and consequently the entire tract remained impressed as her homestead. It has been held that the homestead exemption is not limited to husband and wife, but extends to groups bound together by ties of consanguinity living together as a household. In re Estate of Dittemore, 152 Kan. at 577. Therefore, despite the fact Monica and her son conveyed the 24 acres to her daughter and son-in-law, married adults, her intent to return and live on the site with them satisfied the continuing occupation requirement contained in K.S.A. 1979 Supp. 59-401.
The establishment of a homestead interest does not depend upon being the titleholder of the property in question. Those persons referred to in the homestead provisions of the Kansas Constitution and statutes may énjoy a homestead interest, but not an interest rising to the rank of an estate, e.g., Matney v. Linn, 59 Kan. at 618; cf. Hicks v. Sage, 104 Kan. 723, 180 Pac. 780 (1919). Therefore, the fact that Monica purportedly retained no interest in the 24 acres conveyed to her daughter and son-in-law need not extinguish her homestead interest in the property. See Moorhouse v. Crew, 273 S.W.2d 654 (Tex. Civ. App. 1954). One might argue, of course, that the conveyance terminated her homestead interest and she would have to reestablish one. However, it does appear that steps were taken shortly after the conveyance to prepare the premises for a new home, e.g., demolition of the old premises, obtaining a building permit and construction loans.
In summary, we find substantial competent evidence in the record to support the findings that the 70 acres was the homestead of Monica and Joseph Fink, commencing in December of 1940, and that Monica’s departure from the property in 1968 was not voluntary. While in Leavenworth she constantly maintained an intention to eventually return to live on the property. Therefore, at the date of death of Joseph, Monica had a homestead interest in the entire 70-acre tract of land, and this interest exempted the real property from execution by the judgment creditor of her deceased husband.
Those factors cited by the judgment creditor which took place after Joseph’s death (i.e., Monica’s plan not to return to the farm until her retirement, the transfer of the title to the 24 acres where the residence was located to her daughter and son-in-law, and the demolition of the homestead residence), were not sufficient to show abandonment of her homestead interest. Rather, substantial competent evidence supports the finding that Monica had also not abandoned her homestead interest after Joseph’s death. Monica and her family had agreed that she would return to the property and reside in the new residence being constructed by Jeanne and Tom Wells. Further, Monica had participated in preparation of the new residence by obtaining a building permit in her name and cosigning the note for construction money loans.
The trial court findings that Monica Fink had a homestead interest in the 70 acres and that the defendant failed to prove abandonment of the homestead are supported by substantial competent evidence and in accord with K.S.A. 1979 Supp. 59-401.
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Meyer, J.;
Rex Relihan (Rex) and appellee Mary Fair (Mary) were brother and sister. Their day-by-day activities demonstrated they had a close relationship. In 1971 Mary prepared three hand-written deeds to certain real estate, with the grantee being Rex. She signed two of these deeds, but none of them were notarized or delivered. In 1974, at a time when Mary was quite ill, she had three more deeds prepared. She signed these before a notary public and they were delivered to Rex (again the grantee) and same were recorded. Rex died in June, 1975, and appellant is the administrator of his estate. Mary brought action against the estate for recovery of the “deeded” property. The trial court set aside the deeds finding that a confidential relationship existed, and that the estate did not meet its burden of proving lack of undue influence. Mary had, since the dates of the 1974 deeds, executed two wills — in neither of which was Rex a beneficiary, either legatee or devisee.
In substance, Mary claims there was more to the Rex and Mary relationship than that of brother and sister. She claims that a confidential relationship existed between them by reason of the following acts:
1. Rex visited Mary frequently — about three times weekly as long as his health permitted.
2. Rex, on occasions, received checks from Mary, which were blank both as to payee and as to amount. These were given to Rex for the purpose of paying Mary’s bills, primarily those for utilities.
3. Rex’s name was on Mary’s checking account, as well as her savings account.
4. Rex undertook the general care and repair of Mary’s home.
5. Rex performed many errands for Mary, and after he became too ill to do so, his daughter carried on with this function.
6. Rex accompanied Mary to the out-of-state funeral of her daughter.
Appellant counters by stating that taxes for the year 1974 and subsequent years were paid either by Rex or by appellant estate. Furthermore, appellant argues that Mary once questioned why tax notices were sent to her on the “deeded” properties when they no longer belonged to her. Appellant’s principal position is that the facts, as found by the trial court and as supported by the record, do not support the finding that a confidential relationship existed between Mary and Rex and that therefore the burden of proving undue influence should have remained with appellee. Appellant argues that such a relationship must concern itself with more than ministerial functions and must, in fact, constitute a financial relationship. Appellant bolsters this argument with Mary’s testimony that she never discussed matters regarding disposition of real estate with Rex, nor did she rely on any other person to handle her financial or business affairs, until the time when she was in the hospital and hired Art Glassman, an attorney, to help her.
The essence of appellee’s argument is that the district court made a finding that a confidential relationship did in fact exist, that such finding is based upon substantial competent evidence, and that, therefore, the burden of proof that there was no undue influence is upon appellant.
The existence or non-existence of a confidential or fiduciary relationship is an evidentiary question or finding of fact which must be determined from the facts in each case; and, therefore, the scope of apellate review is to ascertain only whether there is substantial competent evidence to support the finding of the trial court. Cersovsky v. Cersovsky, 201 Kan. 463, 468, 441 P.2d 829 (1968); Wilkinson v. Cummings, 194 Kan. 609, Syl. ¶ 3, 400 P.2d 729 (1965); Fairbank v. Fairbank, 92 Kan. 45, 139 Pac. 1011 (1914).
The scope of review of an appellate court from a finding of a trial court as to the existence or non-existence of a confidential relationship was again discussed in the recent Kansas Supreme Court decision of Curtis v. Freden, 224 Kan. 646, 585 P.2d 993 (1978). That case involved an action to set aside a deed to real property upon the grounds of incapacity of the grantor, undue influence, and breach of a confidential relationship by the grantees, and to bar the grantees from any share in the grantor’s estate. The Supreme Court said, at page 652:
“The determination of whether a confidential relationship existed was one of fact and our scope of review is to ascertain whether there is substantial competent evidence to support the findings of the trial court. Cersovsky v. Cersovsky, 201 Kan. 463, 441 P.2d 829 (1968). Further, we are required to consider the evidence in its most favorable aspect in relation to the party who prevailed in the court below. Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P.2d 521 (1969) .”
The trial court made a number of findings of fact, the most important of which are set out above under subparagraphs 1 through 6 inclusive. The gist of the matter is that if the trial court was correct in finding a confidential relationship existed between Rex and Mary, then the burden of proof to prove lack of undue influence was properly placed on appellant. See Frame, Administrator v. Bauman, 202 Kan. 461, 449 P.2d 525 (1969).
We note that several findings of fact made by the trial court would be found in most brother and sister relationships. Moreover, we note that various acts performed by Rex which do go beyond the usual brother-sister relationship are not of great financial consequence. On the other hand, we are persuaded that the collectivity of such acts as (1) cashing checks which were delivered to him by Mary with payee and amount left blank, (2) the presence of Rex’s name on Mary’s checking account, (3) Rex’s name on Mary’s savings account, and (4) control of maintenance and repair of Mary’s residence, do constitute at least some dealing with financial matters.
We conclude there was substantial competent evidence to support the findings of the trial court and that we are bound thereby . on appeal. Curtis v. Freden, 224 Kan. 646.
With candor, we admit this is an extremely close case, and base our decision in favor of appellee as we must do when appellant has failed to convince us of error of the trial court.
Having determined that the trial court did not err in finding that a confidential relationship existed between Rex and Mary, we turn next to the issue as to whether or not the trial court erred in its determination that appellant failed to prove an absence of undue influence.
The rules are clearly stated in Frame, Administrator v. Bauman, 202 Kan. 461:
“Where a transaction has been entered into between persons, one of whom stands in a confidential relationship to the other, the burden rests upon the person occupying such status to show that the transaction was conducted in good faith and did not result from the exercise of undue influence on his part.” Syl. ¶ 5.
“Where good faith has been established on the part of one who benefits from a transaction and no undue influence has been exerted by him, and where the transaction is shown to have carried out the true and freely formed intentions of the party conferring the benefit, the law does not stigmatize the transaction as fraudulent and void simply because a confidential relationship may exist between the parties.” Syl. ¶ 6.
“It is the trial court which determines, in the first instance, whether the presumption of undue influence existing by virtue of a confidential relationship has been satisfactorily overcome by the party on whom the burden rests, and the responsibility of this court on appeal is to ascertain whether the findings of the trial court are supported by substantial competent evidence; in making the latter determination, this court is required to consider the evidence in its entirety, and in the light most favorable to the party who prevailed in the court below.” Syl. ¶ 8.
The trial court specifically found that “it has not been shown that Mary Fair truly and freely formed an intention to execute the three deeds she executed.” The trial court noted that Mary’s actions throughout indicated an intent to retain the property. She continued to live in one of the properties and to collect the rents and profits from the others. Also, she employed a Mr. Weaver to do extensive remodeling and repair work on the properties after the date of the 1974 deeds. She testified she did not recall executing them. Furthermore, she later left the property to Weaver by her will. Appellant failed to show by clear and convincing evidence that the transaction was the true and freely formed intention of the party conferring the benefits. The trial court had before it substantial competent evidence on which to base its conclusion that there was undue influence, and we are bound thereby on appeal. Curtis v. Freden, 224 Kan. 646. The trial court stated that the rule relevant to independent advice was a further reason for its ruling. The purpose of the independent advice rule was stated in In re Estate of Carlson, 201 Kan. 635, Syl. ¶ 5, 443 P.2d 339 (1968):
“The requirement of independent advice is designed to provide assurance that the aged or infirmed or otherwise dependent person conferring the benefit knew what he was doing and did it of his own free act and will, and to see that no undue advantage was taken of him.”
While the rule governing the requirement of independent advice, is not applied where the party upon whom the burden of proof is cast presents substantial evidence that the deed was made in good faith, not induced by undue influence, and for a valuable consideration, none of these situations are clearly present in this case. The trial court was thus correct in applying this standard as an additional reason for its decision.
The trial court found that the appellee would need to reimburse the appellant for taxes paid by appellant for 1974 and subsequent years. It is appellee’s cross-appeal as to this ruling which gives rise to the third issue in this case. The issue can be stated as follows:
When a deed is set aside and the party who thought he owned the property paid taxes, is he entitled to have reimbursement for taxes paid on the property during the time he thought he owned it?
It is specifically noted that after the execution of the 1974 deeds, the tax statements were taken to Mary by Rex but she refused to pay those taxes, stating she no longer had a home and had paid the taxes for the last time. Thereafter, all the taxes were paid either by Rex or by his estate. The taxes so paid included those for 1974, 1975, and 1976. Additionally, during the pendency of this litigation, the parties stipulated that the estate of Rex Relihan should pay the 1977 taxes subject to reimbursement by Mary should she prevail in her attempt to set aside the three deeds. Clearly it would involve the unjust enrichment of Mary were we now to refuse reimbursements to the Rex Relihan estate for the payment of taxes for the years 1974 to 1977, inclusive. Under whatever theory one proceeds in this matter, a specific rule which covers the same is that “under the prevailing view the right of one who, under a mistaken belief of his ownership of land, has paid taxes thereon, to maintain an action to recover compensation from the person benefited ... is upheld.” 66 Am. Jur. 2d, Restitution and Implied Contracts § 127, p. 1060. See Brookfield v. Rock Island Improvement Co., 205 Ark. 573, 169 S.W.2d 662 (1943); Schleicher v. Schleicher, 120 Conn. 528, 182 A. 162 (1935).
The judgment of the trial court is affirmed. | [
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Meyer, J.:
This case arose when an abstracter relied only on the judgment docket in the office of the clerk of the district court pertaining to release of a lien on real estate, and it developed the judgment docket was incorrect.
The facts were stipulated to by the parties and are summarized here. On June 7, 1971, appellee Wichita Great Empire Broadcasting, Inc., obtained a judgment against one Bob Wurtz. This judgment became a lien on two pieces of real estate owned by Wurtz in Neosho County. On January 15, 1973, Wurtz conveyed one of these properties to the appellee Bank of Commerce in satisfaction of a mortgage on the property. On March 8, 1974, the bank conveyed the property to appellees Lloyd and Frances Gingrich. As part of this conveyance, the bank had appellant Locke Abstract Company, Inc. (Locke) extend the abstract on the property. St. Paul Fire and Marine Insurance Company posted a bond for and in behalf of Locke. The abstract as extended did not show anything as to the Wichita Great Empire Broadcasting lien. On June 21,1971, Wichita Great Empire Broadcasting had filed a release of its judgment against Wurtz’s other real estate in Neosho County. A deputy clerk of the district court had at that time made a notation in the judgment docket, “Judgment released 6-21-71. mg.” The entry in the judgment docket so remained at the time Locke extended the abstract.
The court found Locke to be negligent as a matter of law in relying on the judgment docket entry and entered summary judgment. Locke appeals from the judgment.
Locke’s first issue is whether the abstracter was negligent as a matter of law in relying only on the judgment pertaining to release of a lien on real estate
“Under statutory law in Kansas regulating abstracting the abstractor and his sureties are liable on the abstractor’s bond for all negligent errors and omissions in an abstract . . . Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 259, 553 P.2d 254 (1976).
The specific question is one of first impression in Kansas. Kansas law would seem to indicate, however, that reliance on a judgment docket is not sufficient to constitute a reasonably diligent search of the records.
In Carnation Co. v. Midstates Marketers, Inc., 2 Kan. App. 2d 236, 577 P.2d 827 (1978), the court faced the issue where it was alleged that an error in recording in the judgment docket defeated the effective attachment of the judgment lien to the property and thus did not impart notice of the judgment lien to a bona fide purchaser. It was therein stated:
“The entry on the judgment docket is intended to serve as an index which alerts an interested party that judgment has been rendered. Specific and detailed information regarding the action is located in the appearance docket and the court file. A reasonably diligent search of the records available to the appellant would have revealed that judgment was entered on September 20, 1973, for that was the date reflected in the appearance docket and the court file containing the journal entry of judgment.” 2 Kan. App. 2d at 238-239.
The court followed Luthi v. Evans, 223 Kan. 622, 630, 576 P.2d 1064 (1978), wherein it was stated:
“[I]n situations where an instrument of conveyance containing a sufficient description of the property conveyed is duly recorded but not properly indexed, the fact that it was not properly indexed by the register of deeds will not prevent constructive notice under the provisions of K.S.A. 58-2222. [Citations omitted.]”
In other jurisdictions, relying on the index rather than going to the original instrument has been held to be negligence as a matter of law.
In Wacek v. Frink, 51 Minn. 282, 283, 53 N. W. 633 (1892), a register of deeds in a reference to a release on the margin of a mortgage, erroneously made the entry, “Satisfied,” when it should have been “Partially satisfied,” or “Partially discharged.” The abstracter relied on the marginal entry and did not examine the contents of the instrument of release. In that case it was held that instead of leaving the question of negligence to the jury, the court should have instructed that failing to examine the record of the instrument itself constituted negligence as a matter of law.
“The record, and not a marginal reference to it by the register, (which is required merely for convenience in making searches,) is what determines the character and legal effect of an instrument; and the duty of an examiner of titles is not fulfilled by merely assuming the accuracy of such a reference, without examining the instrument itself.” 51 Minn, at 284.
See also 1 Am. Jur. 2d, Abstracts of Title § 13, p. 239, wherein it was stated:
“Ordinarily, the question whether the abstracter has used reasonable care is to be resolved, as a question of fact, but failure to examine the original records is negligence as a matter of law . . . .”
In Crook v. Chilvers, 99 Neb. 684, 157 N. W. 617 (1916), the standard of care was further defined. In that case, the abstracter missed a mortgage because he only looked at the numerical index and the mortgage was shown to be recorded in the grantor/grantee index.
The court stated:
“Ordinary care and diligence in performing the work for which he has been employed require him to avail himself of every facility at hand, in order to furnish his client that which he knows his client has employed him to furnish, viz., an accurate and complete abstract of the records.” 99 Neb. at 688.
See also 1 Am. Jur. 2d, Abstracts of Title § 12, p. 237.
Since the standard of care has been established by case law that the abstracter has a duty to examine the original records and cannot reasonably rely on the index, and the stipulated facts indicate that appellant did not go to the original release but relied upon an index, summary judgment was appropriate. No material issues of fact remained to be decided and judgment could be rendered as a matter of law in compliance with K.S.A. 60-256(c).
Locke’s second issue is whether evidence as to the customary reliance by abstracters on the judgment docket should have been allowed in determining whether the abstracter was reasonably diligent in performance of his duties.
Locke argues at length that evidence as to the customary reliance by abstracters on the judgment docket should have been allowed and that the lack of this, evidence precludes summary judgment.
Common usage of a business or occupation may be relevant to prove what constitutes due care of reasonable diligence in the performance of the abstracter’s duties. The standard of care has been established by case law. Even if Locke could show that only checking the judgment docket was the common practice, this would not change the conclusion that such action was negligent. “[N]egligence may exist notwithstanding the conduct pursued or the methods adopted were in accordance with those customarily pursued or adopted.” Morrison v. Kansas City Coca-Cola Bottling Co., 175 Kan. 212, 221, 263 P.2d 217 (1953), citing 65 C.J.S., Negligence § 16, p. 406 (1950). The Morrison case gave extensive discussion to custom and usage as related to negligence:
“The weight of authority supports the view that since negligence is the failure to do that which an ordinarily prudent man would do, or the doing of that which an ordinarily prudent man would not do, under the same circumstances, an ordinary custom, while relevant and admissible in evidence on the issue of negligence, is not conclusive, especially where the custom is clearly a careless or dangerous one. What usually is done may be evidence of what ought to be done, but in the last analysis, what ought to be done is fixed according to the standard of the ordinarily prudent man, whether it is customary to comply with that standard or not. . . . While, as stated, a custom is not conclusive as a standard of reasonable prudence, there is a reasonable basis for the contention that what is ordinarily done by men generally, engaged in a similar activity, has some relevancy to the inquiry as to what an ordinarily prudent person would do under the same circumstances. . . . The conclusion to be reached upon undisputed evidence which shows that the defendant acted in accordance with the uniform custom of persons engaged in a like business, in the absence of any evidence showing that such custom is negligent, should be that the defendant did not act negligently.” 175 Kan. at 220, citing 38 Am. Jur., Negligence § 34, pp. 680-681 (1941).
Further, it was stated in Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 195, 139 P.2d 157 (1943), that while customary usage was sometimes sufficient to relieve liability, it is not the test. “The test is, did defendant use due care? ‘The test is reasonable care, not customary usage.’ [Citations omitted.]”
Locke argues that the deputy clerk is the one who should bear the responsibility of the negligence, since she was negligent in posting the release. While it is, of course, the duty of the clerk or deputy clerk to correctly show instruments of record, it is to the abstracter that the attorney looks to for assurance that the abstract before him is a complete record of all activity involving the real estate described in the abstract. He places his assurance that he has a complete record before him on the skills and ability of the abstracter and on the abstracter’s bond. There has been a clear showing herein of negligence of the abstracter, and the most that could be said of Locke’s argument relative to the responsibility of the deputy clerk might be that she would be liable as a joint tort-feasor. Considering that appellees had a good cause of action versus the abstracter, it is immaterial to a decision in this case whether Locke could, or could not, have brought an action against the deputy district court clerk as well.
In the instant case it is obvious that had the abstracter referred to the release on file he would have noticed it did not relate to the property in question.
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Meyer, J.:
Appellant Elmer Hall (petitioner) is the owner of a tract of land located in Chautauqua and Montgomery Counties. The tract is completely bisected by Bee Creek. That part of the tract lying to the west of Bee Creek is completely surrounded by the lands of others on the north, west and south, and by Bee Creek to the east. Petitioner, however, owns land east of Bee Creek, also, and has access from that portion of his premises to a public road. Appellee Emil Carra (Carra) owns the land to the north and west of the western portion of petitioner’s land. Appellee Twin Caney Watershed Joint District No. 34 (watershed district) has an easement for a dike which runs generally north and south along the western side of Bee Creek.
Petitioner asked the Chautauqua County Commissioners to establish a road under K.S.A. 68-117 over the dike and a portion of Carra’s land. Both Carra and the watershed district objected. The commissioners made findings and approved the road as requested. Carra and the watershed district then appealed to the district court. The parties stipulated as to ownership of the various tracts of land. Thereafter the court granted summary judgment to the watershed district and Carra. Petitioner appeals. For clarity, we are including as part of this opinion a map showing the outlay of the land involved
Petitioner first complains that the district court erred in granting summary judgment when no motion or statement of uncontroverted facts had been filed prior to the hearings as required by K.S.A. 60-256(c) and Supreme Court Rule No. 141 (224 Kan. lxviii).
The trouble with this contention is that at a pretrial conference the justiciable facts were agreed upon. Furthermore, while the court did not formally comply with Supreme Court Rule No. 141, all of the requisites for summary judgment were met by the pretrial conference. At such time the controverted facts were established and agreed to by the parties and the legal issues were set out. It is noted that petitioner made no objection as to the procedure being followed, and furthermore, both parties submitted briefs to the court. There was thus no prejudice to the petitioner by the manner in which the hearing was held.
We note the failure to follow strict procedure was considered in City of Ulysses v. Neidert, 196 Kan. 169, 409 P.2d 800 (1966). There, our Supreme Court, at page 171, stated:
“As a preliminary matter appellants complain in this court that appellees’ motion for summary judgment was not made in compliance with K.S.A. 60-256(c) in that the motion was orally made and appellants were not given ten days’ advance notice thereof. The record affirmatively recites that at the time this motion was made at the pretrial conference appellants made no objection and in fact agreed on the procedure employed whereby the parties submitted their arguments on the motion to the court in the form of written briefs for later decision. At no time have appellants complained of lack of time for preparation on the motion. Under these circumstances, after the adverse ruling, appellants are in no position to complain for lack of the statutory period of notice.”
Petitioner next complains that a question of material fact exists which precludes summary judgment. If a question of material fact remains, then to grant summary judgment is error. We look first to the statute K.S.A. 68-117, which in pertinent part reads as follows:
“Whenever the premises of any person shall be so completely surrounded by adjoining lands, the property of others or by such lands and water, as to be without access to any public highway, then such person may petition the board of county commissioners of the county in which such premises lie for a road, and one road only, through some portion of the adjoining lands.”
We pause to note that the action of hearing a petition to establish an access roadway pursuant to K.S.A. 68-117 is a quasi-judicial function, and therefore an appeal to the district court is proper, as well as an appeal to this court. In re Petition of McAdam, 181 Kan. 73, 309 P.2d 648 (1957).
Petitioner asserts that any portion of land which is cut off from access to a public road by land of another or water is entitled to be joined to such road under the statute. Appellee argues that the definition of “premises” from McAdam precludes this result:
“It is nowhere contended that petitioner’s entire tract of land is completely surrounded by the land of others and in order to grant petitioner the relief sought we would have to read into the statute something that is not there, which would be that ‘whenever a part o/the premises’, etc. An action such as this must be taken by the legislature as otherwise it would be an invasion of the legislative power.” 181 Kan. at 76.
Appellee also relies on McCluggage v. Loomis, 176 Kan. 318, 270 P.2d 248 (1954), where petitioner’s land was bisected by a stream in much the same manner as the present case. In both McCluggage and McAdam, the court held that the petitioner was not entitled to a roadway as the conditions of the statute were not met.
We note there is considerable similarity between McAdam and McCluggage and the instant case. The cases are distinguishable, however.
In both McAdam and McCluggage, even the portion of land contended to be without access to the highway did not meet the condition of the statute then in effect that it be surrounded by the lands of others.
In McAdam, said land was bordered on one side by a drainage ditch and on another side by a turnpike, neither of which were contemplated by the statute. In McCluggage the petitioner’s tract of land was bordered by a stream, and since the statute had not yet been amended to include water, her situation did not meet the conditions of the statute either.
In the instant case, petitioner’s portion of land does meet this condition of the statute as amended in that such tract is surrounded by the land of others on three sides and by water on the other side.
Even so, the question of whether such land is so surrounded by lands of another and water as to be without access to a public highway is still open. Since there was no evidence taken as to how extensive a creek Bee Creek is, this question of material fact remains. It is clear from the language of the statute that in order for a petitioner to obtain a right of way, it would be necessary for him to prove that the water was so extensive as to deprive him of a reasonable passage over it. Thus, on appeal, we are confronted with a case which cannot be decided by us because we lack an essential, material fact, and this case must be reversed and remanded to the trial court for findings of fact relative to the extent of the water in Bee Creek and a determination as to whether or not it is extensive enough to deprive petitioner of access to any public highway from that portion of his premises situated west of Bee Creek. The test, we feel, should be “reasonable access.”
Petitioner also questions the propriety of a governmental unit condemning an easement over property previously taken and actually used by another governmental unit. The general rule is that such an easement can be granted only if it will not materially impair or interfere with the use of the prior easement. City of Dania v. Central & So. Florida Flood Con. Dist., 134 So. 2d 848 (Fla. App. 1961). See also 35 A.L.R.3d 1293 at § 12, 1337.
We note that K.S.A. 68-117, in pertinent part, states as follows:
“Said road shall be not less than forty (40) feet nor more than one hundred (100) feet in width and shall be laid out upon the quarter or quarter-quarter section lines when practicable.”
Thus we have an additional missing material fact. That is, would the road interfere with the prior easement for a levy; furthermore, was there a showing as to why the road easement was not laid out upon the quarter or quarter-quarter section lines?
We conclude the order of the trial court in granting summary judgment must be reversed and that this case be remanded to the trial court for proceedings in conformity with the views expressed herein.
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Spencer, J.:
At issue in this case is the proper measure of compensation for the taking by condemnation of property owned and operated exclusively for religious and educational purposes on a nonprofit basis.
The Gospel Mission Church and School was located at 1545 North Wabash in Wichita. The property taken consisted of land, a dwelling house, and a structure housing the church sanctuary and a gymnasium. There is no issue in this court as to the land or the dwelling house. The sanctuary and gymnasium consisted of a large concrete block building which had been erected in two stages. The sanctuary portion was built to accommodate approximately 200 worshipers and contained separate rooms for the church office, choir, and restrooms. The gymnasium portion was equipped with kitchen facilities, restrooms, a storage deck, and basketball goals. The gymnasium was used on a regular basis for basketball games and served as a fellowship and banquet hall.
The Wichita church is the “mother church” of the Gospel Mission Church organization. Five other congregations are located in other states and twice a year general church meetings of the organization are held in Wichita. In addition to usual spiritual services, the church has for many years sponsored, and its members have conducted, supplemental schooling for all grade levels through high school. Students needing help with regular school work could obtain it at the church after school. It was admitted that the church building and gymnasium were completely functional at the time of taking and well served the congregation and community of which it was a part. It is also admitted that a comparable facility is necessary for the church to continue its function and operations for its members and the community.
Over the years, the building had, of course, depreciated and there was deferred maintenance. It is to be noted, however, that the church had been under threat of condemnation for four years prior to the actual taking. All are agreed that current building code requirements would necessitate substantially increased costs for any replacement facility. All are also agreed that church property is not commonly bought and sold, and that the traditional market data approach for determining compensation is not available.
The court-appointed appraisers were instructed that compensation was to be determined as the amount needed to provide equivalent necessary replacements for the property taken, undiminished by depreciation or functional obsolescence. On appeal to the district court from the appraisers’ award, the court adhered to this measure of compensation in its instructions to the jury. Based on expert testimony following this standard, the jury returned a verdict of $167,815.00. The Urban Renewal Agency of Wichita has appealed.
The sole issue on appeal is whether the trial court erred in applying the “substitute facilities” measure of compensation, i.e., the amount needed to provide an equivalent necessary replacement facility undiminished by depreciation or functional obsolescence. The Agency contends that the proper measure is the “depreciated replacement cost” approach, i.e., the cost to build an equivalent facility less depreciation as of the date of taking.
It is fundamental that private property shall not be taken or damaged for public use without just compensation. U.S. Const. 5th Amend.; K.S.A. 26-513(o). It is also the law of this state that, if the entire tract of land or interest therein is taken, the measure of compensation is the value of the property or interest at the time of the taking. K.S.A. 26-513(h).
The three generally accepted methods of valuing real property for purposes of condemnation are: (1) The market data approach based upon what comparable properties within the area have sold for at or near the time of taking; (2) the depreciated replacement cost or cost approach based upon what it would cost to acquire the land and to erect equivalent improvements, less depreciation; and (3) the income approach or capitalization of income based upon what the property taken is producing or is capable of producing in income at the time of the taking. Ellis v. City of Kansas City, 225 Kan. 168, 589 P.2d 552 (1979); State Highway Commission v. Lee, 207 Kan. 284, 485 P.2d 310 (1971). As stated in Ellis, the market data approach is by far the most commonly used method of appraisal and is the method which should be used when there have been sales of comparable properties in the same locale near the time of the taking. When, however, the property is so unique that it has no ascertainable market and there are no sales of reasonably similar or comparable property, the other methods — depreciated replacement cost or capitalization of income — may be used. 225 Kan. at 172.
It is agreed that the value of the church sanctuary and gymnasium could not, in this instance, be determined by the traditional market data approach. Obviously, the capitalization of income method is inappropriate. However, there would appear to be no obstacle to determining value under the depreciated replacement approach advocated by the Agency. Despite this, the Church contends and the trial court ruled that when a condemnee is a “private owner of a non-profit public facility devoted to a special purpose,” “just compensation” requires departure from the value standard and application of the substitute facilities method.
In its excellent brief filed with this court, the Church leans heavily on the case of City of Wichita v. Unified School District No. 259, 201 Kan. 110, 439 P.2d 162 (1968), and argues that our Supreme Court recognized and tacitly approved application of the substitute facilities doctrine to the taking of property held by a nonprofit charitable organization organized for public purposes when market data is not obtainable. In that case the court applied the substitute facilities method of compensation when public school property was taken to make way for an interstate highway. It was there held that, when property already devoted to public use by one agency of government is taken through condemnation proceedings by a different agency of government, the compensation due is such an amount as will provide equivalent necessary replacement for the property taken, and that factors of depreciation and functional obsolescence are not to be considered. The court made it clear, however, that the substitute facilities method is not another approach in determining value of property as a measure of compensation in condemnation proceedings.
“The cost of adequate substitutes necessary to replace public facilities taken in condemnation proceedings may be more or less than the value of the property taken.” Syl. f 6.
The rationale for departing from value as the measure of compensation in the case of a public condemnee was stated as follows:
“The status of a school district deprived by condemnation of its property differs radically from that of a private condemnee. A school district exists to further the educational process, and when its school property has been condemned, it may not take its money and liquidate its operations. The district remains charged with the same public duty of providing educational facilities for its children as it had before its property was taken. And the cost of constructing substitute facilities is equally great whether those condemned were new or ancient.” 201 Kan. at 116.
Substitute facilities need not duplicate those which have been taken, provided they are of equivalent utility, and where no replacement is required to restore a public agency to its prior state of efficiency in discharging its public functions, no more than nominal damages need be awarded. Syl. ¶ 7.
Even though it was established that the church facilities consisted of properties not ordinarily traded on the market and the market data approach was not therefore available, the fact remains that here we are concerned with private property for which the Church is entitled to just compensation based on the value of the property at the time of the taking. K.S.A. 26-513. It may be noted that for the Church to continue to serve its congregation and community in the same manner as before the taking, a comparable facility may be necessary. However, there is no requirement beyond good intentions that it do so.
The recent case of United States v. 564.54 Acres of Land, 441 U.S. 506, 60 L.Ed.2d 435, 99 S.Ct. 1854 (1979), is persuasive. There the object of the condemnation was a nonprofit summer camp owned and operated by the Lutheran Church. That case is factually different from the one at bar in that there it was concluded a sufficient market existed to allow application of the market data approach to determine value. However, the court does discuss whether application of the substitute facilities approach is required for “just compensation,” i.e., “whether an award of market value would diverge so substantially from the indemnity principle as to violate the Fifth Amendment.” 441 U.S. at 513. In determining that it would not, the court addressed issues which are also advanced by the Church in the case at bar: (1) The fact that new facilities will bear financial burdens imposed by regulations to which existing facilities are not subject, which might preclude continuation of the owner’s use, does not require divergence from normal valuation methods. It was noted that it is riot at all unusual that property uniquely adapted to the owner’s use has a market value on condemnation which falls far short of enabling the owner to preserve that use. Yet, nontransferable values arising from the owner’s unique need for the property are not compensable. (2) A nonprofit organization may be distinguished from a business enterprise, since commercial property can be valued by the capitalized income approach. But there is no reason to treat a nonprofit public oriented organization differently from private homeowners or other non-commercial property owners who neither derive earnings from their property nor hold it for investment. Just compensation does not mandate a government subsidy for nonprofit organizations nor does a nonprofit status require rejection of the market value standard. (3) The substitute facilities approach applied to public condemnees is based on the condemnee’s legal or factual obligation to replace the facilities. It does not apply to a private condemnee which is “free to allocate its resources to serve its own institutional objectives, which may or may not correspond with community needs.” 441 U.S. at 515. Awarding replacement cost on the theory that the condemnee would continue to operate for a public purpose as before the taking would provide a windfall if substitute facilities were never acquired or, if acquired, were later sold or converted to another use. (4) The fact that the facilities might have benefited the community is not relevant in assessing the compensation due a private condemnee. A private entity does not hold its property as the public’s trustee and is not entitled to be indemnified for the public’s loss.
The fact that 564.54 Acres of Land is concerned with market value as opposed to value determined under the depreciated replacement cost approach does not serve to distinguish the reasoning. As has been noted, market data is but one approach recognized in Kansas to determine value, and value at the time of taking is the measure of compensation mandated by our statutes for the taking of private property. As has also been noted, the substitute facilities method of compensation is not a method of determining value and its application to public condemnees is based on the unique character and the use being made of public property. We hold the substitute facilities method of determining compensation in eminent domain proceedings to be applicable only in such proceedings against a public entity and it was error to apply that method in this case.
The Church adds one argument not explicitly addressed in 564.54 Acres of Land. It contends that, if the substitute facilities method is not applied, it will be forced to close its doors because of lack of sufficient funds to construct new facilities, and that the First Amendment rights of the Church members will therefore be infringed. The counter-argument, of course, is that if the only reason for applying the substitute facilities method to this private condemnee is that it is a religious organization, the proscription against assisting the establishment of religion will be breached. As was noted in the concurring opinion in United States v. 564.54 Acres of Land, More or Less, 576 F.2d 983, 999 (3d Cir. 1978), rev’d 441 U.S. 506, 60 L.Ed.2d 435, 99 S.Ct. 1854 (1979):
“Where church-owned property is involved, constitutional obstacles present themselves no matter which narrow path we choose to follow. Attempts to supervise the use of the condemnation award will run afoul of the First Amendment’s entanglement proscription. Thus, there is no way to insure that an award premised on use for substitute facilities will not be pocketed. Yet, in addition to offending our sense of fairness, any system of compensation which results in a windfall to the property owner may well violate the constitutional command that the government not aid religion.
“But more fundamentally, when the condemned facility belongs to a religious organization, it is the inquiry which is [at] the very heart of the determination that the condemnee is entitled to the cost of substitute facilities which is obnoxious under our constitutional framework. The judge or jury has no right to pass on the ‘benefit’ or the ‘necessity’ to the community of such installations.”
The Supreme Court did not discuss the First Amendment implications of applying the substitute facilities doctrine to property owned by a church, but it did note as an additional reason for denying the doctrine to private condemnees, generally, that to make the measure of compensation depend on a jury’s subjective estimation of whether a particular use “benefits” the community would conflict with efforts to establish a relatively objective standard of valuation. See also Wilmington Hous. Auth. v. Greater St. John Bapt. Ch., 291 A.2d 282 (Del. 1972); City of Baltimore v. Concord, 257 Md. 132, 262 A.2d 755 (1970).
Having determined that this case must be reversed on the issue of measure of compensation, we turn to the disposition of the matter on remand. It is argued on behalf of the Church that, if it is determined that depreciation is a proper factor to consider, this case should be remanded for the purpose of taking evidence on that issue alone, the jury having already determined the cost of a replacement facility. On the other hand, the Agency argues that it will not suffice simply to have the court determine the appropriate amount of depreciation and reduce the jury’s verdict accordingly, noting that the testimony adduced at trial pertains to the cost of construction of a new facility, undiminished by depreciation or functional obsolescence.
The record before us reveals that both parties presented evidence as to the cost of a replacement facility, and it is agreed that the verdict returned by the jury is supported by competent evidence. Appellant has stipulated that this appeal tests only the trial court’s ruling as to the proper measure of damages and whether replacement cost should be reduced by depreciation factors. We find no justification for a new trial on all issues, but rather that the trial court should receive and consider evidence on the limited issues of depreciation and functional obsolescence of the church property, if any, and reduce the jury’s award of compensation accordingly.
Reversed and remanded for new trial on the limited issues of depreciation and functional obsolescence. | [
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Abbott, J.:
Both of these appeals are from an order granting summary judgment against the plaintiffs and in favor of the defendant based upon the plaintiffs in both cases having executed an unconditional release in settlement with a joint tort-feasor.
On June 1, 1976, plaintiff Randy Geier and his brother, Ronnie Geier, were passengers in a 1970 Dodge Charger automobile owned and driven by defendant, Steven L. Wikel. At 6:25 p.m. on that same date, the Wikel vehicle struck the first freight car behind two diesel units of a northbound freight train owned and operated by the St. Louis-San Francisco Railway Company. Randy Geier was injured and Ronnie Geier was killed in that collision.
On June 14, 1976, Randy Geier and Norman Geier, his father, executed an unconditional release in favor of the St. Louis-San Francisco Railway Company. The release acknowledged the receipt of $5,000 from the railroad, recited the occurrence of the accident and Randy Geier’s injury, and further recited that the accident occurred “under circumstances which [Randy Geier and Norman Geier] claim render said Company liable in damages, although such liability is denied by said Company, and [Randy Geier and Norman Geier are] desirous to compromise, adjust and settle the entire matter.”
On that same date, Norman Geier and Barbara Geier (Ronnie’s parents) executed an unconditional release in substantially identical terms, acknowledging the receipt of $5,000 from the railroad and reciting Mr. and Mrs. Geier’s claim of negligence against the railroad resulting in injury and death to Ronald R. Geier, their son.
On October 19, 1976, Randy Geier filed suit against Steven Wikel and his mother, Tressie Gossett. On the same day, Norman and Barbara Geier filed suit for wrongful death against the same defendants. The suit against Tressie Gossett was later dismissed when it was shown that Steven L. Wikel was an emancipated minor and the actual owner of the 1970 Dodge Charger that was involved in the accident.
During discovery, both sets of attorneys learned that the Geiers had given unconditional releases to the St. Louis-San Francisco Railway Company. Wikel filed a motion for summary judgment and the trial court entered summary judgment for the defendant on the theory that the release of one joint tort-feasor releases all.
Although we would not ordinarily do so, we dispose of this case on a point not raised or briefed by the parties. The trial judge did not have the guidance of Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), when he decided this case. We are of the opinion that the decision in Brown requires us to vacate the judgment and remand the case to the district court for its reconsideration of the defendant’s motion.
The trial court followed decisions by the Kansas Supreme Court which spanned a hundred years. The rationale behind the common law rule that the release of one joint tort-feasor releases all is explained in Railway Co. v. McWherter, 59 Kan. 345, 352, 53 Pac. 135 (1898), as follows:
“The reason of the rule which renders the acceptance of satisfaction from one of two or more joint tort feasors a discharge as to all, is that the wrong is single and entire, and the injured party is entitled to one and only one satisfaction, no matter how many parties may have joined in the act. As a general rule, the nature of the case does not admit of an apportionment of the damages among the wrongdoers, but they are liable jointly and severally for the whole.”
That reasoning was shattered by the adoption of comparative negligence in Kansas (K.S.A. 60-258a) and its subsequent construction in Brown v. Keill abolishing the concept of joint and several liability between joint tort-feasors in comparative negligence actions. As explained in Brown, the proportionate fault of all parties to the occurrence is to be determined even though one or more of them is not a party to the action and is unable to pay, or cannot be required for any reason to pay his or her proportionate fault.
The fact that St. Louis-San Francisco Railway Company was not a named defendant is irrelevant. The defendant is entitled to have the railroad’s percentage of fault determined and has no responsibility to pay the railroad’s share of the obligation. The defendant is not required to have the railroad’s percentage of fault determined, however, and the fact that he has not yet requested the court to submit that issue for determination is of no moment to this decision. An injured party whose claim for damages is exclusively subject to the Kansas comparative negligence statute may now settle with any person or entity whose fault may have contributed to the injuries without that settlement in any way affecting his or her right to recover from any other party liable under the act. The injured party is entitled to keep the advantage of his or her bargaining, just as he or she must live with an inadequate settlement should the jury determine larger damages or a larger proportion of fault than the injured party anticipated when the settlement was reached. It follows that the type of release given will have no effect on any party not specifically named in the instrument.
Judge Richard D. Rogers has resolved a similar question in the same manner in Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740, 748-49 (D. Kan. 1978), stating:
“The Kansas Supreme Court has held that common-law principles of joint liability do not survive the enactment of the Kansas comparative negligence statute, K.S.A. § 60-258a. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978):
[W]e hold under the provisions of K.S.A. 60-258a the concept of joint and several liability between joint tort-feasors previously existing in this state no longer applies in comparative negligence actions.
Id., 224 Kan. at 204, 580 P.2d at 874. It follows that since a given defendant in a case governed by K.S.A. § 60-258a can be held liable in any event only for that percentage of injury attributable to his fault, a release of that defendant cannot inure to the benefit of potential co-defendants. Under former rules of joint liability, to release one defendant unconditionally may have been viewed as relinquishment of the right to recover one’s entire damages from a party liable, and thus as extinguishing the action as to potential defendants who stand as third-party beneficiaries to the release. This cannot be the case in an action under K.S.A. § 60-258a.”
In view of our disposition of this case, we have not considered the issues briefed by the plaintiffs.
The judgment is vacated and remanded to the district court for its reconsideration in light of Brown v. Keill, 224 Kan. 195, and this opinion. | [
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Spencer, J.:
Following trial to the court defendant was found guilty of a violation of K.S.A. 1978 Supp. 21-3612, which provides:
“(1) Contributing to a child’s misconduct or deprivation is causing or encouraging a child under eighteen (18) years of age:
“(a) To become a delinquent, miscreant, wayward or deprived child or a traffic offender or truant, as defined by K.S.A. 1978 Supp. 38-802, and any amendments thereto; or
“(b) to commit an act which, if committed by an adult, would be a felony or misdemeanor.
“Contributing to a child’s misconduct or deprivation is a class A misdemeanor, except that if the defendant caused or encouraged the child to be a delinquent child or to commit an act which, if committed by an adult, would be a felony, the offense is a class E felony.
“(2) A person may be found guilty of this section even though no prosecution of the child, whose misconduct or deprivation the defendant caused or encouraged, has been commenced pursuant to the juvenile code or code of criminal procedure.
“(3) This section shall be a part of and supplemental to the Kansas criminal code.”
On appeal defendant challenges the constitutionality of the statute as being vague and indefinite and the sufficiency of the evidence, and contends error in the denial of his motion for new trial on grounds of newly discovered evidence. Having reviewed the record, we are convinced the dispositive issue is the lack of sufficient evidence to sustain the conviction.
Defendant was charged with having unlawfully, knowingly and willfully encouraged a child under the age of eighteen years, Kimberly Sue Rinehart, to become a wayward child as defined by K.S.A. 1978 Supp. 38-802. The record consists only of the State’s evidence, which reveals that Kimberly left her home on October 26,1978, following an argument with her mother, Patricia Sharp, occasioned by Kimberly’s having skipped school. On November 10, 1978, Detective Sergeant Lamon went to defendant’s residence in the city of Shawnee in Johnson County after receiving a telephone call from Mrs. Sharp advising him that some of Kimberly’s clothes had been seen at defendant’s residence.
Detective Lamon testified that defendant’s house was a smaller house located behind a larger house. As the officer approached the smaller house, defendant came out the back door of the larger house. Detective Lamon testified he advised defendant that he was looking for Kimberly, to which defendant replied, “Well, I haven’t seen her but if I do, you’ll be the first one to know.” Detective Lamon walked to the smaller house, looked in the door which was ajar, and observed Kimberly reclining “on a bed or a pallet or something in the middle of the floor.” At this point, defendant closed the door and demanded a search warrant. Detective Lamon advised defendant that, if Kimberly was in the house, defendant would be arrested. Defendant inquired, “What if she is in there? If I turn her over to you, what will happen to me?” Detective Lamon replied they would talk about that later. He and defendant then went into the house and defendant told Kimberly, “You’re caught.” Kimberly picked up her coat and was taken into custody. On cross-examination, Detective Lamon stated Kimberly was fully clothed when he walked in and that two other persons were also present in the house. He testified he had no evidence or personal knowledge that Kimberly was staying at defendant’s house.
Kimberly testified she had been at defendant’s house four or five times, always with friends and once when defendant was not present. She usually stayed only a couple of hours and had never stayed overnight. She kept her extra clothing at Shawnee Recreation behind a wall and changed clothes whenever she could, including a couple of times at defendant’s house. Kimberly stated that defendant washed her clothes “a couple times.” She did not see defendant actually wash them but saw him take them into the house. Kimberly testified she had tea or water at defendant’s house but had never eaten there. She bought food with her birthday money which she had in her possession and did most of her sleeping during the day at Shawnee Recreation. She stated she told defendant and a lot of other people she had run away from her mother. Kimberly testified that when Detective Lamon arrived she was half sitting, half lying down, but was not asleep. When asked whether she was trying to sleep, she answered: “Kind of. I was just kind of wondering what was going on, you know, just listening to the conversations. I was sort of sleeping and sort of not.” She indicated she had been at defendant’s house only a half hour before the police arrived. When Kimberly was asked whether defendant had encouraged her not to return to her home, her answer was “No.”
Defendant was found guilty as charged, i.e., of encouraging Kimberly to become a wayward child as defined by K.S.A. 1978 Supp. 38-802, which provides in relevant part:
“(d) ‘Wayward child’ means a child less than eighteen (18) years of age:
“(1) Whose behavior is injurious to his or her welfare;
“(2) who has deserted his or her home without good or sufficient cause.”
In rendering judgment of conviction, the court found that Kimberly had run away and deserted her home without good and sufficient cause on or about October 26, 1978, and that she was under the age of eighteen years. The court also noted that Kimberly was at defendant’s residence on or about November 10, 1978; that defendant denied knowing anything of her where abouts; and that defendant had cleaned and washed clothes for Kimberly and knew that she was a runaway. The trial court concluded defendant did in fact encourage Kimberly “to become, and continue to be, a wayward child,” as alleged in the information.
In a criminal action where defendant contends the evidence at trial was not sufficient to sustain a conviction, the standard of review on appeal is whether the evidence when viewed in the light most favorable to the prosecution is such as will convince the appellate court that a rational fact finder could have found the defendant guilty beyond a reasonable doubt. State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979).
Applying this standard, we find that Kimberly left her home on October 26, 1978. There is evidence to support a finding that her doing so was without good or sufficient cause. Whether the act of leaving constituted behavior injurious to her welfare or whether she had in fact deserted her home is not made clear by the evidence. These are conclusions to be drawn only if it may be assumed that her leaving in and of itself was an act injurious to her welfare, and that remaining away from her home for the period of her absence constituted desertion of her home. Recognizing that the trial judge had the opportunity to hear the testimony and observe the conduct of the witnesses, these are conclusions which might reasonably have been reached. However, it is abundantly clear that Kimberly, if in fact she was a wayward child, became such on October 26, 1978. There is nothing as shown by this record to indicate that defendant encouraged Kimberly to leave or desert her home on that date. There is evidence that defendant was aware Kimberly had run away from her home but not that he was aware of her reasons for doing so. It is apparent that defendant provided Kimberly with aid and assistance on several occasions after she left home by permitting her to seek shelter at his house, to change clothes there, and even by washing some of her clothes for her. However, such conduct simply does not fall within the purview of the statute.
K.S.A. 1978 Supp. 21-3612 under which defendant was convicted is a penal statute which must be strictly construed in favor of persons sought to be subjected to its operation. This means simply that ordinary words are to be given their ordinary meaning and the statute is not to be read so as to add to or subtract from that which is readily found therein. State v. Floyd, 218 Kan. 764, 544 P.2d 1380 (1976); State v. Bishop, 215 Kan. 481, 524 P.2d 712 (1974). The clear language of this statute requires that an accused encourage a child “to become” wayward, not “to become or to remain” so. The statute does not make it a criminal act to provide aid and assistance to a child under eighteen years of age even though it is known that such child is a runaway from home and perhaps is a wayward child. Had the legislature intended to make such conduct a criminal offense, it would have so provided. When a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Thomas County Taxpayers Ass’n v. Finney, 223 Kan. 434, 573 P.2d 1073 (1978); Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, 557 P.2d 1286 (1976).
From this record we conclude there is not sufficient evidence to sustain defendant’s conviction. Having so found, it is unnecessary to consider other points on appeal.
The judgment of the district court is reversed and this case is remanded with directions to discharge the defendant. | [
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Parks, J.:
This is an action for recovery of unpaid wages and damages. K.S.A. 44-313 et seq. The Secretary of Human Resources, as assignee of the wage claimant, Harlan V. Montgomery, Jr., appeals from a judgment in its favor against the defendant corporation, Lee Barnett Enterprises, Inc., in the sum of $638.50, and against the defendant Bill Erdman in the sum of $187.00, claiming that judgment should be entered against both defendants in the sum of $638.50.
The wage claimant worked as a bartender at Jean Laffitte’s Warehouse from March 1976 until the business closed on August 3, 1976. The night club was owned by Lee Barnett Enterprises, Inc., and since June 15 Bill Erdman was the sole stockholder and officer of that corporation. Montgomery was given a check on July 1 for wages in the amount of $67.58 but this check was dishonored for insufficient funds. He was assured by the club manager that it was a mistake and that he would be paid. Montgomery received a second paycheck for $64.67 on July 16, but when he tried to cash both checks the bank would not honor them. Montgomery contacted Erdman several times and each time was reassured that there should be no problem in cashing the checks and he would look into it. On the day the business was closed, Montgomery again inquired about his wages and Erdman said to contact him the following Monday and they should have his money. Sometime after August 4, Erdman informed Montgomery that the two checks previously issued would not be honored and no other wages would be paid for the period after July 16.
Montgomery assigned his claim pursuant to K.S.A. 44-324 to the Secretary of Human Resources, who sought the back wages and damages equal to the unpaid wages as provided by K.S.A. 1979 Supp. 44-315(b). The plaintiff’s claim may be summarized in the following manner:
Unpaid Wages:
first bad check $ 67.58
second bad check 64.67
68 hrs. at $2.75 187.00
$319.25 wages due
Damages: 319.25
$638.50 total claim
The trial court made the following findings in a letter opinion:
“The Court finds that Defendant Erdman was the sole stockholder director and officer of the corporation. The Court finds that he had exclusive responsibility for the disbursement of funds. The Court finds that the Defendant Erdman did issue checks payable to Vic Montgomery which were insufficient. The Court further finds that the Defendant Erdman did make representation to the said Vic Montgomery that the checks would clear when he was called on the telephone. The Court further finds that as a result of said representation that Vic Montgomery did continue to work for the corporation. The Court further finds that Defendant Erdman is personally liable for said checks the reason being that it was he who personally conveyed that information to Mr. Montgomery when he in fact knew that the same was not true. Therefore, the Court finds that the corporation is indebted to Mr. Montgomery in the amount of $638.50. However; the Court finds Defendant Erdman wrote the checks as a corporation officer and that the penalty provision will not extend to him, however, when he made false representation to Mr. Montgomery, this was a personal representation and the Court is satisfied that he is responsible for the two checks as well as the last week’s work.” (Emphasis supplied.)
Under K.S.A. 1979 Supp. 44-315(b), the authorized damages may be collected only if the employer knowingly or willfully fails to pay the wages due. This issue is generally a question to be determined by the trier of fact (Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 411, 582 P.2d 244 [1978]), and such a finding will not be disturbed so long as it is supported by substantial competent evidence. Here there was evidence that Erdman, acting for the corporation, signed the checks issued to pay Montgomery and knew they were returned for insufficient funds. Erdman also knew that Montgomery had not been paid by any other means, but assured him his wages would be forthcoming. Finally, Erdman told Montgomery that he would not be paid and the checks would not be honored although he had previously acknowledged the debt for wages. We find that the evidence was sufficient to support a finding by the Court that the employer knowingly failed to pay the wages and that the employer willfully violated the act.
In its conclusions of law the Court said:
“It can be stated as a rule of law that the corporation officer is not liable for the debts of the corporation. It is further stated that as a matter of law that as a corporation officer makes a false representation then personal liability of said officer occurs. The penalty does not go to the officer individually since the benefit of the work did go to the corporation and the corporation is bound by all the laws of the State of Kansas for the work performed.”
We disagree with the Court’s holding that the officer of the corporation cannot be individually liable for the penalty. K.S.A. 44-323(b) states:
“(b) In case of violation of section 2 [44-314] or section 3 [44-315] of this act by a corporate employer, either the corporation or any officer thereof or any agent having the management of the corporation who knowingly permits the corporation to engage in such violation shall be deemed the employer for purposes of this act.”
It is obvious in reading this statute that either the corporation or an officer who knowingly permits the corporation to violate the act shall be deemed the employer. Furthermore, K.S.A. 1979 Supp. 44-315(fe) provides that such employer shall be liable for the payment of the wages due and additionally for damages. Because of this special statute (K.S.A. 44-323[b]), the general rule pertaining to a corporate officer’s liability for the debts of a corporation is not applicable.
Since it was Erdman’s conduct which the trial court relied upon to hold the corporation indebted to Mr. Montgomery in the amount of $638.50, it stands to reason that Erdman knowingly permitted the corporation to violate the act. Therefore, we hold that the trial court erred when it did not find that Erdman was the employer for the purposes of this claim and as such was liable for the unpaid wages and damages.
In view of our decision that Erdman should be deemed the employer in this case, it is not necessary for us to consider the point raised by appellant that the trial court erred in calculating the amount of personal liability of Erdman.
Judgment is reversed and the case remanded to the trial court with directions to enter judgment against defendant Bill Erdman for the total claim of $638.50. | [
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Swinehart, J.:
This appeal arises from negotiation procedures between plaintiff Burrton Education Association and defendant Unified School District 369, pursuant to the Collective Negotiations Act, K.S.A. 1977 Supp. 72-5413 et seq. (now 1978 Supp.).
Burrton Education Association (hereinafter referred to as the Association) is the exclusive representative for purposes of professional negotiations of the teachers in U.S.D. 369. The parties operated under a negotiated agreement for the 1977-78 school year. On December 1, 1977, the parties exchanged notices pursuant to K.S.A. 1978 Supp. 72-5423 relating the items to be negotiated prior to the issuance of the teachers’ contracts for the 1978-79 school year. After protracted negotiations, the district court on May 24, 1978, issued an order of impasse pursuant to K.S.A. 1978 Supp. 72-5426. The order found that agreement had been reached on all items subject to negotiation with the exception of the salary schedule and the duration of the agreement. The impasse procedures outlined in K.S.A. 1978 Supp. 72-5427 through 5429 then commenced. Mediation failed to produce an agreement. A fact finder was then appointed and recommended the final position of the Association on each of the two remaining issues. The negotiating parties again met and agreed to accept the fact finder’s proposal as to duration of the agreement; however, the Board refused to accept the recommendation of the fact finder concerning salaries.
On September 19, 1978, the Board voted to issue unilateral contracts which would include:
“[R]etention of the current contract [1977-78] with the exception of changes agreed to by both negotiating parties during the current negotiating term, and the duration of agreement proposed which the teachers presented at the fact finding hearing and the salary schedule ... set out in a Board of Education Presentation . . . .”
Before contracts conforming to the September 19 Board resolution were distributed to the teachers, the Board again met on October 2, 1978, and voted to rescind its previous action. After doing so, the Board voted to issue unilateral contracts with the same salary schedule as before, but with many terms of the 1977-78 negotiated agreement either changed or deleted.
On October 13, 1978, the Association membership voted to ratify the Board’s action of September 19, 1978. When the Board did not respond, the Association filed suit to restrain the Board from issuing contracts pursuant to its October 2,1978, resolution.
In its conclusions of law, the trial court found: (1) K.S.A. 1978 Supp. 72-5428(f) authorizing the Board to “take action in the best interest of the public” after impasse procedures end without agreement does not allow the Board to take action on items not noticed for negotiations nor presented to the fact finder; (2) the October 2, 1978, unilateral contracts making changes in the 1977-78 negotiated agreement not noticed for negotiation for the 1978-79 year were void; (3) the Board’s action of September 19, 1978, was consistent with K.S.A. 1978 Supp. 72-5428(f) and may not be rescinded unilaterally; (4) the Association’s ratification of the September 19, 1978, action was proper and served as an acceptance, making the September 19 unilateral contracts binding on the parties.
The trial court therefore permanently restrained and enjoined the Board from enforcing the terms and conditions as set forth in the contracts issued October 2, 1978, and further found that the terms and conditions, set forth on September 19, 1978, be declared the terms and conditions for the 1978-79 school year.
The defendant Board appeals from this judgment. In general the defendant asserts the court erred in finding that the Board’s October 2, 1978, action was void and that the ratification of the defendant’s September 19, 1978, action by the Association resulted in a contract between the teachers and the Board.
Before discussing the particulars of this case, it is important to understand the statutory structure of teacher negotiations, highly summarized as follows:
K.S.A. 1978 Supp. 72-5413(g) provides:
“ ‘Professional negotiation’ means meeting, conferring, consulting and discussing in a good faith effort by both parties to reach agreement with respect to the terms and conditions of professional service.”
K.S.A. 72-5414. Professional employees (teachers) have a right to join organizations and to “participate in professional negotiation with boards of education through representatives . . . for the purpose of establishing . . . terms and conditions of professional service.”
K.S.A. 1978 Supp. 72-5415. Exclusive representation of negotiating units.
K.S.A. 72-5416 through 5420, and amendments thereto. Recognition and bargaining unit determinations.
K.S.A. 72-5421:
“A board of education and a representative selected or designated . . . may enter into an agreement covering terms and conditions of professional service. Such agreements become binding when ratified by a majority of the members of the board of education and a majority of the members of the applicable negotiating unit.”
K.S.A. 72-5422. Savings clause for existing agreements.
K.S.A. 1978 Supp. 72-5423. (a) Rights and duties of boards of education are not affected except boards are required to recognize the professional employees’ organizations and when so recognized “shall enter into professional negotiations prior to issuance of the annual teachers’ contracts. . . . Notices to negotiate on new items or to amend an existing contract must be filed on or before December 1 in any school year by either party . . . .” (b) Every meeting except mediation and fact-finding shall be open to the public, (c) Strikes are not authorized. (d) Agreements made under the act may be incorporated in the individual contracts for a period of not to exceed two years.
K.S.A. 72-5424. Binding arbitration option.
K.S.A. 72-5425. Severability.
K.S.A. 1978 Supp. 72-5426. (a) Either party may ask a court to declare an impasse in negotiations. (b) If the court finds no impasse, it shall order the parties to continue negotiations, (c) If an impasse is found, the court is to order impasse resolution procedures to begin.
K.S.A. 1978 Supp. 72-5427. A mediator shall be appointed and shall meet with the parties to assist in resolving the impasse. If mediation fails, the mediator shall so certify, or if he fails to do so, either party may request a fact finder.
K.S.A. 1978 Supp. 72-5428. (a) Upon certification or request a fact finder (or board of three) shall be appointed. (b) The fact finder shall meet with the parties who will present a description of the final position on each issue, (c) The fact finder shall have the power to conduct hearings. (d) The fact finder shall make findings of fact on each issue and shall recommend the adoption on each issue of either the board’s or the organization’s final position. The recommendation shall not be binding on either party, (e) Either party may make the fact finder’s report public, (f) “After the report of the fact-finding board has been made public, if the board of education and the recognized professional employees’ organization have not resolved the impasse and reached an agreement, the board of education shall take such action as it deems in the public interest, including the interest of the professional employees involved, and shall make such action public. ” (Emphasis supplied.)
K.S.A. 1978 Supp. 72-5429. Costs of mediation and fact-finding.
K.S.A. 1978 Supp. 72-5430. Prohibited practices constituting evidence of bad faith in negotiations. Either party may petition a district court for an injunction against a prohibited practice.
K.S.A. 1978 Supp. 72-5431. Savings clause.
Since the State has enacted specific legislation which governs contract negotiations between teachers, their duly authorized representatives and school boards (K.S.A. 1978 Supp. 72-5413 et seq.), we must consider the factual matters that gave rise to this appeal in this context.
It is undisputed that all parties to this action proceeded under the statutory collective bargaining provisions then existing up to and including the final stage of fact-finding. When all available avenues of negotiations to arrive at a contract had failed, the Board was then in a position of offering a unilateral contract to the teachers as provided in K.S.A. 1978 Supp. 72-5428.
On appeal the Board alleges the trial court erred by: (1) holding that only the unresolved issues submitted to fact-finding procedures under K.S.A. 1978 Supp. 72-5428 and noticed for negotiation by the parties were subject to change by the Board for inclusion in its October 2 unilateral contracts; (2) finding that ratification by the Association on October 13, 1978, of the action of the Board taken September 19 made the action of the Board taken on October 2 void; (3) finding that the Board’s action of October 2 was contrary to the law and therefore did not rescind the action of the Board taken on September 19.
We shall first address the Board’s second issue which involves the significance of the ratification by the Association of the Board’s September 19 action. Here a negotiated agreement between the Association and the Board was in effect for the 1977-78 school year, as well as the individual teachers’ contracts based upon that negotiated instrument. Negotiations between the Association and the Board for the 1978-79 year were unsuccessful. For purposes of the continuing contract law, both the negotiated agreement and the teachers’ individual contracts constitute “contracts of employment” (Riley County Education Ass’n v. U.S.D. No. 378, 225 Kan. 385, 592 P.2d 87 [1979]), and as such would become the contracts for those teachers electing to retain their positions under the continuing contract law. However, the teachers also had the option of accepting the unilateral contracts proposed by the Board. “Absent ... a collectively negotiated agreement properly ratified, the individual teacher has the option of accepting the unilateral contract offered by the Board or proceeding under the Continuing Contract Law.” (Emphasis supplied.) NEA-Wichita v. U.S.D. No. 259, 225 Kan. 395, 400, 592 P.2d 80 (1979). As the decision to accept the unilateral contract offer proposed by the Board after the statutory negotiation process failed was an individual right of each teacher, the Association lacked the power to ratify the Board’s September 19 action on behalf of the teachers. Therefore, the Association’s ratification of the September 19 Board decision is immaterial to our decision in this case.
The determinative question is whether the Board had the authority to rescind its September 19 action. Under general contract law principles, the Board would certainly have had the power to rescind because the unilateral contracts were never issued to the individual teachers and never accepted by them prior to the Board’s action attempting to rescind on October 2.
However, we cannot ignore the impact the 1977 amendments to the Collective Negotiations Act might have on the Board’s conduct. The amendments prescribing the procedures which are to be followed for an impasse and its resolution are mandatory. See Garden City Educators’ Ass’n v. Vance, 224 Kan. 732, 735, 585 P.2d 1057 (1978). If no agreement has been reached after exhaustion of the impasse resolution procedures, the school board “retains the final right to act in what it deems the best interest of both the teachers and the public. K.S.A. 1977 Supp. 72-5428(/).” In re NEA-Topeka, Inc., 224 Kan. 582, 583, 581 P.2d 1187 (1978).
In this case we find the Board took this final action in compliance with K.S.A. 1978 Supp. 72-5428(f) on September 19, 1978, because it acted in an official capacity “in the public interest, including the interest of the professional employees involved,” and made its action public. The Board determined that the negotiation procedures had not produced an acceptable contract to the school board and therefore decided to issue a unilateral contract for the year 1978-79 to the teachers, containing all of the provisions of the 1977-78 contract, the provisions agreed to during negotiations, plus the duration of the contract provision proposed by the teachers and the salary schedule proposed by the Board to the fact finders. This action of the Board appears in the minutes of the School Board for September, 1978, as follows:
“Francis Luginbill stated that, whereas the Board of Education is negotiating in good faith with Burrton Education Association including participation in mediation and fact finding in accord with Kansas law, and whereas the findings of the fact finder have been made public, and whereas the Board of Education and the Burrton Education Association have not been able to agree upon a contract for the 1978-79 school year, and whereas the law of the State of Kansas states that this Board of Education shall take such action as it deems in the public interest including the interest of the professional employees involved, I therefore move that the Board of Education of U.S.D. 369 establish the contract of employment by the Board of Education with the teachers of Burrton School District U.S.D. 369 as follows, and which the Board of Education deems is in the public interest, including the interest of the'teachers; retention of the current contract with the exception of changes agreed to by both negotiating parties during the current negotiating term, and the duration of agreement proposed which the teachers presented at the fact finding hearing and the salary schedule shown as Exhibit #3 as set out in a Board of Education Presentation of its position dated September 5, 1978. John Gray seconded the motion which carried 6-0.”
Although no contracts were actually issued after the adoption of the provisions of the unilateral contract, having taken and published the action it deemed in the interest of all concerned, the Board was nonetheless precluded from taking any steps to rescind this decision until the individual teachers had a reasonable period of time to accept the unilateral contracts or to reject them and continue their employment for another year under their existing contracts. To allow the Board to rescind the statutory action it had taken without affording the teachers a reasonable opportunity to respond could potentially undermine the statutory scheme or intent of reaching an agreement between the parties as rapidly as possible. Although no specific time limits are prescribed to govern the right of the Board to take final action once impasse resolution has failed, we find that the legislature intended such action be taken without unnecessary delay. To allow the Board to change its mind at will regarding the terms of its action taken pursuant to K.S.A. 1978 Supp. 72-5428(f) could unduly prolong the bargaining procedures and frustrate the legislative intent of reaching a final agreement between the Board and its teachers.
We therefore find that the Board was acting within the scope of its authority when it ceased negotiations with the Association and elected to issue unilateral contracts to the teachers. K.S.A. 1978 Supp. 72-5428. This action by the Board cannot be considered as an offer of additional negotiations which would be subject to Association ratification. Rather, each individual teacher had a right to accept or reject the unilateral contract within a reasonable period of time. We further find that the Board in this case did not provide the teachers a reasonable time to respond to its September 19 action before rescinding and substituting new terms on October 2.
The Board’s final contention, that the trial court erred by finding that only unresolved issues noticed for negotiation and submitted to the fact finder could be included in the unilateral contracts, need not be considered in light of our conclusions discussed above. We note, however, that the dicta contained in Riley County Education Ass’n v. U.S.D. No. 378, 225 Kan. at 391-392, would apparently allow the Board to include provisions other than those permitted by the trial court.
We conclude that the trial court correctly found the October 2 action of the Board was void and properly enjoined the enforcement of contracts issued under it. That part of the judgment is affirmed. However, the trial court improperly found that a vote by the Association ratifying the September 19 action of the Board could bind the individual teachers. The teachers were entitled to a fair opportunity individually to accept the unilateral contracts offered by the Board of September 19, or to reject them and continue to teach under the provisions of the continuing contract law. (It is not too late for the Board to fulfill this duty now, and we assume it will do so.) That part of the judgment decreeing the September 19 unilateral contract to be a binding negotiated contract between the Board and the Association must be reversed.
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Rees, J.:
Plaintiff appeals from an adverse summary judgment in a malpractice action against two lawyers, Callahan and Barrett. As the case comes before us, it is targeted at Barrett. There is no contention discovery was incomplete.
After representation by two other lawyers in a Cowley County divorce action brought by his ex-wife in 1972, plaintiff contacted Barrett in November, 1975. It appears there then remained as part of the property division issue the question of equal division of seventeen jointly owned tracts of real estate, each of which was subject to a contract for sale. Barrett was contacted for the purpose of representing plaintiff at a hearing to be held on January 30, 1976, regarding the judicial distribution between plaintiff and his ex-wife of the sellers’ interests in the contracts. Callahan appeared for plaintiff at the hearing and we treat Callahan’s appearance for plaintiff as having been on behalf of Barrett. The evidentiary hearing was recessed. With and without their clients present, counsel conferred concerning possible agreed distribution of the contracts. The hearing was adjourned upon the trial court being advised by counsel a settlement had been reached.
The direct evidence of record is that the trial judge was not informed of the proposed terms of settlement. Plaintiff is of the belief and alleges the judge was told the terms. Even if this were true, it is of no significance in view of our disposition.
Upon leaving the court house, Callahan and plaintiff discussed the proposed distribution and plaintiff objected vehemently. Thereafter the ex-wife’s counsel prepared and forwarded a proposed journal entry that was not approved and returned or presented to the court. In March, Barrett filed a motion for further hearing. It came on for hearing on April 30. At that hearing, plaintiff testified in specific and complete detail with regard to the unpaid principal balance owed on each of the contracts and the gross amount of principal and interest to be received on each contract assuming no prepayment. Each contract permitted prepayment without penalty. It was and continues to be plaintiff’s contention that neither the distribution proposed on January 30 nor the subsequently ordered distribution is an equal distribution because of a sizeable difference between the totals of the then computed amounts representing principal and interest to be received in the absence of prepayment and assuming full and complete payment by the purchasers.
The April hearing was concluded by the trial judge’s request for submission of proposed findings of fact and conclusions of law. The ex-wife’s counsel presented his position in this regard by a May 6 letter to the court. On May 29, Barrett and plaintiff conferred with respect to their proposed findings and conclusions; the meeting was discordant and resulted in a termination of their attorney-client relation. Seemingly using a draft prepared by Barrett, plaintiff prepared and submitted to the trial judge his proposed distribution. Plaintiff’s May 31 transmittal letter to the judge referred to Barrett as his “former attorney” and the record in the case before us discloses with crystal clarity that from and after May 29 plaintiff understood that Barrett and he had no relationship as attorney and client and conducted himself accordingly.
On July 21, following receipt of the post-hearing letter from the ex-wife’s counsel and plaintiff’s suggested findings and conclusions, the trial judge in the divorce case entered his order of itemized distribution of the subject real property interests, the contracts; the judge promptly sent copies of the order to the ex-wife’s counsel and to plaintiff personally; no copy was sent to Barrett and at no material time did he learn of the order. The ordered distribution was not and is not to plaintiff’s liking; he views it as not substantially equal. Around the first of September, 1976, plaintiff conferred with and retained other counsel. Their effort to appeal was unsuccessful; the attempted appeal was dismissed by our Supreme Court as untimely.
The theory of the present action, alleged in both negligence and contract, is that Barrett not only failed to prosecute an appeal but that he did not advise plaintiff of the requirement that an appeal must be commenced within thirty days following the entry of the order sought to be reviewed. Within his various arguments, plaintiff contends that after May 29 Barrett had continuing professional responsibility to plaintiff because there was no court approved withdrawal of appearance by Barrett pursuant to Rule No. 117, (220 Kan. lx) and DR 2-110(A)(l) (220 Kan. cxvi).
It makes no difference whether the action is said to be for negligence or breach of contract; causally related damage is an essential element of the claim. We affirm the trial court on this single dispositive point.
An actionable claim against an attorney for professional malpractice asserting failure to prosecute an appeal or protect the client’s rights to appeal from an unfavorable judgment or order requires proof that had a timely appeal been taken, a reversal or more fávorable judgment would have resulted. Chicago Red Top Cab Ass'n v. Gaines, 49 Ill. App. 3d 332, 333-334, 364 N.E.2d 328 (1977); C/M of Baton Rouge, Inc. v. Wood, 341 So.2d 1181, 1182 (La. App. 1976); Pusey v. Reed, 258 A.2d 460, 461 (Del. Super. 1969); Kilmer v. Carter, 274 Cal. App. 2d 81, 82, 87-88, 78 Cal. Rptr. 800 (1969); Pete v. Henderson, 124 Cal. App. 2d 487, 491, 269 P.2d 78, 45 A.L.R.2d 58 (1954); Bryant v. Seagraves, 270 Or. 16, 18, 23, 526 P.2d 1027 (1974); 7 Am. Jur. 2d, Attorneys at Law § 172; 45 A.L.R.2d 5, § 22.
Plaintiff’s complaint is that the distribution of the contracts ordered in the divorce action constituted an abuse of judicial discretion. Plaintiff’s counsel correctly conceded at oral argument that the record fails to reflect a probability of appellate determination of abuse of discretion. Further, review of the record compels the conclusion that no possibility of an appellate finding of abuse of discretion is shown. Without unnecessarily extending this opinion by recitation of the particular facts, suffice it to say the distribution of the contracts proposed by plaintiff was an equal distribution; the ordered distribution was no less equal; and the ordered distribution is more favorable to plaintiff than his ex-wife for the reason that plaintiff has greater access to higher interest return during a rising money market while each stands to lose equally during a falling money market.
We are mindful of the rules and principles applicable to appellate review of orders of summary judgment. They do not need to be recited again. There is no material dispute as to the discussed controlling issue. Summary judgment was proper. Hiett v. Brier, 2 Kan. App. 2d 610, 615, 586 P.2d 55, rev. denied 225 Kan. 844 (1978).
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Abbott, J.:
This is an appeal by the plaintiffs, Dorothea Mae Bray and her husband, Robert Bray, from an order that dismissed their medical malpractice suit as being barred by the statute of limitations (K.S.A. 60-513[a][4]).
The alleged malpractice took place on March 5 and 6, 1976. The facts upon which plaintiffs rely to prove malpractice and the extent of the injuries to Mrs. Bray are immaterial to this decision. We do note, however, the seriousness of the medical problems that Mrs. Bray alleges resulted from the defendants’ negligence, including a complete hysterectomy, partial permanent renal failure, temporary colostomy, pituitary gland damage, and permanent loss of eyesight.
Mrs. Bray gave birth to her first child in Wilson County, Kansas, on March 5, 1976. Her treating physician was Dr. Hugh G. Bayles. Complications arose immediately after the birth and Dr. Ralph N. Sumner was called in. Throughout the remainder of that day and until Mrs. Bray was transferred to The Wesley Medical Center in Wichita, Kansas, on the following day (March 6, 1976), care and treatment of her was administered under the direction of both Dr. Bayles and Dr. Sumner.
Although not significant to this decision, plaintiffs filed suit first in Sedgwick County against Dr. Bayles. Personal service was obtained, but upon motion by Dr. Bayles that venue did not lie in Sedgwick County, the case was transferred to Wilson County. Some nine months after suit was filed, plaintiffs voluntarily dismissed the lawsuit without prejudice, even though Dr. Bayles objected to the dismissal. Three months later, on October 26, 1977, the lawsuit was refiled in Greenwood County, Kansas. Dr. Sumner was named as an additional defendant. Plaintiffs were unable to obtain service in Greenwood County, and twenty-one days before the statute ran plaintiffs chose to have service made in Wilson County, the defendants’ home county. Of some significance is the fact that the plaintiffs did not refile the suit in Wilson County, and as a result the 90-day relation back time period expired before service was obtained (K.S.A. 60-203).
On February 15, 1978, plaintiffs obtained service in the following manner. Summonses were mailed to the sheriff of Wilson County, who served them by leaving the copy for each doctor at the receptionist’s desk in his office. The return on service of summons is identical for each doctor except for the names. The return on Dr. Sumner states that it was served:
“(2) By leaving on the 15TH day of FEBRUARY, 1978, for each of the within-named defendants AT THE OFFICE OF DR. RALPH N. SUMNER _ A copy of the summons, a copy of the petition, and_ at the respective dwelling place or usual place of abode of said defendants with some person of his or her family of suitable age and discretion.”
All of the above-quoted portion of the return is a preprinted form in small print except for that portion inserted on the lines, which is filled in by typewriter in much larger type.
On February 22, 1978, Dr. Bayles moved to dismiss or transfer the case for improper venue, for a more definite statement, and to dismiss for failure to state a claim. The two-year statute of limitations, unless tolled, expired on March 6, 1978. Two days later, on March 8, 1978, Dr. Sumner filed a motion to dismiss for improper service of process. Dr. Bayles then requested permission to amend his previously filed motion to include, among other things, dismissal of plaintiffs’ action due to insufficiency of service of process. The request to amend was received by plaintiffs on March 9, 1978, one day prior to its filing. Plaintiffs immediately arranged for reservice. Dr. Bayles was re-served on March 9, 1978, and Dr. Sumner was re-served on March 10, 1978. Those services are not disputed. Subsequently, the Brays filed a motion for leave to amend process and service of process to correct the alleged defects in service which had been raised by the defendants. In essence, the Brays wanted to amend the original service so as to show the personal service obtained on March 9 (Bayles) and March 10 (Sumner) to effect a relation back, which plaintiffs argue is permitted by the federal rules under certain circumstances. Discovery was permitted and will be referred to as applicable in this opinion. The case was transferred to Wilson County where Dr. Bayles was allowed to amend his motion so as to raise improper service. The trial judge then held the original service to be invalid, refused to permit the plaintiffs to amend service, determined that the statute of limitations was not tolled and that plaintiffs’ cause of action was barred.
Plaintiffs appeal, contending (1) that the original February 15 service was valid as to Dr. Bayles because he had waived any objection to insufficiency of service and was valid as to Dr. Sumner because his receptionist had apparent authority to accept service, which he was estopped to deny because of his prior conduct; (2) that the trial court erred in refusing to allow plaintiffs to amend service of process; and (3) that the statute of limitations was tolled until after the second service by virtue of the defendants having been absent from the State of Kansas.
The evidence in this case is completely documentary, thus bringing into effect the rule recently restated in Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, Syl. ¶ 2, 592 P.2d 74 (1979):
“Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish.”
Both defendants admit to having been absent from the state at various times during the two-year period, and plaintiffs rely on that fact to toll the statute of limitations. Dr. Bayles was out of the state five different times for a total of 23 days, but he was not out of the state at any time after plaintiffs filed their suit on October 26,1977. Dr. Sumner was out of the state four different times for a total of either nine or ten days; he was out two days (October 27 and 28, 1977) after the suit was filed. Dr. Sumner was not personally served until four days after the two-year statute of limitations had expired, so plaintiffs would not benefit by tolling the statute for the two days defendant Sumner was out of state after the lawsuit was filed. Accordingly, we do not consider whether absence from the state after suit is filed is to be treated differently under the statute than absence from the state before suit is filed. Neither defendant was ever absent from Kansas for more than one week at any one time. Plaintiffs do not contend nor would the record support a finding that the defendants’ whereabouts were unknown or unascertainable, for employees of both defendants and of the hospital knew where defendants were and plaintiffs could have discovered the location at any time they desired to do so. Plaintiffs’ failure to obtain service prior to their having obtained service in Wilson County appears to have been a result of their attempt to establish venue in Greenwood County by intercepting defendants as they drove through Greenwood County enroute to or coming from Wichita and not a result of defendants having been out of the state for brief periods before suit was filed.
This Court recently had occasion to examine the meaning of K.S.A. 60-517 in Carter v. Kretschmer, 2 Kan. App. 2d 271, 272, 577 P.2d 1211, rev. denied 225 Kan. 843 (1978). In that case, this Court ruled that absence from the state as contemplated by K.S.A. 60-517 means beyond the reach of process from our courts; consequently, it found that the tort statute of limitations was not tolled even though the defendant moved out of the state, because the defendant was still amenable to service either through our long arm statute or as a nonresident motorist. It was possible for plaintiffs here to get service on the defendants at all times either by serving them under the long arm statute for alleged tortious conduct in the state (K.S.A. 60-308[b][2]) or by simply requesting an order from the district court allowing service to be made by leaving a copy of the petition and the summons at the residence of defendants because plaintiffs, after exercising due diligence, could not find the doctors to effect personal delivery (K.S.A. 60-304[a]). The trial court did not err in finding that the statute of limitations was not tolled by the defendants’ brief absences from the state at various times prior to suit having been filed in Greenwood County.
Neither do we find that the trial court erred in allowing the defendant Bayles to amend his original motion to include a request for dismissal of plaintiffs’ action due to insufficiency of process or insufficiency of service of process. K.S.A. 60-212(g) and (h) seem to prohibit a second 212(b) motion, or an answer filed after a 212(h) motion has been decided, from raising insufficiency of process or insufficiency of service of process as a defense; it does not, however, preclude the amendment of the initial motion to include additional grounds if the request to do so is timely made. This procedural quirk is discussed in 5 Wright & Miller, Federal Practice and Procedure: Civil § 1389 (1969):
“Although not expressly provided for in Rule 12(g), a preliminary motion may be amended to include a defense or objection inadvertently omitted. The general principles relating to the amendment of motions apply under Rule 12(g). A good illustration is provided by MacNeil v. Whittemore [254 F.2d 820, 821 (2d Cir. 1958)], in which the Second Circuit affirmed the district court’s grant of leave to amend a motion to dismiss by adding a defense of improper venue. The court, speaking through Chief Judge Clark, held:
‘The only claim is waiver, because defendant first sought a dismissal for failure to state a claim and two days later moved for leave to amend his motion by adding the venue objection. When the court came to hear the motion nearly a month later, it granted the leave to amend and then dismissed because of the lack of venue. This was quite proper. 808 [Rule 12] does not in any way prevent a judge in his discretion from permitting a party to expand the grounds of motion well in advance of a hearing.’
In another case, Martin v. Lain Oil & Gas Company [36 F. Supp. 252, 255 (D.C. Ill. 1941)], defendant also was permitted to amend a motion attacking the court’s subject matter jurisdiction so as to include a venue challenge. The court held:
‘The spirit of the Federal Rules of Civil Procedure, as it seems to me, is opposed to the technical waiver of claimed jurisdictional and procedural rights, including venue, by omission from the motion as originally filed so long as they are thereafter made part of the motion by leave of court and the entire motion is presented to the court in due time under said Rule 12(b). Here all grounds, including the additional grounds filed by leave of court four days after the filing of the motion in its original form, were presented as a single motion. No delay resulted and no rights of plaintiff were lost or endangered by the lapse of four days before the additional grounds were made part of defendant’s motion to dismiss.’
A motion to amend the grounds of the original motion should be sought as far in advance of the hearing on the motion as possible. The court also must be satisfied that the litigant is acting in good faith and that the adverse party will not be prejudiced if expansion of the motion’s scope is allowed.”
See also 2A Moore’s Federal Practice § 12.22 (2d ed. 1979). In a more recent case, Bechtel v. Liberty Nat. Bank, 534 F.2d 1335, 1341 n. 8 (9th Cir. 1976), the Circuit Court of Appeals reaffirmed this rule:
“Bechtel argues that the bank waived venue by waiting more than two months to amend its original motion to dismiss. But Rule 12(h)(1), Fed. R. Civ. P. ‘does not in any way prevent a judge in his discretion from permitting a party to expand the grounds of motion well in advance of a hearing.’ [Citation omitted.]”
The many cases cited by plaintiffs are distinguishable as dealing with successive motions or answers or as cases in which the question of amendment was not before the court. As defendant Bayles points out in his brief, two cases cited by plaintiffs actually suggest that an attempt to amend might have changed the result in the case. I.e., Byan v. Glenn, 52 F.R.D. 185 (N.D. Miss. 1971); Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977).
The district court had the power to grant an amendment, so the question becomes whether or not the trial judge abused his discretion in allowing such an amendment. The crucial consideration in determining whether or not the allowance of an amendment is prejudicial to the opposing party is if the amendment will be timely enough to give the opposition an opportunity to attack the new defense. 5 Wright & Miller, Federal Practice and Procedure: § Civil 1194 (1969) states at 44-45:
“On the other hand, Rule 12(h)(1) states that the defenses enumerated in Rules 12(b)(2) through 12(b)(5) must be consolidated with the original motion and are to be treated as waived unless they are asserted on that one occasion. If the grounds for relief are not properly consolidated, they theoretically are lost as far as amendability and subsequent motions are concerned. Nonetheless, a court probably will permit a Rule 12(b) motion to be amended to assert another Rule 12(b) defense when the amendment is sought promptly and before the parties have relied on the original grounds. The court should use a test based on whether movant’s adversary will be prejudiced or the case unduly delayed.”
Here, the motion to amend was filed March 10, 1978, well in advance of the October 5, 1978, hearing on the matter. The granting of an amendment that will allow a defendant to set up the statute of limitations does not per se result in such prejudice to the plaintiff that the amendment cannot be granted. See Schwartz v. American Stores Company, 22 F.R.D. 38 (E.D. Pa. 1958). Furthermore, one who claims abuse of discretion has the burden of proving that contention, and when reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. McColm v. Stegman, 3 Kan. App. 2d 416, Syl. ¶ 2, 596 P.2d 167 (1979).
Plaintiffs argue that they were prejudiced in that if they had received earlier notice of the motion they could have cured the ineffective service by re-serving defendants. Undoubtedly that argument was vigorously presented to the trial judge and rejected by him. Both returns of service state that service was left “at the office” of the two doctors and these returns were filed February 16,1978, with the Greenwood County Clerk of the District Court. K.S.A. 60-312(d) provides in pertinent part:
“Immediately upon receipt of the return upon any summons or other process by the clerk of the court issuing the same, such clerk shall mail a copy of such return to the attorney for the party requesting the issuance of such summons or other process, or, if such party has no attorney, then to the requesting party himself.”
Plaintiffs do not claim they failed to receive this return. In view of the facts of this case, and of the court’s policy of liberality in granting amendments, we cannot say that no reasonable man would have allowed the amendment.
Service of process on individuals is governed by K.S.A. 60-304, which provides in pertinent part:
“The summons and petition shall be served together. The plaintiff shall furnish the clerk such copies of the petition as are necessary. Service shall be made as follows:
“(a) Individual. Upon an individual other than a minor or an incapacitated person, by delivering a copy of the summons and of the petition to the individual personally or by leaving copies thereof at such individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the petition to an agent authorized by appointment or by law to receive service of process, but if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. A judge of the district court, upon a showing that service as prescribed above cannot be made with due diligence, may order service to be made by leaving a copy of the summons and of the petition at the defendant’s dwelling house or usual place of abode.”
Kansas cases interpreting K.S.A. 60-304(a) have uniformly held that service of process on a secretary working in a defendant’s business office is insufficient to allow a court to gain personal jurisdiction over the defendant. See Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971); Thompson-Kilgariff General Insurance Agency, Inc. v. Haskell, 206 Kan. 465, 479 P.2d 900 (1971); Briscoe v. Getto, 204 Kan. 254, 462 P.2d 127 (1969). Briscoe is particularly enlightening:
“Before there can be a valid personal service of process there must be a substantial compliance with some method of process provided in K.S.A. 60-301, et seq. It is only after substantial compliance that irregularities and omissions are cured by awareness of a pending proceeding. K.S.A. 60-204, insofar as material here, provides:
“ ‘. . . In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his person, status or property were subject to being affected.’
“This is a case of first impression and we find no precedent to guide us. However, as we read the statute it seems clear that new methods of service were not anticipated. There must first be substantial compliance with some statutory method of service. Irregularities or omissions will then be ignored if the court finds that the party to be served was made aware that an action or proceeding was pending, etc.
“There is no provision for service of summons by leaving a copy with the secretary of the person to be served or by leaving a copy at the place of business of the person to be served. Such new method of service cannot be originated by K.S.A. 60-204.” 204 Kan. at 256-57.
Plaintiffs attempt to distinguish the rule in these cases by contending that the receptionists served in this action were “agents authorized by appointment or law” to receive service of process, an argument they suggest could have changed the result in the trilogy of Kansas secretary-service cases had it been raised at that time. An examination of the briefs in Thompson-Kilgariff reveals that the plaintiff there alleged in his brief on appeal that the defendants should have shown that the office manager served was not an agent authorized to receive service. It is not clear, however, whether the issue was raised at trial and the Supreme Court did not specifically mention the argument in its opinion.
It appears from plaintiffs’ brief that they are alleging that the receptionists had been impliedly appointed as agents to receive service of process by the defendants or, in the alternative, that defendants are estopped by law from denying the existence of such an agency based on their previous course of conduct, particularly that of Dr. Sumner, who on several occasions appeared before various courts to testify, Without objection, even though subpoenas had been left with his office staff in derogation of K.S.A. 60-245(c) which requires personal service of subpoenas. Defendants argue that the only method by which an individual can become an appointed process agent is set out in K.S.A. 60-306(a). While in our view it appears that defendants’ argument is incorrect, the question has never before been considered by the Kansas courts and we need not address it here, for plaintiffs were unable to meet their burden of proof that defendants’ receptionists were agents actually appointed to receive service of process even under the common law principles of agency.
Rules for determining an agency relationship were set out in Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719 (1976), as follows:
“Where the relationship of principal and agent is in issue, the party relying thereon to establish his claim or demand has the burden of establishing its existence by clear and satisfactory evidence.” Syl. ¶ 1.
“The determination of what constitutes agency and whether there is any competent evidence reasonably tending to prove its existence is a question of law.” Syl. If 2.
“A relationship of principal and agent will not be inferred merely because a third person assumed that it existed.” Syl. ¶ 3.
“To determine whether the record establishes an agency by agreement, it must be examined to ascertain if the party sought to be charged as principal has delegated authority to the alleged agent by words which expressly authorize the agent to do the delegated act. If there is evidence of that character, the authority of the agent is express. If no express authorization is found, then the evidence must be considered to determine whether the alleged agent possesses implied powers. The test utilized by this court to determine if the alleged agent possesses implied powers is whether, from the facts and circumstances of the particular case, it appears there was an implied intention to create an agency, in which event the relation may be held to exist, notwithstanding either a denial by the alleged principal, or whether the parties understood it to be an agency, (citing cases.)” p. 370.
Here, there is no evidence whatsoever that either of the doctors intended the receptionists to be agents authorized to receive service of process. A case directly in point is Morfessis v. Marvins Credit, 77 A.2d 178 (D.C. 1950). There, service was made by leaving a copy of the summons and complaint with the defendant’s secretary who was authorized by him to receive his business papers and mail. A deputy marshal testified that the secretary told him that appellant seldom came in the office, that she would accept the papers for him and she signed a written statement to that effect. The trial court sustained the service of process on the basis that its statute allowed service on an individual by delivery of the papers to an agent authorized by appointment to receive them. The appellate court reversed that decision, holding:
“The trial court apparently sustained the service of process under that portion of its rule 4(c)(1) which permits service on an individual by delivering copy of the summons and complaint ‘to an agent authorized by appointment or by law to receive service of process.’ As no claim is made that appellant’s secretary was authorized by law to receive service, the question is whether she was authorized by appointment. The quoted portion of the rule is taken verbatim from F.R.C.P. 4(d)(1). There is a scarcity of cases construing that portion of the rule, but Moore’s Federal Practice (2d Ed.), Vol. 2, § 4:12, says: ‘The phrase “an agent authorized by appointment to receive service of process” is intended to cover the situation where an individual actually appoints an agent for that purpose.’ Barron and Holtzoff’s recent work on Federal Practice and Procedure, Vol. 1, § 177, points out that the agent of an individual for other purposes is not necessarily authorized to receive service.
“In this case there is no evidence of any actual appointment by appellant of Miss Tsoulias as agent to receive service. Her statement, if she made such a statement, that she was authorized to receive service was nothing more than her conclusion and was not binding on appellant. The fact that she was appellant’s secretary and only office employee in no way tended to establish her agency to receive service of process; and her authority to receive ‘business papers and mail’ cannot be construed to include authority to receive service of process. The fact that appellant never instructed his secretary not to accept service of legal papers is of no consequence. It does not follow that such an employee has authority to do something simply because she was not forbidden to do it. And the fact that appellant took the papers from his secretary and did not reprimand her for having received them is likewise without significance. We see no evidence in the record justifying a finding that appellant’s secretary was his agent authorized by appointment to receive service of process. If it were otherwise, then almost anyone who employs a secretary whose duties include receiving mail and business communications would find himself having unknowingly and unintentionally appointed an agent with authority to receive service of process. Such a result in our opinion was not intended by the rule.” 77 A.2d at 179-180. See also Annot., 26 A.L.R.2d 1082, 1086.
As an alternative argument, plaintiffs allege that defendants should be estopped from denying that an agency relationship existed because neither defendant had ever objected to defective service of subpoenas in previous cases and had always appeared in court. The doctrine of apparent or ostensible authority is predicated upon the theory of estoppel (Brown v. Wichita State University, 217 Kan. 279, 287, 540 P.2d 66 [1975], modified on rehearing 219 Kan. 2, 547 P.2d 1015 [1976]), and the two concepts, for all practical purposes, may be treated identically. 2 Williston on Contracts § 277B (3rd ed. 1959); 3 Am. Jur. 2d, Agency § 76.
The doctrine of estoppel was recently discussed by the Kansas Supreme Court in Lines v. City of Topeka, 223 Kan. 772, 577 P.2d 42 (1978):
“ . . Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. (Wichita Federal Savings & Loan Ass'n v. Jones, 155 Kan. 821, 130 P.2d 556; 31 C.J.S., Estoppel, § 59, p. 367.)’ ” 223 Kan. at 780 (emphasis added).
There is no definite rule as to when the doctrine will be applied; each case must be determined on its own facts. Coffey v. Stephens, 3 Kan. App. 2d 596, 597, 599 P.2d 310 (1979).
Even though it is undisputed that there was no communication between either of the defendants and the sheriff’s department regarding service of process, plaintiffs assert that defendants’ silence in the face of the faulty subpoena service estops them from now claiming insufficient service. The defendants had no duty to object to the faulty service of subpoenas in these previous actions. As a willing participant in a trial (i.e., Dr. Sumner as county coroner), it would be highly irregular to challenge the validity of service of a subpoena; certainly the failure to do so could not be viewed as a bar to such a challenge in an action involving a petition and summons that call for a personal action against the served person and in which he has much greater stakes.
It is also questionable whether plaintiffs have the right to assert an estoppel since they were not personally involved in any of the previous lawsuits in which defendants failed to object. In Reno v. Beckett, 555 F.2d 757, 770 (10th Cir. 1977), the Circuit Court of Appeals, applying Kansas law, held:
“Kansas law is clear that a position taken by a party in one suit cannot be claimed as working an estoppel in another suit in favor of a party who was a stranger to the first suit. Mickadeit v. Kansas Power & Light Co., 174 Kan. 484, 257 P.2d 156 (1953); Betts v. Gilbert, 149 Kan. 431, 87 P.2d 637 (1939); Kington v. Ewart, 100 Kan. 49, 164 P. 141 (1917); First Nat’l Bank v. Duncan, 80 Kan. 196, 101 P. 992 (1909); Peterson v. Warner, 6 Kan. App. 298, 50 P. 1091 (1897).”
Here, neither plaintiffs nor defendants were actual parties to the previous proceedings. Furthermore, as mentioned earlier, plaintiffs could have discovered the improper service by simply examining the returns of service which on their faces showed the error. Equitable estoppel is not available to one who because of his own acts or failure to act has suffered a loss. Equity aids the vigilant. Bowen v. Westerhaus, 224 Kan. 42, 50, 578 P.2d 1102 (1978). Moreover, the record is devoid of evidence that plaintiffs believed the service to be sufficient because the sheriff’s department informed them that this was an acceptable means of service on defendants. Instead, it appears that defendants’ motions challenging the service prompted plaintiffs’ initial communications with the sheriff. In short, plaintiffs have failed to establish reliance, a critical element of estoppel. As further stated in Bowen:
“The doctrine of equitable estoppel is based upon the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. ” 224 Kan. 42, Syl. ¶ 3 (emphasis added).
Plaintiffs’ failure to show good faith reliance or any reliance at all on the alleged agency relationship removes the possibility of finding apparent authority. It does not appear from the record that plaintiffs had any personal knowledge of defendants’ prior conduct concerning the subpoenas or the sheriff’s practice of leaving them with the receptionist.
The affidavit of defendant Rayles filed with his original K.S.A. 60-212(b) motion stating simply that he had been “served” does not prevent his later challenge of the service. The affidavit does not state that service was proper, nor do we deem it sufficient to estop defendant Bayles from subsequently amending the motion to which the affidavit was attached. The trial court did not err in finding plaintiffs’ service of process defective.
Plaintiffs contend that since defendants admitted having received the service left at their offices on February 15, 1978, they had actual notice, and plaintiffs should have been allowed to amend their defective service of process obtained on February 15, 1978, to reflect the personal service obtained on defendants after the two-year statute of limitations had expired; that the amendment would then relate back to February 15, 1978, and plaintiffs would be allowed to maintain this action.
Although the exact issue has not been considered before, we believe that we are duty-bound to follow what we perceive to be the existing law in the State of Kansas absent some indication that the Supreme Court would change the law if faced with this set of facts. Traditionally, Kansas has held that jurisdiction of the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance. Haley v. Hershberger, 207 Kan. 459. As noted earlier in this opinion, Kansas has consistently held that jurisdiction cannot be acquired over an individual by leaving a copy of the petition and summons with his or her secretary, even though the secretary promptly delivers the paperwork to the defendant.
Historically, Kansas has permitted process to be amended so that obvious errors are corrected and the return speaks the truth. E.g., Rockey v. Runft, 191 Kan. 117, 379 P.2d 285 (1963); Young v. Newbold, 114 Kan. 86, 217 Pac. 269 (1923); McPherson v. Street Railway Co., 101 Kan. 550, 167 Pac. 1070 (1917); Alford v. Hoag, 8 Kan. App. 141, 54 Pac. 1105 (1898). Amendments have been allowed so as to correct form and clerical errors, but they have not been allowed so as to permit reservice or some other act that is necessary to make insufficient service of process sufficient. Plaintiffs argue that amendments of this nature are authorized by virtue of K.S.A. 60-313, which states:
“At any time in his or her discretion and upon such terms as he or she deems just, the judge may allow any process, return or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.”
Highly respected authorities in Kansas have stated that K.S.A. 60-313 is not at variance with former practice (Gard’s Kansas C. Civ. Proc. 2d § 60-313 [1979]) and would seem to require the same results as those reached under prior law (Shurtz, Civil Practice, 14 Kan. L. Rev. 171 [1965]); and cases interpreting its predecessor (G.S. 1949, 60-759) seem applicable to K.S.A. 60-313 (Vernon’s Kansas C. Civ. Proc. § 60-313.1 [1965]).
The federal equivalent to K.S.A. 60-313 is Fed. R. Civ. Proc. 4(h). Other than the use of different language to eliminate previously existing “sexist” language, the two are identical.
The Kansas Supreme Court noted in Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975), that, traditionally, the Kansas courts have followed the interpretation of federal procedural rules after which our own have been patterned, thereby making the federal law highly persuasive authority here. Our review indicates federal law is irreconcilably split, although there is some federal authority that includes service of process within the amendments authorized by Federal Rule 4(h); and when such amendments are permitted, the reservice relates back to the date of the original service. When no substantial prejudice results from the loss of a statute of limitations defense, such amendments are permitted and their allowance is not an abuse of discretion. Smith v. Boyer, 442 F. Supp. 62 (W.D.N.Y. 1977); C. J. Wieland & Son Dairy Products Co. v. Wickard, 4 F.R.D. 250 (E.D. Wis. 1945); 4 Wright & Miller, Federal Practice & Procedure: Civil § 1131 (1969); Annot., 2 A.L.R. Fed. 513.
A number of jurisdictions have for various reasons rejected the line of authority suggested by plaintiffs. A strict reading of our statute and Federal Rule 4(h) gives authority to amend process, proof of service or return of service. They do not mention service of process, although there is a clear definitional distinction between process and service of process. (Compare K.S.A. 60-212[fe][4] with [h][5].) One of the more common rules of statutory interpretation is that the mention or inclusion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, but the maxim should not be employed to override or defeat a clearly contrary legislative intention. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). Thus, as we view it, statutory construction suggests that service of process was not intended to be amendable under the provisions of the statute. Support for this construction is found in Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 (3rd Cir. 1976). Other authorities allowing amendment of service appear to be based on the premise that there has been substantial compliance with the rules governing service of process. See Barber v. Tuohy, 33 Mich. App. 169, 189 N.W.2d 722 (1971). Service on a secretary or receptionist in Kansas, however, does not amount to substantial compliance.
If plaintiffs are to obtain the benefit of the relation back rule adopted by Federal Rule 4(h), they will have to do so by virtue of a change in what we perceive to be existing law in Kansas, which change we are powerless to make. That change, if made, must come from the Supreme Court.
We are cognizant of and have carefully considered plaintiffs’ argument concerning Marr v. Geiger Ready-Mix Co., 209 Kan. 40, 495 P.2d 1399 (1972). We agree that the rule in Marr does seem somewhat inconsistent with the result reached in this case in that Marr allows one who names a wrong party to subsequently amend pursuant to K.S.A. 60-215(c) and substitute a party after the statute of limitations has run so as to have the amendment relate back to confer jurisdiction, even though the original service was served on an employee of the individual defendant who was subsequently substituted for a nonexistent corporation that had been named as a defendant in the original suit. As we read Marr, if the original suit had named E. W. Geiger, Jr., as defendant instead of Geiger Ready-Mix Co., service on an employee of Geiger’s would not have conferred jurisdiction on E. W. Geiger, Jr., even though he had actual notice of the suit, just as the defendants in the case at bar did, and a subsequent amendment would not have been permitted to show compliance with the service statute by personal service after the statute of limitations had run so as to relate back to the date of the original service. The adoption of plaintiffs’ position appears at first glance to be compatible with the rationale in Marr. The Supreme Court seems to be saying, however, that the question of proper service is not material when the substituted defendant has informal notice (as the defendants in this case had) as it is a substitution of parties that is being considered under K.S.A. 60-215, as opposed to consideration of 60-313 in this case.
We conclude that under existing Kansas law the statute of limitations had run against the plaintiffs’ cause of action before jurisdiction was obtained over the defendants.
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Spencer, J.:
This is an appeal by defendant from rulings of the trial court refusing to terminate alimony following remarriage of plaintiff, and determining the amount of alimony remaining due and owing to plaintiff.
The Grundys were divorced by decree entered by the District Court of Johnson County under date of May 25, 1972. The decree contained provisions for child custody and support, a division of property, and the following:
“IT IS BY THE COURT FURTHER ORDERED that defendant pay to plaintiff as and for alimony, the sum of TEN THOUSAND DOLLARS ($10,000.00) and that plaintiff be, and is hereby, granted a lump sum judgment against said defendant in said amount. IT IS FURTHER ORDERED that said lump sum judgment has some incidence of property division and said judgment will abate on the death of the defendant, but will not abate on the subsequent remarriage of plaintiff. No interest will be owing on said judgment and defendant is hereby granted a stay of execution on said judgment so long as he makes monthly payments to plaintiff in the amount of SEVENTY-FIVE DOLLARS ($75.00) per month. IT IS FURTHER ORDERED that said payments shall be made to the Clerk of the District Court of Johnson County, Kansas, and all payments received by the Clerk from said defendant shall be credited first towards child support. In the event any payment on said judgment is delinquent by more than fourteen (14) days, the stay of execution on said judgment shall then immediately dissolve and the balance owing on said judgment shall become due and owing at once and shall bear interest at eight percent (8%) per annum and plaintiff shall be entitled to pursue any collection remedies provided by law. IT IS FURTHER ORDERED that in the event defendant remarries any other party, said monthly payments of $75.00 shall be increased to ONE HUNDRED FIFTY DOLLARS ($150.00) per month. In the event plaintiff remarries and should defendant desire to pay the entire balance at one time, said defendant shall be entitled to discount the outstanding balance at the date of said payment by ten percent (10%).”
Although not specifically so provided in the foregoing, payments of alimony were to be made on the first day of each month, commencing June 1, 1972. Defendant made all payments required of him to and including February 1, 1973, but none thereafter. Plaintiff remarried on March 23, 1973.
On April 17, 1978, plaintiff filed a “Motion to Determine Amount of Judgment” and defendant filed a reply seeking a termination of the alimony obligation. This cause was thereafter submitted to the court, which in its order made reference to the terms of the original decree and made findings to the effect that, after defendant’s final payment on February 5, 1973, an outstanding balance remained on the “judgment” in the sum of $8,875; that on March 15, 1973, defendant was delinquent in his payments and the total of the then outstanding balance of $8,875 was due plaintiff with interest thereon at the rate of eight percent per annum; that defendant had not theretofore sought modification of the award; and that both plaintiff and defendant had since remarried. The court sustained plaintiff’s motion and entered judgment in her favor against defendant for the sum of $8,875 with interest thereon at the rate of eight percent per annum from March 15, 1973.
Defendant has specified four issues on appeal, which may be summarized as follows: Under the facts and circumstances of this case, did the trial court err in sustaining plaintiff’s motion to determine amount of judgment and in concluding defendant’s obligation for alimony did not terminate upon plaintiff’s remarriage?
Neither party makes any contention that the award of $10,000 was anything other than an allowance for future support denominated as alimony. Even so, it clearly was the intention of the trial court to clothe the award in a manner which would secure for plaintiff the whole of the amount, provided only that defendant would live long enough to meet that obligation.
Plaintiff suggests that, in light of the broad discretion permitted the trial court under the provisions of K.S.A. 1979 Supp. 60-1610(d), and the facts and circumstances of this case disclosed at trial, the court sought to accomplish this by entering a “lump sum judgment” against defendant and was justified in doing so.
On the other hand, defendant refers to Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465 (1967); Beck v. Beck, 208 Kan. 148, 490 P.2d 628 (1971), and Wright v. Wright, 209 Kan. 628, 498 P.2d 80 (1972), and suggests that these cases set forth the law applicable to the case at bar and dictate a result different from that reached by the trial court. Defendant contends the language in the decree which purports to prohibit termination of alimony upon plaintiff’s remarriage is contrary to the purpose of alimony and to public policy, and that a district court may not avoid the dictates of Herzmark, Beck, and Wright by providing that a lump sum alimony award payable in installments is a “money judgment” on the date of the decree, and hence not subject to modification under the statute. While we might agree with defendant’s position under differing circumstances, we find it unnecessary in this case to determine the validity of the so-called money judgment.
The test of what was done by the original decree is not in its designation but in what actually was accomplished. It is apparent in this case that the decree as entered was in fact an award to plaintiff of alimony in a lump sum of $10,000 to be paid in installments as set forth. As such, it was subject to modification by the court as set forth in K.S.A. 1979 Supp. 60-1610(d). However, the decree also provided in effect that if defendant defaulted in the payment of any installment of alimony on the date it was due and remained in default of such payment for more than fourteen days, then all of the lump sum award then remaining unpaid was to become immediately due and payable and bear interest at eight percent per annum. The making of such provisions was within the sound judicial discretion of the trial court. There was no appeal and the award and the manner in which it was to be paid are not now subject to challenge. It follows that whether the trial court was authorized to enter a lump sum money judgment on the date of the decree is immaterial, for pursuant to the acceleration provision of the original decree, all of the remainder of the award became due on March 15,1973, and became a judgment against defendant on that date. As such, it will bear interest and be collectible as is any other judgment for money. See Blair v. Blair, 210 Kan. 156, 499 P.2d 546 (1972). The subsequent remarriage of plaintiff is not a factor.
Defendant also asserts that plaintiff’s claim is barred by reason of laches.
“Laches is principally a question of inequity of permitting a claim to be enforced; an inequity founded upon some change in the condition or relations of the property or parties. It is delay that makes it inequitable to afford the relief sought and warrants the presumption that a party has waived his right. Laches is an equitable device to bar legal claims in certain instances.” Clawson v. Garrison, 3 Kan. App. 2d 188, Syl. ¶ 4, 592 P.2d 117 (1979).
See also Strecker v. Wilkinson, 220 Kan. 292, 552 P.2d 979 (1976); Clark v. Chipman, 212 Kan. 259, 510 P.2d 1257 (1973); McKee v. McKee, 154 Kan. 340, 118 P.2d 544 (1941).
Defendant apparently claims that the period of approximately five years from the date of his default to the date plaintiff’s motion was filed is such as to make it inequitable to grant relief. However, defendant does not claim that plaintiff’s judgment is dormant and, in fact, it is undisputed that plaintiff caused execution to be issued and her judgment to be revived in order to eliminate any question of its being dormant. The doctrine of laches does not apply.
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Foth, C.J.:
This is an appeal from defendant’s conviction of eleven counts of aggravated assault and his sentence imposed pursuant to K.S.A. 1979 Supp. 21-4618. That section provides that where a firearm is used in the commission of certain crimes (including aggravated assault) there can be no probation or suspended sentence, but the defendant must be sentenced to at least the minimum term provided by law for the offense. The sole issue on appeal is whether the trial court erred in refusing, under the circumstances to be recounted, to allow defendant to present evidence at sentencing on the issue of whether a firearm was used in the commission of the offenses.
Defendant was convicted after a jury trial. At trial evidence was presented that defendant used a gun during the commission of the crimes, and a .22 caliber handgun was received into evidence and identified by some of the witnesses as the gun used by defendant. Defendant did not testify at trial.
The verdict was returned on June 30, 1978. Defendant’s post-trial motions were overruled on September 14, 1978, and a presentence investigation was ordered, together with a report from the Kansas Reception and Diagnostic Center. Two stays of defendant’s commitment to K.R.D.C. were granted. On November 28, 1978, defendant appeared before the court with counsel. At that time the matter was continued for sentencing to December 14, 1978.
At sentencing, the State requested the court to invoke the provisions of K.S.A. 1979 Supp. 21-4618. Defense counsel objected, arguing that notice and a separate evidentiary hearing were required on the issue of whether a firearm was used prior to invocation of the mandatory minimum sentencing act. At such a hearing, he said, “[W]e might want to present evidence.” The State contended no hearing was required and that the trial court could apply the statute on the basis of the evidence received at trial. Defense counsel reiterated his position, but candidly admitted that he was not prepared to present evidence on the firearm issue at that time and moved the court to set an evidentiary hearing on the following day. The State pointed out that sentencing under 21-4618 had been an issue discussed with opposing counsel since well before trial. On oral argument before us counsel conceded as much, and it is apparent from the chronology recited above that there could be no legitimate claim of surprise. The trial court denied the motion, apparently ruling that no further hearing on the firearm issue was permitted under State v. Mullins, 223 Kan. 798, 577 P.2d 51 (1978).
Setting aside momentarily the heart of the issue raised, we conclude that the trial court was under no obligation to grant a continuance even if a hearing was proper. The decision to grant or deny a continuance rests within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion which has prejudiced the defendant’s substantial rights. State v. Nelson, 223 Kan. 251, Syl. ¶ 1, 573 P.2d 602 (1977). A review of the record indicates defense counsel was well aware of the State’s intent to invoke the mandatory minimum statute prior to sentencing and that he presented no compelling reason at sentencing why he was not prepared to present evidence at that time. It has previously been determined that the provisions of K.S.A. 1979 Supp. 21-4618 do not require that the use of a firearm be pleaded, since no new crime is charged or additional sentence imposed. State v. Kleber, 2 Kan. App. 2d 115, 120, 575 P.2d 900, rev. denied 225 Kan. 846 (1978). The State argues, correctly we think, that the evidence at trial put defendant on notice of the potential applicability of the statute, and counsel concedes actual notice of the State’s position. We hold that the trial court did not abuse its discretion in denying defendant’s motion to postpone the sentencing.
On the other hand, if defendant had been prepared to offer evidence and been denied the right, we think the situation would have been different. For K.S.A. 1979 Supp. 21-4618 to be applicable, the State must establish and the sentencing court must find that a firearm was an instrumentality of the crime. State v. DeCourcy, 224 Kan. 278, 281, 580 P.2d 86 (1978). The cases have additionally consistently held that whether a defendant used a firearm is a matter to be determined by the trial judge at the time of sentencing and need not be submitted to the jury. State v. Mullins, 223 Kan. at 801; State v. McCarty, 224 Kan. 179, 181, 578 P.2d 274 (1978); State v. Quick, 226 Kan. 308, 319, 597 P.2d 1180 (1979); State v. Kleber, 2 Kan. App. 2d at 120. The cases cited also indicate the State may present evidence on the firearm issue to the court after conviction, but if use was established during trial such post-trial evidence is unnecessary.
We believe that in either event a trial court should consider evidence timely offered by defendant on the firearm issue — even where, as in the instant case, unrefuted evidence was presented by the State on the issue at trial. Further, where such evidence was not presented at trial, it seems to us that the use of the firearm becomes a new factual issue and that fundamental fairness, if not due process, requires that defendant have notice that it will be presented after trial and be afforded a fair opportunity to be heard. Compare, e.g., State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979) . Such a conclusion is consistent with a defendant’s right of confrontation, cf. e.g., State v. Deffenbaugh, 217 Kan. 469, 473, 536 P.2d 1030 (1975), and with the basic proposition that a sentencing court consider the aggravating or mitigating circumstances in a particular case. Williams v. Oklahoma, 358 U.S. 576, 585, 3 L.Ed.2d 516, 79 S.Ct. 421 (1959); K.S.A. 21-4606; 24B C.J.S., Criminal Law § 1980. Nor do we feel that such a procedure places an undue burden on the trial court. The factual question of whether a firearm was used has been delineated by recent decisions. See State v. Deutscher, 225 Kan. 265, 272-3, 589 P.2d 620 (1979); State v. Davis, 227 Kan. 174, 177-8, 605 P.2d 572 (1980); State v. Boster, 4 Kan. App. 2d 355, 360, 606 P.2d 1035 (1980). We believe the trial court will be able in most cases to make its determination without a protracted hearing.
In this case, however, we hold that the trial court’s ruling was not error. As noted above, the issue had been in the case from the beginning yet defense counsel advanced no persuasive reason why he was not ready to present evidence at the time previously set for sentencing. Further, he made no acceptable proffer of the evidence he proposed to submit, whereas the evidence at trial was more than adequate to support the court’s conclusion that a firearm was used. Compare, State v. Taylor, 225 Kan. 788, 795, 594 P.2d 211 (1979). Finding no error, we need not address the State’s contention that the appeal is moot because defendant has already served the minimum sentence imposed.
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Abbott, J.:
This is a direct appeal by the defendant, Robert B. Stoops, from six convictions of theft in violation of K.S.A. 1978 Supp. 21-3701 and from one conviction of making a false writing in violation of K.S.A. 21-3711.
The defendant was originally charged with a total of eleven crimes in three separate informations. The cases were consolidated for trial. All of the charges involved the alleged theft of motorcycles, motorcycle trailers, motorcycle titles, accessories and repair equipment.
The issues raised by defendant on appeal are (1) whether Sedgwick County had venue to try this action; (2) whether the trial judge was guilty of judicial misconduct toward the defendant, and, if so, whether defendant was denied a fair trial; (3) whether it was improper at trial for the State to use defendant’s statement that had been given to Wichita police detectives; (4) whether the trial court érred when it permitted Detective Pate to testify as an expert witness about altered identification numbers on stolen motorcycles; and (5) whether it was multiplicitous to convict defendant on two counts of theft arising out of one burglary.
I. VENUE
Our examination of the record discloses ample evidence that the items found in defendant’s possession had been taken from their rightful owners in Sedgwick County, Kansas. K.S.A. 22-2602 provides: “Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed.” K.S.A. 22-2609 provides: “When property taken in one county by theft or robbery has been brought into another county, the venue is in either county.” Defendant was charged with and convicted of the original theft from Sedgwick County. Sedgwick County had venue and defendant’s argument is without merit.
II. ALLEGED JUDICIAL MISCONDUCT
Basically, defendant’s arguments of alleged misconduct may be grouped into three categories: (1) admonitions by the judge to defendant’s counsel; (2) failure to admonish the jury to disregard a conversation occurring at the bench that defendant claims was overheard by the jury; and (3) comment by the judge at sentencing that it was his opinion defendant had committed perjury at trial.
The defendant sets forth numerous incidents from the 900-page record to support the first category. It would serve no useful purpose to set them out verbatim.
Standards of conduct for trial judges are set by the American Bar Association Standards for Criminal Justice. Although Kansas has no comparable code provisions, the ABA standard hereinafter set forth is in substantial conformity with Kansas practice and is a recognized and acceptable guide to proper conduct. ABA Standards for Criminal Justice, The Function of the Trial Judge § 6.4 (Approved Draft 1971), provides:
“The trial judge should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances. He should suppress his personal predilections, and control his temper and emotions. He should not permit any person in the courtroom to embroil him in conflict, and he should otherwise avoid conduct on his part which tends to demean the proceedings or to undermine his authority in the courtroom. When it becomes necessary during the trial for him to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, he should do so in a firm, dignified and restrained manner, avoiding repartee, limiting his comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues.”
Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct; and in order to warrant or require the granting of a new trial it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. State v. Thomson, 188 Kan. 171, 174, 360 P.2d 871 (1961). In a more recent case, Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 10, 535 P.2d 865 (1975), the Kansas Supreme Court stated:
“We enter our caveat that no comment or remark should be made by a judge, during the trial of an action, which may tend to excite prejudice or hostility in the minds of the jurors toward one of the party-litigants, or sympathy for the other, but a mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment, and, where a construction can properly and reasonably be given to a remark which will render it unobjectionable, it will not be regarded as prejudicial. (88 C.J.S., Trial, § 49, p. 124.) Moreover, the court advised the jury to disregard any comments it may have made, and instructions Nos. 3 and 7 warned the jury against considering such remarks in reaching its decision so as to preclude any possible prejudice.”
Similar instructions warning against misplaced reliance on the judge’s remarks were given here, and defendant otherwise fails to show prejudice. When read within the context of the record, the admonishments from the court in this case clearly amount to no more than the trial judge’s attempts to keep under control the conduct of defense counsel. In all of the instances, the judge’s comments were prompted by the aggressive trial tactics of defense counsel and were not initiated by the judge. The trial judge does have a positive duty to supervise the conduct of a trial so that the examination of witnesses is kept within reasonable bounds of relevancy. State v. Carr, 206 Kan. 341, 342, 479 P.2d 816 (1971). In State v. Franklin, 167 Kan. 706, 710-11, 208 P.2d 195 (1949), defense counsel raised as an issue on appeal the hostility which the trial judge displayed toward him at trial, including a threat to jail counsel for contempt should he have chosen not to sit down and quit arguing. The Kansas Supreme Court held that although the trial judge had been rather sharp toward defense counsel there was no prejudicial error, for from the record it seemed the hostility had been invited and made necessary by the constant objections and arguments of counsel. Such is the case here. In several incidents the trial judge’s words might have been more carefully chosen, but we are unable to say his efforts to keep trial counsel under some control amounted to judicial misconduct.
In the second category, defendant alleges that during a discussion between court and counsel the jury heard the court caution the parties that he did not want mentioned in front of the jury the fact that a sawed-off shotgun had been seized during the search of defendant’s residence. Defense counsel requested that the trial judge admonish the jury to disregard the remark. The trial judge refused. Defendant alleges in his brief he heard the judge’s remarks when sitting near the jury and some ten feet from the trial judge and therefore is of the opinion the jury must have heard the comment. The defendant has the burden of proving error. He produced no evidence that any of the jurors did, in fact, hear the mention of sawed-off shotguns, and apparently even the court reporter failed to hear it since it does not appear in the record. In addition, the trial judge has great discretion in the conduct of the trial and defendant has failed to show an abuse of that discretion.
The third category involves statements made by the trial judge to the defendant at sentencing.
“THE COURT: Ordinarily first offenders receive probation. However, a learned judge in the courthouse not too long ago talked about defendants who commit perjury. Quite frankly, Mr. Stoops, in the presentence investigation you told Mr. Hensen that this was all a frame-up and that, then, on the witness stand you gave a story to the Jury, which the Jury elected to believe, about some unknown person bringing this stuff out there. With your abilities, mechanical abilities as a welder, or whatever you were doing over at Mires Machine Shop, you can make a lot of money on the outside. I can’t really believe that you would move to Butler County and leave your wife and children here, fool around over there working at least part-time for the owner of that farm at three dollars an hour when you have an ability to earn eight dollars an hour for KG&E, unless you were up to something. Quite frankly, I just thought that you committed perjury on the witness stand. I didn’t believe you for a minute.”
Since this colloquy took place at the sentencing and not in front of the jury, defendant’s cited authorities pertaining to the trial judge’s duty not to influence the jury are inapplicable. The defendant does not question whether or not a sentencing judge, in fixing the sentence within the statutory limits, may give consideration to the defendant’s testimony as observed by the judge at trial. Although the question is not before us, we do note the Supreme Court of the United States recently ruled in United States v. Grayson, 438 U.S. 41, 57 L.Ed.2d 582, 98 S.Ct. 2610 (1978), that such practice is not error.
III. USE OF DEFENDANT’S STATEMENT
As his third argument, defendant contends that his March 3, 1978, statement to police detectives Pate and Kitterman was taken in violation of his Fifth Amendment right to an attorney during custodial interrogation as provided in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). In reviewing the record, there is a question of whether there was compliance with the Miranda requirement that custodial interrogation cease should the party express a desire to consult with an attorney. We need not decide that quéstion, however, for, even assuming arguendo that defendant’s constitutional rights as defined in Miranda were violated, the statement was still aváilable to the State to be used in the manner in which it was used in this case. The statement was used for the sole purpose of impeaching defendant’s testimony at trial concerning how he came across the stolen property, and then only after the trial judge had first held a Jackson v. Denno hearing out of the presence of the jury to determine that the statement was voluntary and not coerced. In Harris v. New York, 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643 (1971), the United States Supreme Court held that a defendant’s statement or confession may be used for impeachment purposes when the defendant takes the stand even though the statement is not admissible in the State’s case in chief because Miranda warnings were not given. In State v. Boone, 220 Kan. 758, Syl. ¶ 14, 556 P.2d 864 (1976), the Kansas Supreme Court adopted the reasoning in Harris in a factual situation similar to the one now before the Court:
“A statement made by an accused after receiving his Miranda warnings and after asking to see his attorney, but before an attorney is present, may be used for impeachment purposes where the accused’s testimony at trial is inconsistent with the statement and there is no evidence that the statement given was involuntary or coerced.”
Defendant’s argument that the statement was coerced and involuntary is not supported by the record. The trial judge correctly determined that the statement was voluntary and not coerced, thus it was available for impeachment purposes notwithstanding its inadmissibility for other purposes.
IV. EXPERT TESTIMONY
Defendant next questions the propriety of allowing Detective Pate of the Wichita Police Department to testify as an expert concerning the alteration of serial numbers on motorcycles. The briefs argue that Detective Pate testified at the preliminary hearing that in some instances laymen might be able to distinguish altered serial numbers. This testimony does not appear in the record at trial, which was the only transcript furnished to this Court, although the prosecuting attorney alluded to the remark in argument to the judge. It is incumbent upon an appellant to include in the record on appeal any matter upon which it intends to base a claim for relief. Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 646, 567 P.2d 856 (1977). In any event, the trial court has discretion to determine the qualifications of an expert witness and the admissibility of his testimony. To reverse the trial court on the admission of expert testimony, an abuse of discretion must be found. State v. Loudermilk, 221 Kan. 157, 163, 557 P.2d 1229 (1976). No such abuse of discretion is shown here. The trial judge held a hearing on this matter outside the presence of the jury, and after eliciting argument from both sides and reading the preliminary hearing transcript from which the alleged statements of Detective Pate were taken, he decided to allow the witness to testify. This Court will not disturb the lower court ruling absent a clear showing of abuse of discretion. Furthermore, even assuming arguendo that the trial court did abuse its discretion, defend ant has not demonstrated that his rights were substantially prejudiced by the error nor that had it not occurred, a. different conclusion would have resulted at trial. State v. Duncan, 221 Kan. 714, Syl. ¶ 5, 562 P.2d 84 (1977).
V. SINGLE LARCENY THEORY
Defendant’s argument here deals with only two of the six theft convictions. The two theft charges in question sprang from the alleged burglary on October 1, 1977, of the Mires Machine Shop (defendant was acquitted of the burglary charge). Defendant was charged with one count of theft of a shop vacuum cleaner and other shop tools belonging to the shop owner, Ben Mires, and one count of theft of the tool box and tools belonging to a Mires employee who had left them in the building. Defendant charges in his brief that the State improperly split a single offense into separate parts. In State v. Dorsey, 224 Kan. 152, 154-55, 578 P.2d 261 (1978), the Court pointed out the difference between duplicitous and multiplicitous counts, stating that duplicity is the joining in a single count of two or more distinct and separate offenses while multiplicity is the charging of a single offense in several counts. The Court went on to state that “[t]he principal danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense.” The test for determining multiplicity as enunciated by the Court was “whether each [offense] requires proof of a fact which is not required by the others.” Using this test, it is obvious no problem arises from charging both burglary and theft based on the same incident since the offenses are independent and distinct and involve entirely different elements of proof. Dunaway v. United States, 170 F.2d 11 (10th Cir. 1948); State v. Blassingill, 216 Kan. 722, 723, 533 P.2d 1228 (1975). A problem does arise from charging a defendant with two separate thefts when property that belongs to two different owners is stolen in the same incident. Our research indicates that the appellate courts of this State have not considered this identical question before. Out of the thirty-five states that have considered the question, thirty-four appear to have adopted the single larceny theory. In summarizing the annotation, the author of Annot., 37 A.L.R.3d 1407, states at 1409-10:
“The overwhelming majority of jurisdictions follow generally the so-called ‘single larceny doctrine’; that is, that the taking of property belonging to different owners at the same time and place constitutes but one larceny. Various rationales have been propounded in support of this position, perhaps the most common one being that such taking is one offense because the act of taking is one continuous act or transaction, and since the gist of the offense is the felonious taking of property, the legal quality of the act is not affected by the fact that the property stolen belonged to different persons.
“Other rationales supporting the rule are concerned with the harshness of the punishment which might result from a contrary holding, or with the unconstitutionality of the double jeopardy to which a defendant would be subjected under a contrary decision.
“While several jurisdictions at one time followed the separate larcenies doctrine, under which there was a distinct larceny as to the property of each person, most have abandoned that position in favor of the single larceny doctrine, although cases from one jurisdiction have continued to follow the separate larcenies doctrine.
“Of the jurisdictions which at one time held that the stealing of property of different persons at the same time and place could be prosecuted at the pleasure of the government as one offense or as several distinct offenses, all but one have subsequently abandoned that position in favor of the single larceny doctrine.
“Even though the applicability of the single larceny doctrine is always limited to cases wherein the taking occurred at one time and from the same place, and is often limited to cases wherein the taking was a single act or transaction, there is some diversity in the construction of these requirements and in the manner in which they have been applied to various fact situations. Hence, no general statement can adequately describe the application of this doctrine, and a reading of individual cases is necessary.”
Several recent cases which have adopted this reasoning include Reader v. State, 349 A.2d 745 (Del. 1975); People v. Vaini, 33 Ill. App. 3d 246, 337 N.E.2d 234 (1975). See also 18 Calif. L. Rev. 171, 178 (1930). The only modern cases found in which the position has been adopted that the stealing of property from different owners at the same time constitutes separate larcenies are United States v. Marzano, 537 F.2d 257, 272-73 (7th Cir. 1976), cert. denied 429 U.S. 1038 (1977), and State v. Gilbert, 281 Or. 101, 574 P.2d 313 (1978). In Marzano, defendant was charged with six counts of violating the federal statute for taking money belonging to federally insured banks, notwithstanding the fact that all of the money was taken from a single bank’s vault, since the stolen money belonged to six different banks. The decision is not helpful here, however, since the court based its decision on the language of the special federal statute. In Gilbert, the Oregon Supreme Court held that when one defendant, at the same time and place, withholds the property of two or more victims there are as many offenses as there are victims. The Court, however, reached its decision by relying upon the legislative intent of Or. Rev. Stat. 131.505 (1973) which states:
“(2) When the same conduct or criminal episode violates two or more statutory provisions, each such violation constitutes a separate and distinct offense.
“(3) When the same conduct or criminal episode, though violating only one statutory provision, results in death, injury, loss or other consequences of two or more victims, and the result is an element of the offense defined, there are as many offenses as there are victims.”
Although K.S.A. 22-3202 is similar to subparagraph (2) of the Oregon statute, Kansas has no provision comparable to subparagraph (3). Kansas has had occasion to discuss the “single larceny doctrine” although in a different context. In State v. Roberts, 210 Kan. 786, 790-92, 504 P.2d 242 (1972), cert. denied 414 U.S. 832 (1973), the Court considered whether the value of the property that was taken in successive occurrences could be totaled in order to constitute felony theft. It held that separate crimes result when property is stolen in a succession of takings from the same owner and from the same place if the thefts stem from separate impulses or intent; but if it appears that a single impulse or intent is involved in the succession of takings, then the thefts constitute a single felony. The Kansas Supreme Court has not been presented with the current issues, however, and we do not deem Roberts to be an adoption of the single larceny theory in toto.
The law in Kansas is well-established that (1) generally, a single wrongful act should not furnish the foundation of more than one criminal prosecution; and (2) the test to be applied in determining whether more than one offense can be charged as a result of a single act is whether each offense requires proof of a fact that is not required by another. See, e.g., State v. James, 216 Kan. 235, 238, 531 P.2d 70 (1975); Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973); State v. Pierce, et al., 205 Kan. 433, 469 P.2d 308 (1970).
Our Supreme Court has previously considered the taking of property from different owners at the same time during a robbery. It is significant to keep in mind that ownership of property taken is not an element of robbery. In State v. Jackson, 218 Kan. 491, 543 P.2d 901 (1975), the defendant entered a pharmacy with two other men and they ordered those present to lie on the floor. They robbed the pharmacist on duty of property belonging to the pharmacy and, in addition, they took money from a customer and money and a pocketknife from an employee. Jackson was con victed of three separate robberies. He appealed on the theory that the robbery was only one transaction. The Supreme Court rejected defendant’s multiplicity contention, stating at 492:
“While the incident here was one overall transaction, three separate robberies were committed with property of three different persons being taken by threat of bodily harm against three separate individuals.”
The Court explained there were three victims, not one, and thus three separate convictions were proper.
In State v. McQueen & Hardyway, 224 Kan. 420, 582 P.2d 251 (1978), the defendants were convicted of two counts of aggravated robbery arising out of a single incident in a grocery store. A revolver belonging to a store employee was taken from that employee during the robbery. That employee was ordered to leave the office, and then money belonging to the employer was taken. In reversing the conviction for taking the gun, the Supreme Court stressed the fact that only a single robbery took place because the gun was kept on the store premises in connection with operating the business and that the ownership of the property taken is not an element of robbery. The Court concluded at 431 that:
“Multiple offenses cannot be carved out of a single robbery because of separate ownership of the property taken.
“The state may not split a single offense into separate parts. When there is one wrongful act it does not furnish a basis for more than one criminal prosecution.”
Although the Court did not discuss why in State v. Jackson the taking of a pocketknife and money from a store employee constitutes robbery and in State v. McQueen & Hardway the taking of a privately owned revolver from a store employee does not, it seems to us the distinction must be found in the intent of the perpetrator. In Jackson the defendant intended to rob the store employee of his personal money and possessions, whereas in McQueen Sc Hardy way the defendant had no way of knowing that the revolver personally belonged to the employee and thus he had no criminal intent separate and apart from his intent to rob the store. That, as we view it, is the theory behind the single larceny doctrine.
If we were to adopt the single larceny doctrine, it seems to us the test to be applied to determine if there are separate offenses or only a single offense should be based on whether the evidence discloses one general intent to steal or distinct and separate intents. Each case necessarily would have to be decided on its own facts, and a defendant could be convicted of separate thefts only if the evidence showed the offenses to be separate and distinct and not committed pursuant to one intention, one impulse, or one plan.
As set forth earlier in this opinion, the Supreme Court has allowed a series of misdemeanor thefts to support a grand larceny conviction under the “single larceny doctrine” where the thefts were part of a single plan or scheme, or a single larcenous impulse. State v. Roberts, 210 Kan. at 790-91. It seems highly inconsistent to allow multiple misdemeanor thefts to be combined to reach a level of felony theft on one hand and on the other to convict a person of multiple thefts when that person intended only a single theft and had no reason to know the property belonged to more than one person.
It is not necessary for us now to reject or adopt the single larceny doctrine, for the defendant here was properly convicted under either a single or multiple theory.
In the case at bar, testimony was before the jury that the defendant had been employed at the shop and knew the general policy was that each employee owned his own tools. Most of the tools belonging to the shop owner had his name electronically engraved on them. Even if we were to adopt the single larceny doctrine it would be of no comfort to the defendant in this case since under that theory the jury could have inferred from the testimony in this case that the defendant had the necessary intent to steal from both the owner and an employee.
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Meyer, J.:
This is an appeal from a trial to the court. Judgment was granted for the plaintiffs, Charles S. and Mary Jane Sippy (Sippys), against the defendants, Frank and Peggy Cristich (Cristiches), in the amount of $5,278.27 for damages sustained by reason of a defective roof on the used residence purchased by the Sippys from the Cristiches through Hales Company Realtors (Hales) in 1976. The trial court also denied the Cristiches’ cross-claim against Hales and third-party defendant Raymond Perkins (Perkins).
Perkins was the original owner of the home which was constructed in 1972. Perkins sold the property to the Cristiches in 1974. While Perkins occupied the premises, he had noticed at least three areas where the roof leaked. He attempted to have the roof leaks repaired. During the summer of 1974, Perkins listed the home for sale with Anderson & Associates Realty through Anderson’s agent, Mrs. Goldie Haggard. Perkins later advised Mrs. Haggard that the roof leaks had been repaired and Mrs. Haggard, in turn, so advised the Cristiches. After the Cristiches moved into the residence, they noticed leaks and demanded of Perkins that he repair the leaks. At one point in their correspondence with Perkins, the Cristiches advised him that payments to him on a second mortgage he held on the residence would stop unless and until the roof leaks were repaired. Following the repair of the roof, water was run onto the same with a garden hose at and around the areas of the leaks. When no leaks occurred, the Cristiches made all mortgage payments which had been withheld. Perkins received no further complaints from the Cristiches relative to the roof leak problems.
In June of 1975, Frank Cristich took a job in Florida and moved there in July of 1975. Mrs. Cristich and the Cristich children continued to reside in the residence. Inasmuch as the Cristiches were going to move to Florida, they placed the home on the market. In connection with the sale, Mrs. Cristich prepared a brochure concerning the property, stating among other things that the house had a commercial roofing. In November of 1975, Mrs. Cristich moved to Florida to join her husband and at that time listed the home for sale with Hales, who was represented by their agent, Mrs. Goldie Haggard. Mrs. Haggard was the same person who had negotiated the sale from the original owner to the Cristiches. Prospective purchasers, the Sippys, visited the home on several occasions. They observed certain stains on the ceilings and floor prior to entering into their purchase agreement, and were aware that there obviously had been leaks in the roof prior to entering into the contract. At one point Mr. Sippy indicated to Mrs. Haggard that he thought he would get an independent roofing contractor to view and inspect the roof to determine its condition prior to purchasing the home. The Sippys inquired of Mrs. Haggard concerning the condition of the roof and Mrs. Haggard told them on several occasions that the Cristiches had advised her that the roof had been repaired and was in good shape.
The Sippys entered into the contract of purchase on April 12, 1976. There were no provisions in the contract concerning the conditions of the roof, and the Sippys requested none. They did, however, request a provision concerning the repair of a hole in the garage ceiling which was included in the contract.
About a month after the Sippys took possession of the home there was a heavy rain and a considerable amount of water leaked into the house. The Sippys expended approximately $1550.50 in roof repairs at that time and later spent an additional $626.77 to repair cosmetic damage to the interior. Some two years later the Sippys obtained a proposal from Nugent Brothers Roofing and Siding Co., Inc., to install a new roof for $6,960.00.
On December 13, 1976, the Sippys filed suit against the Cristiches and against Hales alleging they had made false representations which had damaged the Sippys in the amount of $7,500.00. The Cristiches filed an answer and joined Perkins as a third-party defendant. They also filed a cross-claim against Hales. On the day of trial, over objection, the Sippys were permitted leave to amend their petition to allege damages in the amount of $10,000.00.
The Cristiches appeal from the decision against them, and the Sippys cross-appeal, claiming more damages and claiming that Hales should be liable.
“The necessary elements of fraud are: (1) that the representation was made as a statement of a material fact; (2) that the statement was known to be untrue by the party making it, or was made with reckless disregard for the truth; (3) that the party alleging fraud was justified in relying upon the statement; (4) that the party alleging fraud actually did rely upon the statement; and finally (5) that as a result of this reliance, the party alleging fraud was damaged.” Miles v. Love, 1 Kan. App. 2d 630, 631-32, 573 P.2d 622, rev. denied 225 Kan. 845 (1977).
See also Goff v. American Savings Association, 1 Kan. App. 2d 75, 78, 561 P.2d 897 (1977).
In response to questions by the Sippys (made to the Cristiches through Mrs. Haggard), the Sippys were assured that the roof had been repaired and was in good condition. A statement that a roof has been repaired implies that the roof has been repaired satisfactorily. This statement was not a true statement, and therefore, the first element for a fraudulent action was met.
As to the second element of fraud, while the trial court did not find that the Cristiches made known false statements, it did find that the statements of the Cristiches were recklessly made under all the circumstances. There was substantial competent evidence to support this finding. The trial court based its finding of fraud upon the affirmative representation that the roof was in good condition or good repair.
This affirmative representation was reckless due to the fact that the roof had been in an almost constant state of repair until May 23,1975. At the time of the sale to the Sippys in March and April of 1976, the Cristiches had not been in the house for several months, and given the history of problems and the knowledge that repairs had failed in the past, such statement was reckless.
As to the third element of fraud, appellant argues that the Sippys were not justified in relying on the statement in that Mr. Sippy had expressed concern about the roof on several occasions, had noticed water spots, and, in addition, had personally gone to the roof to inspect it.
In Goff v. American Savings Association, 1 Kan. App. 2d at 79, it was held:
“Many factors must be considered in determining whether a statement is a matter of fact or matter of opinion and whether or not a plaintiff has a right to rely on the statement. Among the facts the court will take into consideration are the intelligence, education, business experience and relative situation of the parties; the general information and experience of the persons involved as to the nature and use of the property; the habits and methods of those in the industry or profession involved; the opportunity for both parties to make an independent investigation as well as the nature, extent and result of any investigation so made; and any contract the parties knowingly and understandingly entered into.”
The court further held, at page 82:
“ ‘A recipient of a fraudulent misrepresentation is justified in relying upon its truth without investigation, unless he knows or has reason to know of facts which make his reliance unreasonable’. . . [T]he test is whether the recipient has ‘information which would serve as a danger signal and a red light to any normal person of his intelligence and experience.’ ” [Citing from Restatement (Second) of Torts § 540, p. 10, and comments to § 540 at p. 12.]
Here, the fraud did not consist in the Cristiches advising the Sippys that the roof had never leaked; the fraud occurred when they claimed the roof had been repaired and was in good condition. Because of this, it is of no material significance that there were water stains upon the carpet or rug. The Sippys did, in fact, follow up on the danger signals they observed and made repeated inquiries concerning the roof and whether the leaks had been repaired. Mrs. Haggard called the Cristiches (then in Florida) and was assured by them of the roof’s good repair. This was related by Mrs. Haggard to the Sippys as a statement of the Cristiches. Moreover, they were told that some of the stains were caused by watering plants.
As to the statement that the Sippys had inspected the roof, the testimony established that the defects were structural and that inspection of the roof without tearing into it would not disclose its deficiencies. Mr. Sippy is, therefore, not precluded in this action by the fact that he went to the roof to inspect it. Mr. Sippy testified the reason he did not get an independent inspection made was because he was assured that the roof was all right. Without the knowledge of the extensive and prolonged attempts to repair the roof, there was no reason to disbelieve the representation that the roof had been repaired and was now in good condition.
We conclude that the third requirement for an action in fraud has been met in that the Sippys were justified in relying on the statement of the Cristiches related to them by Mrs. Haggard.
As to the fourth element, the Sippys, in fact, relied upon the representations of the Cristiches as they purchased the home after being assured on at least two occasions that the roof had been repaired.
The fifth element, the damage, is obvious.
In addition to the existence of a fraudulent misrepresentation, the trial court based its finding of fraud upon a fraudulent concealment.
In Jenkins v. McCormick, 184 Kan. 842, 844-45, 339 P.2d 8 (1959), the court cites 23 Am. Jur. 857, § 80, as follows:
“[I]f one party to a contract or transaction has superior knowledge, or knowledge which is not within the fair and reasonable reach of the other party and which he could not discover by the exercise of reasonable diligence, or means of knowledge which are not open to both parties alike, he is under a legal obligation to speak, and his silence constitutes fraud, especially when the other party relies upon him to communicate to him the true state of facts to enable him to judge of the expediency of the bargain.”
This rule has been applied to any vendor or lessor who fails to reveal known defects in property. Griffith v. Byers Construction Co., 212 Kan. 65, 510 P.2d 198 (1973); Service Oil Co., Inc. v. White, 218 Kan. 87, 542 P.2d 652 (1975).
“[Ajctual knowledge of the defect is required in order to support a claim of fraudulent concealment.” Miles v. Love, 1 Kan. App. 2d at 632.
In the instant case, the trial court based its findings of fraudulent concealment on the failure of the Cristiches to reveal the history of past problems with the roof. It leaked off and on from the time the Sippys purchased the house up until May, 1975. While cases have specifically held that known defects must be revealed, the question presented here is whether poor results in the repair of past defects must be revealed. Generally, the test is whether the fact not revealed is a material fact. As was said in Griffith v. Byers Construction Co., 212 Kan. at 73:
“[T]he fraudulent concealment to be actionable has to be material to the transaction. A matter is material if it is one to which a reasonable man would attach importance in determining his choice of action in the transaction in question.”
The facts in this case which were not revealed by the Cristiches to the Sippys were that the roof had leaked for a period of over a year and that several attempts to repair the roof were unsuccessful. The facts presented here were sufficient evidence that the silence related to a material fact. Had the Sippys known of the extent of the problems, they might not have purchased the house, especially in view of their repeated inquiries about the roof and the water spots they observed. Rather than admitting the problem, the Cristiches continued to make assurances that the roof was in good repair and good condition. The Cristiches argue that the fact they stated the roof had been repaired constitutes notice that there had been prior leaks. The trouble with this argument, however, is that it by no means reflects the seriousness of the problem which really was that repeated attempts in the past to repair the leaks had failed.
We conclude there was substantial competent evidence to show an actionable fraudulent concealment.
We now turn to the cross-appeal. The first claim was that there was no substantial competent evidence to support the trial court’s finding that Hales was not liable for fraud. Mrs. Haggard was the real estate agent at the time the Cristiches bought the property and at the time they contracted to sell to the Sippys. It should be noted, however, the Sippys were not relying upon what Mrs. Haggard told them from her personal knowledge, but relied rather upon the fact that she was quoting the Cristiches as to the condition of the roof. On one occasion, Mrs. Haggard even called the Cristiches (then in Florida) about the condition of the roof while the Sippys were present.
In the case of Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 1, 605 P.2d 545 (1980), it was specifically held:
“Where the owner of land, by misrepresentation as to its character, effects a sale, agents who have acted for him in the matter are not rendered personally liable to the buyer for the fraud merely by reason of their having innocently and in good faith repeated to him the false statements concerning the property made to them by the seller.”
The court in Nordstrom required an element of intent to deceive on the part of the agent in order to be held liable. Clearly this absolves the agent (and therefore Hales) of liability for repeating the statements that the roof was in good repair.
The second claim on the cross-appeal is that the trial court erred in failing to allow the full amount of the Sippys’ damages.
The Sippys had presented evidence of damages for repairs to the roof of approximately $1550.50, and for $626.77 for interior redecorating. They also presented an estimate of the cost for replacing the roof of $6,960.00, or a total sum of $9,137.27. The Sippys further testified that the house was worth $110,000.00 with the faulty roof, but would be worth $120,000.00 otherwise, or a difference of $10,000.00. They admitted, however, that the $110,000.00 figure was based on the $9,137.27 replacement and repair cost presented above, and that the $120,000.00 figure was the price at which they purchased the house. The Sippys therefore argue that the trial court should have awarded the full amount of damages proved by them because their testimony was uncontroverted. The trial court explained its award by stating that the court could not in the interest of justice and equity accept these figures without mitigation. Instead it used the repair figure of $1,550.50 to about % of the roof and applied that figure to the remaining roof. This resulted in a figure of $3,101.00 for additional work on the other % of the roof. Thus, the court allowed $4,651.50 for estimated repairs to the entire roof plus past expenses for interior redecorating of $626.77, or a total judgment of $5,278.27 for the Sippys.
Generally, in breach of contract actions where a contractor has not subtantially performed a contract, the damages are measured by the reasonable cost of repairs to correct defects or omissions. See Mahoney, Inc. v. Galokee Corporation, 214 Kan. 754, 757, 522 P.2d 428 (1974).
Kansas has followed the benefit of the bargain rule in determining damages for fraud. Perry v. Schoonover Motors, 189 Kan. 608, Syl. ¶ 3, 371 P.2d 152 (1962); Fisher v. Mr. Harold’s Hair Lab, Inc., 215 Kan. 515, Syl. ¶ 3, 527 P.2d 1026 (1974).
“In a damage action by a purchaser for fraud inducing the purchase, the measure of damages is the difference between the actual value at the time of sale and the value it would have had if the representations had been true.” Fox v. Wilson, 211 Kan. 563, Syl. ¶ 11, 507 P.2d 252 (1973).
“In a fraud action where no evidence is introduced by either party to indicate that if the seller’s representations had been true the property would have had any different value than the sales price, that price may be utilized as the ‘represented’ value of the property in assessing damages.” Syl. f 15.
“The opinion testimony of the owner of real or personal property is admissible to establish its value.” Syl. ¶ 12.
The estimates given by the Sippys would generally be competent to establish the difference between the actual value at the time of sale and the value it would have had if the representations had been true. Such evidence, however, where it is based upon a total replacement of the roof, is not competent absent a finding of the trial court that such replacement is necessary.
Further, in other jurisdictions, it has been held that evidence of cost of repairs is an accurate measure of the buyer’s damages in misrepresentation actions.
In Colorado, where the benefit of the bargain rule is applied, it was stated in Slack v. Sodal, 190 Colo. 411, 414, 547 P.2d 923 (1976), as follows:
“[R]easonable expenditures of a buyer to bring property into conformity with the implied warranty may be an accurate measure of the buyer’s damages and is another way of arriving at an amount representing the difference in actual value and that value as represented.”
We conclude that it is implicit in the ruling of the trial court that the court did not believe it was necessary to replace the roof. Therefore, any evidence based on the cost to replace the roof rather than on the expense of repairing it was incompetent. This would include the Sippys’ estimate of the actual value of the house. The only substantial competent evidence before the trial court (given the premise that the trial court did not believe the roof would need to be replaced as distinguished from repaired) was the figures $1,550.50 and $626.77; therefore, the trial court’s method of determining damages based on these figures was proper.
As noted above, the rule of damages in Kansas in fraud cases is the loss of bargain rule. However, where the only competent evidence is the cost of repairs, this may be accepted by the trial court as evidence of the difference between the value as represented and the actual value.
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Spencer, J.:
In this action National Education Association - Wichita (NEA-W) seeks injunctive and mandamus relief against Unified School District 259, Sedgwick County, (Board) for alleged prohibited practices under the collective negotiations statutes, K.S.A. 72-5413 et seq.
Specifically, the issues on appeal from judgment entered in favor of defendant are whether the acts of the Board in granting a deduction from teachers’ salaries for membership dues to be paid the Wichita Federation of Teachers (WFT), and the publication of a directory which listed the telephone number, the names of the president and of the vice president, and the post office box number of that association, constitute prohibited practices under the collective negotiations statutes.
Plaintiff is the exclusive representative of all teachers employed by defendant for the purpose of professional negotiations and, admittedly, defendant is required by law to recognize plaintiff as such. It is also admitted that defendant publishes a directory which includes the telephone number, the names of the president and vice president, and the post office box number of the Wichita Federation of Teachers, a professional employees’ organization, and that defendant makes a salary deduction for membership dues to be paid to that organization.
It was stipulated by the parties that the testimony of Dr. Alvin Morris, superintendent of schools of U.S.D. 259, would be to the effect that the Board, in regular session on September 30, 1968, had instituted a salary deduction or dues checkoff procedure for members of a rival organization of plaintiff, as well as for members of the forerunner of plaintiff, prior to any formal or official recognition of plaintiff as the official bargaining unit; and that such salary deductions had not been instituted through the collective bargaining or negotiation process, but rather were to provide a service for the employees and teachers of defendant.
The record also reflects that at the time this lawsuit was commenced there was in existence a contract negotiated between plaintiff and defendant which provided for a continuation of deductions for NEA-W dues from compensation paid to members of that association in accordance with the teachers’ authorization for such.
It is argued that defendant has the affirmative duty to negotiate only with plaintiff and, hence, the duty not to negotiate with another association. Plaintiff contends that defendant’s actions, principally those of deducting dues to be transmitted to WFT, amount to recognition of WFT contrary to the intent of K.S.A. 1979 Supp. 72-5415, which provides in part:
“(a) The representative designated or selected for the purposes of professional negotiation by the majority of the professional employees in an appropriate negotiating unit shall be the exclusive representative of all the professional employees in such unit for such purpose.”
In support of this position, plaintiff notes that the dues deduction for NEA-W, along with other customs and policies established prior to 1970, are subjects which were properly negotiated and which are covered by the provisions of the contract between the parties. It is suggested that dues deductions for WFT “certainly did not spontaneously spring to life” and that at some time WFT and its members requested a dues deduction and the Board responded by granting that request. It is asserted that defendant, by its actions in making a deduction for WFT membership dues, is engaging in prohibited practices as defined by K.S.A. 1979 Supp. 72-5430, which provides in part:
“(b) It shall be a prohibited practice for a board of education or its designated representative willfully to:
“(2) dominate, interfere or assist in the formation, existence, or administration of any professional employees’ organization;
“(6) deny the rights accompanying recognition of a professional employees’ organization which are granted in K.S.A. 1977 Supp. 72-5415 . . . .”
On the other hand, defendant contends the deduction for dues is merely a “service” provided to those teachers of the system who belong to WFT. Defendant emphasizes that it does recognize plaintiff as the exclusive representative of the teachers for purposes of professional negotiations and that WFT dues deduction does not detract from that recognition. It is also suggested that to allow dues deduction exclusively for the benefit of plaintiff would itself be a prohibited practice under K.S.A. 1979 Supp. 72-5430(6)(2).
Within a school district, payroll deductions of professional association membership dues with consent and authorization of the individual teacher, with the association to take responsibility for errors, is a mandatorily negotiable item as a term and condition of professional service which has a greater direct impact on the well-being of the individual professional employee than on the operation of the educational system. K.S.A. 1979 Supp. 72-5413(l); NEA-Topeka, Inc. v. U.S.D. No. 501, 225 Kan. 445, 592 P.2d 93 (1979). See also Tri-County Educators’ Ass’n v. Tri-County Special Ed., 225 Kan. 781, 784, 594 P.2d 207 (1979); Chee-Craw Teachers Ass’n v. U.S.D. No. 247, 225 Kan. 561, 570, 593 P.2d 406 (1979).
Relying on NEA-Topeka, plaintiff reasons that the negotiated arrangements for membership dues deductions for its members within the school system result in an exclusive list of such deductions and any departure from that list by extending such privilege to the members of a rival association is a prohibited practice under K.S.A. 1979 Supp. 72-5430(6), in that it amounts to assistance to the rival and a denial of rights accompanying recognition granted plaintiff under K.S.A. 1979 Supp. 72-5415.
Defendant is required to recognize NEA-W for one purpose only, i.e., for the purpose of professional negotiations. K.S.A. 1979 Supp. 72-5415(a). There is no contention that this has not so far been accomplished, nor that defendant has failed to honor the contractual provision for NEA-W dues deductions. Although plaintiff argues that at some point defendant must have negotiated with WFT for a similar dues deduction, there is no evidence in this record to support that claim. To the contrary, the stipulated testimony of Dr. Morris is to the effect that the dues checkoff procedure had been instituted as early as 1968, prior to the enactment of the collective negotiations statutes in 1970, as a service to its teachers and that such was not instituted through the collective bargaining or negotiating process.
At the time this action was commenced, K.S.A. 72-8601 provided, in effect, that the board of education of any school district may provide by resolution for deductions for specified purposes from the compensation paid to its employees. That statute was amended in 1978 to add, in substance, the provisions that written authorizations for deductions from compensation for payment of professional association dues shall remain in effect until modified or revoked in writing by the professional association or the employee, or until the employee’s contract of employment is terminated. K.S.A. 1979 Supp. 72-5423(a) provides, in part relevant to this appeal, that nothing in K.S.A. 72-5413 to 72-5424, inclusive, shall be construed to change or affect any right or duty conferred or imposed by law upon any board of education. Clearly, the Board was acting within its authority when in 1968 it instituted salary deduction procedures for professional employees’ organizations, and having done so its right to continue to do so was not changed or affected by the enactment of the collective negotiations statutes.
Both NEA-W and WFT are professional employees’ organizations as defined by K.S.A. 1979 Supp. 72-5413(e). The deduction and transmittal of dues to a professional employees’ organization has the obvious effect of assisting that organization in its existence and administration by the collection of its dues, and granting that privilege to one and not to the other would be highly suspect as a prohibited practice under K.S.A. 1979 Supp. 72-5430(h)(2). However, to permit a payroll deduction for membership dues at the request of professional employees concerned without regard to which professional association is involved permits the Board to maintain a neutral position, as is clearly the intent of 72-5430(h)(2). NEA-W has been selected as the exclusive representative of all teachers employed by defendant, and while it may properly negotiate for membership dues deductions, it does so for all of the professional employees whether members of NEA-W or a rival association. See Milw. Fed. of Teachers, Local No. 252 v. WERC, 83 Wis. 2d 588, 266 N.W.2d 314 (1978); Board of Sch. Directors of Milwaukee v. WERC, 42 Wis. 2d 637, 168 N.W.2d 92 (1969). The trial Court did not err in its holding to that effect.
Finally, plaintiff suggests, without serious argument, that publication by defendant of a directory listing WFT and its officers is an unlawful recognition of that association. We find no merit to this contention, for clearly the directory is nothing more than a convenience provided by defendant for all who might have occasion to refer to it.
We hold that, under the facts and circumstances related in this opinion, with proper authorizations from employees, the deductions from compensation for payments of professional association dues to the Wichita Federation of Teachers, and the publication in the school system directory of the telephone number, the names of the president and vice president, and post office box number of the Wichita Federation of Teachers, are not prohibited practices under the collective negotiations statutes.
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Abbott, J.:
This is an appeal from defendant’s conviction by a jury of speeding in violation of K.S.A. 8-1336. The defendant was fined $11 and costs.
The sole issue on appeal is whether the trial court erred in denying defendant’s motion for acquittal which was made at the conclusion of the State’s evidence. Defendant contends the State’s case was defective in that no expert testimony was adduced as to the construction or method of operation of the radar utilized.
The sole witness appearing at trial was Highway Patrolman Terry J. Affholder. Trooper Affholder testified that on October 3, 1978, he was proceeding in his patrol car toward defendant’s oncoming vehicle in Osage County. The patrol car was equipped with a KR11 radar unit which showed defendant’s speed at 66 mph in a 55 mph speed zone. Affholder issued defendant a citation for speeding.
At trial, Affholder conceded he was not an expert with regard to the internal mechanisms of the radar unit, but that he had received training as to the machine and was a certified operator. Affholder explained tests he performed on the machine that were designed to test its accuracy. These tests included internal calibrations and checks with two different tuning forks. Affholder stated he performed these tests prior to his arrest of defendant, that he showed defendant the speed which the machine registered at the time of the arrest, and checked the unit again at the end of his work shift. All tests indicated the radar was functioning properly. He did not verify the speed of his own vehicle by any means other than the internal calibration of the radar machine. Affholder did not give his opinion of the speed of defendant’s vehicle based on his visual observation.
At the close of the State’s evidence, defendant made a motion for judgment of acquittal. The trial court overruled the motion, taking judicial notice of the reliability of radar generally and finding that no expert testimony was required as to the internal workings and principles involved. The jury found defendant guilty as charged and this appeal resulted.
The question presented here has not been previously addressed by our courts. Cases from other jurisdictions, however, have consistently held that evidence of the accuracy of the radar unit is necessary to sustain a conviction for speeding obtained solely by radar. Evidence of accuracy generally is a prerequisite to the admissibility of evidence of speed obtained by the use of a radar device. See Everight v. City of Little Rock, 230 Ark. 695, Syl. ¶ 1, 326 S.W.2d 796 (1959); People v. Flaxman, 74 Cal. App. 3d Supp. 16, 23-24, 141 Cal. Rptr. 799 (1977); State v. Tomanelli, 153 Conn. 365, 371, 216 A.2d 625 (1966); Honeycutt v. Commonwealth, 408 S.W.2d 421, 422-23 (Ky. App. 1966); Kansas City v. Hill, 442 S.W.2d 89, 91 (Mo. App. 1969); Peterson v. State, 163 Neb. 669, Syl. ¶ 3, 80 N.W.2d 688 (1957); State v. Cardone, 146 N.J. Super. 23, 27, 368 A.2d 952 (1976); Hardaway v. State, 202 Tenn. 94, Syl. ¶ 2, 302 S.W.2d 351 (1957); State v. Doria, 135 Vt. 341, 342, 376 A.2d 751 (1977).
The accuracy of a particular radar unit can be established by showing that the officer tested the device in accordance with accepted procedures. People v. Burch, 19 Ill. App. 3d 360, 363, 311 N.E.2d 410 (1974). In the present case there was evidence Trooper Affholder had tested the unit’s internal calibration devices, and checked the unit before and after defendant’s arrest by using two different tuning forks. Additionally, Affholder stated the tuning forks had been checked by the manufacturer in February 1978. Cases have found both tuning forks and internal calibration devices to be acceptable means of proving radar accuracy. See People v. Flaxman, 74 Cal. App. 3d Supp. at 23; State v. McDonough, 302 Minn. 468, 470, 225 N.W.2d 259 (1975); Kansas City v. Hill, 442 S.W.2d at 92; People v. Lynch, 61 Misc. 2d 117, 120, 304 N.Y.S.2d 985 (1969). We are of the opinion there was sufficient evidence of the radar unit’s accuracy at the time of the alleged offense to establish a sufficient foundation to admit the radar reading into evidence.
It is also generally required that proof be offered that the operator of the radar unit is qualified to operate the radar device. The cases agree that the officer need not be an expert in the science or theory underlying the functions of the instrument. See People v. Stankovich, 119 Ill. App. 2d 187, 194, 255 N.E.2d 461 (1970); State v. Graham, 322 S.W.2d 188, 196 (Mo. App. 1959). In the present case, Trooper Affholder testified he had received several hours of classroom training and field training as to the particular radar unit in question and had used the radar unit for over a year as a highway patrolman. Such evidence was sufficient to establish his qualifications to operate the device.
Defendant’s main complaint is that the State should be required to present expert testimony regarding the construction and method of operation of the radar in order to demonstrate that the device can accurately measure speed. The great majority of cases have held that judicial notice may be taken of the general reliability of radar to measure the speed of motor vehicles. See cases cited in Annot., 47 A.L.R.3d 822, § 3. Defendant distinguishes such cases on the basis that they involve use of stationary radar as opposed to radar mounted on a moving patrol vehicle as was used in this case. Defendant relies heavily on the case of State v. Wilcox, 40 Ohio App. 2d 380, 384, 319 N.E.2d 615 (1974), in which the Ohio Appeals Court held that, in order to sustain a moving radar-based speeding conviction, expert testimony must be adduced as to the construction of the device and its method of operation with respect to its ability to differentiate the speed of a vehicle approaching the moving patrol car from the opposite direction from the combined speed at which the two vehicles are moving toward each other.
Two cases following Wilcox merit a brief discussion. In State v. Shelt, 46 Ohio App. 2d 115, 346 N.E.2d 345 (1976), the Ohio court noted the abundance of expert testimony regarding the construction and method of operation of a “moving” radar unit as discussed in Wilcox. The testimony disclosed that both stationary and moving radar operate on the Doppler effect, which has been judicially noticed as a reliable method of determining speed in a majority of jurisdictions. The Shelt court held that upon publication of the opinion, Ohio courts could take judicial notice that the particular moving radar device which utilizes the Doppler effect is acceptable as dependable for its proposed purpose without requiring expert testimony showing the nature and function of or the scientific principles underlying the device so long as there is testimony the machine is functioning properly and the operator is qualified by training and experience to operate the device.
Following Shelt, the Wisconsin Supreme Court considered the issue in State v. Hanson, 85 Wis. 2d 233, 270 N.W.2d 212 (1978). The Hanson court distinguished taking judicial notice of the reliability of the principles underlying moving radar from the accuracy of a particular radar device:
“The court takes this opportunity to establish guidelines for the prosecution of speeding citations issued on the basis of a moving speed radar device. The courts of this state may take judicial notice of the reliability of the underlying principles of speed radar detection that employs the Doppler effect as a means of determining the speed of moving objects. To this end, expert testimony is not needed to determine the initial admissibility of speed radar readings. The radar reading may be introduced by the operating law enforcement official, if he is qualified in its use and operation.
“The accuracy of any speed radar device is another matter. The accuracy of the most indisputable scientific theory is subject to its application in particular conditions. The application of any virtually undisputed scientific fact to the immediate surrounding conditions must be explained in ascertaining its accuracy.” 85 Wis. 2d at 244-45.
The foundation evidence Wisconsin required in Hanson is unnecessary under the facts of this case for the reason that in Hanson evidence was presented that the machine did not give an accurate reading under certain circumstances. Foundation requirements were set to eliminate the possibility of error. In the case before us, we are considering a different, newer unit than that considered by Wisconsin, and there is no evidence in the record before us that the unit does not function properly under all circumstances. The reasoning expressed in Hanson and set forth above is persuasive. The record in the present case indicates that, the particular moving radar unit — the KR11 — had been in use for two or three years at the time of trial. Although Trooper Affholder did not specifically refer to the Doppler effect, his testimony established that the KR11 operates on this well-established scientific principle. Consequently, we hold it was permissible for Affholder to testify initially as to the radar reading obtained. As noted earlier, the accuracy of the unit was adequately shown by Affholder’s testimony regarding the internal calibrations and the tuning fork tests. No evidence was presented to dispute the accuracy of the radar unit in general or this particular unit specifically. Based on the record before us, we cannot say the trial court erroneously overruled defendant’s motion for acquittal at the end of the State’s evidence. The trial judge was justified in believing that guilt beyond a reasonable doubt was a fairly possible result for the jury’s consideration. See State v. Wilson & Wentworth 221 Kan. 359, 362, 559 P.2d 374 (1977).
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Foth, C.J.:
Mike Knox appeals from his conviction by a jury of one count of the sale of marijuana and one count of possession of marijuana. He raises two major arguments, each affecting one of the two charges. Although the charges arise out of separate incidents, the underlying facts are intertwined and will be recounted together.
Both charges grew out of the activities of one J. Joaquin Padilla, an undercover agent of the Kansas Bureau of Investigation assigned to investigate drug activities in the Cloud County area in late 1977 and early 1978. Padilla engaged the services of a local resident to help him penetrate the local drug scene. The local resident, referred to by the parties as a “confidential informant,” was paid at least $20 for his services. Those services consisted of introducing Padilla to suspected drug dealers, and apparently vouching for his trustworthiness, so that Padilla could make “buys.”
The identity of the local resident became an issue before and at trial, and remains one on appeal, because the only witness who testified as to the transaction underlying the sale charge was Padilla.
That testimony was essentially as follows:
On the evening of January 24, 1978, Padilla and his informant were in a Concordia tavern looking for business. The defendant Knox came in, and the informant introduced him to Padilla, saying they were in the market for marijuana. Padilla and Knox entered into negotiations for Padilla to purchase a quarter pound of Columbian marijuana. After some unsuccessful haggling over the price of a quarter pound, Padilla agreed to buy a “bag” for $40. Knox and an unidentified friend left the tavern together; some twenty minutes later Knox returned and indicated he was ready to deliver the merchandise.
Padilla, Knox, and the informant left the tavern and proceeded to a car apparently under Knox’s control. Knox got into the driver’s seat, Padilla the front passenger’s seat, and the informant the back seat. Knox reached into the back seat and produced four clear plastic bags, presumably containing an ounce of marijuana each. Knox offered the quarter pound for his previous asking price of $140; Padilla stuck to his previous top limit of $130. When it was clear that the previous impasse continued, Knox pulled yet another bag of “green vegetation” from his pocket, handed it to Padilla, and received the previously agreed upon $40.
After making the buy Padilla and his informant returned to Padilla’s motel room where Padilla marked the merchandise for evidentiary purposes, sealed it in a zip lock bag, and put it in a locked metal box. Padilla then put the box in the trunk of his car for later delivery to the KBI laboratory. The evening being still young, Padilla and the informant then ventured forth into Concordia’s night life in a successful search for more business. Over a period of some three months Padilla made buys in the
same general manner from approximately ten different individuals in the Cloud County area. On March 10, 1978, Padilla and a local police officer appeared before the Honorable Marvin L. Stortz, district magistrate judge, to secure warrants for the arrest of the sellers. Judge Stortz placed Padilla under oath and ques tioned him as to the background of the proposed warrants. Although he did not recount the details of each purchase separately, Padilla testified as to his general method of operation and assured the judge that he had personally purchased drugs from each of the proposed defendants as alleged in the complaints and warrants. The judge was satisfied as to the existence of probable cause in each case and took Padilla’s signature in verification of each complaint. The judge then signed the requested warrants, including one for the arrest of defendant Knox for the January sale.
Knox was arrested on the warrant later that day by two Concordia police officers. A patdown search at the time of the arrest turned up a package of five marijuana cigarettes. They formed the basis for the second charge, possession of marijuana.
The two cases were consolidated for trial, at which defendant was convicted by a jury of both counts. This appeal followed.
I.
Defendant’s first point goes to the possession charge. He claims his arrest was illegal, the resulting search was therefore also illegal, and that the cigarettes found on him at that time should have been suppressed as the fruit of the poisonous tree. His argument on this issue has both a substantive and a procedural aspect: substantively, that there was insufficient evidence presented to the magistrate to give rise to probable cause; and procedurally, that the warrant was not issued according to the mandates of Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978).
A. There was a pretrial hearing on defendant’s motion to suppress at which Judge Stortz testified as to the probable cause hearing he had conducted. His testimony, fairly read, was that even though he didn’t know Padilla, a local police officer whom he did know introduced Padilla as a KBI agent. Beyond that, his testimony was as outlined above. Each buy was not separately detailed by Padilla, but the fact of each was sworn to from personal knowledge. Where a police officer, or any other person whose veracity is not subject to known infirmity, swears that he personally observed the commission of a crime a magistrate is justified in finding probable cause to believe it was committed. Wilbanks, 224 Kan. at 76. That was the thrust of Padilla’s testimony before Judge Stortz. In addition, where the witness or affiant claims to know the identity of the perpetrator from personal observation, the magistrate may reasonably conclude that there is probable cause to believe the crime was committed by the identified person. Defendant’s substantive claim is without merit.
B. Defendant’s procedural argument is that the facts from which Judge Stortz found probable cause were never recorded, i.e., they were not presented by affidavit and the judge had neither a court reporter nor an electronic recording device available to him. He relies particularly on the statement in Wilbanks where the court, in discussing probable cause requirements for an arrest warrant, observed:
“It is preferable, and the most desirable practice, to include probable cause information in the body of the complaint. However, we recognize that under the statute a separate affidavit or affidavits may be filed with the complaint, or sworn testimony may be offered. Such testimony should be recorded and preserved, either by a court reporter or through electronic means. ” 224 Kan. at 76. Emphasis added.
To read this as imposing a mandatory requirement is, we think, reading too much into it; the court is speaking of preferred practice in most cases, not required practice in all cases. The court states, for example, that it is preferable to include probable cause information in the complaint. Yet if an essential part of that information is a confession, putting it in the complaint may require expurgation before the complaint is made accessible to a jury. In such a case it is clearly preferable that the information not be included in the complaint but be supplied by separate affidavit or testimony.
If oral testimony is taken, as here, instead of or in addition to the sworn written statement, recording provides obvious advantages if the substance of the testimony later becomes an issue. Here, however, that issue was raised while the magistrate still had an independent if not perfect recollection of the testimony presented. The situation was no different than if a tape were garbled or erased or a reporter’s notes lost or unintelligible. In the absence of such a record, reconstruction from the memory of participants is acceptable if sufficiently reliable for the purpose for which made. See e.g., Rule No. 3.04 (224 Kan. xxxvii). The magistrate’s testimony here was basically unchallenged as to accuracy and furnished an adequate basis for a later appraisal of his probable cause determination. We conclude that the failure to record the probable cause hearing was not fatal to the warrant.
The result is that the warrant was properly issued on probable cause and defendant’s arrest was not illegal. The marijuana seized as an incident to that arrest was therefore properly admitted into evidence, and the resulting conviction for possessing it is affirmed.
II.
The more serious problem, and one requiring reversal, arises from the trial court’s repeated refusal to require the State and its star witness Padilla to reveal the identity of the “confidential informant” who is said to have introduced the agent Padilla to defendant, to have made the initial proposal to defendant to purchase the marijuana, and to have observed both the preliminary negotiations and the actual transaction on which the sale charge was based.
The defense raised the issue in two ways. First, it asked for the informant’s name by pretrial discovery motion. That was denied. Then, during trial, Padilla was asked on cross-examination to name the informant. The State’s objection was sustained on the grounds of privilege.
These rulings must be based on statute because, under K.S.A. 60-407:
“Except as otherwise provided by statute . . . (d) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (e) no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing, and (f) all relevant evidence is admissible.”
Thus in Kansas there are no common law privileges; all relevant evidence is admissible unless there is a statutory ground for excluding it.
To sustain the claim of privilege the State relies on K.S.A. 60-436:
“A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representative of the state or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his or her identity is essential to assure a fair determination of the issues.” Emphasis added.
This is a codification of what was known to the common law as “the informer’s privilege.” The leading case in which it is discussed is Rociaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957). The Court there characterized it as follows:
“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [Citations omitted.] The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
“The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
“A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” 353 U.S. at 59-61.
A comparison of this language with our statute demonstrates an almost exact parallel. There is a general privilege subject to two exceptions: (a) where the identity is known to those who would “resent” the communication, and (b) where the identity would be helpful to the defense and is therefore essential to a fair trial.
The Roviaro Court noted that informers come in two varieties: those who merely furnish information to the police, generally relied on to establish probable cause; and those who actually participate in or observe the criminal activity. 353 U.S. at 61.
The distinction was further recognized in McCray v. Illinois, 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056 (1967). In McCray an informer’s tip had led to a warrantless arrest followed by a search revealing heroin. At a suppression hearing the informer’s identity was withheld, the heroin was later admitted into evidence, the defendant was convicted, and the conviction was affirmed by the Illinois Supreme Court. The U.S. Supreme Court found no constitutional flaw in the well-settled Illinois rule:
“When the issue is not guilt or innocence, but, as here, the question of probable cause for an arrest or search, the Illinois Supreme Court has held that police officers need not invariably be required to disclose an informant’s identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant. This Illinois evidentiary rule is consistent with the law of many other States.” 386 U.S. at 305.
In Kansas all the cases we find dealing with our statutory privilege likewise deal with informers who have supplied preliminary information. State v. Robinson, 203 Kan. 304, 454 P.2d 527 (1969); State v. Grider, 206 Kan. 537, 479 P.2d 818 (1971); State v. Nirschl, 208 Kan. 111, 490 P.2d 917 (1971); State v. Braun, 209 Kan. 181, 495 P.2d 1000, cert. denied 409 U.S. 991 (1972); State v. Deffenbaugh, 216 Kan. 593, 533 P.2d 1328 (1975); State v. Jacques, 2 Kan. App. 2d 277, 579 P.2d 146, aff’d as modified 225 Kan. 38, 587 P.2d 861 (1978). Typical of the reasoning and result reached in those cases is the following from Braun:
“It is incumbent upon the defendant to show that the identity of the informer is material to his defense. (People v. Martin, 82 Cal. Rptr. 414, 2 C. A. 3rd 121.) It is clear from the record in this case that there was no showing that the informer participated in the offense or that the informer was present at the time of the serving of the search warrant or that he was a material witness in the case. As pointed out in State v. Robinson, [203 Kan. 304, 454 P.2d 527 (1969)], when the issue is probable cause for the search and not guilt or innocence of the defendant, the state generally need not disclose the identity of the informer. The reason for this rule is that the prosecution is usually based upon the narcotics taken at the time of the search and arrest and the informer has little or nothing to do with this aspect of the case. Since the appellant failed to show that the informer participated in the offense or that the informer was in any way a material witness we cannot say the district court abused its discretion in refusing to compel disclosure of his identity.” 209 Kan. at 186. Emphasis added.
In this case, of course, we are not dealing with a mere tipster but with an intermediary who first suggested the crime, introduced the principals, and witnessed the entire transaction.
That is the kind of informer the Court was dealing with in Roviaro. There the unrevealed informant had himself made the drug buy underlying one count of sale, and had driven the defendant to his cache to secure the drugs on which were based a second count of transporting illegally imported drugs. The government made no attempt to defend the conviction on the first count. As to the second, however, it claimed that the testimony of two agents who observed the transaction was sufficient and the identity of the informer was not relevant. The Court there formulated its famous balancing test:
“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U.S. at 62.
Applying that test, it found that the informer’s identity there was essential to a fair trial because it was “highly relevant and might have been helpful to the defense.” 353 U.S. at 63-4. Except for the government agents, the informer was the only witness to the crime. He had “helped to set up the criminal occurrence and had played a prominent part in it.” 353 U.S. at 64. His testimony might have disclosed entrapment, and it might have controverted, explained or amplified defendant’s conversations as related by a government agent.
All those factors, relied on by the Court in finding error in Roviaro, are also present here. There are, ■ moreover, two additional elements which lead us to conclude there is error here.
First, the trial court’s initial ruling denying disclosure was based on its finding, made in the Journal Entry ruling on defendant’s motion, that “[t]he defendant is well aware of the identity of the ‘confidential informant.’ ” The Journal Entry reflected the court’s observations in argument on the motion (which was being considered along with similar motions in other cases developed by Padilla’s investigation):
“The defendant is, I believe, rather well informed as to the time and the circumstance of the occurrence which brought about his arrest. The Court was impressed by a couple [of] other hearings on the same matters involving Mr. Padilla, and I don’t know whether the same informant operated in these three cases as operated in the other two cases; but as nearly as I could figure out, the only persons in this courtroom who did not know the identity of the confidential informant were the Court and the jury.”
The defense at all times stoutly maintained ignorance of the informer’s identity. Of course, if the defendant made the sale just as Padilla said, he would have had to know the informer’s identity. The motion, however, was decided before trial when the presumption of innocence still cloaked the defendant (K.S.A. 21-3109); the court’s ruling apparently assumed guilt. The court’s reference to other cases sheds some light on its thinking, but there is certainly nothing in this record to show that at the time of the pretrial ruling defendant knew who the informer was.
On the other hand, if there had been evidence to support a finding that the informer’s identity had “already been otherwise disclosed,” then under 60-436(a) the privilege no longer existed. As all the cases recognize, the purpose of the privilege is to protect the informer from the wrath of those who would resent the informer’s role. If the informer’s identity is known, the purpose of the privilege is destroyed. Roviaro v. United States, 353 U.S. at 60, n. 8. Either way, the trial court’s belief that the defendant knew the informer’s identity was an insufficient ground for further withholding it.
The second reason we find error is because of the particular way the existence of the informer was used at trial. There was, as previously explained, but one witness to the alleged sale and that was Padilla. He was, naturally, a stranger in the Cloud County community. It was essential to the State’s case, in this and the other prosecutions arising out of his investigation, that his testimony be believed not only as to the facts surrounding the sale but the identity of the local seller. The prosecutor in his opening statement to the jury described the meeting in the Concordia bar and the departure to consummate the sale. He added “[t]hat also accompanying them was a confidential informant, the informant being someone from our area who was working with the agent to introduce him around the Concordia and Cloud County area.” To the jury the obvious import of this statement was that there was a local person, who, if called, would corroborate Padilla’s testimony.
In addition, Padilla testified to the informer’s presence and, over defense objection, testified that he was exercising his privilege not to identify the informer and gave the following as his reason for doing so:
“The purpose of keeping individuals confidential is primarily for his own personal — his or her own personal protection from retribution or revenge from subjects who I meet from this person from revenge later on to get even for introducing me to! subjects involving drugs.”
Although the overruling of the objection to this testimony is not pursued on appeal as an independent ground of error, it seems to us the error is apparent and, when combined with the rest of the manner in which the informer was dealt with, heightened the prejudice to the defendant. The clear implication of this answer was that defendant Knox, if he knew who the informer was, would take revenge upon him. There was no evidence that this was true (the trial court apparently thought Knox knew the informer all along), and even if there were, Padilla’s motives for claiming the privilege were not relevant to the guilt or innocence issue before the jury. While this ruling, as such, cannot be relied on for reversal, it does form part of the pattern of use made of the informer in presenting the State’s case to the jury.
Throughout Padilla’s testimony the presence of the informer during the entire transaction was referred to repeatedly. It seems to us this manner of placing the informer’s role before the jury had the effect of using the informant’s presence to bolster Padilla’s otherwise uncorroborated testimony. It was tantamount to a hearsay use of the informer’s testimony, and denied defendant his Sixth Amendment right of confrontation and cross-examination.
We find a striking parallel between this case and United States v. Ariza-Ibarra, 605 F.2d 1216 (1st Cir. 1979). There a confidential informer gave narcotics agents information leading to the warrantless arrest and attendant successful search of the defendants. Although the informer was named, his address and general whereabouts were withheld to honor the government’s promise that he would not have to testify, despite the defense’s insistence that it had a right to cross-examine him.
The informer’s statements identifying defendants as drug dealers and his past record of reliability had been introduced at a pretrial suppression hearing to show probable cause for the arrest. The appellate court approved the procedure thus far. However, the prosecutor also pursued the question of the informer’s reliability at trial before the jury, both in the opening statement and in the testimony of the narcotics agent. As the court observed, “Bolstering the government’s case in this manner served to place the experienced informer alongside [the agent] as an additional witness, yet one immune from cross-examination by defendants.” 605 F.2d at 1222. The result was found to be a denial of the right of confrontation requiring a reversal, without reaching the Roviaro question of whether the informer’s presence would have been helpful to the defense.
If the question here were simply the Roviaro question, it might be possible to seek a resolution without necessarily granting a new trial. The federal courts frequently employ the device of a remand to permit the trial court to interrogate the informer in camera. After such a hearing the trial court can apply the Roviaro balancing test to determine whether disclosure is essential to a fair trial. See e.g., Alderman v. United States, 394 U.S. 165, 182 n. 14, 22 L.Ed.2d 176, 89 S.Ct. 961 (1969); United States v. Doe, 525 F.2d 878, 880 (5th Cir. 1976); United States v. Rawlinson, 487 F.2d 5, 7 (9th Cir. 1973); United States v. Hurse, 453 F.2d 128, 130-1 (8th Cir. 1971); United States v. Lloyd, 400 F.2d 414, 416-17 (6th Cir. 1968); United States v. Jackson, 384 F.2d 825, 827 (3d Cir. 1967).
That remedy may be appropriate where the informer’s activities and supposed testimony were never presented to the jury, and the question is whether, if presented, they might be useful to the defense. Here, however, in the light of the use made of the informer as outlined above we see no way in which such a hearing could repair the damage done. It would not do to say, after the fact, that the informer’s testimony would have corroborated Padilla’s, hence it did no harm for the jury to so assume and to convict on that basis. The right of confrontation is too important to be dispensed with so easily. See e.g., Barber v. Page, 390 U.S. 719, 20 L.Ed.2d 255, 88 S.Ct. 1318 (1968); Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 (1965).
We also note that in a case much like this the Missouri Supreme Court just recently held that an informer’s identity should have been disclosed in State v. Wandix, 590 S.W.2d 82 (Mo. 1979). The informer there introduced the officer to the narcotics seller, accompanied them to a house where the sale was to be made, and either remained just outside or went in with them while the officer made the buy. The Missouri court summarized the Roviaro test as follows:
“In summary, the rule requires disclosure where the informant was in a position to offer testimony relevant and crucial to the defense; i.e. disclosure would not be required if the testimony were on minor or collateral issues or if the testimony would be merely cumulative of that of other neutral parties. The degree of cruciality necessary to require disclosure must be balanced against the State’s need for non-disclosure; i.e. possible non-disclosure where the informant is still active in other investigations and the accused’s need is minimal.” p. 85.
It went on to hold that where identity of the seller was a crucial issue, and the informer was not active in ongoing investigations, the balance must be struck in favor of disclosure. As the court put it:
“Although the State may have some interest in being able to tell an informant that his identity will never be revealed, even after he is inactive, this interest is not of sufficient magnitude to justify non-disclosure where the informant could provide relevant testimony at trial.” p. 86.
The same considerations, along with the others referred to above, lead us to conclude that disclosure should have been made here. The result is that the conviction of this defendant for the sale of marijuana must be reversed and the case remanded for a new trial on that count.
Affirmed as to Count II (possession); reversed as to Count I (sale) and remanded for a new trial. | [
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Parks, J.:
This action arises out of a divorce proceeding between the parties in 1974, wherein defendant Kenneth Alley was ordered to pay alimony to the plaintiff, Patricia Alley. In 1978 he sent interrogatories to her requesting certain financial information, to which she objected. The trial court sustained her objection, holding that the court did not have authority to modify the amount of alimony under K.S.A. 1978 Supp. 60-1610(c) except for those modifications provided for in the agreement itself, or those to which the parties have consented. Although in form the trial court’s order merely quashed the interrogatories, its ultimate effect was to terminate the post-divorce proceeding to modify alimony. Defendant appeals from this decision.
The property settlement agreement provided that defendant pay monthly installments of $2,000 to plaintiff for life or until she remarried. It further provided that the amount could be reduced only if. defendant suffered “financial reverses” which were beyond his control, making it impossible for him to meet such obligation. The alimony provision was incorporated into the journal entry, with the following sentence added:
“The Court further orders that the provisions of said property stipulation and agreement shall be modified so that the Court Retains statutory jurisdiction over the amount of alimony awarded to the plaintiff.”
The parties agree that this case is governed by the provisions of K.S.A. 1978 Supp. 60-1610(d) and (e), which state:
“(d) Maintenance. The decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. The decree may make the future payments conditional or terminable under circumstances prescribed therein. The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without the consent of the party liable for the alimony, if it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree.
“(e) Separation agreement. If the parties have entered into a separation agreement which the court finds to be valid, just, and equitable, it shall be incorporated in the decree; and the provisions thereof on all matters settled thereby shall be confirmed in the decree except that any provisions for the custody, support, or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters, settled by such an agreement, other than matters pertaining to the custody, support, or education of the minor children shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent.” (Emphasis added.)
It is well settled that if an approved separation agreement includes a provision for alimony, then under 60-1610(e), in the absence of a later agreement of the parties, the alimony award may be modified only if the separation agreement so provides. Rasure v. Wright, 1 Kan. App. 2d 699, 702, 573 P.2d 1103 (1977), rev. denied 225 Kan. 845 (1978); Spaulding v. Spaulding, 221 Kan. 574, 578, 561 P.2d 420 (1977). Plaintiff argues that since neither of the situations for change in the alimony amount (by operation of the agreement itself or by mutual consent) have occurred, the court is without jurisdiction to modify alimony payments in this case. Defendant relies on the language contained in the journal entry which indicates that the court retained jurisdiction over the alimony issue. The issue before us is whether the trial court retained continuing jurisdiction over the amount of alimony so as to make modifications apart from any agreed to by the parties or provided by the agreement itself.
Defendant does not argue that the court disapproved or modified the agreement’s alimony provision. At oral argument counsel specifically disavowed any such contention. Rather, he contends that by submitting the agreed journal entry the parties altered their agreement by entrusting the whole matter of modification to the court without limitation. He cites Rice v. Rice, 213 Kan. 800, 518 P.2d 477 (1974), for the proposition that an agreed journal entry embodying the parties’ prior oral agreement is a “separation agreement” under 60-1610(e).
This is not a Rice situation. At the time of the divorce hearing the separation agreement had been agreed to but not signed. Plaintiff testified as to its general terms, including the alimony modification provision, and defendant testified that her description was correct. The trial court, without the benefit of the written agreement, spoke a word of caution to counsel:
“The only thing I want to be sure the parties understand is that in any award of alimony, there is a provision in the law as to how and under what circumstances it may be modified. I simply pointed out to the parties that this is not — the right to modify it is not something that you gain by contract, it’s a right that is built into the law; and any motion to modify it will be heard in accordance with the law, and that it won’t be restricted beyond that, is what I’m saying.”
Later in the proceeding when the trial judge rendered his decision, he said:
“The property settlement of the parties, as testified to by the plaintiff on the witness stand and affirmed as the agreement of both parties by the defendant and his counsel in open court, will be incorporated into the decree and made the order of this Court and all matters relating to the property contained therein will become final and unchangeable when the decree becomes final.
“Court also incorporates into its decree the parties’ agreement as to alimony, and it will be subject to change only in accordance with the statutes of the State of Kansas(Emphasis added.)
The written agreement was executed by the parties later that day. It contained the limitation on alimony modification without any alteration from the way it had been explained to the court. The journal entry, submitted even later, contained the language quoted above which is relied on by defendant as being an agreed amendment to the separation agreement. The trial court rejected this interpretation of the parties’ conduct, as do we. If there was really an intent to modify the separation agreement, there was ample opportunity to do so after the hearing and before it was executed. At that time the parties already had the benefit of the trial court’s remarks. As we see it, the critical language was inserted in the journal entry not to reflect a subsequent agreement of the parties but to reflect the trial court’s observations that modification of alimony is governed by statute.
The statute makes it clear that matters settled by a contractual separation agreement are not subject to later modification except as the agreement itself provides or by consent of the parties. In this case the agreement permitted modification only in one contingency, i.e., the suffering of financial reverses by defendant under specific conditions. Both by statute and by the court’s reference to the statute the court’s power to modify the agreement as to alimony was limited to the terms of the agreement.
Thus, we agree with the trial court that it was without authority to modify the alimony award unless it related to the “financial reverses” of the defendant or by consent of the parties. In the absence of a claim that defendant had suffered financial reverses, the court properly sustained plaintiff’s objection to the interrogatories.
Affirmed. | [
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Swinehart, J.:
Defendant appeals from his conviction of possession of heroin under K.S.A. 1978 Supp. 65-4127a.
Two points are raised by defendant on appeal: (1) The court erred in failing to sustain defendant’s motion for dismissal at the close of the State’s case; and (2) the court erred in not sustaining a motion to set aside the guilty verdict and grant a new trial.
The evidence disclosed that the defendant and a male companion were at a residence in Wichita occupied by Marshall Bottoms. On the day in question, officers of the Wichita Police Department were executing a search warrant, the validity of which is not in question, at Bottoms’ residence. The defendant and his companion were observed by the officers entering the home just before their arrest. Prior to this incident, the officers had not been aware that they were involved with Bottoms. When the police first entered the residence, the parties were standing in the hallway of the home. Bottoms retreated to the bathroom, closed the door and flushed the toilet. The defendant and his companion ran into a nearby bedroom. When Bottoms was searched, he had $331 ,in his possession. In the bedroom where the defendant and his companion were found, a gold compact was discovered on „a bed. Upon inspection, the compact was found to contain neither a mirror nor cosmetics, but rather several balloons containing heroin. The market value of the heroin was $200 to $240. One of the officers testified that under such circumstances, i.e., where a drug sale is suspected, one person is usually found with the money and another with the drugs.
On motion for acquittal at the close of the evidence, the trial court must determine whether upon the evidence, giving full play to the right of the jury to determine credibility of witnesses, to weigh the evidence and to draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If so, then the motion must be denied and the question submitted to the jury. State v. Racey, 225 Kan. 404, 590 P.2d 1064 (1979); State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973). Whether to grant a new trial rests within the sound discretion of the trial judge, and this decision will not be disturbed on appeal absent a showing of abuse of discretion. In criminal cases a new trial may be granted in the interest of justice. K.S.A. 22-3501; State v. Bell, 224 Kan. 105, 577 P.2d 1186 (1978); State v. Davidson, 2 Kan. App. 2d 463, 581 P.2d 1190 (1978).
In State v. Bullocks, 2 Kan. App. 2d 48, 49-50, 574 P.2d 243, rev. denied 225 Kan. 846 (1978), the court stated:
“ ‘Possession’ of marijuana is having control over the marijuana with knowledge of, and intent to have, such control. Possession and intent, like any element of a crime, may be proved by circumstantial evidence. State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 [1976], Possession may be immediate and exclusive, jointly held with another, or constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control. State v. Woods, 214 Kan. 739, 744, 522 P.2d 967 [1974],
“When a defendant is in nonexclusive possession of premises on which drugs are found, the better view is that it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs. See Annot., ‘Conviction of Possession of Illicit Drugs Found in Premises of which Defendant was in Nonexclusive Possession,’ 56 A.L.R.3d 948 (1974). Such parallels the rule in Kansas as to a defendant charged with possession of drugs in an automobile of which he was not the sole occupant. State v. Faulkner, [220 Kan. 153], Incriminating factors noted in Faulkner are a defendant’s previous participation in the sale of drugs, his use of narcotics, his proximity to the area where the drugs are found, and the fact that the drugs are found in plain view. Other factors noted in cases involving nonexclusive possession include incriminating statements of the defendant, suspicious behavior, and proximity of defendant’s possessions to the drugs.” (Emphasis supplied.)
Under the facts of this case Bottoms, who occupied the house, was a suspected drug dealer. He was present in the residence along with the defendant and his companion. Bottoms was in possession of $331 which was near the amount that the suspected drugs would have brought on the open market, whereas the defendant and his companion did not have any substantial amounts of money on their persons. When defendant and his companion hurriedly tried to evade the officers by going to a bedroom, the compact containing the drugs was discovered on the bed in plain view, and the discovery was made almost immediately when officers entered the room.
It was for the jury to determine whether such suspicious behavior and proximity to the drugs gave rise to an inference of possession. The court, therefore, did not err in denying the motion for acquittal at the close of the State’s evidence. Likewise, the court did not err in failing to set aside the verdict of guilty, and we cannot say that the verdict was contrary to the evidence.
The Supreme Court recently said in State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979):
“In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? Following Jackson v. Virginia, 443 U.S. 307, 61 L.Ed. 2d 560, 99 S.Ct. 2781 (1979).”
We find that there was sufficient competent evidence to support the verdict, and that the trial court did not abuse its discretion in refusing to grant a new trial.
Judgment is affirmed. | [
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Swinehart, J.:
Defendant Gerald D. Burnett appeals from a conviction by a jury of six counts of felony theft in violation of K.S.A. 1979 Supp. 21-3701. (Count 6 was based upon the prior theft statute which made theft of property of a value of $50 or more a class D felony, because it was committed prior to the 1978 amendments.) Defendant alleges on appeal that the trial court erred in failing to instruct the jury on the offense of unlawful deprivation of property, pursuant to K.S.A. 21-3705.
Defendant Gerald Burnett was employed as assistant manager of Auto Parts of Holton, Inc., in Holton, in September, 1977, and on April 30,1978, was promoted to manager. As store manager he was to prepare and mail to the NAPA corporate headquarters in Topeka an envelope on a regular basis, i.e., daily or every few days, containing cash sales tickets, charge tickets, a copy of bank deposit slips representing the total cash and check transactions for the period, and an accounts receivable list. He then deposited the proceeds of the business in the Kansas State Bank at Holton. The manager also had the discretion to delegate these tasks to the assistant manager.
In July of 1978, the Kansas State Bank at Holton informed the Topeka office of an overdraft in its account at the bank. Robert Acker, the store coordinator for the NAPA stores in the area, consulted with the company accountant and investigated the matter. He determined that the following five deposits, for which he had received deposit slips, had not been made at the bank: July 5, covering business on July 2, 3, and 5; July 6; July 8, covering July 7 and 8; July 15, covering July 13, 14 and 15; and July 17, covering July 16 and 17, all in 1978. The deposits totalled $4,237.78. The bank records failed to show receipt of any of these deposits. Although the assistant manager recalled filling out the envelopes for several of these dates, he stated he did not complete any of the deposit slips nor did he recall making any of the deposits. He was out of town when the last two slips were completed.
The defendant testified that he had completed four of the deposit slips, while Mr. Acker stated that all of them were in the defendant’s handwriting. The defendant could not remember whether he had actually made any of the alleged deposits at the bank, but denied taking any funds from the store. He did admit, however, that the original deposit slip for July 6, 1978, had been found in his trailer, although no money was discovered with it. He also could not recall whether he or his wife had moved the deposit slip from his car to the trailer.
The defendant was charged and convicted by a jury on five counts of willfully and intentionally exerting unauthorized control over these deposits, with intent to permanently deprive the owner thereof, pursuant to K.S.A. 1979 Supp. 21-3701.
Defendant also was convicted on a sixth count in violation of K.S.A. 21-3701, which arose from the sale of a four-cylinder Vega C253 Four Star engine to Robert Arnold. Arnold gave the defendant checks in the amount of $300 and $42.64 in payment of the engine. The last check was dated July 17, 1978. The payee line on both checks was left blank by Arnold. The defendant later inserted his name as payee and endorsed the checks in his name. The defendant claimed he made the sale on his own company discount and charged it to his account, intending to pay for it when due. He made a “hold ticket” which Acker had seen one day while working at the store, but Acker stated that this was an unauthorized procedure for making a charge and against company policy. Further, Acker testified that the Topeka headquarters never received a charge ticket on the defendant’s charge account for the engine, nor did defendant ever pay for the engine in question, whereas the defendant stated he had put the engine on his account. Although he had not yet paid for the engine, defendant testified he intended to do so.
Defendant contends that unlawful deprivation of property, as provided in K.S.A. 21-3705, is a lesser included offense of theft, as defined in K.S.A. 1979 Supp. 21-3701. Therefore, the defendant urges that the trial court erred by failing to instruct the jury on the lesser included offense of unlawful deprivation of property. The State disagrees with this contention. Even if unlawful deprivation of property is a lesser included offense of theft, the State asserts the trial court did not err in refusing to instruct thereon because there was no evidence in the record to warrant such an instruction.
The following are the most relevant statutes. K.S.A. 21,-3107(2) and (3) provide:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime;
“(b) An attempt to commit the crime charged;
“(c) An attempt to commit a lesser degree of the crime charged; or “(d) A crime necessarily proved if the crime charged were proved.
“(3) In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
K.S.A. 21-3107(2)(d) is the pertinent category on this appeal to consider defendant’s contention that a violation of K.S.A. 21-3705 is a lesser included offense of K.S.A. 1979 Supp. 21-3701. K.S.A. 1979 Supp. 21-3701, the general theft statute, provides:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property:
“(d) Obtaining or exerting unauthorized control over property; or
“Theft of property of the value of one hundred dollars ($100) or more is a class D felony. Theft of property of the value of less than one hundred dollars ($100) is a class A misdemeanor.”
K.S.A. 21-3705 provides:
“Unlawful deprivation of property is obtaining or exerting unauthorized control over property, with intent to deprive the owner of the temporary use thereof, without the owner’s consent but not with the intent of depriving the owner permanently of the possession, use or benefit of his property.
“Unlawful deprivation of property is a class A misdemeanor.”
The Judicial Council note following K.S.A. 21-3705 states that it is based upon the former “joyriding” statute, K.S.A. 21-544, and has been expanded to. cover all classes of property.
Both parties agree that under statute and case law, in a criminal case the trial court has the duty to instruct the jury as to all lesser offenses upon which an accused might be found guilty under the information and the evidence presented at trial, as well as the duty to instruct as to the offense charged. Such a duty is imposed even if such instructions have not been requested or have met with objection. K.S.A. 21-3107(3); State v. Boyd, 216 Kan. 373, 376, 532 P.2d 1064 (1975); State v. Clark, 214 Kan. 293, 521 P.2d 298 (1974); State v. Warbritton, 211 Kan. 506, 506 P.2d 1152 (1973); State v. Satterfield, 3 Kan. App. 2d 212, 592 P.2d 135, rev. denied 226 Kan. 793 (1979). In this action the defendant did not request any instructions on lesser included offenses and none were given.
This court must determine whether or not unlawful deprivation of property is a lesser included offense of theft. K.S.A. 21-3107(2) sets forth four types of included crimes. Additionally, in State v. Daniels, 223 Kan. 266, 270, 573 P.2d 607 (1977), the court noted the following test had been repeatedly used to determine what constitutes a lesser included offense under K.S.A. 21-3107(2)(d):
“ ‘A lesser offense is considered a lesser included offense under K.S.A. 21-3107(2)(d) when all elements necessary to prove the lesser offense must be present to establish the elements of the greater offense.’ (Wisner v. State, 216 Kan. 523, Syl. ¶ 2, 532 P.2d 1051 [1975].)
“Under this test, if the lesser offense requires proof of an element not necessary in the greater, the court should not instruct the jury that the defendant can be found guilty of the lesser offense.”
A greater offense may not be committed without having first committed the lesser offense to satisfy K.S.A. 21-3107(2)(d), as an “identity of elements” is required. An offense factually charged in the information and established by the evidence is not suffl cient to require a lesser included offense instruction. Rather, the inquiry must focus on the elements of the two offenses. State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978).
Therefore, the elements of theft and the elements of unlawful deprivation of property must be compared. A charge of unlawful deprivation of property requires proof of intent of the defendant to deprive the owner of temporary possession of the property, whereas theft requires proof of intent to deprive the owner of permanent possession, use or benefit of the property. K.S.A. 1979 Supp. 21-3110(6) defines “to deprive permanently” as:
“(a) Take from the owner the possession, use or benefit of his or her property, without an intent to restore the same.”
The critical question, then, is whether exerting unauthorized control over the property with the intent to permanently deprive of possession, and obtaining or exerting unauthorized control over property with an intent to deprive only temporarily are merely different points along a continuum of proof and, in essence, identical elements or whether they are so separate and distinct as to mandate a finding that K.S.A. 21-3705 is not a lesser included offense of K.S.A. 1979 Supp. 21-3701. Defendant asserts that any difference is merely semantic. The State argues that they are two different elements, that is, more than a mere quantum of proof distinguishes them. Neither party nor outside research have disclosed any Kansas case law squarely addressing this issue. Even resort to the construction of the former “joyriding” statute in Kansas case law is of little help.
Two Kansas cases have, however, considered other contentions made on appeal that unlawful deprivation of property is in fact a lesser included offense of theft. Although both cases seem to give tacit approval to such assertions, neither one explicitly holds that this is the case.
In State v. Moore, 220 Kan. 707, 556 P.2d 409 (1976), defendant was convicted on one count of the theft of plywood under K.S.A. 21-3701, and on one count of unlawful deprivation of property, a truck, under K.S.A. 21-3705. While the court acknowledged the defendant’s assertion, it concluded that an instruction on unlawful deprivation of property was unwarranted because the defendant’s defense regarding the taking of plywood found on the truck which he had admittedly taken was totally exculpatory. He had testified that the plywood was already on the truck and was merely incidental to the unlawful taking. According to the defendant’s argument, then, the court found that the taking of the truck and the plywood would constitute an indivisible misdemeanor and not require another unlawful deprivation of property instruction.
Similarly, the defendant in State v. Warren, 221 Kan. 10, 557 P.2d 1248 (1976), was convicted on one count of felony theft of a lumber truck in violation of K.S.A. 21-3701. The court rejected defendant’s claimed entitlement to a jury instruction for unlawful deprivation of property as a lesser included offense again because defendant’s defense was completely exculpatory, i.e., he denied taking the truck and he presented no evidence whatsoever bearing on intent. In passing, the court referred to a New Hampshire decision, State v. O’Brien, 114 N.H. 233, 317 A.2d 783 (1974). In State v. O’Brien, the court had to decide whether “joyriding” was a lesser included offense of grand larceny and without elaboration stated that it was. The Kansas Supreme Court did not refer to this section of the opinion, nor give a hint as to the type of lesser included offense discussed there.
A reading of both Moore and Warren suggests then that the Supreme Court of Kansas has given at least tacit approval to the argument advanced here by the defendant: unlawful deprivation of property (K.S.A. 21-3705) is a lesser included offense of theft (K.S.A. 1979 Supp. 21-3701). Accord, State v. Christon, 3 Kan. App. 2d 372, 595 P.2d 356 (1979). Furthermore, the court in State v. Andrews, 218 Kan. 156, 157-158, 542 P.2d 325 (1975), baldly asserts that the defendant “was convicted of temporary deprivation of property, a lesser included offense of theft.” The question was not before the court oh appeal, however, and was in no way relevant to the issue raised there.
However, none of these cases nor any cases construing the former Kansas joyriding statute, on which K.S.A. 21-3705 was based, clearly hold that unlawful deprivation of property is a lesser included offense of theft. Application of the criteria cited above to determine whether an offense is a lesser included offense of a greater crime even suggests otherwise and cases from other jurisdictions squarely addressing the question have so held.
Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971), applying rules for determining lesser included offenses and statutes similar to those in Kansas (although Colorado’s statute was limited to joyriding), stated at page 418:
“From the foregoing discussion, it appears clear that an essential element of the crime of theft is the formation of an intent to permanently deprive the owner of his property. On the other hand, the crime of joyriding requires as an element of proof an intent to just temporarily deprive the owner of his property. The intent to permanently deprive is not a progression of an intent to temporarily deprive. To state it another way, the joyriding intent does not mature into the theft intent. A culprit who takes the automobile of another has either the intent to permanently deprive or the intent to temporarily deprive. He cannot have both intents because the one is exclusive of the other. Therefore, it follows that the greater offense of theft of an automobile does not include the element of intent to temporarily deprive. . . . [Bjefore an offense can be classified as a lesser included offense of a greater crime, the establishment of the greater' must also necessarily establish all the elements required to prove the lesser. As a consequence, it must be concluded that joyriding is not a lesser included offense of theft . . . .”
State v. Bailey, _ W. Va. _, 220 S.E.2d 432 (1975), cited Sandoval and reached the same conclusion (over two dissents). One other portion of its rationale is noteworthy, as K.S.A. 21-3705 speaks of intent to deprive temporarily and without intent to deprive permanently.
“Some joyriding statutes merely provide for the absence of an intent to permanently deprive the owner of his vehicle. Our statute provides for the presence of an intent to temporarily deprive the owner. The former type of statute can account for the decision in at least two of the minority of states holding ‘joyriding’ to be a lesser included offense of larceny. There may be merit to such a policy but our statute clearly does not express it.” State v. Bailey, 220 S.E.2d at 437-438.
We conclude that an intent to temporarily deprive the owner of property is a distinct element from an intent to permanently deprive. Therefore, we find that a violation of K.S.A. 21-3705, unlawful deprivation of property, is not a lesser included offense of K.S.A. 1979 Supp. 21-3701, theft.
Judgment is affirmed. | [
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Foth, C.J.:
The issue in this case is whether equitable estoppel will prevent a judgment from becoming dormant and eventually barred under K.S.A. 60-2403. We hold it will not.
The judgment in this case was one for alimony, entered in the parties’ divorce action on June 27, 1968. The pertinent provision was:
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant shall pay the plaintiff as and for alimony the sum of Four Hundred Fifty ($450.00) Dollars per month until her death or remarriage; provided, however, that so long as his income, exclusive of car allowance, is Seven Hundred. ($700.00) Dollars per month or less, there can be no execution levied on that order; at that time he will pay to the plaintiff the sum of One Hundred ($100.00) Dollars per month alimony, and the balance shall accrue in case defendant is financially in a position to pay at a later time or subject to further order of the Court; in the event that his income, exclusive of car expense allowance, exceeds Seven Hundred ($700.00) Dollars per month, fifty percent (50%) of that income above Seven Hundred ($700.00) Dollars per month shall be added to the monthly alimony payment and the monthly deficiency in alimony payment shall be decreased by that amount; death or remarriage shall not set aside any accrued alimony that there may be at the time of such death or remarriage.” Emphasis added.
The plaintiff wife remarried in August, 1969, thereby terminating the husband’s obligation under this clause. In the meantime he had paid the $100 per month due in any event, but paid nothing on the $350 balance which was, by the terms of the decree, accruing as a judgment. By the time of plaintiff’s remarriage the amount due was $4,550.00.
Plaintiff took no action to enforce this judgment from its final due date in August, 1969, until she filed this action for a declaratory judgment on March 30, 1978. Unless somehow excused, her nonaction resulted in the judgment becoming dormant in August, 1974, and barred in August, 1976. K.S.A. 60-2403 and 60-2404; Weber v. Weber 189 Kan. 661, 371 P.2d 147 (1962).
Under the decree plaintiff could not seek execution until defendant’s income exceeded $700 per month. We need not determine whether this unique provision was válid or if it would have the effect of postponing dormancy until that contingency was met; it is undisputed that defendant’s income exceeded $700 per month in every year from 1969 to the date of trial, so that plaintiff at all times had a legal right to seek enforcement.
The trial court nevertheless declared the judgment to be enforceable because defendant never told plaintiff that he was making over $700 per month and that she could therefore execute. The trial court’s reasoning was:
“(1) The happening of the contingent event was clearly, if not solely, within the knowledge of the defendant.
“(2) The obligation to pay was determined by the Court, yet the defendant took no steps to meet that obligation.
“(3) While certain discovery tools were available to plaintiff for her to determine the happening of the event (Debtor examinations), such actions only serve to increase litigations before the Court because a debtor refuses or neglects to abide by a prior judgment of the Court.
“(4) Defendant never filed a statement of record in case No. 41263 [the divorce case] as to his income.”
This, in our opinion, was fallacious. The case we find most directly in point is Thomas v. Murray, 174 Okla. 36, 49 P.2d 1080 (1935). That was an action for damages by a judgment creditor against his judgment debtor based on the debtor’s alleged fraud ulent conveyance and concealment of his property, coupled with false statements by the debtor as to his assets. As a result of the fraud, it was alleged, the creditor had failed to seek execution on his judgment and under a statute like ours it had become dormant and then barred.
■ The court held that a cause of action was not alleged. The statutory procedures for keeping a judgment alive and for reviving it after dormancy were said to be exclusive; the independent action there brought was an impermissible attempt to do indirectly what could not be done directly. Even the debtor’s active fraud did not work an estoppel so as to prevent the bar of the statute from becoming operative.
In so holding, the Oklahoma court distinguished the judgment dormancy-revivor statutes from- ordinary statutes of limitation. Revivor statutes demand strict compliance and allow for no exceptions. For this proposition it relied on Smalley v. Bowling, 64 Kan. 818, 68 Pac. 630 (1902), one of a line of Kansas cases which included Reaves v. Long, 63 Kan. 700, 66 Pac. 1030 (1901); and Steinbach v. Murphy, 70 Kan. 487, 78 Pac. 823 (1904). It quoted the Court in Smalley:
“For nearly a quarter of a century this court has held, in substance and effect, that if for any cause a judgment becomes dormant it can only be revived within one year from the time that such revivor could first have been had, and that in cases where execution could have been lawfully issued at the instance of the plaintiff thereon, his failure to cause such execution to issue for a period of five years after its rendition would render such judgment dormant, and thereafter it must either be sued upon or revived by motion within the following or sixth year, or it would cease to be a judgment.” 64 Kan. at 820. Emphasis added.
The Smalley Court also observed:
“If, then, it be determined that such judgment was dormant and had been for more than one year when the suit upon it was instituted, it does not matter for what reason it became so. It is extinguished, and it cannot be revived in the manner prescribed by statute or form the basis of an action at law or in equity.” 64 Kan. at 822. Emphasis added.
Kansas had adhered to this view over the years. See Bourman v. Bourman, 155 Kan. 602, 603-04, 127 P.2d 464 (1942); First National Bank v. Harper, 161 Kan. 536, 538, 169 P.2d 844 (1946); First Federal Savings & Loan Assn. v. Liebert, 195 Kan. 100, 101, 403 P.2d 183 (1965). Cases from other jurisdictions reflecting the same view are collected at 104 A.L.R. 214.
Cases cited by plaintiff dealing with equitable estoppel as precluding a defendant from asserting an ordinary statute of limitation are not applicable here. By virtue of the statute, after seven years of inaction by plaintiff her judgment was extinguished, and there was nothing left to which equitable principles could be applied. This declaratory judgment action cannot be used to revive a judgment long dead, and the trial court therefore erred in holding otherwise.
Reversed, with directions to enter judgment for the defendant. | [
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Foth, C.J.:
The defendant was convicted after trial to the court of selling a used car without a valid “certificate of approval,” or safety inspection, in violation of K.S.A. 1979 Supp. 8-1758(o)(6). He was fined $100, with the fine being suspended, placed on six months’ unsupervised probation, and ordered to pay the $137.00 required to bring the vehicle into conformity with state safety regulations. He appeals, contending that the statute is invalid as applied to him under the Equal Protection clause of the Fourteenth Amendment and under the Contract Clause of Article 1, Section 10, of the United States Constitution.
Both constitutional arguments are bottomed on the undisputed fact that when he sold the car on March 11, 1979, the purchasers agreed as part of the bargain to have the safety inspection performed themselves. After the $400 price was agreed upon the buyers asked if the car had been inspected; defendant said it had not, but for $5.00 more he would have the inspection made. The purchasers agreed to keep the $5.00 and have it done themselves.
The defendant agrees with the State that the seller’s statutory duty is unequivocal. K.S.A. 1979 Supp. 8-1754 requires a certificate dated within 90 days of the sale, and goes on: “If no such certificate has been issued for any such motor vehicle, it shall be the responsibility of the seller to obtain a valid certificate of approval for the motor vehicle in accordance with the provisions of this act . . . Criminal penalties are imposed on one who sells, and not on one who buys, a vehicle which has not passed inspection.
Defendant’s Contract Clause argument is that the statute, by penalizing him for agreeing with his buyers that they, not he, will secure the certificate, impairs the obligation of his contract. This argument is without merit. The statutes were enacted prior to March 11, 1979, the date of the contract involved here. “[T]he settled doctrine is that the contract clause applies only to legislation subsequent in time to the contract alleged to have been impaired.” Munday v. Wisconsin Trust Co., 252 U.S. 499, 503, 64 L.Ed. 684, 40 S.Ct. 365 (1920). Accord, Baker v. List and Clark Construction Co., 222 Kan. 127, 134, 563 P.2d 431 (1977). Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 57 L.Ed.2d 727, 98 S.Ct. 2716 (1978), relied on so heavily by defendant, does not alter this long settled doctrine. The legislation invalidated there operated on a pre-existing contract between a company and its employees; the issue was only whether the impairment was of such a magnitude as to offend the clause, not whether it was permissible to regulate a contract not yet made.
Defendant’s equal protection argument is that treating sellers of used cars differently from buyers creates an impermissible classification. He says, and we agree, that the primary purpose of the inspection legislation is to insure that at least some of the vehicles on Kansas highways meet minimum safety standards. Rather than require inspection of all vehicles, the legislature has required inspection only when a car changes hands.
His first argument is that the classification between buyers and sellers bears no rational relationship to that legislative purpose. The general rule, recently noted in State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978), is that found in McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L.Ed.2d 393, 81 S.Ct. 1101 (1961):
“The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
Several justifications for putting the burden on the seller of a used car seem apparent to us. First, the seller is familiar with the car and has some idea of what is required to bring it up to standards; the buyer has no such knowledge. Second, it is the seller who hopes to profit from the transaction; in purely economic terms it seems eminently reasonable to put any financial burden accompanying the transaction on the one who will gain from it. Third, and most important, the buyer, having bought and paid for a used car that will not pass, may for financial reasons succumb to a near irresistible temptation to drive it without putting it into a safe condition, even though to do so is unlawful. Elimination of this temptation and the attendant risk to the motoring public is a clearly reasonable legislative purpose.
As part of his equal protection argument, defendant also argues that freedom of contract is a “fundamental right” and that any impingement on that right is therefore subject to “strict scrutiny” to ascertain whether it is justified by a “compelling governmental interest.” Compare Shapiro v. Thompson, 394 U.S. 618, 22 L.Ed.2d 600, 89 S.Ct. 1322 (1969), with San Antonio School District v. Rodriguez, 411 U.S. 1, 36 L.Ed.2d 16, 93 S.Ct. 1278 (1973).
We cannot promote defendant’s right to sell a defective and unsafe used car to the level of the fundamental rights previously recognized by the United States Supreme Court, such as the right to vote and the right to travel. It has long been recognized that “[l]iberty of contract is not an absolute concept.” Hartford Accident Co. v. Nelson Co., 291 U.S. 352, 360, 78 L.Ed. 840, 54 S.Ct. 392 (1934), and numerous cases cited therein. Although the right to contract is a part of the liberty protected by due process guarantees, it is subject to such restraints as a state in the exertion of its police power reasonably may put upon it to safeguard the public interest. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391-2, 81 L.Ed. 703, 57 S.Ct. 578 (1937).
Defendant’s freedom of contract argument was rejected as long ago as Advance-Rumely Co. v. Jackson, 287 U.S. 283, 77 L.Ed. 306, 53 S.Ct. 133 (1932). It was there held that the Uniform Sales Act’s prohibition against a buyer’s voluntary waiver of warranty violated neither the due process nor the equal protection clause of the Fourteenth Amendment. Thus, in the heyday of substantive due process, it was recognized that the legislature could constitutionally impose a burden on a seller of merchandise which could not be contractually waived or assumed by the buyer. And cf. Steele v. Latimer, 214 Kan. 329, 521 P.2d 304 (1974), imposing on a landlord an implied warranty of habitability when renting residential property.
Our legislature has seen fit to impose absolute and nondelegable duties on one party to a contract in several different contexts. See, e.g., K.S.A. 58-2553(a)(l) - (3) [identifying duties of a landlord which cannot be delegated to a tenant]; K.S.A. 58-2547 [prohibiting certain provisions in a rental agreement including waiver of rights under the Kansas Residential Landlord and Tenant Act, payment of the other party’s attorney fees, and exculpation of any liability under the law]; K.S.A. 50-625(«) [providing that a consumer generally may not waive rights or benefits under the Kansas Consumer Protection Act]; K.S.A. 84-1-102(3) [prohibiting disclaimer of the obligations of good faith, diligence, reasonableness and care prescribed by the Uniform Commercial Code]; K.S.A. 84-4-103(1) [prohibiting disclaimer of a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care]; and K.S.A. 1979 Supp. 84-9-501(3) [prohibiting waiver or variation of certain rights of the debtor and duties of the secured party where a default occurs].
In our view the seller of an unsafe used car is in much the same position as the seller of adulterated meat. The argument that the legislature cannot punish the seller of either of these hazardous products without also punishing the buyer strikes us as, at best, fallacious.
Here, the legislature has imposed on the seller of a used car a nondelegable duty to see that it meets minimum safety standards. In our opinion this is a reasonable exercise of the police power, does not infringe on any fundamental right of the seller, and, applied to all sellers, does not deny any one of them the equal protection of the laws.
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Abbott, J.:
This is an interlocutory appeal taken by the State pursuant to K.S.A. 1979 Supp. 22-3603 from an order suppressing the testimony of the State’s only witness to two alleged sales of marijuana.
Defendant is charged with two counts of selling marijuana to an undercover agent. The undercover agent revealed his name at the preliminary examination, but the presiding judge sustained the State’s objection to revealing the agent’s address.
Defendant thereafter filed a motion to suppress the agent’s testimony by reason of the State’s refusal to reveal his address. A hearing was held and the trial court conditionally ordered the agent’s testimony suppressed unless the State filed a statement by July 26, 1979, sufficiently describing the agent’s neighborhood to allow the defense to run a background check so it would be prepared to test the witness’s reputation for truth and veracity in the community. The State did not comply with the court’s order and the testimony was suppressed. The State appeals, raising two issues.
1. The State first contends that the defendant does not have a right to pretrial discovery of the address of a witness for the State. It suggests the proper procedure is to wait until trial, then request a recess if the address is obtained and an investigation is necessary. Although defendant’s pretrial motion is entitled “Motion to Suppress Testimony,” we believe the motion is more properly characterized as a motion for disclosure of identity of a witness, suggesting suppression of testimony as a possible sanction for nondisclosure.
Whether discovery should be allowed in a particular case is generally a question for the trial judge, to be exercised within the bounds of sound judicial discretion. State v. Lamb, 209 Kan. 453, 470, 497 P.2d 275 (1972); State v. Martin, 206 Kan. 388, 390, 480 P.2d 50 (1971). Although discovery provisions under the criminal code are to be liberally construed (State v. Humphrey, 217 Kan. 352, Syl. ¶ 1, 537 P.2d 155 [1975]), a defendant is not entitled as a matter of right to discovery of evidence within the prosecution’s control unless a statute provides otherwise. State v. Oswald, 197 Kan. 251, 262, 417 P.2d 261 (1966); see, generally, Annot., 7 A.L.R.3d 8, 22-24.
The State concedes there may be instances when disclosure is mandated, but it argues that no such rights accrue until trial. This contention clearly is erroneous. There is a constitutional right to discover evidence that is favorable to the accused and is material to his guilt or innocence. Brady v. Maryland, 373 U.S. 83, 87, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963); State v. Koennecke, 274 Or. 169, 179, 545 P.2d 127 (1976). The State is required to endorse upon the complaint, information and indictments the names of all witnesses known to the prosecuting attorney (K.S.A. 1979 Supp. 22-3201). That requirement serves no purpose if the State is permitted to refuse to disclose the location of the witnesses.
We are appreciative of the excellent amicus curiae brief filed by the Kansas County and District Attorneys Association; we acknowledge that the appellate courts of this State are also concerned with the protection of witnesses in criminal cases and, to the extent that an accused’s right to a fair trial is protected and the accused’s other constitutional rights are not violated, we will endeavor to provide that protection.
Here, however, the accused is faced with a one-on-one situation. The State has only one witness who claims to have witnessed the sale. The accused is alleged to have been the only other person present when the sale took place. The credibility of the State’s witness is crucial to the accused’s defense. Information that is discovered by an investigation of the State’s only witness to the alleged crime may lead to admissible evidence that would create a reasonable doubt in the minds of the jurors. The accused has a legitimate need for the information which the trial court ordered the State to furnish.
We see no valid reason to deny to the accused less information concerning the State’s only witness who can testify about the crucial elements of the crime than he would be entitled to should he seek the same information concerning an informer. In State v. Knox, 4 Kan. App. 2d 87, 95-96, 603 P.2d 199 (1979), this Court held that whether disclosure of an informer’s identity is essential to fundamental requirements of fairness is to be determined by applying a balancing test as announced in Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957):
“ ‘We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ 353 U.S. at 62.”
Roviaro held that the trial court erred in failing to order compliance with defense counsel’s request for both the name and address of the informer involved therein. “Identity” of an informer has been held to include his name as well as all pertinent information which might assist the defense in locating him. Eleazer v. Superior Court, 1 Cal. 3d 847, 851, 83 Cal. Rptr. 586, 464 P.2d 42 (1970). The various considerations affecting disclosure of an informer’s name are closely associated to those regarding disclosure of his address, and we hold that the balancing test is applicable to a determination of whether an informer’s address should be divulged.
Each case must be judged on its own particular facts, and it must necessarily be within the sound discretion of the trial judge whether a witness’s address or neighborhood will be disclosed. In the absence of a clear showing of an abuse of that discretion, the trial judge’s determination will not be disturbed on appellate review. When, as here, the witness is a key witness against the accused, the court must at the very least permit a sufficient disclosure of the witness’s background so as to allow adequate investigation to insure the accused’s Sixth Amendment right of confrontation and cross-examination. Smith v. Illinois, 390 U.S. 129, 19 L.Ed.2d 956, 88 S.Ct. 748 (1968); Alford v. United States, 282 U.S. 687, 692, 75 L.Ed. 624, 51 S.Ct. 218 (1931); United States v. Smaldone, 484 F.2d 311, 318 (10th Cir. 1973), cert. denied 415 U.S. 915 (1974); United States v. Alston, 460 F.2d 48, 51 (5th Cir.), cert. denied 409 U.S. 871 (1972).
Our own Supreme Court has previously held that it is discretionary with the trial judge whether to require undercover narcotic agents to reveal their residences on cross-examination during a trial. State v. Hutchinson, 222 Kan. 365, 367-68, 564 P.2d 545 (1977). The Supreme Court recognized that generally an accused has a right to require a witness to give his address in order to aid the accused in his right of confrontation. ABA Standards for Criminal Justice, Discovery and Procedure Before Trial § 2.1(a)(i) (Approved Draft 1970), requires that the prosecuting attorney disclose to defense counsel the names and addresses of witnesses subject to protective orders (section 4.4). The Supreme Court also recognized that there are exceptions to that general rule (Hutchinson at 368). The defendant in Hutchinson failed to make a showing as to why he wanted the addresses and the Supreme Court held the trial judge did not abuse his discretion in sustaining an objection to the question. No guidelines were offered by the Supreme Court and we are of the opinion that, as it is in most discretionary matters, each case must be decided on its own set of facts. Considerable guidance is given to the bench and bar in the cases cited by the Supreme Court (Hutchinson at 368) and in this opinion.
We must conclude the trial court’s order requiring disclosure of the agent’s neighborhood was not an abuse of discretion in this case. Defendant’s request for disclosure was timely made (see State v. Lightle, 210 Kan. 415, 416, 502 P.2d 834 [1972], cert. denied 410 U.S. 941 [1973]), and the defense clearly demonstrated the relevancy and materiality of the requested information. See State v. Campbell, 217 Kan. 756, 782, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975). At the hearing, it was unrefuted that the agent was the primary witness against defendant and that he actually participated in the criminal activity by allegedly purchasing the controlled substance from defendant. See State v. Knox, 4 Kan. App. 2d 87, Syl. ¶ 10. Defense counsel emphasized the reliance placed on the informer’s testimony by the prosecution and argued that defendant’s right to effectively test the informer’s credibility would be hampered if his address were not produced. We concur with this analysis. The United States Supreme Court has recognized that a “witness’ name and address open countless avenues of in-court examination and out-of-court investigation.” Smith v. Illinois, 390 U.S. at 131. Contrariwise, the State produced no evidence in this case that disclosure would impede its prosecution of defendant or others or that it might cause harmful results to the agent. Under these circumstances, we hold the trial court did not abuse its discretion in ordering disclosure of the informer’s neighborhood.
2. The State additionally argues that, notwithstanding the propriety of the disclosure order, the trial court’s sanction for nondisclosure (suppression of the witness’s testimony) was improper.
A trial court is vested with wide discretion in dealing with the failure of a party to comply with a discovery order (State v. Jones, 209 Kan. 526, Syl. ¶ 1, 498 P.2d 65 [1972]), and rulings thereon will not be overturned unless an abuse of discretion is demonstrated. State v. Rogers, 217 Kan. 462, 466, 537 P.2d 222 (1975). Suppression of testimony is a drastic remedy which should be exercised only under compelling circumstances (Kruglak v. State, 300 So. 2d 315, 316 [Fla. App. 1974]); testimony should not be excluded when the State’s nondisclosure is inadvertent and no prejudice is shown by defendant. People v. Reyes, 12 Cal. 3d 486, 502, 116 Cal. Rptr. 217, 526 P.2d 225 (1974). Although we find no Kansas cases that approve the suppression of testimony as a sanction for nondisclosure, we believe the importance of the witness’s testimony in this case and the resultant necessity for the defense to question the witness’s credibility support the drastic action imposed by the trial court. Of equal importance is the fact that the State failed to offer any alternatives to the trial judge; it furnished no background information on the witness in lieu of his neighborhood, nor did it suggest any alternative to suppressing the evidence. Based on the record before us, we are unable to say that the trial court had any viable option other than to suppress the witness’s testimony. The trial court’s order did allow the State a reasonable time to produce the requested information (cf. People v. Thomas, 189 Colo. 418, 420, 541 P.2d 84 [1975]) and it limited disclosure to the informer’s neighborhood. Considering all the circumstances as revealed by the record before us, we cannot say the trial court abused its discretion in ordering suppression of the witness’s testimony.
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Meyer, J.:
This is an interlocutory appeal taken by the State pursuant to K.S.A. 22-3603 from the district court’s order suppressing evidence.
On December 15, 1978, Detective John E. Scofield executed a sworn affidavit requesting the issuance of a search warrant to search a residence located at 8511 West 53rd in Overland Park, Kansas, for a quantity of marijuana. The affidavit stated in pertinent part:
“(2) Affiant was contacted by a reliable confidential informant who advised that, in the last 48 hours, said reliable confidential informant was at the residence at 8511 West 53rd, Overland Park, Johnson County, Kansas, and that while at the residence, the reliable confidential informant observed a quantity of green leafy vegetation, which the confidential reliable informant believes to be marihuana, in the residence at 8511 West 53rd, Overland Park, Johnson County, Kansas.
“(3) The reliable confidential informant stated to the Affiant that the belief that the green leafy vegetation is marihuana is based on prior observation and usage of the substance.
“(4) Affiant believes the reliable confidential informant to be reliable from the following:
“a) within the last year, the confidential informant has given information leading to twelve search warrants for various types of controlled substances; and
“b) the aforementioned search warrants have resulted in the seizure of controlled substances in each instance and consequently resulted in arrests aiid/or arrest warrants.”
A search warrant was issued and executed the same day upon the strength of the above affidavit authorizing the seizure of marijuana at the stated address. The officers executing the warrant found and seized marijuana and additionally discovered and seized a large quantity of allegedly stolen property in the residence. A second search warrant was issued and executed December 18,1978, and more items were seized. The suppression of items seized pursuant to the initial search warrant would necessarily result in suppression of items seized under authority of the second warrant.
An information was filed January 19, 1979, charging defendants with multiple crimes. Thereafter, defense counsel filed various pretrial motions, including a motion to suppress the evidence seized on the basis that the affidavit underlying the initial search warrant was “permeated with flagrant numerous and gross attestation of material false reckless and incorrect information.” A hearing was held April 24, 1979, wherein four witnesses, including defendant Brewer, testified on the defendants’ behalf. The prosecution offered no witnesses. Thereafter, the trial judge examined the confidential informant in camera after requesting both parties to submit questions to propound to the witness. On June 19, 1979, the court issued a memorandum decision sustaining defendants’ motion to suppress.
The trial court made numerous findings of fact but apparently based its decision to suppress primarily on the following:
“At the hearing, a somewhat different picture emerged than that painted in the affidavit. Inquiry revealed an informant who acted under the express and direct supervision of police officers - in essence - a paid agent of the police. The informant also received a bonus payment if the information led to a large seizure. While this is not in and of itself impermissible, it is directly contrary to the facts presented in the affidavit. The affiant stated that, ‘Affiant was contacted by a reliable confidential informant who . . . was at the residence.’ This statement is clearly a false representation because the affiant was not contacted by the informant, but rather the informant was solicited by the police to act as a confidential informant.”
Additionally, the trial court found that:
“The affidavit infers the affiant had prior personal contact with the confidential informant and that the alleged confidential informant was reliable for the reasons set forth in paragraph (4) of the affidavit. The confidential informant testified that she had no contact with the affiant prior to December 14, 1978.”
The State brings this appeal, solely contending that the trial court erred in finding the search warrant affidavit contained false representations.
The issue as presented is integrally related to the United States Supreme Court’s decision announced in Franks v. Delaware, 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978). The holding in Franks may be summarized as follows:
“[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, hr with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” 438 U.S. at 155-156. (Emphasis added.)
The State does not argue that the trial court’s recitation of facts adduced at the hearing is erroneous or unsupported by the record but maintains that such a reading of the affidavit is “hypertechnical.” The State urges the affidavit is essentially true when read in a common-sense and realistic fashion. See United States v. Ventresca, 380 U.S. 102, 108, 13 L.Ed.2d 684, 85 S.Ct. 741 (1965); State v. White & Stewart, 225 Kan. 87, 101, 587 P.2d 1259 (1978). In Franks, the Court stated that, while a truthful showing underlying probable cause is necessitated:
“[t]his does not mean ‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be ‘truthful’ in the sense that the information put forth is believed or appropriately accepted by the affiant as true. ” (Emphasis added.) 438 U.S. at 165.
Thus, the focus of inquiry is upon the state of facts as they appeared to the affiant in this case, Detective Scofield. See United States v. Smith, 588 F.2d 737, 739 (9th Cir. 1978).
Applying the above standards to the trial court’s findings, we find no error in the court’s conclusion that the part of the affidavit stating that “Affiant was contacted by a reliable confidential informant . . is a misstatement which must be excluded. During the in camera examination of the informant, the following transpired:
“THE COURT: . . . The Court has held various hearings heretofore in this matter and the Court understands that you have been at the address known as 8511 West 53rd Street, Overland Park, Kansas. Do you recognize that address?
“THE WITNESS: Yes, sir.
“THE COURT: When were you there?
“THE WITNESS: December 14th, 1978.
“THE COURT: What brought you — why did you go to that address on that date?
“THE WITNESS: To buy dope.
“THE COURT: Had you been there before?
“THE WITNESS: No, I haven’t.
“THE COURT: Were you with anybody when you went there?
“THE WITNESS: I was with Ed Hayes and John Scodel (ph) — I cannot think— “THE COURT: Scofield; John Scofield?
“THE WITNESS: Yes, sir, John Scofield.
“THE COURT: How was it that you and Officer Scofield and Officer Hayes went to that address at that date?
“THE WITNESS: Ed Hayes informed me that there was dope there and for me to go and I went up to talk to the people in the house.
“THE COURT: Whose automobile?
“THE WITNESS: Ed Hayes.
“THE COURT: Were you all three in the same automobile?
“THE WITNESS: Yes, we was.”
During the in camera questions by the court the witness also admitted she was a paid informant, and that her compensation increased when good results were obtained.
It is abundantly clear from such testimony and other evidence adduced at the hearing that affiant Scofield’s statement that the informant contacted affiant is a misstatement within the meaning of Franks, especially when we consider the fact of Scofield’s direct contact with the informant.
However, we reach a different conclusion with respect to the trial court’s interpretation of paragraph (4) of the warrant affidavit. While the allegations contained in paragraph (4) may imply direct contact with the informant prior to December 14, 1978, we do not believe defendants sustained their burden of showing the information contained therein was false. Since the affidavit was executed December 15, 1978, Scofield could have acquired the information set out in paragraph (4) after having met the informant. Applying the rule that warrant affidavits are clothed with a presumption of validity (State v. Jacques, 225 Kan. 38, Syl. ¶ 4, 587 P.2d 861 [1978]), we cannot say defendants showed by a preponderance of the evidence that Scofield’s sworn statements in paragraph (4) were made in deliberate or reckless disregard of the truth.
Having concluded the affidavit contains misstatements, we now consider whether the remaining allegations in the affidavit are sufficient to establish probable cause. In Aguilar v. Texas, 378 U.S. 108, 114, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964), the United States Supreme Court stated:
“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officers concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ”
See also State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 (1977).
While we agree there were misstatements in the affidavit, we cannot say that the remaining portions of the affidavit are insufficient to establish probable cause. The affidavit, read without the tainted allegations as to who contacted whom, establishes the informant saw a quantity of marijuana in defendants’ residence and that the informant had provided reliable information in the past. We attach little significance to the complaints of the defendants relative to paragraph (4) a) of the affidavit for a search warrant, in that while one might infer that the confidential informant had given information to the affiant as to the previous arrests, the affidavit, strictly read, does not say to whom the prior information was given. The fact that such information was given to a fellow police officer rather than to the affiant is of little or no consequence provided the statement is true. When read in conjunction with the other untainted allegations, there was sufficient information to establish probable cause. Neither full disclosure of facts at hand nor elaborate specificity are required in executing warrant affidavits. State v. Sanders, 222 Kan. 189, 192, 563 P.2d 461, cert. denied 434 U.S. 833, rehearing denied 434 U.S. 1002 (1977).
Although we do not condone the misstatements made by the swearing officer in this case, we conclude as a matter of law that the affidavit is sufficient to establish probable cause when the misstatements are excluded. Under Franks, we must conclude that no violation of a constitutional magnitude occurred.
In light of the foregoing, we hold that the trial court erred in suppressing the evidence seized.
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Rees, J.:
The City of Topeka appeals from a jury verdict awarding Gene and Mary Cain $205,192.36 for the taking of six tracts of land by the City through the exercise of its power of eminent domain. The condemned land, located just east of downtown Topeka, consisted of six noncontiguous tracts within a single city block. The appraisers’ award was $109,138. We affirm.
Mr. Cain testified on his own behalf. Cain was experienced in real estate matters and was permitted to give his opinion of the highest and best use of the six tracts of land. Included in his testimony was the following:
“The highest and best use would be a motel or an office complex which could be of a legal nature because of the downtown courthouse, federal courts, or of a medical office complex nature or of an office that could use exposure from the highway, easy access in and out and an address that would be very explainable to somebody from out of town.”
Arguing that the permitted conclusion of value giving rise to the verdict was improperly speculative, the City complains of the landowners’ evidence referring to and premised upon usage of the condemned property as or as a part of a motel site.
Parties to an eminent domain proceeding are entitled to adopt their own theories as to the highest and best use of the condemned land. Humphries v. State Highway Commission, 201 Kan. 544, 549, 442 P.2d 475 (1968). The fact that the land has been used for one purpose only does not prevent showing its availability and value for other uses provided the other uses are so reasonably probable as to have an effect on the present market value of the land. Humphries v. State Highway Commission, 201 Kan. at 549-550; Regnier Builders, Inc., v. Linwood School District No. 1, 189 Kan. 360, 362, 369 P.2d 316 (1962). As stated in 4 Nichols on Eminent Domain § 12.3142(2), pp. 12-389-390 (3d ed. 1978):
“In order to merit consideration the potential uses must be so reasonably probable as to motivate a prospective purchaser in his desire to acquire the property. Purely imaginative or speculative values are excluded.”
The use of the condemned land as a motel site would have required acquisition of adjacent tracts. We have found no Kansas case addressing the issue of whether a potential use of condemned land that would require its assemblage with adjacent land is proper highest and best use evidence.
Two cases relied upon by the City, Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 76, 334 P.2d 315 (1959); and Ives v. Kansas Turnpike Authority, 184 Kan. 134, 140-143, 334 P.2d 399 (1959), do not address this issue and are not helpful.
The rule stated in 4 Nichols on Eminent Domain § 12.3142(1) p. 12-329 (3d ed. 1978), is:
“Where the highest and best use of separate parcels involves their integrated use with the lands of another, such prospective use may be properly considered in fixing the value of the property if the joinder of the parcels is reasonably practicable.”
Other jurisdictions have recently reached similar conclusions. State v. Long, 334 So. 2d 754, 759-760 (Ala. 1977); Meakin v. Steveland, Inc., 68 Cal. App. 3d 490, 502, 137 Cal. Rptr. 359 (1977); City of Indianapolis, Dept. of Met. Dev. v. Heeter, _ Ind. App. _, 355 N.E.2d 429, 434 (1976). We find the rule logical and adopt it.
Cain testified he purchased the six tracts of land with the intention of assembling the entire block for development. He testified a zoning change to facilitate and allow the desired development was a reasonable probability. Cain’s testimony indicated that since about 1970 the area had been under threat of condemnation for a civic center; this was a reason for not purchasing the adjoining tracts. The City points to no evidence indicating the additional tracts could not have been assembled. There appears to have been no question but that if assembled the subject and adjoining tracts were a prime motel site. Cf. Glover v. State Highway Comm., 147 Kan. 279, 292, 77 P.2d 189 (1938) [no likelihood or probability of subdividing land for improvements]. All appraisal witnesses, including the City’s, testified in varying degrees that assemblage of the entire block for development would have to be considered to arrive at a conclusion as to highest and best use. The contested evidence was properly admitted.
The amended pretrial order limited each side’s evidence of comparable sales to ten transactions. All ten comparable sales relied upon by the landowners involved properties purchased by the A. T. & S. F. Employees’ Benefit Association. The City argues these ten sales were improperly admitted into evidence because each was made under peculiar circumstances and consequently did not properly reflect fair market value. The City points out that the purpose of the Association in purchasing the properties was for leasing to Memorial Hospital, Inc. The hospital was expanding and the only adjacent land available for desired additional parking was the land purchased by the Association. All members of the board of trustees of the Association were members of the board of directors of the hospital.
The City notes the hospital has the power of eminent domain (see K.S.A. 17-618) and founds an argument on the rule that the purchase price of property subject to condemnation but which is transferred by private sale and deed is not admissible as evidence of fair market value. See Rostine v. City of Hutchinson, 219 Kan. 320, 329, 548 P.2d 756 (1976); Searcy v. State Highway Comm., 145 Kan. 709, 711-712, 67 P.2d 534 (1937). The City also argues that because the land purchased for lease to the hospital was the only land available for the hospital’s desired use, it must be inferred that the Association was pressured into purchasing the land at an inflated price.
The City’s arguments do not stand up here. Reliance on Rostine and Searcy is misplaced. The purpose of the rule that a sale of land subject to condemnation by the purchaser cannot be used as comparable sale evidence is to assure that only arm’s length transactions are admitted as comparable sale evidence. Rostine v. City of Hutchinson, 219 Kan. 320; 5 Nichols on Eminent Domain § 21.33 (3d ed. 1969). The mere fact that the purchaser of land was invested with the power of eminent domain does not in and of itself indicate that the sale was anything other than a fair, arm’s length transaction. 5 Nichols on Eminent Domain § 21.33, p. 21-103. If the evidence is such as to indicate that an arm’s length transaction occurred, then the rule stated in Rostine and Searcy does not apply. See Ridglea, Inc. v. Unified School District, 206 Kan. 111, 115-116, 476 P.2d 601 (1970).
Application of the rule stated in Rostine and Searcy also is unwarranted for the reason that the Association, not the hospital, purchased the properties and the Association neither had nor has the power of eminent domain. The Association’s purpose in purchasing the land may have been to lease it to the hospital, but the trial evidence was not sufficient to establish as a matter of law that an agency relationship existed with regard to those purchases.
Rainbolt, the assistant administrator of both the Association and the hospital at the time the ten purchases were made, testified he felt the prices paid for the properties were fair, not exorbitant, and were reached by arm’s length bargaining. He further testified there was at least one other tract of land that the Association wanted to purchase but did not do so because the price was too high. If the price for a property purchased had been too high, he stated the Association would not have purchased it.
We conclude there was evidence the ten comparable sales were made at arm’s length and it was proper to allow the jury to consider those sales with the jury to accord that evidence such weight as it chose.
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Foth, C.J.:
This is an appeal by the surety on an appearance bond from a judgment of default for the $20,000 face amount of the bond.
The defendant in the criminal case was William D. Buckle, who was charged with arson in the district court of Montgomery County in December, 1978. He made the $20,000 bond on January 8, 1979, with his mother Alta Buckle, the appellant here, as surety. He appeared for his preliminary hearing, was bound over, appeared at his arraignment, and pleaded not guilty. His trial was ultimately set by agreement for April 23,1979. When the case was called for trial the defendant failed to appear. The court ordered a warrant issued for his arrest and the bond forfeited.
After one false start this proceeding was instituted on June 7, 1979, by filing with the clerk of the district court a motion for judgment of default. The clerk mailed copies of the motion and notice of hearing to both William and Alta Buckle at her home. The hearing, originally scheduled for June 20, was continued to June 28, 1979, because of the illness of William’s attorney, Charles F. Forsyth.
At the hearing appellant Alta Buckle appeared in person without counsel. Mr. Forsyth also appeared, on behalf of William. The'State made a statement reciting the history of the case, asked the court to take judicial notice of the file, and requested default judgment. Mr. Forsyth, on behalf of the defendant, called Alta Buckle as a witness. She testified that a deputy sheriff had told her of a report that William had drowned before the original trial setting. The sheriff’s office later told her that the drowning had been faked and that her son had made his way to Canada. She had also heard testimony about the fake drowning given during preliminary hearings of persons charged with assisting him in his flight. She, however, had not heard from him since before the supposed drowning and did not know whether he was dead or alive.
At the conclusion of the hearing the court sustained the State’s motion and entered judgment against both William and Alta Buckle. She appeals, contending first that the judgment should not have been rendered in the absence of proof that her son was alive at the time of the trial setting and bond forfeiture, and second that she received inadequate notice that judgment would be sought against her in this proceeding. We find no merit in the first contention, but agree with the second.
Under the present code of criminal procedure bond forfeitures are governed by K.S.A. 1979 Supp. 22-2807. Its terms were aptly summarized in State v. Midland Insurance Co., 208 Kan. 886, 888, 494 P.2d 1228 (1972):
“Paragraph (1) of this statute recites that if there is a breach of condition of an appearance bond the court in which the bond is deposited shall declare a forfeiture of the bail. Paragraph (2) provides that the court may direct that a forfeiture be set aside upon such conditions as it may impose, if it appears justice does not require enforcement of the forfeiture. Paragraph (3) provides, so far as material to this case, that where a forfeiture has not been set aside the court shall, on motion, enter judgment of default and execution may issue thereon; that by entering into the bond the obligors submit to the jurisdiction of any court having jurisdiction to enter default judgment and irrevocably appoint the clerk of that court as their agent upon whom papers affecting their liability may be served; that liability may be enforced on motion without the necessity of an independent action; that the motion and notice thereof may be served on the clerk of the court who shall forthwith mail copies to the obligors at their last known addresses; and that no default judgment shall be entered against the obligor until more than 10 days after notice is served as provided in this section. Subparagraph (4) provides that after entry of judgment the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this section.”
In that case the surety produced the defendant between the time the State’s motion for judgment was filed and the date it was heard, and filed a motion to set aside the forfeiture. The two motions were heard together: the surety’s motion to set aside the forfeiture was denied, the State’s motion for judgment was sustained. On appeal the judgment was reversed as an abuse of judicial discretion.
From Midland we learn: (a) Under K.S.A. 1979 Supp. 22-2807, a motion to set aside an appearance bond forfeiture before judgment and a motion to remit all or part of a judgment on the bond after it is rendered are both addressed to the sound discretion of the trial court, (b) One function of the statutory ten day period between the filing of a motion for judgment on a forfeited appearance bond and the rendition of judgment is to allow the obligors, and particularly the surety, to move to set aside the forfeiture.
From the statutory plan as recognized in Midland and from the language of the statute itself it also appears: (c) Forfeiture of an appearance bond for breach of condition and the rendition of judgment on a bond where the forfeiture has not been set aside are both mandatory. (Subsections [1] and [3] both use the word “shall”; subsections [2] and [4] both use “may.”) (d) A bond forfeiture may be set aside on motion, but the moving party has the burden of establishing that justice does not require the enforcement of the forfeiture.
Common grounds for setting aside a bond forfeiture are the production of the defendant through the surety’s efforts (Midland), or a showing made by the surety that production is impossible because the defendant died before the forfeiture (State v. Stanley, 104 Kan. 475, 179 Pac. 361 [1919]) or is imprisoned elsewhere (State v. Emerson, 135 Kan. 563, 11 P.2d 702 [1932]).
Here we deal not with setting aside a forfeiture, but what is required to secure judgment for the State after forfeiture has been declared. The statute requires only a showing that there has been a forfeiture and that it has not been set aside. The State showed this by reference to the file. It thus established a prima facie case for judgment. At that point, if there was some valid reason why judgment should not be rendered it was incumbent on the obligors on the bond to produce it. Normally this would be done by a motion to set aside the forfeiture, as in Midland, supported by evidence.
The question is one of the burden of proof. If the claim is one of impossibility to perform, as by the death of the defendant, the burden is on the one claiming the impossibility. In this case, assuming there had been a motion to set aside the forfeiture, there was no evidence that William Buckle was dead except rank third-hand hearsay, and even that had been repudiated. We conclude that, had the motion for judgment been in proper form, the mere suggestion of the supposed death would not have prevented the rendering of a valid judgment against the appellant. See cases collected in 63 A.L.R.2d 830, 833-35 (1959).
The motion and the notice imparted, however, present a more serious problem. Captioned in the district court, the motion reads:
“THE STATE OF KANSAS, Plaintiff, vs. No. 78 CR-169 C WILLIAM DUANE BUCKLE, Defendant.
MOTION FOR JUDGMENT OF DEFAULT
COMES NOW the State of Kansas, appearing through Glenn E. Casebeer, Assistant County Attorney of Montgomery County, Kansas, and respectfully moves the Court for an order of judgment of default against the above named defendant.
IN SUPPORT WHEREOF, plaintiff shows to the Court:
1. That on the 23rd day of April, 1979, the District Court of Montgomery County, Kansas ordered the forfeiture of the above named defendant’s bond for failure to appear.
2. That pursuant to KSA 22-2807,1976 Supp., the State may by motion request judgment by default commence with execution upon that judgment.
3. That the defendant William Duane Buckle, as principal, and his mother, Alta Buckle as surety, jointly executed a property bond in the principal sum of $20,000; and, further, that the defendant and his surety are in default for violations of the conditions of that bond.
WHEREFORE, plaintiff prays that its motion be sustained and for such other and further relief as the Court may deem just and equitable.”
It will be observed that the operative first paragraph of the motion asked for a judgment against “the above named defendant.” The above named defendant was William Buckle, not Alta Buckle. The prayer was simply that the motion be sustained. There is nothing in the motion to indicate that a judgment was sought against Alta. Although the third supporting paragraph alleges that she was a surety and that both “the defendant and his surety” were in default, it appears to us that even a lawyer might conclude that judgment was sought only against the named defendant.
The notice of hearing added nothing to the motion. It was addressed to the clerk (as statutory agent under 22-2807[3]) and merely gave the time of hearing for “the above and foregoing motion.” The clerk’s transmittal letter stated only that the motion was enclosed. Hence the documents mailed to appellant wholly failed to apprise her that the result of the hearing might be a $20,000 judgment against her.
She appeared at the hearing unrepresented. Inasmuch as there had been nothing to indicate that her personal interests would be at stake at the hearing we cannot fault her for not retaining personal counsel. At the hearing itself counsel for the State advised the court that “[w]hat we’re asking is that they be held jointly and severally liable on the bond in the amount of $20,000.00.” To a lawyer the meaning of that statement would have been clear; what, if anything, it meant to Mrs. Buckle we have no way of knowing. It is true she did not ask for a continuance, nor did she say anything in her own behalf; the testimony described above about the supposed drowning was elicited by counsel for William. However, counsel’s statement about joint and several liability was the only one made at the hearing which might have alerted her to the fact that judgment was about to be pronounced against her. Applying the usual definition of waiver — the intentional relinquishment of a known right — we cannot find that appellant by her silence waived notice that the hearing would be on a judgment against her.
It is elementary that notice and an opportunity to be heard are essential to any judgment affecting personal or property rights. Forfeitures, in particular, are not favored by the law and require strict compliance with the applicable statutes. Cf. Greenwood v. Estes, Savings & Loan Commissioner, 210 Kan. 655, 657, 504 P.2d 206 (1972). A notice such as was given here, which does not fairly apprise a party of the action proposed to be taken, is no notice at all. Under these circumstances we do not inquire as to prejudice or whether there is in fact a meritorious defense.
There is, of course, nothing to prevent the State from filing a new motion for judgment and giving a new notice in which the present deficiency does not appear. If that is done, judgment can be obtained after only ten days. If appellant has a defense, she can raise it by motion to set the forfeiture aside and will have the burden of establishing it.
Reversed.
. We are asked to surmise that she was advised by Mr. Forsyth, but to do so would be pure speculation. His role throughout was clearly delineated in the record as counsel for William, not Alta. Only after judgment did he undertake to represent her in this appeal. | [
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Abbott, J.:
The Kansas Workmen’s Compensation Fund (Fund) appeals from an order apportioning the cost of a settlement on the basis of 90 percent against the Fund and 10 percent against the respondent and insurance carrier. The claimant is not involved in this appeal.
The claimant met with personal injury by accident to his lower back on July 30, 1975, and again on August 22, 1975, while working for his employer. The claimant filed two separate claims for compensation which were consolidated for hearing. A preliminary hearing was conducted and temporary total disability was awarded. A formal hearing on the claims was then held. Before an award was made, however, the parties settled the claims but specifically reserved the question of the Fund’s liability for future determination. Subsequently, the workmen’s compensation examiner ruled that the Fund should reimburse the respondent’s insurance carrier 90 percent of the settlement award which the insurance carrier had paid pursuant to the settlement award. No director’s review was requested and on appeal the district court judge adopted the findings and award of the examiner.
The Fund now appeals, contending the district court erred in determining that the claimant was retained by the respondent-employer in its employ after the first accident on July 30, 1975, with knowledge that he was a “handicapped employee” as required by K.S.A. 1975 Supp. 44-567, and further that the court erred in apportioning the award in the manner it did.
The Fund first contends that it is not liable for any of the settlement award because the evidence fails to show that respondent, Daniel Construction, retained claimant in its employ after the first accident knowing that he was a handicapped employee as required by K.S.A. 1975 Supp. 44-567. If the claimant meets the definition of a handicapped employee, it must be because of the July 30, 1975, accident. The claimant testified that he hurt his back on July 30, 1975, when he tried to pick up a 4-inch I-beam that was about 70 feet long and weighed approximately 250 pounds. At that time he experienced pain in his lower back around his right hip and down his right leg. The claimant testified that on August 22, 1975, he was carrying a long chain weighing 75 to 100 pounds on his shoulder. As he was carrying it down two flights of steps, he felt his back give out again. When he got to the bottom of the steps and turned, he went down to his knees. He testified that the pain in his back was in exactly the same place it had been since the July 30 accident, although now it was more severe. He also testified that this was the first time his leg had given way since the July 30 accident, but it had felt weak since that time.
A “handicapped employee” is defined in K.S.A. 1975 Supp. 44-566(6) as:
“[Olne afflicted with or subject to any physical or mental impairment, or both, whether congenital or due to an injury or disease of such character the impairment constitutes a handicap in obtaining employment or would constitute a handicap in obtaining reemployment if the employee should become unemployed and his handicap is due to any of the following diseases or conditions:
“17. Any other physical impairment, disorder or disease, physical or mental, which is established as constituting a handicap in obtaining or in retaining employment.”
The fact that an employee suffers from a handicap within the meaning of K.S.A. 1975 Supp. 44-566 does not in and of itself operate to impose liability on the Fund, for the employer has the burden of proving that it knowingly retained a handicapped worker. Hinton v. S. S. Kresge Co., 3 Kan. App. 2d 29, Syl. ¶ 2, 592 P.2d 471 (1978), rev. denied 225 Kan. 844 (1979). Furthermore, the burden of proof of whether an impairment is of such a character that it constitutes a handicap in obtaining employment rests with the party claiming that a handicap exists, here the duty of respondent. 3 Kan. App. 2d 29, Syl. ¶ 3. The Fund does not contend that respondent Daniel Construction had no knowledge of the July 30, 1975, accident. Claimant testified that he informed his foreman of the injury the day of the accident. Knowledge obtained by an agent within the scope of his authority is in law the knowledge of the principal. Mackey v. Board of County Commissioners, 185 Kan. 139, Syl. ¶ 5, 341 P.2d 1050 (1959). Notice of an accident given by an employee to his foreman is sufficient notice to the employer. Phillips v. Helm’s Inc., 201 Kan. 69, 439 P.2d 119 (1968). Moreover, claimant here testified that at one point the foreman’s supervisor gave claimant instructions to take it easy and do no heavy lifting. The Fund argues that respondent and insurance carrier failed to sustain their burden of proof to show respondent’s knowledge that claimant was a “handicapped employee” following the July 30, 1975, accident. As legal authority, the Fund directs this Court to language found in Hinton v. S. S. Kresge Co., 3 Kan. App. 2d at 33-34:
“The import of [the trial court’s] finding is that knowledge of the earlier injury was not equivalent to knowledge that the claimant was handicapped.
“Under K.S.A. 1974 Supp. 44-567, the employer has the burden of proof that he ‘knowingly’ retained a ‘handicapped employee.’ K.S.A. 1974 Supp. 44-566(b) defines ‘handicapped employee’ as one afflicted with an impairment ‘of such character the impairment constitutes a handicap in obtaining employment.’ Whether a particular impairment such as the May 23rd injury is of such character is clearly a question of fact. Since the employer (Kresge) is the party claiming that the May 23rd injury, in itself, caused the claimant to be a handicapped employee, the burden is on it to prove such to be the case. The only evidence Kresge points to is the fact that claimant was injured, required medical treatment, and was off the job for four weeks. The court found that this was not enough to constitute claimant a handicapped employee. This, in effect, is a negative finding. The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence, the finding of the trial judge cannot be disturbed. Jennings v. Speaker, Executrix, 1 Kan. App. 2d 610, 571 P.2d 358 (1977).
“Kresge argues that it only needs to know the general nature of the employee’s impairment, not the precise medical terminology and cites Hardwick v. General Motors Corporation, 206 Kan. 182, 476 P.2d 244 (1970). In that case, the employee had suffered a back injury in a non-work related accident. X-rays after this accident revealed that the employee had a congenital back defect, independent of any injury sustained in the accident. The employer then filed notice with the director that the employee was ‘handicapped.’ The employer claimed it did so on the basis of the congenital defect. The employee was injured at work and filed a claim. The examiner, director and trial court found that the Fund was not liable because the employee was recovered from the first injury, and it therefore did not contribute to the second. The Supreme Court reversed, saying that the medical evidence established that the congenital defect contributed to the second injury. The case is of no help to Kresge here. First, it has no relevance to whether Kresge has met its burden of proof that the May 23rd injury was enough to constitute claimant a handicapped employee. Second, if Kresge is arguing that its knowledge of the May 23rd injury is sufficient as knowledge that claimant had a ‘back injury’ to also be knowledge of the spondylolysis, the case is of no support. The court in Hardwick apparently was persuaded that the employer’s notice to the director that the employee there had a ‘physical deformity — low back disorder’ was based on knowledge of the congenital defect, not simply the injury.
“Kresge failed in its burden of proof that the May 23rd injury, independent of the spondylolysis, constituted claimant a ‘handicapped employee,’ thus the Fund cannot be liable on that basis.” (Emphasis supplied.)
In Hinton, there was a negative finding by the trial court; thus, the appellate court was faced with a scope of review requiring that the trial court be affirmed absent arbitrary disregard of undisputed evidence. Here, the trial court found the claimant suffered an impairment as a result of the July 30, 1975, accident. Although the examiner did not use the statutory term “handicapped employee,” the import of his finding is that the claimant was a “handicapped employee,” and such a finding is inherent in the subsequent finding that apportioned 90 percent of the cost of the award to the Fund. See Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 262, 505 P.2d 697 (1973). In other words, the apportionment statute (K.S.A. 1975 Supp. 44-567) could not have been operational without a finding that claimant’s employer had knowledge that claimant was a handicapped employee. Whether an impairment is of such a character that it constitutes a handicap in obtaining employment is a question of fact. Hinton v. S. S. Kresge Co., 3 Kan. App. 2d 29, Syl. ¶ 3. The question thus becomes whether or not there is substantial competent evidence to support the trial court’s implied finding of knowledge. Oates v. Post & Danley Truck Lines, 3 Kan. App. 2d 337, 339-40, 594 P.2d 684 (1979). In Oates, this Court held that a determination as to knowledge must be made on a case-by-case basis and affirmed an award against the Fund on the basis that it was irrelevant that the worker failed to show continuing manifestations of the injury and that he was able to return to work at full pay. The claimant in Oates had previously suffered a cerebral vascular accident, which is specifically set out as a handicap in K.S.A. 1975 Supp. 44-566(fe)(ll). The claimant in this case, however, must fall under the general category set forth in subparagraph (b)(17).
In Grounds v. Triple J Constr. Co., 4 Kan. App. 2d 325, 606 P.2d 484 (1980), this Court found the evidence sufficient to support the trial court’s finding that the employer had the requisite knowledge of handicap, because an officer of the employer corporation knew the claimant construction worker occasionally wore a back brace and had experienced back problems. Commentators have stated that it is not necessary for the employer to have known in medical terms exactly what the employee’s prior condition was in order to invoke the use of the Fund. 2 Larson, Workmen’s Compensation Law § 59.33 (1976).
Here, claimant’s employer knew that he had injured his back. Claimant worked regularly with heavy pipe and was required by the very nature of his work to bend, stoop and lift heavy objects. He had the classic symptoms of a herniated disc; i.e., low back pain, with pain in his right hip radiating down his right leg. He was under medical treatment and missed three nonconsecutive days’ work during the three-week period due to the injury. He was advised by his supervisor not to bend, stoop or lift, and to do only light work such as he could. It is unrealistic to say that a worker who does heavy construction work and complains of these symptoms does not have a physical impairment that constitutes a handicap in obtaining or in retaining employment. If he were to tell a prospective employer in the heavy construction business about his symptoms, he would not be hired; and his own supervisor warned claimant that he might be terminated if he reported his injury through proper channels. When viewed in the liberal manner in which we are required to view the statute (Leiker v. Manor House, Inc., 203 Kan. 906, 913-914, 457 P.2d 107 [1969]; Woodin, Workmen’s Compensation — The Workmen’s Compensation Fund, 24 Kan. L. Rev. 641, 643 [1976]), claimant’s employer had sufficient knowledge concerning claimant’s back injury to satisfy the statute and to support the trial court’s implied finding of sufficient knowledge of handicap on the part of claimant’s employer.
The Fund’s next complaint, that the examiner and district judge erred in apportioning the cost of the settlement 90 percent to the Fund and 10 percent to the respondent and insurance carrier, requires us to reverse and remand this case for additional findings, because the findings here are insufficient to permit meaningful appellate review, and the record is inconsistent with a presumption that the trial court made findings sufficient to support the judgment. See Burch v. Dodge, 4 Kan. App. 2d 503, 608 P.2d 1032 (1980).
Claimant filed two separate claims for two separate accidents. Prior to the first accident on July 30, 1975, he had no preexisting physical impairment that is in any way involved in this case. Thus, the respondent and insurance carrier are solely responsible for any award due to claimant as a result of the first injury.
The medical evidence consists of the depositions of three board certified orthopedic surgeons. Dr. Peter Boylan was claimant’s treating physician. The claimant failed to mention the first accident to Dr. Boylan. Upon being informed of the first accident, and in response to hypothetical questions, Dr. Boylan expressed his opinion that claimant’s physical problems “were all part of the same injiiry and that this second episode on August 22nd would just be an exacerbation of the previous injury that had not subsided . . . .” As we read Dr. Boylan’s testimony, he was of the opinion that the vast majority of claimant’s physical condition was a result of the first accident and only a small percent was a result of the second one, estimating 90 percent due to the original accident and 10 percent due to the one in August.
At the request of claimant’s attorney, Dr. Nathan Shechter examined claimant three times preparatory to expressing his expert opinion. It was his opinion that the first accident was sufficient to herniate a disc; that claimant’s symptoms from the first accident were consistent with a herniated disc and the probabilities are that it did herniate at the time of the first accident. When later asked, “You do feel the first accident caused the herniation?” he replied, “I think so, yes.” He further expressed his opinion that the second accident would not have happened but for the first one.
Dr. C. L. Francisco testified on behalf of the respondent. He expressed his opinion that the first accident was sufficient to have caused a disc to go out, and he would “possibly” attribute 80 or 90 percent of the disability to the first accident and 10 to 20 percent to the second. He also testified he doubted that the claimant would have had the difficulty he did after the second incident if it had not been for the first accident.
Claimant consistently took the position in the administrative hearings that two awards should have been made, and the Fund maintained that position in the district court. The employer argues that since the examiner made only one award, he found that only one injury occurred. We deem it immaterial that a single award was made to claimant at the settlement hearing. Claimant’s claim was a compromise settlement and the employer and the Fund specifically reserved the question now before us. It was permissible and proper for the examiner to make one award to claimant and to reserve ruling on any issues between the Fund and the employer. The examiner’s error lies in failing to make any findings regarding how much of the settlement was payable as a result of the first injury.
Oftentimes, several compensable injuries are paid out in one award and no distinction is made regarding how much compensation is being paid for each claim. See Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313 (1975); Kuhn v. Grant County, 201 Kan. 163, 439 P.2d 155 (1968). These instances are distinguishable from the situation here, however, since in Kuhn the.Fund was not a party to the action and in Day neither of the consolidated injuries was the preexisting impairment upon which Fund liability was premised. This distinction, though not important to the claimant since he has received his full payment for both claims, is crucial for the Fund.
Day and Zimmerman, Inc. v. George, 218 Kan. 189, is instructive. There, the worker was first injured by accident on October 14, 1970. He filed a claim, and before an award could be entered the worker was injured again in successive accidents which prevented him from working. The worker’s award for his first injury was entered in the amount of $13.49 per week for 392.14 weeks based upon a finding of 20 percent permanent partial general body disability. The worker subsequently filed an application for review, seeking to increase his first award on the basis of increased disability. The worker’s employer filed an application for hearing on the second series of accidents and also filed a motion to implead the Fund on the basis of the first injury. The examiner found that the additional two injuries would not have occurred but for the preexisting disability, and that starting at the time of the last accident the worker was entitled to receive $56 per week temporary total disability for an indefinite period not to exceed 415 weeks. The Kansas Supreme Court denied the district court’s modification of the first award and fashioned an apportionment whereby the worker received $56 per week — $13.49 from the employer for the disability under the first award and the balance of $42.51 from the Fund. After the employer had completely paid off the first award, the Fund would then begin to pay the full $56 per week. In other words, although the Fund was found to be 100 percent liable for the worker’s present overall disability, it still was not required to pay any part of the compensation due solely for the preexisting impairment.
In view of the medical testimony that the disc herniated when the first accident occurred, the examiner should have considered the two accidents separately. He must determine the percentage of disability attributable to the first accident and assess liability for that award against the employer. The Fund may not be held liable for any part of the award for the first accident and the payment of that entire award is the responsibility of the employer. Day and Zimmerman, Inc. v. George, 218 Kan. 189. The Fund is liable for only the proportion of the cost of the award attributable to the second injury and then only to the extent the second injury was contributed to by the preexisting impairment. K.S.A. 1975 Supp. 44-567(o)(2).
The Fund takes the position the examiner and district judge have already determined that 90 percent of the award is attributable to the first accident. This argument assumes that the examiner’s finding that 90 percent of the claimant’s present disability is attributable to the first injury is equivalent to a finding that 90 percent of the monetary award for both injuries combined would be the same amount as the monetary award for the first injury if such an award had been made. This assumption is erroneous. Evidence existed in the record from which a trial judge conceivably could have found that 90 percent of claimant’s injury is attributable to the first accident, but that specific finding was not made and attempting now to say that the actual finding is equivalent to that suggested by the Fund is somewhat like comparing apples and oranges.
On remand, after making an award for the first injury, the examiner should consider the second accident, then determine the percentage of disability and assess liability for it, giving due consideration to K.S.A. 1975 Supp. 44-566. The examiner should also give the Fund the benefit of K.S.A. 1975 Supp. 44-510a (the anti-pyramiding statute) in computing liability for the award. This statute provides for a credit against compensation for permanent disability if such disability was contributed to by a prior permanent disability for which compensation was paid or is collectible. The credit shall consist of the extent, expressed as a percentage, by which the prior permanent disability contributes to the overall disability following the later injury. The amount of the credit is figured by applying the percentage of contribution for the prior disability to disability compensation resulting from the later injury. The resulting figure is then subtracted from the amount of weekly permanent disability compensation resulting from the later disability. The product represents the reduced rate of compensation. The credit, however, is not applicable to temporary total disability resulting from the later injury. Moreover, the credit is limited to only those weeks of prior permanent disability for which compensation is paid or is collectible, which occur subsequent to the date of the later injury. The credit terminates, in other words, on the date that compensation for the prior disability terminates and compensation for weeks due after such date is paid at the unreduced rate.
In our opinion, K.S.A. 1975 Supp. 44-567, which governed the extent of Fund liability, contemplated the use of K.S.A. 1975 Supp. 44-510a in the computation of the award due the worker from which the apportionment is then taken. Any other construction would result in an employee getting more compensation if the Fund were properly impleaded than he would if the Fund were not a party. The legislature appears to have intended only a shifting of the responsibility to the Fund rather than to have intended an increase in the total amount of compensation to be paid.
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Meyer, J.:
This action arises out of a May 24, 1975, automobile accident which occurred on a county road in Hodgeman County between autos owned by the Hodgeman County Highway Department and Raymond and Linda Neilson. Meinard Meier was operating the county vehicle and his passengers were James Meier (his son) and Leo Burke. Katheryn Schroth was driving the Neilson vehicle and Linda Neilson was her passenger. The present suit was filed May 18, 1977, by the Meiers and by Burke’s heirs (Burke died December 2, 1976, apparently not as a result of this accident) against Schroth and the Neilsons. The defendants filed a third party action against the Board of County Commissioners alleging that the cause of the accident was a defective road.
During discovery, plaintiffs sought information on any insurance policies of defendants. The answers to interrogatories were that the Schroths had no insurance “which would cover the above captioned action.” The Neilsons replied that they had been “advised” that their insurance had lapsed prior to the accident for failure to pay premiums and that coverage was denied.
On petition for intervention, National Farmers Union Property and Casualty Company (National Farmers), insurer of plaintiff Meier, and Town and Country Insurance Company, insurer of plaintiff Burke, were allowed to intervene for the purpose of discovery concerning insurance coverage. National Farmers filed its answer September 21, 1977, denying that the defendants were negligent, denying that the defendants were uninsured motorists, and requesting that plaintiffs take nothing by their prayer. There was no prayer for affirmative relief nor for indemnity from defendants.
Plaintiffs clearly stated their intention not to assert a claim against the insurance companies on their uninsured motorist clauses in this action in a letter dated June 22, 1977, and during the pendency of several motions. The insurance companies deposed defendants and concluded that defendants were in fact uninsured motorists.
Plaintiffs then filed their motion to dismiss without prejudice which was sustained May 2, 1978. The defendants and third-party complainants filed an agreed order of dismissal of their action. National Farmers appeals the dismissal on the ground that the dismissal prejudiced their legal right of subrogation against defendants, as the statute of limitations had run against their claim.
On August 8, 1978, suit was filed in federal district court in Wichita on behalf of Meinard Meier against National Farmers on the uninsured motorist provisions of the policy issued by the insurer.
Since this suit was dismissed, National Farmers will have no recourse against defendants due to the tort statute of limitations having run. They would have a remedy if this action were continued until such time as the plaintiffs were paid and the insurance company thereby became subrogees, and they could then recover from defendants since plaintiff’s suit was timely filed. The federal suit, however, was filed after the two-year tort statute of limitations had run, applicable to the insurance company’s subrogation suit, but before the five-year contract statute of limitations had run applicable to the direct action against the insurance company on their uninsured motorist coverage. The question is whether this situation constitutes such legal prejudice against National Farmers that the trial court abused its discretion in dismissing the suit in state court.
K.S.A. 60-241(a)(2) provides in part:
“[A]n action shall not be dismissed at the plaintiff’s instance save upon order of the judge and upon such terms and conditions as the judge deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.”
This section was construed in Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, Syl. ¶ 3, 469 P.2d 272 (1970), to mean that defendant must suffer some plain legal prejudice other than the prospect of a second lawsuit in order for the court to deny dismissal of an action. Defendant’s loss of a statute of limitations on their counterclaim did not constitute plain legal prejudice. An abuse of discretion was therefore found for not dismissing the suit on plaintiff’s motion.
While the statute and the case construing it dealt with consideration of defendant’s rights in deciding whether to dismiss, other jurisdictions have construed “defendant” to include an intervenor. Under a California statute, the plaintiff may not dismiss an action if the defendant has requested affirmative relief. (Note the similarity to our statute which so provides if a counterclaim has been pleaded by defendant.) In that statute, the term “defendant” was held to apply to an intervenor if he has sought affirmative relief. In re Mercantile Guaranty Co., 263 Cal. App. 2d 346, 69 Cal. Rptr. 361 (1968).
The general rule in most jurisdictions is that when an intervenor seeks affirmative relief against plaintiff or defendant, the district court is not authorized to dismiss the suit in its entirety on plaintiff’s motion, but the intervenor’s motion continues on the docket and by reason thereof the court retains jurisdiction over plaintiff and defendant until voluntary dismissal by the intervenor. State v. Roberson, 409 S.W.2d 872, 873 (Tex. Civ. App. 1966); Patterson v. Pollock, 84 Ohio App. 459, 84 N.E.2d 606 (1948).
An intervention that merely resists the plaintiff’s claim does not prevent a dismissal. Henry v. Vineland Irr. Dist., 140 Cal. 376, 73 Pac. 1061 (1903). See also 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit § 47, p. 39.
Thus, National Farmers’ claim of relief from the trial court’s dismissal must be on the basis of an affirmative claim. National Farmers has filed no such claim for affirmative relief. In fact, it cannot file any claim for affirmative relief. It cannot file a cross-claim against defendant for indemnity because plaintiff has not filed a claim against the insurance company in this suit. It cannot file a claim against the defendant directly as a subrogee of plaintiff’s rights because it is not the real party in interest.
“[T]o obtain the benefit of the doctrine of subrogation, one of the conditions which the insurer must fulfil is payment, or sufferance of a judgment requiring payment, of the obligation owed to the insured, and the mere anticipation that the insurer will make payment of the insured’s claim does not entitle it to bring suit on its own behalf as subrogee.” 44 Am. Jur. 2d, Insurance § 1848, p. 775.
Kansas has ruled only on the issue of the real party in interest when there has been partial payment or when insured loses real party in interest status after full payment of the claim. See J. C. Livestock Sales, Inc. v. Schoof, 208 Kan. 289, 491 P.2d 560 (1971).
Several jurisdictions are listed in 46 C.J.S., Insurance § 1209, p. 153, which adhere to the rule that:
“Insurer’s rights to subrogation accrue on payment of the insurance claim; but until payment of the claim on the policy no rights to subrogation accrue.”
While the insurer would lose its right of subrogation due to the statute of limitations being longer in plaintiff’s action against its insurer under its uninsured motorist clause, that policy decision was made some years ago when it was ruled that plaintiff had five years to sue its carrier on the contract of insurance (Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 611, 549 P.2d 1354 [1976]), and that the plaintiff can sue the insurance company directly without obtaining judgment against the uninsured motorist first. Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606 (1973).
Winner v. Ratzlaff involved a case where it was held that the trial court abused its discretion in not allowing plaintiff’s motion to dismiss against an uninsured motorist and foreclosing the plaintiff from proceeding in a contract action against the insurance carrier only. However, in that case, the insurance company waived its subrogation rights against the uninsured motorist in order to defend the motorist.
Other jurisdictions have ruled conclusively that the right of subrogation is lost if the tort statute of limitations has run against the insured under the theory that the right of subrogation is purely derivative as the insurer succeeds only to the rights of the insured, and no new cause of action is created. Amer. States Ins. Co. v. Williams, 151 Ind. App. 99, 278 N.E.2d 295 (1972). Accord, State Farm Mut. Auto. Ins. v. Wharton, 88 Nev. 183, 495 P.2d 359 (1972). Kansas also follows the rule that an insurer claiming the right of subrogation stands in the shoes of its insured, and any defenses good against the insured are likewise good against the insurer. Shelman v. Western Casualty & Surety Co., 1 Kan. App. 2d 44, 562 P.2d 453 (1977).
In other jurisdictions, where the issue is first raised as to what statute of limitations to apply to the action against the insured, insurance companies have repeatedly raised the objection that the insurance company would stand to lose its subrogation rights if the contract statute of limitations exceeded the tort statute of limitations. The courts have unanimously dismissed this argument. See Sahloff v. Western Casualty & Surety Co., 45 Wis. 2d 60, 171 N.W.2d 914 (1969); La Marsh v. Maryland Casualty Company, 35 Misc. 2d 641, 231 N.Y.S.2d 121 (1962).
In Lemrick v. Grinnell Mut. Reinsurance Co., 263 N.W.2d 714, 717 (Iowa 1978), it was stated: “If an injustice exists regarding time limits on subrogation suits, the proper avenue would be to the legislature.”
Other states have noted the uniform endorsement in many policies. An example of this endorsement is found in Selected Risks Ins. Co. v. Dierolf, 138 N. J. Super. 287, 295, 350 A.2d 526 (1975):
“After notice of claim under this endorsement, the company may require the insured to take such action as may be necessary or appropriate to preserve his right to recover damages from any person or organization alleged to be legally responsible for the bodily injury s*®[Emphasis supplied].”
Thus, the courts have held that when an insurance company sits on these rights, it cannot be heard to complain when the statute of limitations runs against it. Selected Risks Ins. Co. v. Dierolf, 138 N. J. Super at 296.
As was noted in Sahloff v. Western Casualty & Surety Co., 45 Wis. 2d at 71:
“We think this argument overrates the importance of subrogation because an uninsured motorist tends to be financially irresponsible and a subrogation right against such a person is not worth very much.”
Since National Farmers has asserted no claim for affirmative relief and the fact that it is more the operation of the respective statutes of limitations rather than the dismissal which prejudices intervenor’s dubious right of subrogation, the trial court did not abuse its discretion in dismissing plaintiff’s action. In Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, Syl. ¶ 3, it was stated:
“It is no bar to dismissal that the plaintiff may obtain some tactical advantage by such dismissal, or that the defendant may lose the defense of a period of limitation.”
The loss of the subrogation right through operation of the statutes of limitations is not the type of legal prejudice contemplated by the court in Gideon which would prevent dismissal.
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Meyer, J.:
This is an interlocutory appeal brought by the State from an order quashing a search warrant and suppressing evidence.
The Junction City Police began photographic surveillance of premises located at 427 West Eighth Street on November 14, 1978, upon receiving a letter from a local attorney indicating his belief that drug transactions were occurring there. A search warrant was obtained on November 25, 1978, to search the southwest apartment at 427 West Eighth for drugs and paraphernalia based on activities observed at the front door and first floor window of the downstairs apartment. Officers went to the residence and observed defendant Dudley in the outside doorway. The officers forced the outside door open with a sledgehammer and observed defendants Dudley and Thompson on the stairway. There were apartments on both levels of the budding, which was not known by officers before entering. Dudley told officers he lived upstairs and downstairs and defendant Thompson also stated she lived there. Evidence was seized. Defendants filed a motion to suppress arguing that the warrant did not state with particularity the premises to be searched. The motion was sustained after hearing and the State brings this interlocutory appeal.
The issue as stated by appellees (defendants) is whether or not a search warrant directed against a multiple occupancy structure will be held invalid if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units.
The Fourth Amendment to the United States Constitution and Section Fifteen of the Bill of Rights of the Kansas Constitution prohibit warrants which, among other things, fail to particularly describe the place to be searched.
The Kansas Supreme Court, in State v. Gordon, 221 Kan. 253, Syl. ¶ 7, 559 P.2d 312 (1977), applied this constitutional protection to searches of multiple occupancy units. It was therein stated:
“A search warrant directed against a multiple occupancy structure generally will be held invalid if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units.”
There are several exceptions and qualifications to the general rule, three of which appellant argues as being applicable to the present situation: (1) common occupancy; (2) entire premises as suspect; and (3) multi-unit character of premises is not known or apparent.
We conclude that the second exception would not apply in the instant case since all of the activity described as the basis for the search warrant involved the front door and the window to the first floor apartment. Prior to executing the warrant there was no information which would lead the officers to suspect that the second floor apartment was involved.
With reference to the common occupancy exception, when questioned by the officers after entry into the hallway, defendant Dudley informed officers that he lived upstairs and downstairs. At that time when similarly questioned, defendant Thompson merely stated that she lived “there.” The record contains no evidence that she was asked as to what “there” meant; there was no proof of who owned the building, who paid the rent on the apartments, or who paid the utilities. The only evidence in this case which would support a common occupancy theory is what was said by these two defendants. Furthermore, this was not a situation where there were several rooms within an apartment, but rather two separate and distinct apartments, each with its own door, on different floors, but leading to a common entryway.
The cases cited to us, and those we have found, which deal with the particularity requirement exception, either have ruled in favor of suppressing the search warrant or have been cases in which the police took great pains investigating the nature of the structure before the warrant was issued.
Basically, the exceptions have been recognized when it was unreasonably difficult for the police to ascertain the multi-unit character of the building before execution of the warrant. There was no showing by the police of any investigation into the multi-unit character of the building. See United States v. Davis, 557 F.2d 1239 (8th Cir.), cert. denied 434 U.S. 971 (1977); and United States v. Gusan, 549 F.2d 15 (7th Cir.), cert. denied 430 U.S. 985 (1977), which revealed extensive investigation by the police.
“On a motion to suppress illegally seized evidence . . . the burden of proving that the search and seizure were lawful shall be on the prosecution.” State v. Youngblood, 220 Kan. 782, Syl. ¶ 1, 556 P.2d 195 (1976).
As was stated in the trial judge’s reasoning in granting defendants’ motion to suppress:
“Whether or not the officers might have been able to ascertain what the interior structure was from the owner or from a city directory, or perhaps from its own files in the police department, had they checked, is unknown to the court. Because, other than having some argument about it, the court has no evidence to support that one way or the other.”
The court went on to note that there was no showing that the police had done everything reasonably within their power to ascertain the nature of the structure to be searched and stated the law required them to do so. We think the court’s reasoning was sound in stating that any other rule would tend to promote inactivity on the applying agency’s part in order to justify an overly broad warrant. We thus conclude the warrant was void for lack of particularity.
The trial court made what is known as a negative finding to the effect that the party upon whom the burden of proof was cast (in this case the State) did not sustain the requisite burden of showing the search and seizure to be lawful.
The rule regarding negative findings was stated in Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 5, 548 P.2d 719 (1976):
“Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.”
In considering this case it is important to note that this was a two-story building, with four doors to the north side thereof, and one door on the side entered by the officers. Furthermore, the search warrant identified the apartment as the “southwest apartment.” It is apparent that both apartment No. 9 and apartment No. 10 were southwest apartments — one on the bottom floor, the other on the second floor. We note the court’s negative finding that the officers did very little, if anything, to ascertain what apartment the defendants lived in. Thus the State cannot rely on any of the exceptions to the particularity requirements.
Because the warrant was invalid in that it did not describe, with particularity, the premises to be searched, it follows the trial court was correct in suppressing the warrant and the evidence obtained by its use.
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Rees, J.:
Defendant Shelly R. McConico appeals her conviction of felony theft (K.S.A. 1979 Supp. 21-3701[a]). Prior to trial, defendant unsuccessfully sought suppression of an inculpatory statement. The sole question on appeal is whether suppression was erroneously denied.
On December 7, 1978, defendant was arrested and taken into custody upon an unrelated charge referred to in the record as “petty larceny.” Her problems seem to have almost immediately mushroomed to include another unrelated charge of parole violation. From the day after her arrest until her first appearance (see K.S.A. 22-2901) in the present proceeding on December 14, defendant remained in the Sedgwick County jail and had no contact with or advice of counsel. At no time during this period was she taken before a judge.
It is uncontroverted that defendant had no retained counsel, at all material times was indigent, and that on December 9 she made a written request to jail personnel “for a lawyer” to obtain legal advice. Her request went unheeded. No attorney was provided for defendant until appointment of her present counsel on December 15, the day after her first appearance.
At approximately 10:00 a.m. on the morning of December 13, Wichita Police Detective Burnett met with defendant at the jail to question her concerning a December 7 theft of $150 cash from a Wichita filling station, the crime of which she now stands convicted. This was the first questioning of defendant concerning this theft. Burnett completed a personal history questionnaire from information provided by defendant in response to his in quiries. He then orally gave her the Miranda warning, advising her of her rights by reading from a printed form. Defendant initialed and signed the form acknowledging she understood her rights and was willing to be questioned. When Burnett began his interrogation, defendant said she would like to first consult a lawyer. Burnett immediately terminated the interview, cut off the questioning.
On the afternoon of December 13, some three and one-half hours after his previous session with defendant, Burnett received word from jail personnel that defendant wished to speak with him. At about 2:00 p.m. Burnett met with her. He gave defendant a fresh Miranda warning by orally reading to her the printed form language. Defendant initialed and signed this second form acknowledging she understood her rights and was willing to be questioned. The record does not reflect she stated she did not want a lawyer. Defendant told Burnett the reason she wanted to talk was so she could get out on bond and see her children. Defendant was questioned and made an oral confession of the filling station theft. Based on her statement, on December 14 a combined complaint and information was filed and defendant was taken before an associate district judge, acting as a magistrate, for her first appearance (see State v. Taylor, 3 Kan. App. 2d 316, 318, 594 P.2d 262 [1979]).
From his interrogation, Burnett learned defendant had committed the theft to obtain money for drugs. There is no evidence indicating the frequency or nature of defendant’s drug use. Neither is there evidence defendant’s appearance, conduct or speech disclosed drug use or withdrawal signs at any time now pertinent. Burnett testified there were no threats, coercion, or physical force; defendant appeared to understand the questions asked and responded with logical answers. There is no contention defendant is mentally incompetent or did not understand her rights, or that apart from the issue she now raises, her answers to Detective Burnett’s interrogation did not constitute a voluntary statement.
On appeal, defendant claims she was deprived of her Fifth Amendment right against self-incrimination and her Sixth Amendment right to counsel. She urges us to adopt the rule that once a person has requested án attorney, under no circumstances may that person be subjected to custodial interrogation without an attorney present or prior consultation with an attorney.
In support of her contention, defendant cites People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968), for the following rule:
“Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel . . .
Defendant also refers to the following language of Miranda v. Arizona, 384 U.S. 436, 444-445, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974 (1966), as supportive of her position:
“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.” (Emphasis added.)
We find defendant’s argument not persuasive.
The New York Arthur rule, 22 N.Y.2d 325, has been followed by a few courts but rejected by others. State v. Smith, 294 N.C. 365, 375, 241 S.E.2d 674 (1978). Even if it might be said our Supreme Court has not already done so, we need not now decide which we should do.
The Arthur language relied upon by defendant is lifted out of context. Further, even if we were to follow the Arthur rule, facts necessary to trigger the invocation of the rule do not exist in this case.
The penultimate statement preceding the cited language of Arthur is:
“Thus, the principle which may be derived from these pre-Miranda (Miranda v. Arizona, 384 U.S. 436) cases is that, once the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant, the accused’s right to counsel attaches; and this right is not dependent upon the existence of a formal retainer.” (Emphasis added.) 22 N.Y.2d at 329.
In State v. Smith, 294 N.C. at 374-375, the North Carolina Supreme Court has aptly observed:
“[The Arthur] rule was succinctly stated in People v. Hobson, 39 N.Y.2d 479, 481, 384 N.Y.2d 419, 420, 348 N.E.2d 894, 896 (1976), as follows: ‘Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer .... Any statements elicited by an agent of the State, however subtly, after a purported “waiver” obtained without the presence or assistance of counsel, are inadmissible.’
“We also note that in Hobson the court was careful to point out that ‘the rule of the Arthur case is not an absolute. Thus, the fact that a defendant is represented by counsel in a proceeding unrelated to the charges under investigation is not sufficient to invoke the rule.’ 39 N.Y.2d at 483, 384 N.Y.S.2d at 422, 348 N.E.2d at 897.
“The Arthur rule, that a defendant in custody who is represented by counsel may not waive his constitutional rights in counsel’s absence, is not the law in this State. [Citations omitted.] Further, as the New York Court of Appeals freely conceded in Hobson, 39 N.Y.2d at 483-84, 384 N.Y.S.2d at 422, 348 N.E.2d at 897-98, the rule of Arthur extended a defendant protection under the State constitution beyond that afforded by the Federal Constitution as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).”
At the time of defendant’s interrogation on the afternoon of December 13, she had no retained counsel nor had there been volunteered or appointed appearance of an attorney in regard to the investigation of the December 7 filling station theft. There had been no “entry of an attorney into the proceeding.”
Defendant’s proposed application of Miranda is too broad. In Michigan v. Mosley, 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321 (1975), it was held a statement disclosing participation in a homicide obtained as the product of custodial interrogation was admissible where at an earlier interrogation concerning two robberies, crimes different in nature and in time and place of occurrence from the homicide, defendant’s invocation of his right to silence, to cut off questioning, was scrupulously honored. The incriminating statement was the result of a later police initiated interrogation focused on the homicide, conducted more than two hours after the earlier interrogation, and following a fresh Miranda warning at the outset. The opinion expressly observes:
“This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” 423 U.S. at 105-106.
The issue in Mosley was whether the conduct of the police that led to Mosley’s incriminating statement violated the Miranda “guidelines,” established to protect a person’s constitutional privilege against compulsory self-incrimination, so as to render the statement inadmissible in evidence against Mosley at his trial. 423 U.S. at 100. It was held Mosley’s incriminating statement did not violate Miranda principles. 423 U.S. at 107.
The Mosley opinion points out the Miranda passage there at issue “states that ‘the interrogation must cease’ when the person in custody indicates that ‘he wishes to remain silent.’ It does not state under what circumstances, if any, a resumption of questioning is permissible.” (Emphasis added.) 423 U.S. at 101. The teaching of Mosley is perhaps best found in the following language of the opinion:
“To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.
“A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . . .’ 384 U.S. at 479. The critical safeguard identified in the passage at issue is a person’s ‘right to cut off questioning.’ Id., at 474. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” (Emphasis added.) 423 U.S. at 102-104.
Although defendant’s placement of her initials and signature upon the fateful second printed rights form closely followed by responses to Burnett’s questions is strong evidence of waiver that afternoon of her Miranda rights, defendant directs our attention to two assertedly countervailing facts. On December 9, she had asked for a lawyer. After similarly signing a like form at her first session with Burnett she had immediately exercised her right to remain silent, cut off questioning, by stating she wanted to consult a lawyer.
In regard to a waiver, it is said in United States v. Hilliker, 436 F.2d 101, 102 (9th Cir. 1970), cert. denied 401 U.S. 958 (1971):
“Even though the Supreme Court stated that ‘[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver[,]’ Miranda, 384 U.S. at 475, 86 S.Ct. at 1628, it did not say that these are the only circumstances under which a valid waiver may be found. While the Court in Miranda emphasized that a valid waiver will not be ‘presumed’ simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained, we think a waiver may be implied where warranted under the facts of a particular case.”
We and our Supreme Court have held that there need not be an express waiver of Miranda rights; waiver may be inferred from the circumstances of the individual case. The inference is particularly valid when a defendant who has been advised of his Miranda rights and has acknowledged his understanding of them, freely answers questions put to him. State v. Wilson, 215 Kan. 28, 30-31, 523 P.2d 337 (1974); State v. Baker, 2 Kan. App. 2d 395, 580 P.2d 90 (1978). This principle has since been announced by the United States Supreme Court in North Carolina v. Butler, 441 U.S. 369, 60 L.Ed.2d 286, 99 S.Ct. 1755 (1979), where it is said with regard to the contention that waiver of the Miranda “right to counsel” requires an express waiver:
“There is no doubt that this respondent was adequately and effectively apprised of his [Miranda] rights. The only question is whether he waived the exercise of one of those rights, the right to the presence of a lawyer. Neither the state court nor the respondent has offered any reason why there must be a negative answer to that question in the absence of an express waiver. This is not the first criminal case to question whether a defendant waived his constitutional rights. It is an issue with which courts must repeatedly deal. Even when the right so fundamental as that to counsel at trial is involved, the question of waiver must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’” 441 U.S. at 374-375.
Further, our Supreme Court has stated its recognition of Butler and adhered to the rule of implied waiver of the Miranda right to counsel in the recent case of State v. Jackson, 226 Kan. 302, 305, 597 P.2d 255 (1979).
Does defendant’s December 9 request for a lawyer subvert the admissibility of defendant’s confession? We believe not. The absence of any showing that as of that date law enforcement officials had focused attention on defendant in their investigation of the December 7 theft dispels argument that defendant then was asserting her Miranda right to the advice or presence of counsel in regard to or at a custodial interrogation concerning that theft.
Defendant’s assertion of her Miranda right to counsel at her first session with Detective Burnett, which concerned the December 7 theft, presents us with the question of whether that single act rendered constitutionally impermissible the taking of her statement prior to the appointment of counsel and her consultation with him. We believe not.
Our Supreme Court has stated:
“[T]hat failure to have counsel present does not ‘ipso facto’ make a defendant’s statement involuntary. State v. Creekmore, 208 Kan. 933, 934, 495 P.2d 96 (1972). See also State v. Melton, 207 Kan. 700, 486 P.2d 1361 (1971).
“ ‘An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the defendant in his counsel’s absence.’ State v. Taylor, 217 Kan. 706, Syl. 5, 538 P.2d 1375.” State v. Johnson, 223 Kan. 237, 243, 573 P.2d 994 (1977).
See also Michigan v. Mosley, 423 U.S. at 102-104.
In our view, the Miranda right to counsel is not the Sixth Amendment right to counsel. The Miranda right to counsel is a prophylactic to assure voluntariness of custodial interrogation product. Miranda was a Fifth Amendment right against self-incrimination case. This is gleaned from a reading of the entirety of the majority opinion wherein there is repeated reference to this, the separate opinions of Justices Clark, Harlan and White, as well as subsequent opinions of other courts, e.g., Carvey v. LeFevre, 611 F.2d 19 (2d Cir. 1979). Accordingly, we believe that Kansas opinions have in some instances mistakenly referred to the Miranda right to counsel as the Sixth Amendment right to counsel. E.g., State v. Wilson, 215 Kan. at 31; State v. Melton, 207 Kan. 700, 709-711, 486 P.2d 1361 (1971); State v. Holt, 2 Kan. App. 2d 1, 3, 5, 573 P.2d 1117 (1978).
It has been said by the United States Supreme Court that the Sixth Amendment right to counsel does not attach until “the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 32 L.Ed.2d 411, 92 S.Ct. 1877 (1972). See also Moore v. Illinois, 434 U.S. 220, 228-229, 54 L.Ed.2d 424, 98 S.Ct. 458 (1977); Brewer v. Williams, 430 U.S. 387, 398, 51 L.Ed.2d 424, 97 S.Ct. 1232 (1977); United States v. Ash, 413 U.S. 300, 303, n. 3, 37 L.Ed.2d 619, 93 S.Ct. 2568 (1973). It is our conclusion that defendant’s Sixth Amendment right to counsel had not attached at the time she gave her statement on the afternoon of December 13. See Eben v. State, 599 P.2d 700, 705-707 (Alaska 1979).
Whether we are here faced with reliance upon the true Sixth Amendment right to counsel or the Miranda right to counsel, precedent requires the conclusion that defendant’s argument cannot stand. Brewer v. Williams, 430 U.S. at 404, 405-406 (majority opinion), 413 (Powell, J. concurring opinion); State v. Jackson, 226 Kan. at 305; State v. Taylor, 217 Kan. 706, 711, 538 P.2d 1375 (1975); State v. Wilson, 215 Kan. at 31; State v. Melton, 207 Kan. at 709-711; North Carolina v. Butler, 441 U.S. at 374-375; cf. People v. Cunningham, 48 U.S.L.W. 2537 (N.Y. 1980) (state constitutional and statutory guarantees and state case law).
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Foth, C.J.:
This is an action for damages arising out of an automobile collision in which the jury fixed plaintiff’s causal negligence at 80%, defendant’s at 20%. Plaintiff appeals, claiming error in the trial court’s refusal to instruct the jury as to the effect of its allocation of fault on the award of damages.
The case was tried from May 22 to May 25, 1978. At that time PIK Civ. 2d recommended an instruction, 20.01, which would inform the jury of the legal consequences of its answers in a comparative negligence case. However, no appellate decision in this state had endorsed the instruction, and it remained at that time but a recommendation of the Judicial Council committee which composed it. Opposing the views of the distinguished members of that committee were such cases as Hubbard v. Havlik, 213 Kan. 594, 518 P.2d 352 (1974), and Rohr v. Henderson, 207 Kan. 123, 483 P.2d 1089 (1971). Those cases, in contexts other than comparative negligence, suggest that special questions should be posed to ascertain facts without regard to legal consequences, and that informing the jury of those consequences tends to corrupt the fact finding process and taint the result. The federal trial court in this state had predicted that our Supreme Court would reach the same result in comparative negligence cases. Benton v. Union Pac. R. Co., 430 F. Supp. 1380 (D. Kan. 1977).
Some two months after this case was tried the Supreme Court settled the matter, at least for the time being, in Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 582 P.2d 271 (July 21, 1978). The Court there reviewed the ongoing debate on the issue among jurists and commentators, concluded it was a policy decision, and came down on the side of giving the PIK instruction as “the better rule.” The actual holding was:
“It is not error in a comparative negligence action under K.S.A. 60-258a for the trial court to inform the jury as to the legal effect of its special verdicts in the form of a general instruction advising the jury of the theory and legal effect of comparative negligence.” 224 Kan. 539, Syl. ¶ 2.
There was thus ample justification for the trial court’s decision in the state of the law at the time the decision was made, and even Thomas does not say it was error not to give the instruction. Nevertheless we read Thomas as promulgating a rule to be followed by our trial courts; a trial court refusing to give the substance of the PIK instruction in the face of Thomas would, in our opinion, face a sure reversal.
The remaining question, which was not touched upon in Thomas, is whether the newly announced rule is to be applied retroactively to a case like this one which had gone to judgment before the announcement. We conclude it should not.
The guiding principles governing the prospective-retroactive effect of an appellate court’s decision have become well established. They were recently summarized in Troughton v. Troughton, 3 Kan. App. 2d 395, 396-7, 595 P.2d 1141 (1979):
“It has long been recognized that an appellate court has the power to give a decision prospective application without offending constitutional principles. Gt. Northern Ry. v. Sunburst Co., 287 U.S. 358, 77 L.Ed. 360, 53 S.Ct. 145 (1932). And see Carroll v. Kittle, 203 Kan. 841, 851-2, 457 P.2d 21 (1969); Vaughn v. Murray, 214 Kan. 456, 465, 521 P.2d 262 (1974). The options available to a court making a prospective-retroactive choice have been categorized by our court as four:
“ ‘(1) Purely prospective application where the law declared will not even apply to the parties to the overruling case; (See cases collected 10 A.L.R.3d, § 7, p. 1393.) (2) Limited retroactive effect where the law declared will govern the rights of the parties to the overruling case but in all other cases will be applied prospectively; (See Carroll v. Kittle, 203 Kan. 841, Syl. ¶ 10, 457 P.2d 21; and cases collected in 10 A.L.R.3d, § 8[b], p. 1399.) (3) General retroactive effect governing the rights of the parties to the overruling case and to all pending and future cases unless further litigation is barred by statutes of limitation or jurisdictional rules of appellate procedure; (See cases collected in 10 A.L.R.3d, § 8[e], pp. 1407-1412.) and (4) Retroactive effect governing the rights of the parties to the overruling case and to other cases pending when the overruling case was decided and all future cases, but limited so the new law will not govern the rights of parties to cases terminated by a judgment or verdict before the overruling decision was announced. (See Hanes v. State, 196 Kan. 404, 411 P.2d 643, and cases collected in 10 A.L.R.3d, § 8[c, d], pp. 1401-1407.)’ Vaughn v. Murray, 214 Kan. at 465-66.
“In Vaughn v. Murray the Court also recognized five factors commonly relied on by courts in determining the retroactivity question:
“ ‘(1) Justifiable reliance on the earlier law; (2) The nature and purpose of the overruling decision; (3) Res judicata; (4) Vested rights, if any, which may have accrued by reason of the earlier law; and (5) The effect retroactive application may have on the administration of justice in the courts.’ ” 214 Kan. at 464.
In applying the five factors of Vaughn v. Murray to the case at bar, it appears to us that (1) the trial court reasonably relied on earlier law clearly indicating that the jury should not be informed of the legal effect of its special verdict. (2) The purpose of the Thomas decision was to make a new policy determination as to the appropriate rule to be followed in the instructing of Kansas juries in comparative negligence cases. It concluded that the PIK approach was the “better rule,” but warned that if experience shows that the choice was wrong “we will not hesitate to change the rule.” 224 Kan. at 552. The rule is thus not immutable, and does not have the quality of a constitutional command. (3) Prospective application would leave intact judgments entered prior to the announcement of the Thomas decision, promoting the doctrine of res judicata. (4) There are no vested rights which have accrued under the earlier law.
(5) As for the effect retroactive application of Thomas would have on the administration of justice, it is appropriate to evaluate the policy considerations discussed in Vaughn v. Murray. The Court there considered the retroactive effect which should be given to its decision in Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974), declaring unconstitutional the Kansas guest statute:
“We have considered what might be the effect of giving the law declared in the overruling case, Henry v. Bauder, [213 Kan. 751, 518 P.2d 362 (1974)], general retroactive effect to all pending and future cases without limitation. However, we believe some limitation is necessary because of benefits which flow from giving finality to cases fairly heard and determined. There is trauma and expense to litigants in every trial. The trauma and expense is doubled by requiring a second trial. The outcome of a second trial is never certain. ‘Guest statute’ cases are generally in the liability insurance field and are defended on behalf of insurance companies. Policy holders are reluctant to submit to a second trial. Especially is this true when their cases were fully presented and terminated by the courts under the law in effect when the cases were tried. Trial courts with burdensome dockets are hesitant to undertake a second trial.
“In addition the present overruling decision could not have been anticipated and the change in the law came as a surprise to former litigants, lawyers and judges. Unsuccessful litigants looking back can argue they were prejudiced. The Code of Civil Procedure (K.S.A. 60-260) places wide discretion in the hands of the trial courts to set aside judgments upon ‘any . . . reason justifying relief from the operation of the judgment.’ The application of this statute could result in confusion. We should not leave this matter to varied future interpretations by trial courts. The uncertainty would surely result in confusion and fruitless relitigation in some cases. We desire to give finality to those cases which have been presented to and determined by the trial courts of this state and the cases have terminated in judgments or verdicts without reversible error under the law then existing.” 214 Kan. at 466. Emphasis added.
The result in Vaughn was that the Henry decision was given limited retroactive effect — it applied to all similar cases pending when the opinion was filed and to cases filed thereafter regardless of when the cáuses of action accrued, but it did not apply where a judgment or verdict had been entered prior to that decision and the same was free of reversible error under the law then existing. Only where there was other error, or the constitutional issue had been raised at trial in a case then pending on appeal, would a prior judgment or verdict be affected.
A somewhat similar result would appear to be appropriate in the instant case, based on the policy considerations recognized in Vaughn. The Thomas decision can be given application to all similar cases pending and untried when it was decided on July 21, 1978, and to all cases filed thereafter regardless of when the causes of action accrued. However, in cases where a judgment or verdict has been entered in a district court prior to July 21, 1978, and it is otherwise free of reversible error, we hold that the judgment should stand regardless of whether the PIK instruction issue was raised at trial. We make this distinction from the Vaughn result because, unlike the guest statute decision, Thomas does not affect a substantive right of the parties. Instead, it represents only a choice of procedures on the basis of desirability, over which there is room for a substantial difference of opinion. The trial court’s decision here cannot be said to be error, and even if it were, it did not affect the substantial rights of the parties.
This limited retroactive application represents to us a reasonable accommodation of the factors cited above, and gives weight to society’s interest in the finality of decisions like this one which were fairly determined under the law as it existed when the determinations were made.
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Spencer, J.:
Defendant appeals from convictions of voluntary manslaughter, K.S.A. 21-3403, and aggravated battery, K.S.A. 21-3414.
Evidence at trial disclosed that on June 8, 1978, defendant was standing at the corner of Third Street and Pottawatomie Street in Leavenworth with some other men when the victim, Anthony Richardson, approached with another person. An argument ensued, at which time Richardson withdrew a straight razor from his pocket and swung it once at defendant. Testimony indicated Richardson began running away from defendant immediately after swinging the razor; and that defendant stepped back, drew his gun, and fired several shots at Richardson. Officer McGill testified defendant voluntarily stated he had shot at Richardson five times, reloaded, and shot two more bullets into the air. Other evidence indicated Richardson was seventy-five to eighty feet away from defendant when defendant opened fire; that Richardson’s body was determined to be well over 200 feet from the corner where defendant stood; and that Richardson’s back was to defendant when he was shot. Richardson died as a result of a gunshot wound to his chest.
Other witnesses indicated a five-year-old child, Ebony Carey, received a wound from one of the bullets fired by defendant. Although no one saw the child get hit, several witnesses testified she was found to be injured immediately following the shooting. Dr. Bransted, who examined the child following the incident, testified he found metallic fragments in her back and that her injury was compatible with a gunshot wound. Officer McGill testified he spoke with defendant upon arriving at the scene; that defendant was holding a gun in his hand; and that defendant stated “he hoped that little girl hadn’t gotten hurt that bad.”
Defendant relied on a theory of self-defense. At the conclusion of the State’s evidence and again at the close of all evidence, defense counsel moved for judgment of acquittal on both counts, which motions were denied. The jury returned verdicts of guilty as to voluntary manslaughter, based on the homicide of Anthony Richardson, and aggravated battery, based on the shooting of Ebony Carey.
The sole issue on appeal is whether the trial court erroneously denied defendant’s motion for judgment of acquittal as to each charge. With respect to the aggravated battery conviction, defendant argues there was no evidence of the requisite intent under K.S.A. 21-3414 or of an infliction of bodily injury to the child. With respect to the voluntary manslaughter conviction, defendant argues the evidence conclusively established his theory of self-defense. Clearly, these arguments are without merit.
The appropriate standard we must consider was stated in State v. Jones, 222 Kan. 56, Syl. ¶ 11, 563 P.2d 1021 (1977):
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.”
While we agree with defendant that a specific intent to injure is a necessary element of the crime of aggravated battery under K.S.A. 21-3414 (State v. Seely, 212 Kan. 195, 203, 510 P.2d 115 [1973]; State v. Warbritton, 211 Kan. 506, 508, 506 P.2d 1152 [1973]), it is clear the evidence adduced at trial was sufficient to prove such intent. Intent is normally a question of fact for the jury (State v. Edwards, 209 Kan. 681, Syl. ¶ 3, 498 P.2d 48 [1972]), and may be shown by acts, circumstances and inferences reasonably deducible therefrom and need not be established by direct proof. State v. Acheson, 3 Kan. App. 2d 705, Syl. ¶ 4, 601 P.2d 375 (1979). From the evidence presented, the jury could have believed defendant intended to injure Anthony Richardson. Under the doctrine of transferred intent, the fact that defendant did not intend to shoot Ebony Carey becomes immaterial.
“Under this rule, the fact that the bystander was killed instead of the victim becomes immaterial, and the only question at issue is what would have been the degree of guilt if the result intended had been accomplished. The intent is transferred to the person whose death has been caused, or as sometimes expressed, the malice or intent follows the bullet.” 40 Am. Jur. 2d, Homicide § 11, pp. 302-303.
The doctrine is equally applicable to prosecutions for assault and battery (6 Am. Jur. 2d, Assault and Battery § 18, pp. 23-24), and the trial court properly instructed the jury as to this issue. See PIK Crim. 56.18.
The evidence is clearly sufficient to establish that defendant inflicted great bodily harm upon Ebony Carey. The fact that the evidence is circumstantial is of no importance. See State v. White & Stewart, 225 Kan. 87, Syl. ¶ 14, 587 P.2d 1259 (1978). The number of shots fired by defendant, the proximity of Ebony’s injury to the shooting, the medical testimony regarding her injury, and even defendant’s statement concerning the child’s injury, are all facts from which the jury could have reasonably deduced that defendant’s action resulted in her bodily harm.
Finally, the trial court properly overruled defendant’s motions considering the evidence as to self-defense. While defendant presented some testimony which might tend to establish the defense, the credibility of such witnesses, including defendant, was a matter properly left for the determination of the jury. State v. Holloway, 219 Kan. 245, 253, 547 P.2d 741 (1976). The statutory codification of self-defense, K.S.A. 21-3211, limits the degree of force which may be used to repel an attack to that force which reasonably appears to be necessary for that purpose. State v. Stokes, 215 Kan. 5, Syl. ¶ 4, 523 P.2d 364 (1974). Considering the substantial testimony regarding the distance between defendant and Richardson at the time defendant opened fire, it cannot be said the trial court erroneously left the issue in the hands of the jury.
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Parks, J.:
Inter-Collegiate Press, the employer, and the Kansas Workmen’s Compensation Fund appeal from an order granting an award to the claimant, Alice L. Morgan, and allocating equal liability for the award between the employer and the Fund.
Claimant’s employment application in 1973 indicated that she had a preexisting back condition. Her immediate supervisor was aware of her back problems and knew she wore a back brace. After claimant was trained to perform all the jobs within her department she was assigned to the waxing machine. The operation of this machine entailed frequent and repetitive bending and twisting and Alice complained that the work caused her considerable back pain. As a result, she was moved from the waxer to a sit-down job but eventually was reassigned to the machine by a different supervisor, Rose Sakaitas, in May 1976. Rose testified that Alice constantly complained of headaches and backaches, that her complaints were more frequent when she worked on the waxer, and that all of the employees complained more when assigned to the waxer because it was an unpleasant job.
Claimant continued to work with the waxing machine until her termination on July 8. Her employment was terminated for excessive absenteeism but only four of her 51 absences were attributed to personal illness. On August 21, Alice entered the hospital where she had surgery to repair a herniated disc. She filed this action for workers’ compensation in January, 1977.
The examiner found claimant suffered personal injury by accident as a result of her employment between May and July 1976. He also found that the employer and the Workmen’s Compensation Fund did not have notice of claimant’s accident but were not prejudiced by this deficiency. The examiner awarded claimant all reasonable medical expenses from May to the date of her release from the hospital and apportioned these expenses to be paid 50% by the employer and 50% by the Fund. The director modified the examiner’s findings by holding that the employer and the Fund had notice of the accident, but the district court reversed the director and completely adopted the findings of the examiner.
The employer and the Fund contend that the trial court erred in determining that the claim for compensation was timely filed. Alice’s claim was filed outside of the 200-day statute of limitations of K.S.A. 1979 Supp. 44-520a and was therefore untimely unless the provisions of K.S.A. 1979 Supp. 44-557(c) apply to extend the limitation period. Section 44-557(a) imposes a duty on employers to report to the director of workers’ compensation all employment related accidents which they know to have incapacitated an employee. The failure to do so extends the statute of limitations to one year if the employee has given the notice required by K.S.A. 1979 Supp. 44-520. Furthermore, actual knowledge of the employer may substitute for written notice by the injured employee. In Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, Syl. ¶ 3, 347 P.2d 235 (1959), it was stated:
“[I]f the employer has actual knowledge of the accident, the injured workman is excused from giving the notice required under the provisions of G.S. 1949, 44-520, and failure of the employer to file a report of accident with the commissioner of an accident to an employee, which occurs in the course of his employment, extends the limitation of time- within which to commence a proceeding under the workmen’s compensation act to one year.”
Thus, the timeliness of Alice’s claim depends on whether the employer had knowledge of her injury.
Our scope of review in workers’ compensation cases is limited to issues of law. K.S.A. 1979 Supp. 44-556(c). The timeliness of a claim is primarily an issue of fact (Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P.2d 521 [1969]) which should not be disturbed on appeal if it is supported by substantial competent evidence. Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 185-186, 334 P.2d 370 (1959). In determining whether evidence is substantial and competent, the record is viewed in a light most favorable to the prevailing party (Makalous v. Kansas State Highway Commission, 222 Kan. 477, 486, 565 P.2d 254 [1977]), even though there is evidence which supports a contrary finding. Phillips v. Helm’s Inc., 201 Kan. 69, 439 P.2d 119 (1968).
Appellants contend that even when viewed in the best light, claimant’s generalized complaints of back pains were not substantial enough to provide notice of the injury to the employer. The disability suffered by claimant occurred over several months’ time through repeated aggravation to her back condition, but a disability need not be the sudden result of a single accident to be compensable. Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, Syl. ¶ 3, 573 P.2d 1036 (1978). Furthermore, the measure of knowledge in these cases is the information conveyed by objective facts. For example, in Rowton v. Rainbo Baking Co., 189 Kan. 74, 366 P.2d 796 (1961), the Court upheld a finding of actual knowledge when the employer knew that claimant suffered a heart attack but did not know the attack began at work or was brought on by work-related activity. See also Almendarez v. Wilson & Co., 188 Kan. 303, 362 P.2d 1 (1961).
In the present case, claimant repeatedly told her supervisor that her work on the waxer resulted in back pain and this knowledge by the supervisor must be imputed to the employer. Phillips v. Helm's Inc., 201 Kan. at 73. Considering the gradual onset of the injury, there is very little more claimant could have said or the employer could have known about the accident. It is therefore in keeping with these cases and a liberal interpretation of the workers’ compensation law that we conclude that the specific and repetitive complaints of Alice Morgan provided substantial evidence for the trial court’s determination that the employer had knowledge. This conclusion also forecloses any need to consider the issue of prejudice. K.S.A. 1979 Supp. 44-520.
The employer contends that even if it had knowledge of the injury, it had no duty to file an accident report since the injury was not incapacitating. Once again, the language of the workers’ compensation laws is not to be strictly construed. Clifford v. Eacrett, 163 Kan. 471, 183 P.2d 861 (1947). K.S.A. 1979 Supp. 44-557 must be applied in light of its obvious purpose of encouraging recognition of claim-producing accidents so that injured employees may be notified of their rights to compensation. Wilson v. Santa Fe Trail Transportation Co., 185 Kan. at 742. We conclude that there was substantial competent evidence for the trial court’s finding that the claim was timely filed under the one year statute of limitations. K.S.A. 1979 Supp. 44-557(c).
The second point on appeal is that the trial court erred in awarding compensation for past medical expenses. The controlling statute is K.S.A. 1979 Supp. 44-510(h), which states in pertinent part:
“If the employer has knowledge of the injury and refuses or neglects to reasonably provide the benefits herein required, the employee may provide the same for himself or herself, and the employer shall be liable for such expenses subject to the regulations adopted by the director.”
Since Inter-Collegiate Press had knowledge of the injury and the claimant is not required to demand that the employer provide the benefits, it follows that the trial court did not err in including in its award and judgment the medical expenses incurred by claimant. Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 349, 356 P.2d 804 (1960).
We turn now to the issue raised by the cross-appeal of the Fund concerning the allocation of liability between itself and the employer. The trial court divided the assessment equally and both parties claim they should be completely free of any liability. The workers’ compensation law seeks to encourage employment of handicapped workers by completely relieving employers of the responsibility of paying for injuries which would not have been sustained “but for” the preexisting condition. K.S.A. 1976 Supp. 44-567(a). In order to apply this statute, the following questions must be answered: (1) was there substantial competent evidence that the employer knowingly hired or retained a handicapped employee; and (2) was there substantial competent evidence for the trial court’s allocation of liability between the employer and the Fund.
The burden is placed on the employer to prove that he knowingly retained a handicapped person. Hinton v. S. S. Kresge Co., 3 Kan. App. 2d 29, 592 P.2d 471 (1978), rev. denied 225 Kan. 844 (1979). At the time of this action Section 44-567(b) only imposed a prerequisite that the employer had knowledge of the preexisting condition. The requirement that knowledge be evidenced by a Form 88 filed with the director was not made effective until July 1,1977, and has no bearing on this case. See Baum v. Greyhound Corp., 3 Kan. App. 2d 456, 601 P.2d 6 (rev. denied 7/13/79). The Fund does not dispute that claimant’s preexisting back condition rendered her a handicapped person under K.S.A. 1979 Supp. 44-566. The Fund does argue, however, that the employer did not prove that it knew that claimant was handicapped.
Evidence is substantial and competent if it possesses something of substance and of relevant consequence, or is evidence which furnishes a substantial basis of fact from which the issues presented can be reasonably resolved. Hardman v. City of Iola, 219 Kan. 840, 549 P.2d 1013 (1976). Here the evidence was that claimant’s employment application revealed a history of back trouble, that she wore a back brace when she began working for Inter-Collegiate Press, and that her supervisor at that time was aware of her condition. The provisions imposing liability upon the Fund are to be liberally construed to carry out the legislative intent of encouraging employment of handicapped workers. Leiker v. Manor House, Inc., 203 Kan. 906, 913, 457 P.2d 107 (1969). We conclude that substantial evidence was presented to meet the employer’s burden of proving it knowingly hired a handicapped worker.
Finally, we must determine whether the trial court’s apportionment of the award was supported by the evidence. The medical testimony concerning the cause of claimant’s injury was uncontroverted. Her physician, Dr. Nathan Shechter, testified as follows:
“Q. Do you have an opinion, Dr. Shechter, as to whether or not the symptoms which Mrs. Morgan described to you as coming on gradually in the course of her movement in her job, would have occurred had she had a normal back without the preexisting history of ten years of — may I say ‘chronic low back pain’ and the preexisting January leg symptoms?
“A. That is hard to say, but certainly with the preexisting condition that she did have, it’s more likely than not that she would have this condition with herniation of the disc than if it was not chronic over a period of time.” (Emphasis supplied.)
The employer’s doctor, Harry Overesch, also agreed that the back injury was more probable as a result of Ms. Morgan’s preexisting condition:
“A. I think that her preexisting history and condition was most pertinent to the causation of her present problem in May of 1976 in that if it weren’t for that prior condition and problems and treatment that she had that most likely she would not have sustained this accident in May of 1976.” (Emphasis supplied.)
There was no other medical testimony concerning the cause of the claimant’s back injury and it would thus appear that this evidence was reliable and uncontradicted.
“Uncontradicted evidence which is not improbable or unreasonable cannot be disregarded by a district court in a workers’ compensation case unless it is shown to be untrustworthy; and such uncontradicted evidence should ordinarily be regarded as conclusive.” Demars v. Rickel Manufacturing Corporation, 223 Kan. at 380.
Where the only medical evidence presented established that the injury most probably would not have occurred absent the handicap, the Fund must be held completely liable for the expenses. We conclude that the trial court erred in failing to apply the “but for” rule set forth in K.S.A. 1976 Supp. 44-567 and hold that the Fund is required to pay the entire award. Barke v. Archer Daniels Midland Co., 223 Kan. 313, 573 P.2d 1025 (1978).
The judgment below is affirmed insofar as the award of compensation and past medical expenses and reversed insofar as the allocation of liability for the award between the employer and the Fund. The case is remanded to the trial court for further proceedings in accordance with the views herein expressed. | [
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Abbott, J.:
This is an appeal by the plaintiff, Brian Key, from the trial court’s post-trial order that reduced the damages for personal injuries awarded to him by the jury at his trial.
The jury found that plaintiff was injured in an automobile accident. It apportioned fault 90 percent to the defendant and 10 percent to the plaintiff and awarded damages as follows: loss of wages, $12,500; automobile, $400; medical expenses, $1,000; and pain and suffering, $3,500. The jury further determined that plaintiff did not suffer “permanent injury within a reasonable medical probability.”
The trial judge reduced the judgment by $3,500 for the stated reason that the plaintiff had not met the threshold requirements of K.S.A. 1978 Supp. 40-3117. He further reduced the judgment for lost wages from $12,500 to $8,030.78, apparently on the basis that plaintiff was limited to the amount claimed by plaintiff at the pretrial conference; and reduced the judgment for medical expenses from $1,000 to $491.08, the sum of the medical bills introduced into evidence at trial. The total damages were then reduced by 10 percent by reason of comparative negligence. The degree of fault of the parties was determined at trial, and neither one appeals from that determination. Plaintiff does appeal from the reductions and defendant, John Clegg, cross-appeals, contending that plaintiff can recover in this action only for the damage to his automobile, and that all other damages such as medical bills and lost wages must be paid by plaintiff’s personal injury protection benefits provided under his own policy.
1. Loss of Wages.
A pretrial conference was held on March 9, 1978. The parties have furnished this Court with one page of the transcript and a very abbreviated pretrial order that appears to have been prepared by the court but was not approved by counsel. The pretrial order gives no indication of what plaintiff claimed as damages. The partial transcript of the pretrial does indicate that plaintiff claimed $8,032 for lost wages and $702.78 medical expenses. The plaintiff moved at trial to amend his petition to conform to the proof on the question of loss of wages, and the court permitted plaintiff to do so. The trial judge appears to have overlooked the fact that he had permitted the amendment. In addition, the judge’s comments and counsel’s argument at trial suggest their belief that plaintiff was not entitled to damages for lost wages other than those that accrued within one year of the accident on the theory that any further lost wages would be permanent injury and not recoverable since the threshold had not been met. We are of the opinion the trial judge erred in reducing the award for lost wages.
The trial judge has authority to allow the pleadings, including a pretrial order, to be amended to conform to the evidence pursuant to K.S.A. 60-215(b). The issues raised and the facts and reasoning in Thurman v. Cundiff, 2 Kan. App. 2d 406, 580 P.2d 893 (1978), are apropos to this case. There the Court stated at 413-14:
“Defendants next contend the allowance of the amendment constituted an arbitrary abuse of discretion by the trial court. K.S.A. 60-215 governs the amendment of pleadings and provides that leave to amend be freely given when justice so requires. Amendments after the commencement of trial are within the discretionary powers of the trial court; the allowance or denial of an amendment will not constitute grounds for reversal unless it affirmatively appears that the substantial rights of the adverse party were affected by the trial court’s ruling, and, further, that the ruling was a clear abuse of discretion. Garcia v. Southwestern Bell Tel. Co., 216 Kan. 591, 533 P.2d 1242 (1975); Hass v. Preferred Risk Mutual Ins. Co., 214 Kan. 747, 522 P.2d 438 (1974); Commercial Credit Corporation v. Harris, 212 Kan. 310, 510 P.2d 1322 (1973). The trial court is given wide latitude and discretion in permitting or refusing amendments of pleadings in the interest of justice. Hoover Equipment Co. v. Smith, 198 Kan. 127, 422 P.2d 914 (1967). We recognize such discretion is not unbridled. Walker v. Fleming Motor Co., 195 Kan. 328, 330-331, 404 P.2d 929 (1965). As a general rule, however, amendments to pleadings are favored in law and shall be allowed liberally in the furtherance of justice to the end that every case may be presented on its real facts and determined on its merits. Walker v. Fleming Motor Co., supra, p. 330. Trial courts are given broad discretionary powers concerning the amendment of pleadings, before or after judgment, when the amendment does not change substantially the claim or defense. Collins v. City Cabs Inc., 192 Kan. 394, 396, 388 P.2d 597 (1964).
“In the present case, the claim- was for damages for false arrest. The claim was not changed by the amendment — only the amount sought. Collins v. City Cabs Inc., supra, p. 396. Although the trial court’s reasons for allowing the amendment are less than crystal-clear, we find implicit in the court’s action a finding that the evidence did support an award in excess of $10,000.
“We are unable to conclude that the trial court abused its discretion in this case. However, we believe the allowance of an increase of a prayer for monetary recovery after all the evidence is in is not good practice where nothing has developed during trial demonstrating plaintiff’s actual damage to be other than that known to him at the commencement of trial. The defendants have failed to show they were substantially prejudiced. Although defendants say they would have tried the case differently if the compensatory damages claim had been for $50,000 from the outset, we perceive no demonstration of how the defense of the case would otherwise have been conducted.”
In the case at bar, the amendment did not change plaintiff’s claim, only the amount sought, and even then in an insignificant amount. Defendant was not prejudiced in his defense of plaintiff’s claim, and therefore to allow the amendment was not error. See Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 738, 512 P.2d 379 (1973).
K.S.A. 1978 Supp. 40-3101 etseq., does not preclude a plaintiff from recovering actual expenses and pecuniary loss, including both past and future loss of wages, in an action against an owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, even when the threshold provisions of 1978 Supp. 40-3117 have not been met. Mayer v. Harris, 224 Kan. 231, 579 P.2d 715 (1978).
The trial court emphasized that the jury had specifically found that the plaintiff did not suffer permanent injury. In reducing the verdict for lost wages, the issue of permanent injury is irrelevant when pecuniary loss is involved. Moreover, the one-year limitation on disability benefits found in 1978 Supp. 40-3103(b) applies only to personal injury protection (PIP) benefits paid by an insurer to its insured; it does not limit the amount of recovery in a lawsuit brought against another party any more than do the other ceilings on PIP benefits found in 1978 Supp. 40-3103(b) and (l). In short, any damages that could be recovered in a normal personal injury action, including future lost wages, may be recovered in a lawsuit arising out of an automobile collision that is governed by no-fault provisions except for damages relating to pain, suffering, mental anguish, inconvenience and other non-pecuniary losses which are not recoverable unless the monetary threshold or specific injury requirements of 1978 Supp. 40-3117 are met. The record before us contains sufficient competent evidence from which a jury could properly award damages for lost wages in the amount of $12,500, and the trial judge erred in reducing the jury verdict for loss of wages.
2. Medical Expenses and Pain and Suffering.
The trial judge reduced medical expenses awarded by the jury from $1,000 to $491.08 on the theory the plaintiff had proven only $491.08 in accrued medical expenses as of the date of trial and, having failed to prove medical expenses of $500 or more, he could not recover future medical expenses. For the same reasons plaintiff was entitled to recover for future lost earnings, he is entitled to recover future medical expenses. There is sufficient evidence in the record to support the jury verdict of $1,000 medical expenses in that Dr. Prostic testified to that exact figure. The trial court erred in reducing the award for medical damages.
A far different question arises as to the jury award of $3,500 for pain and suffering, a non-pecuniary loss. The trial judge struck the $3,500 jury award for pain and suffering for failure to meet the threshold requirements of 1978 Supp. 40-3117, which provides:
“In any action for tort brought against the owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of five hundred dollars ($500) or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this section upon a showing that the medical treatment received has an equivalent value of at least five hundred dollars ($500). Any person receiving ordinary and necessary services, normally performed by a nurse, from a relative or a member of his household shall be entitled to include the reasonable value of such services in meeting the requirements of this section. For the purpose of this section, the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value. Evidence that the reasonable value thereof was an amount different than the amount actually charged shall be admissible in all actions to which this subsection applies.”
The statute sets out two ways by which the no-fault threshold may be crossed: (1) suffer injury as defined in the statute; or (2) have the injury require medical treatment with a reasonable value of $500 or more. In the case at bar, the first alternative has been removed by the jury’s specific finding of no permanent injury, which leaves only the $500 medical expense avenue open for plaintiff to meet the statutory requirements.
The first question is whether the monetary threshold applies to accrued medical expenses or to combined accrued and future medical expenses. Kansas case law is silent on this question. The language of 1978 Supp. 40-3117 provides in pertinent part: “[A] plaintiff may recover damages in tort for pain [and] suffering . . . only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of five hundred dollars ($500) or more.” The definition of medical benefits in 1978 Supp. 40-3103(k) is in relevant part: “[A]llowances for all reasonable expenses . . . for necessary health care rendered by practitioners.” (Emphasis supplied.) Defendant argues that the use of the past tense “rendered” indicates the five-hundred-dollar obligation for medical treatment must have already accrued to meet the definition and consequently satisfy 1978 Supp. 40-3117. This type of argument relating to statutory construction was presented in Parry v. Scott, 80 Misc. 2d 1049, 364 N.Y.S.2d 695 (1975), where a New York Supreme Court held that the plaintiff in a New York no-fault case could bring an action when he anticipated the expenditure of five hundred dollars or more for medical care, and it was not necessary that the institution of the action be delayed until the five hundred dollars had actually been spent or obligated because the New York threshold statute reads, “would exceed five hundred dollars.” Applying a similar argument to the Kansas statute, it appears the use of the past tense indicates a legislative intent to use only accrued expenses.
Further support for not including future medical expenses within the threshold amount is found in Cappadona v. Eckelmann, 159 N. J. Super. 352, 388 A.2d 239 (1978). There, the New Jersey court held that the accrual date for plaintiff’s tort action is not affected by the state’s statutory no-fault threshold provisions. In discussing the issue, the New Jersey court wrote at 356-57:
“We do not discern in N.J.S.A. 39:6A-8 any suggestion that the Legislature intended the limited tort exemption therein provided to affect the normal rules for determining when a tort claim accrues. Indeed, the exemption is described as an exemption from liability, not from suit. No legal impediment precludes the filing of a complaint in tort on the day following the injury-producing accident. See Parry v. Scott, 80 Misc. 2d 1049, 364 N.Y.S.2d 695 (Sup. Ct. 1975). True, a defendant so sued for damages resulting from the kind of injury to which the monetary threshold applies may obtain a dismissal if the threshold is not met by the time of trial. But a complaint filed before $200 in treatment of soft tissue injuries is expended, is nonetheless a valid complaint, subject, however, to dismissal before or at trial for failure to comply with the threshold requirements.
“. . . So in the cases subject to N.J.S.A. 39:6A-8, although uncertain that the threshold requirement will be met, a claimant may nonetheless file a complaint in tort realizing, however, that the claim may prove to be not actionable in the event cost of treatment fails to equal the threshold amount, at least by time of trial. A motion to dismiss a complaint so filed during a period in which treatment is continuing or where further treatment is anticipated should not be granted at that point, but either denied without prejudice or held until it is known whether the threshold amount will be realized, perhaps not until trial date.” (Emphasis supplied.)
We have by implication adopted that line of reasoning in Dinesen v. Towle, 3 Kan. App. 2d 505, 597 P.2d 264, rev. denied 226 Kan. 792 (1979). Without restating the well-settled rules of statutory construction, when the applicable rules are applied we are convinced it was the legislature’s intent when it drafted 1978 Supp. 40-3117 that the monetary threshold must be met not later than the date of trial or the date the cause of action is barred by the statute of limitations, whichever first occurs. Here the trial took place well within two years of the date the accident occurred; thus the crucial question becomes, did the plaintiff have accrued medical expenses of $500 or more on the date of trial?
There is no dispute that the plaintiff proved reasonable medical expenses as of the date of trial of $491.08. What is in dispute is whether or not plaintiff proved that his mother provided ordinary and necessary services normally performed by a nurse so as to entitle plaintiff to include the reasonable value of such services to meet the monetary threshold requirements of 1978 Supp. 40-3117.
The facts are simple and not in dispute. Plaintiff received a blow to his head in the accident and his doctor instructed his mother to awaken him every hour during the remainder of the night and see that he responded, and if he failed to respond she was to return him to the hospital. His mother sat up all night to perform that duty and to also follow the doctor’s instructions to give him medicine for pain every two hours and a muscle relaxant every four hours for the remainder of the night and the following day. In addition, at various times she purchased Ben-Gay and Icy Hot for plaintiff, and gave him rubdowns twice a day for approximately six months, then once a day for a similar period. Given the specific statutory language in 1978 Supp. 40-3117 that allows for consideration of services that are normally performed by a nurse but instead are performed by a relative, and given the fact that the treating physician actually prescribed the massage treatment, it unquestionably would have been proper for the jury to have included in the cumulation of medical expenses the reasonable value of such services and the cost of the ointments to determine whether a $500 threshold was met. There was, however, no such evidence of value introduced into the record. This lack of evidence raises a question of whether the jury, relying on its own judgment and experience, was entitled to consider the nature and extent of the services rendered to determine that they had a value in excess of $8.92. In fact, the jury had not been instructed and did not know that a threshold was required and that it was entitled to consider the mother’s services in meeting the threshold. Neither party requested that the jury be so instructed.
We are not concerned with whether the evidence was sufficient to support a jury verdict for damages that included a sum for the mother’s services in caring for her son. It is not mandatory that the services be recoverable as damages for the plaintiff to include the reasonable value of them in order to meet the monetary threshold requirement. Plaintiff was not required to prove accrued recoverable damages of $500 or more; he was only required to prove that he had received medical treatment with a value of at least $500 of the nature set forth in 1978 Supp. 40-3103(k) and 1978 Supp. 40-3117. The evidence in this case is unchallenged that qualified medical expenses of $491.08 had accrued on the date of trial. In addition, there is unchallenged evidence that the plaintiff’s mother spent an entire night and one day caring for the plaintiff, waking him each hour and giving him medicine. She also purchased ointment and gave him in excess of five hundred back rubs over a one-year period. Evidence of these services are such that a judge or jury, or anyone else considering them, would necessarily conclude from common knowledge that they had a value far in excess of the $8.92 necessary to meet the monetary threshold requirements. While a plaintiff runs a great risk by not proving by direct evidence the reasonable value of medical services of this nature, we conclude in this case, based on the record before us, that when the monetary amount required to meet the threshold requirement is so minimal and the services proven to have been performed are so extensive, it flies in the face of reality to say that the plaintiff has failed to meet his burden of proving he received medical treatment of the value of $500 or more. We are of the opinion the trial court erred in reducing the judgment by the amount awarded for pain and suffering.
Other courts have reached similar results under the more stringent requirements of proving recoverable damages. In Feeney v. L.I.R.R. Co., 116 N.Y. 375, 22 N.E. 402 (1889), a jury was allowed to include a nominal sum for medical expenses when the nature and extent of the services were proven, even though there was no evidence of the value of the services.
California has held that when the nature and extent of services are in evidence the jurors may draw upon their own judgment and experience in determining the reasonable value of the services. Seedborg v. Lakewood Gardens etc. Assn., 105 Cal. App. 2d 449, 233 P.2d 943 (1951). That rule is applicable to the reasonable value of services furnished by a member of the household if a fair description of the amount and quality of the services is introduced into evidence. Bradford v. Edmands, 215 Cal. App. 2d 159, 168, 30 Cal. Rptr. 185 (1963). See also Large v. Williams, 154 Cal. App. 2d 315, 320, 315 P.2d 919 (1957).
3. Cross-appeal.
Most of the issues raised by defendant by cross-appeal have been answered in this opinion; however, we are without jurisdiction to determine the issues he attempts to raise because he failed to file a timely notice of cross-appeal. K.S.A. 60-2103(h) provides:
“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he or she complains, the appellee shall within twenty (20) days after the notice oí appeal has been served upon him or her and filed with the clerk of the trial court, give notice of his or her cross-appeal.”
Plaintiff’s notice of appeal was filed in the district court on June 19, 1978, and an attached certificate of service shows that a copy was mailed to defendant on the same day. Defendant’s July 21, 1978, filing of a notice of cross-appeal fell beyond the allowable twenty-day time limit in the statute. As a result, this Court is precluded from reviewing the trial court’s rulings complained of in the cross-appeal. Vaughn v. Murray, 214 Kan. 456, Syl. ¶ 5, 521 P.2d 262 (1974).
The judgment is reversed and remanded with directions to enter judgment for the plaintiff in conformance with this opinion. | [
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Meyer, J.:
This is an appeal from an order confirming the sales of various tracts of real estate of a decedent.
At issue here is the validity of deeds to five tracts of land. Four deeds are involved; two of them to the executors themselves, one to a former brother-in-law of the executors, and one to a neighbor of the executors.
Decedent’s will contained a provision concerning the sale of property as follows:
“I hereby direct that all of the remainder of my real estate and personal property be sold and converted into cásh by my executors, hereinafter named, at the highest prices obtainable therefor, either at public or private sale, upon such terms and conditions, and at such times, as my executors shall deem best. I empower my executors to make, execute, acknowledge and deliver deeds, assignments and other written instruments conveying title to said real estate and personal property to the purchasers thereof, all without the intervention of the probate court.”
The executors entered into written contracts for the private sale of these tracts to the persons mentioned aforesaid, and the contracts were made subject to approval by the district court of Clay County, Kansas. These contracts were entered into on March 3, 1978.
Decedent’s will provided that 5 percent of the net estate was to go to a designated charity, 47% percent was to go to decedent’s relatives, and 47% percent was to go to the relatives of decedent’s predeceased wife (appellants herein). While decedent’s relatives, in general, do not complain of the sales, appellants do not approve.
The issues raised by appellants herein can be summarized as follows: (1) that the sale of the real property was made more than six months after an appraisement of the real property sold; (2) that the executors did not exercise diligence in obtaining the best price for the real estate sold; (3) that there is a substantial conflict of interest pursuant to K.S.A. 59-1703 in the sale of the executors to one who is their former brother-in-law, and to another who is neighbor to the executors; and (4) that the district court erred in ordering the sale of the real estate upon terms different from those contained in the petition filed by the executors pursuant to K.S.A. 59-2303 in that K.S.A. 59-2304 provides that the order shall be within the terms of the application made by the petition.
With regard to the appraisement issue, the pertinent dates are that the testator diéd August 8, 1977, and the executors entered into their written contracts for sale on March 3, 1978. Although the appraisement was made in January, 1978, the appraisal contained the statement that the values therein were as of the decedent’s death. Appellees contend that since the appraisement was made and dated less than six months before March 3, 1978, that same complies with the statutory requirement that real estate be appraised within six months prior to sale.
K.S.A. 59-2307 states that:
“Before any representative shall sell or lease any real estate at private sale, such real estate shall be appraised at its full and fair value by one or more, but not to exceed three (3), disinterested persons named by the representative, to be approved by the court unless good cause is shown to the court why the named appraisers should not be approved. Such appraisal shall be within the time period prescribed by subsection (e) of K.S.A. 59-2305.” (Emphasis added.)
Subsection (e) of K.S.A. 59-2305 provides as follows:
“An order for sale, lease or mortgage shall remain in force until terminated by the court, but no private sale or lease shall be made unless the real estate or the leasehold interest therein shall have been appraised or reappraised within six months preceding the sale or lease.”
In the instant case, not only did the report of the appraisers disclose that their valuation was as of the date of decedent’s death, but K.S.A. 59-1201 provides in part that “every representative shall make an inventory stating opposite each item contained in the inventory the full and fair value as of the date of death of the decedent . . . .”
The appraisement required by K.S.A. 59-2307 must reflect the value of the property at a time within six months prior to sale. To hold that the statutes mentioned above require only that the date of an appraisal be within six months, while its terms would state an earlier valuation, would be to defeat the effect and force of the statute. Hence, we hold that the appraisal in the instant case was not made within six months prior to the sale of the real estate within the meaning of K.S.A. 59-2305(c).
The second assertion of appellant was that the executors did not exercise due diligence in obtaining the highest and best price obtainable.
The trial court approved the contracts of sale to the persons who were not executors, and as for the tracts which the executors themselves proposed to purchase, the court ordered that an “upset sale” be held, with the executors allowed to bid $1 more than the price for which any offeror proposed to purchase the land.
Sales by executors to themselves have never been favorites of Kansas law, and indeed until recent years have been forbidden. The statute was amended in 1975 to permit such sales with court approval. K.S.A. 59-1703.
While Kansas seems not to have addressed this specific question with regard to price, it is clear that:
“An administrator of an estate acts in a fiduciary capacity, and has a duty to exercise the utmost good faith in all of his transactions affecting the estate.” In re Estate of Lohse v. Rubow, 207 Kan. 36, Syl. ¶ 1, 483 P.2d 1048 (1971).
In Stump v. Flint, 195 Kan. 2, 402 P.2d 794 (1965), the executor had the power to sell property for the best price obtainable, such power being granted by the will. The executor sold decedent’s one-half interest in the real estate for $30,000. The trial court found the executor acted in good faith and that the sale was bona fide. The appellate court found the trial court’s findings were supported by substantial competent evidence. The court noted that while the contract for sale was $3,200 less than the appraised value, the executor saved the cost of commission by selling to a third party. There were no offers of purchase and the executor had talked to many people about selling the property. Further, there was independent evidence that $30,000 was a fair price.
The instant case, however, can be distinguished from Stump v. Flint in that here the only inquiries made by the executors were to the two purchasers and to one Myrtle Steward and her husband. The executors did not advertise the property in the paper. Further, there was evidence that Ted Volen, a farmer in the vicinity of the estate, went to the office of the attorney for the estate on March 2, 1978, and offered an amount in the $50,000’s for a tract appraised at $47,000. That particular tract eventually was sold to the executor Richard Chestnut at the price of $47,000. There was also evidence presented at trial of many other prospective purchasers who were interested in the property and who would pay more than the appraised value. In fact, Myrtle Steward had informed the executor’s attorney that Gary Case was interested in purchasing the property, yet he was not contacted by the executors.
Other jurisdictions have indicated that the fiduciary has a duty to sell the assets of an estate for the best price that can reasonably be obtained. The best test of this is the market. See State v. Hartman, 54 Wis. 2d 47, 194 N.W.2d 653 (1972), where the court noted that while appraised value would be a factor in determining the propriety of a transaction, it was not determinative. In the absence of evidence to show that there had been a reasonable attempt to sell the property and that the appraised value was a proper sale price, a sale to the executor’s wife was found to be an exercise of the power of sale in bad faith.
The same rule was followed in Helgesson v. Frank, 17 Or. App. 133, 139, 521 P.2d 16 (1974), wherein it was stated:
“[T]he personal representative is a fiduciary and is under a duty to administer the estate ‘with as little sacrifice of value as is reasonable under the circumstances.’ ORS 114.265. As such a fiduciary, the personal representative has a duty, if a sale is in the best interests of the estate, to sell the estate assets for the best price that can reasonably be obtained in the market at that time. [Citations omitted.]”
In Maryland, the standard is that diligence and caution which a careful and prudent owner would observe in the sale of his own property.
In Feldman v. Feldman, 234 Md. 173, 176-7, 198 A.2d 257 (1964), the rule governing the duty of a fiduciary in selling property of a testator under a testamentary power of sale was stated as follows:
“ ‘The discretion [to sell property at a public or private sale] thus reposed in the trustees was not a mere arbitrary discretion, but a discretion coupled with a trust, and to be exercised solely for the benefit of the cestuis que trust. It was their duty, therefore, in making a sale of the property to act in a prudent and business-like manner, with a view to obtain as large a price as might, with due diligence and attention, be fairly and reasonably obtainable under the circumstances. In other words, to exercise that diligence and caution which a careful and prudent owner would observe in the sale of his own property. If the sale be made under circumstances of haste and imprudence, or if the trustees fail in reasonable diligence in inviting competition, or adopt an injudicious and disadvantageous mode of selling the property, a Court of Equity ought not to ratify the sale.000’ (Emphasis in the original.)” (Citing from Gould v. Chappell, 42 Md. 466, 470 [1875].)
The Feldman case had a fact situation similar to the case at bar. There the executor arranged a sale of property to his nephew for $2,500. The appellant, one of the beneficiaries named in the will, filed an exception to the proposed sale. There was filed as an exhibit a written offer to purchase the lot in question for $3,500. The appraised value of the property was $2,000.
The court noted the general rule that “if a fiduciary acting diligently and without fraud accepts an offer at private sale for the most that he is able to obtain for the property at the time, and reports that offer to the court, it will not be set aside merely because someone else is later willing to give more for the property.” 234 Md. at 177.
The court in Feldman went on to state that in the case before it, the executor did nothing other than to contact the two prospects mentioned by his brother. In addition, there was no evidence that the executor made any effort at all to obtain a higher price than that offered by his nephew. The cburt held that since the executor did not act in a prudent, diligent and businesslike manner, in order to obtain as large a price as might fairly be obtainable, the order appealed from was reversed and the case was remanded for an order setting aside the sale to the nephew.
We conclude that the evidence indicates that the executor did not act in a prudent, diligent and businesslike manner, in order to obtain the best price.
A portion of the court’s Order Regarding Confirmation of Sales is as follows:
“The Court hereby makes Findings of Fact as follows:
“1. The executors failed to compile an inventory within thirty (30) days of their appointment. The executors’ appointment occurred on September 6, 1977, and the inventory was filed on March 3, 1978. The executors likewise failed to file the appraisement until March 3, 1978, more than thirty (30) days after the confirmation of the appointment of the appraisers on January 27, 1978.
“2. March 1, 1978, Myrtle Steward and Ethyl Copeland, two of the opposing beneficiaries, went to Mr. Oberg’s office and inquired about the status of the estate, at which time they were given general information by Mr. Oberg, and were advised by him, amongst other things, that the executors were going to sell the land.
“3. March 2,1978, Ted Volen, a farmer in the vicinity of the estate land, went to Mr. Oberg’s office, told him ‘he was interested in the 80 which was appraised at $47,000.00, and that he would pay in the 50-thousands for it.’
“Mr. Volen’s advising Mr. Oberg that he would pay in the 50-thousands occurred prior to the signing of the Agreements (March 3,1978), containing terms of sale of real estate, same being the Agreements the Court is now being asked to approve.
“4. Respondents had all the real estate viewed by R. Stanley Parsons, a licensed broker, whose sworn testimony revealed he had been an appraiser and Manager of the Federal Land Bank Office in Manhattan, Kansas, Clay County, Kansas, having been in the Manhattan, Kansas, office territory for the past seventeen (17) years. Mr. Parsons’ summary report was introduced into evidence as Respondents’ Exhibit “B” and reflects appraisals in excess of the appraisers’ values.
“5. The sworn testimony of the following positive statements and the ability to carry out their offer to purchase said real estate was:
“TED VOLEN would purchase and pay for Tract “A”
(app. at $47,000.00)
$64,000.00
“GARY CASE would purchase and pay for Tract “B” (app. at $71,500.00)
$82,500.00
“FORREST STEWART would purchase and pay for Tract “C” (app. $73,500.00)
$83,000.00
“ARLEN CARPENTER would purchase and pay for Tract “D” (app. at $72,000.00)
$85,000.00
“M. W. GILMORE (agreed by parties) would purchase and pay for Tract “E” (app. at $46,000.00)
$52,000.00
“the total increase in sale price above the proposed sales the executors are asking the Court to approve, being the sum of $56,500.00, and the increase over the appraised values being the sum of $58,500.00.
“The evidence offered by the petitioners-executors which the Court adopts as its Findings of Fact can be summarized as follows:
“1. The named beneficiaries of the J. McKinley Chestnut will who are brothers and a sister of the deceased, namely James W. Chestnut, William B. Chestnut, Sr., Joseph B. Chestnut and Mary Rosetta Wynne, all are in complete agreement with the sales as proposed by the executors and urge a confirmation of the sales as sought by the executors.
“2. After the appointment of the executors the executors made only limited personal contact with prospective purchasers. Executor Bruce Chestnut contacted Myrtle Collette Steward and her husband who indicated to Bruce Chestnut they were not interested in the purchase of any of the tracts in question because of the price of cattle at the time.
“3. The executors determined that during the fall of 1977 the price of land in the area was in a slump and decided not to sell the land immediately. Further, at that time the executors were uncertain as to how they were to sell the land.
“4. The executors were of the opinion that the decedent would not be in favor of a public sale and determined that the payment of a substantial commission and expense could be effected by a private sale. The executors possess a general knowledge of values of land in the area and believe appraisal was fair market value subject to adjustments made by them when sales contracts [were] executed.
“5. The executors did negotiate with purchasers Russell James and Arthur Fowles and obtained as much or more than the appraised values for the tracts purchased by James and Fowles, as well as the tracts purchased by the executors. Pending a confirmation of the sale the executors entered into lease agreements to insure the optimum return on the land.
“6. The executors were personally uninformed as to the procedural requirements as to the filing of the Inventory and Appraisement and relied upon their attorney’s direction in that regard. The executors state that due to the extent of the estate involved herein the delay in filing the Inventory and Appraisement was due in part to that fact.
“It is the Judgment of the Court that the following Conclusions of Law are controlling herein:
“3. A fiduciary who proposes the purchase of property of an estate for himself and seeks an order of the Court confirming the proposed sale of said property pursuant to K.S.A. 59-1703 has the burden of showing that the proposed purchase of estate property by the fiduciary is for the highest and best price obtainable and is to be sold on terms most advantageous to the estate and all the beneficiaries thereof.
“While speculative evidence alone as to higher value and offers by interested parties should not preclude the Court from approving a fiduciary’s proposed purchase of estate property, competent evidence of the property having the capabilities of bringing a greater value when coupled with firm offers substantially in excess of the fiduciary’s proposed offer when coupled with a finding that only limited efforts were made by the fiduciary to find prospective purchasers precludes the Court from approving a sale to a fiduciary without further opportunity for prospective purchasers to submit bids.”
We get the definite implication by the above excerpts of the trial court’s order and particularly from item 3 under what the court calls its conclusions of law, that the court feels when a fiduciary purchases the property that he must obtain for it the “highest and best price obtainable and is to be sold on terms most advantageous to the estate and all the beneficiaries thereof.” We conclude the competent evidence referred to by the trial court which precluded the court from approving the sales to the fiduciary are applicable to all sales under a will such as we have here where the decedent directed that the property be sold for “the highest prices obtainable therefor, either at public or private sale.”
We have carefully studied the entire court order in this matter together with the transcript of the hearing giving rise to it. In accepting the findings of fact as stated by the trial court, we conclude that the court made several errors in applying the law to these facts. We note that the testimony of the brothers and sisters of the decedent as to what the decedent wanted, that he did not like public sales, that he wanted the executors to have first choice of the land, and so forth, were entirely irrelevant in this case and should not have been admitted into evidence.
“Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.” In re Estate of Wernet, 226 Kan. 97, Syl. ¶ 1, 596 P.2d 137 (1979).
The appellants objected at every crucial stage while this testimony was being admitted, and they have properly saved the matter for a determination by this court on appeal. The will in this case, and particularly item 2 thereof which is the only portion of the will relevant to these sales, is not ambiguous. Therefore, evidence that the decedent did not want a public sale is entirely irrelevant since the decedent in his will stated that same might be sold at public or private sale. The evidence which the trial court admitted to the effect that the testator wanted the executors to have first option to buy, is also irrelevant. The testator did not, by his will, prefer these executors. They were not named as beneficiaries in his will. They were not given an option to purchase in the will. There was thus no legal right whatever to prefer these executors in this matter. The court’s reasoning comes to light by a remark made by the court as follows:
“[Iff someone dies owning land and that family and particularly if it’s rural property, that family ordinarily does a number of things. First, they try to keep that land in the family by offering it to members of the family that are farming in and about that. Secondly, they offer it to the tenant and then they put it on the market for others to buy. . . .”
The will contains no language to support a finding that the family was to be preferred, that a tenant should be preferred, or for that matter, that anyone should be preferred when it came to purchasing this real property. If the testator had intended these persons to be preferred, he could have so indicated in his will. Instead, he directed the executors to sell for the highest and best prices obtainable.
The executors, according to the trial court’s finding, used only a minimum of effort to obtain the highest price in this case. To say that the executors used minimum effort is the best that can be said of their efforts. They contacted no one other than the purchasers who ended up with agreements to purchase this land, other than for their visit with Myrtle Steward about it.
The trial court uses good reasoning when it states that subsequent offers might always be received, and might in effect prolong the sale process unreasonably. However, here it should be noted that this was not a case of repeated later offers. Rather this was the first opportunity for people to make meaningful bids on this property. Thus, the findings of the trial court of various offers made totaling $56,500 more than the executors’ proposed sales, are most relevant to the legal conclusion of lack of diligence on the part of the testators.
It is obvious that the trial court found the executors’ original purchase prices in the deeds to themselves were suspect. The executors’ own testimony established that the reason they did not sell the property immediately was because there was a slump in the real estate market. Yet, it was at or near this appraised price that the properties were sold. Having found that the price offered by the executors in their contract was subject to question, the trial court was correct in ordering the executors to advertise for bids. However, when he authorized the executors to purchase those tracts of real property at a figure of only $1 in excess of the highest bids received, he created error in two respects. First, such an order (i.e., allowing the executors to upset the bid by bidding $1 more) would act as a deterrent to potential bidders, and second, it put the executors in a favored position as to potential purchasers of the property. This we view as an abuse of discretion.
The combination of the irregularities in this matter, that is, (1) failure to appraise within six months of sale; (2) the virtual absence of attempts to sell to bona fide purchasers; and (3) the upset bid procedure discouraging bids and favoring the executors, requires us to reverse the trial court in this case.
We conclude the first two reasons are sufficient to set aside the deeds to the former brother-in-law and to the neighbor of the executors, and that all three operate to invalidate the deeds to the executors themselves.
We conclude that this matter must be returned to the district court for proceedings to sell the real estate of decedent to the highest and best bidders under direction of the court.
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Meyer, J.:
This case involves an appeal from a jury’s verdict that James D. Martin (appellant) was guilty of the offense of driving while under the influence of intoxicating liquor, contrary to Topeka City Ordinance 26-1034. The verdict, given in district court, followed an earlier proceeding in the Topeka Municipal Court in which appellant was also found guilty of driving while under the influence of intoxicating liquor. Because of what he alleges were prejudicial errors in the district court’s instructions to the jury, the appellant has made a timely appeal to this court. The parties have agreed upon a statement of facts.
On voir dire, appellant’s counsel questioned prospective jurors by asking, without objection from the court or opposing counsel, if they understood the law does not prohibit a person from drinking intoxicating liquors and driving, but does prohibit driving by a person who has drunk intoxicants to the extent his ability to drive has been impaired or to the extent he is not able to drive as a reasonable prudent person would.
Appellant requested a jury instruction on the extent of intoxication needed to prove appellant’s guilt which would include a minimum standard, specifically the ability to drive in a careful and prudent manner. The request was refused.
At trial, Sgt. Schwerdt of the Topeka Police Department tes tified he administered a breath test to appellant which resulted in a reading of 0.23 percentage of alcohol content in appellant’s blood. On cross-examination, he stated such a percentage of alcohol content was by volume.
Over appellant’s objection, the jury was instructed on the statutory presumption raised when a person is found to have 0.10 percent of alcohol content in his blood by weight.
The issues are as follows:
1. Did the court err when it refused to use the requested instruction of defendant regarding definition of “intoxicated person?”
2. Did the court err by instructing on the statutory presumption of intoxication of 0.10 percent or more by weight of alcohol when evidence referred to percentage by volume?
Essentially, the following is appellant’s proposed instruction, and all but the italicized portion thereof was given by the court in its instruction:
“You are further instructed that the lato does not prohibit a person from driving a vehicle after taking intoxicating drinks. The law prohibits an intoxicated person from driving a motor vehicle. A person is an intoxicated person within the meaning of said law if his mental or physical condition is abnormal due to the influence of intoxicating liquor. An excitation of the passions, impairment of the judgment, derangement or impairment of the mental or physical functions and energy, due to the use of intoxicating liquor, would constitute intoxication; and if at the time of the alleged commission of the offense charged in a complaint the mental or physical condition of the person is so affected or influenced from the use of intoxicating liquor that he could not drive his automobile in a careful and prudent manner, then in such case he would be said to be operating a vehicle while under the influence of intoxicating liquor.”
Also, the court added the following sentence although it was not requested by appellant: “It is not necessary that such person be completely incapacitated.”
Appellant claims the instruction defining a person under the influence of intoxicating liquor fails to set a minimum objective standard for the jury to determine whether he was actually under the influence within the meaning of the statute. In reliance on State v. Sauvage, 201 Kan. 555, 441 P.2d 861 (1968), he requested an instruction on the minimum degree of impairment required, that is, “inability to drive in a careful and prudent manner.” He also argues that the instruction setting forth the statutory presumption of intoxication, K.S.A. 1978 Supp. 8-1005, is contrary to the evidence because the testimony referred to a percentage of alcohol “by volume,” and the instruction was given in terms of percentage of alcohol “by weight.”
Appellee argues that the inclusion of a reasonable prudent man standard would be an inaccurate statement of the law, contending that the statute only requires proof that the person was under the influence of intoxicating liquor, and that a specific degree of intoxication of a defendant is not necessary.
We shall first discuss the instruction given by the court in defining an “intoxicated person.” While it is true the statute does not define a “degree of intoxication,” it is obvious that the legislature had something more in mind than a mere determination that defendant’s faculties were impaired, however slight. This is shown by the legislature enacting K.S.A. 1978 Supp. 8-1005, which provides, in part, that if there was less than 0.10 percent by weight per volume of blood, defendant would be presumed not to be under the influence of intoxicating liquor. It is apparent the statute contemplates something more than the slightest of impairments. The difficulty with the instruction as given by the court in the instant case is that it sets no minimum standard. In State v. Sauvage, 201 Kan. at 556, the court cited the following as an approved instruction:
“A person is under the influence of intoxicating liquor when, as a result of the consumption of alcoholic beverages, he has lost control of his mental faculties and bodily functions to the extent that he is unable to operate his vehicle as a person exercising ordinary care would under like circumstances. It is not necessary that such person be completely incapacitated.”
It is clear that the Sauvage definition of actionable intoxication did set a minimum standard in the words “unable to operate his vehicle as a person exercising ordinary care would under like circumstances.” It is true, as appellee avers, that our Supreme Court has approved various instructions relative to the degree of intoxication necessary in order to be found guilty of driving while under the influence of intoxicating liquor; however, in all of them that have been approved by the Supreme Court, there has been some minimum standard which must be proved before defendant could be found guilty.
As we review the instruction complained of in the instant case, we find no minimum standard set out which would give the jury guidance as to a determination of the degree of intoxication required. We believe that the legislature intended the law to be that a person could be found guilty of driving while under the influence of intoxicating liquor whenever his mental or physical function was impaired by the consumption of alcohol to the extent that defendant was incapable of safely driving a vehicle. The definition as given by the court, bearing in mind that the court did not give that part of appellant’s proposed instruction which is italicized, would leave the jury “at sea” as to what degree of intoxication is necessary in order to support a conviction.
Admittedly, the statute only requires the State to show that defendant was under the influence of intoxicating liquor while operating the vehicle. State v. Hall, 1 Kan. App. 2d 730, Syl. ¶ 1, 573 P.2d 635 (1977); State v. Budden, 226 Kan. 150, Syl. ¶ 2, 595 P.2d 1138 (1979). As to these two cases, our Supreme Court in Budden makes the following statement at page 154:
“[T]he statement of the elements of the offense of driving while under the influence of intoxicating liquor found in State v. Hall, 1 Kan. App. 2d 730, Syl. ¶ 1, is approved.”
However, it should be noted that the approved elements as found in Hall at Syl. ¶ 1 are: (1) that the defendant operated a vehicle; (2) that the defendant was under the influence of intoxicating liquor while operating the vehicle; and (3) that the operation took place within the jurisdiction of the court.
Obviously, this is the law. However, it should be noted that Hall involved primarily the question of whether an instruction on lesser included offense should have been included. Neither Hall nor Budden speaks to the adequacy of an instruction defining “under the influence of intoxicating liquor.” These cases, thus, do not speak to the need for defining the degree of intoxication necessary to support an action of driving while under the influence of intoxicating liquor.
We conclude that the instruction given by the trial court in defining intoxication was prejudicial error in that it did not set out a specific minimum standard for the jury to consider, and that such error requires reversal.
Considering our finding as to appellant’s first issue, it is not necessary to go into the appellant’s complaint relative to an incorrect weight versus volume instruction. We do note, however, that the test, according to K.S.A. 1978 Supp. 8-1005(fc), is that the measurement is based upon weight (i.e., grams) of alcohol per unit volume (i.e., milliliters) of blood.
From what has been said above, it is necessary that the verdict in the court below be reversed with instruction that upon new trial a proper instruction be given which sets forth a specific minimum standard so that the jury will have a basis for its finding.
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Abbott, J.:
This is an appeal from a district court order construing a will to be joint, mutual and contractual. The court found that the will severed the joint tenancy feature of property that had been owned jointly by appellant, Ralph Ciochon, and his deceased wife, Elizabeth Ciochon, prior to its execution, and that upon the death of Elizabeth Ciochon all property passed to the remaindermen named in the will because Ralph Ciochon failed to timely offer the will for probate pursuant to K.S.A. 59-618, thereby forfeiting any interest which he otherwise would have been entitled to take under the will.
At the time of Elizabeth Ciochon’s death, all of the real and personal property owned by her other than her personal effects was held in joint tenancy with her husband, Ralph Ciochon. Although the record is not clear whether Ralph Ciochon owned any real or personal property in his own name, it appears that he did not. Both Ralph and Elizabeth had been previously married. Ralph has an adult son, Carroll R. Ciochon, by his previous marriage. Elizabeth had two children by her previous marriage — the appellee, Charles R. Baer, and his sister, Betty M. Hepp. Carroll R. Ciochon and Betty M. Hepp are not parties to this appeal. The three children are the named remaindermen who take under the will in equal shares, share and share alike.
The assets of the estate consisted of a 1965 Ford pickup (which has since been sold for $500), a 1972 Chevrolet Impala valued at $1,500, a checking account of $1,282.75, a savings account of $11,282.75, and the couple’s 80-acre farm home valued at $64,000. The farm was acquired in 1965 for $18,000, with Ralph and Elizabeth each contributing approximately one-half of the purchase price. Elizabeth did not work outside the home at any time during the marriage and, other than an inheritance of some undisclosed amount to Elizabeth and another inheritance to Ralph, the sole source of family income was Ralph’s salary and, later, their social security checks.
Approximately $8,000 to $10,000 out of Ralph’s salary was invested in farm improvements. The savings account originally was Ralph’s money. It had a balance of $5,543.23 at the time the will was drawn. The record reflects that the remainder came from Ralph’s salary and, presumably, accrued interest. The checking account was from Ralph’s salary and social security checks.
On September 23, 1969, Ralph and Elizabeth contacted a lawyer to have a will drawn, and one was drawn and executed that same day. None of the attorneys presently involved with this case had anything to do with drawing the will, which provided in pertinent part:
“JOINT AND MUTUAL WILL OF HUSBAND AND WIFE
“Know all men by these presents, that I, Ralph H. Ciochon, and I, Elizabeth A. Ciochon, of Route 1, Tonganoxie, Leavenworth County, Kansas, and each of us and both of us being of sound and disposing mind and memory and not under any restraint and realizing the uncertainty of life and the certainty of death, and wishing to direct how our property should be distributed on our respective deaths, do hereby make, publish and declare this to be our Last Will and Testament and hereby revoking any and all former wills by us or either of us heretofore made.
“1. It is the will and desire of each of us and both of us that our just debts and funeral expenses be paid as a charge against our respective estates.
“2. In consideration of us both signing this will, we both agree that the said will shall be binding upon both of us and our estates and not revokable [sic] without consent of both parties hereto, and it is the will and desire of each of us and the mutual will and desire of both of us, that on the death of either of us, the survivor shall be given, devised and bequeathed all of the property owned by us, and upon the death of said survivor, the remainder shall be given, devised and bequeathed to our three children, or their issue, namely: Carroll R. Ciochon of Kansas City, Kansas; Charles R. Baer of Route 7, Topeka, Kansas; and Betty M. Hepp of Topeka, Kansas, in equal shares, share and share alike.
“3. It is the will and desire of each of us and the mutual will and desire of both of us that the survivor of us be executor or executrix of this, our Last Will and Testament, and direct that the Court admitting this will to probate, grant letters testamentary to said survivor without bond . . . .”
Elizabeth Ciochon died on September 30, 1976. The record shows that Ralph Ciochon had possession of the original will at the time of her death. Betty M. Hepp had a copy of the will, and a copy of it had been shown to Charles R. Baer at some unspecified time prior to his mother’s death, although he denied ever having a copy.
Ralph, without contacting a lawyer or the court, decided it would not be necessary to probate the will until his death and he did not offer it for probate. It was nine and one-half months after Elizabeth’s death before Charles R. Baer told Ralph the will should be probated. Ralph immediately offered the will for probate and it was duly admitted without objection on August 26, 1977. Ralph was appointed and qualified as executor. On December 13, 1977, Charles R. Baer filed a petition for construction of the will and to restrain Ralph from certain acts. Highly summarized, the petition alleged that Ralph had knowingly withheld the will from probate and Baer was entitled to take under the will as an innocent beneficiary; that by his failure to file the will pursuant to K.S.A. 59-618, Ralph forfeited any interest in the estate and owed damages to the remaindermen; that the will destroyed the joint tenancy feature of both real and personal property owned by Ralph and Elizabeth, or either of them, and all property owned by them would pass under the will regardless of whether title was held individually or jointly. Further, the petitioner asked the court to determine that the will was a joint, mutual and contractual one, and to restrain Ralph both as an individual and as the executor from selling or disposing of any property, whether real or personal, owned by him individually or jointly with his deceased wife.
A hearing was conducted and the trial judge held the will to be a joint, mutual and contractual one that had the effect of severing the joint tenancy, and consequently the jointly held property would pass under the terms of the testamentary agreement. He further held that by reason of Ralph’s failure to offer the will for probate within the statutory time, he is barred from all rights under the will. The trial judge did not determine Ralph’s rights, if any, under K.S.A. 59-403, as no application for allowances was on file. In addition, the trial court held that even if Ralph would take under the will, he would have no power to dispose of the property passing to him under the will of Elizabeth A. Ciochon.
Ralph appeals and raises three arguments:
1. The will did not terminate the joint tenancy.
2. He is not barred by virtue of K.S.A. 59-618 from taking under the will. .
3. The will does not prevent him from disposing of any property passing to him by virtue of Elizabeth’s will.
Appellant first contends the will is not a joint, mutual and contractual one. The trial court found the will to be joint, mutual and contractual, and our examination of the record causes us to conclude that the trial court did not err in its finding. Whether a will is contractual in nature is a fact question. Our scope of review, however, is not limited to determining whether or not the trial court’s finding is supported by the evidence when that determination can be made from the will itself, as we are in as good a position to make that decision as is the trial court. Reznik v. McKee, Trustee, 216 Kan. 659, 673, 534 P.2d 243 (1975). If we were so limited, we are of the opinion the record contains substantial competent evidence to support that finding.
The Kansas Supreme Court in In re Estate of Chronister, 203 Kan. 366, 372, 454 P.2d 438 (1969), summarized rules to be used in determining whether a will is contractual, as follows:
“(1) Whether a will is contractual, be it a joint will or one of separate wills, is a question of fact which must be established by proof. (2) The mere fact that a will is joint does not in and of itself establish it to be the result of a pre-existing agreement. (3) A joint and mutual will and the terms and provisions thereof, may be considered sufficient as circumstantial evidence to establish that it was executed pursuant to an agreement. (4) Where a joint will shows on its face by the terms and provisions thereof that it is contractual in character, extrinsic evidence is not admissible for the purpose of proving otherwise. (5) Where there is ambiguity from the language used in a joint will as to whether or not it is based on a contract, extrinsic evidence is admissible to establish either the existence or nonexistence of a contract.” (Emphasis original.)
Without unduly prolonging this opinion with a needless discussion of the rules to be considered in determining whether a will is joint, mutual and contractual, we conclude the will conclusively shows on its face that it is a joint, mutual and contractual will and therefore extrinsic evidence is not admissible to prove otherwise. Reznik v. McKee, Trustee, 216 Kan. at 673-74; In re Estate of Chronister, 203 Kan. 366; Beall v. Hardie, 177 Kan. 353, 279 P.2d 276 (1955); In re Estate of Adkins, 161 Kan. 239, 167 P.2d 618 (1946); Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421 (1919).
What effect did the execution of the joint, mutual and contractual will have on the joint tenancy property? The trial court, relying on Berry v. Berry, 168 Kan. 253, 212 P.2d 283 (1949), concluded that by reason of the execution of the joint, mutual and contractual will, the survivorship feature of the joint tenancy was terminated; thus, the property passed under the testamentary agreement, not under the terms of the various joint tenancies.
Mr. Ciochon argues that Berry is a unique case holding that a joint tenancy can be severed by the parties either by clearly manifesting their intent to do so or by disposing of the jointly held property in a manner which is wholly inconsistent with the operation of the joint tenancy. He argues that Berry should be narrowly construed and is distinguishable from the factual situation we have before us.
We are cognizant that each case involving the construction of a will must be determined to a great extent from the distinct language used therein; therefore, other cases construing wills offer little aid in the decision of this case. General rules have been established for our guidance and they will be referred to or cited to in the course of this opinion. In construing a will, the primary consideration is to determine the intent of the testator or, when the will is joint, mutual and contractual, the intent of the testators. To do so, “the court must put itself as nearly as possible in the situation of the testator at the time he made his will and from a consideration of that situation and of all of the language used in the entire will, the court must determine the intention the testator had . . . In re Estate of Jones, 189 Kan. 34, 36, 366 P.2d 792 (1961).
One joint tenant cannot, without the consent of the other, dispose of his interest in the joint property by will and thereby defeat the right of survivorship. In re Estate of Laue, 225 Kan. 177, 185, 589 P.2d 558 (1979). However, a joint tenancy may be terminated by mutual agreement of the joint tenants if it appears from the contract that the parties clearly intended to do so. Carson, Executrix, v. Ellis, 186 Kan. 112, 348 P.2d 807 (1960); In re Estate of Biege, 183 Kan. 352, 327 P.2d 872 (1958); Berry v. Berry, 168 Kan. 253; In re Estate of Means, 4 Kan. App. 2d 169, 603 P.2d 654 (1979).
Can it be said the will before us expresses an intent by the couple to sever the joint tenancies and convert them to a tenancy in common? Should Mr. Ciochon be estopped from asserting his rights of survivorship in the joint tenancy contract property? We think not. The will expresses no clear intent to sever the joint tenancies, nor does it appear to us that the parties intended that result. The will does not specifically mention the joint tenancy property, and under the facts of this case we are unable to construe the testators’ intent to be that the parties intended to sever the survivorship feature of the joint tenancy property. We are fully aware that this joint, mutual and contractual will gives to the survivor “all of the property owned by us.” We do not, however, believe the parties expressed a clear intent to sever the joint tenancy features by using such language. Leaving the property in joint tenancy and contracting that the remainder be divided according to the will is not inconsistent with the will provisions. In our opinion, the parties intended the survivor to have the use and benefit of the property, as well as the right to dispose of it, subject only to the contract between them as to the ultimate disposition of the property remaining at the time of death of the survivor.
In Berry v. Berry, 168 Kan. at 258, the parties specifically contracted in the will “that upon the death of the first one of us the survivor shall take a life estate in all the property of the deceased,” and that upon the death of the survivor the property would descend to designated persons. The will referred to real and personal property. The Supreme Court determined that it was the intent of the parties to sever the joint tenancy and “that the survivor should take a life estate in all property however owned by the parties, with remainder over.”
It has been suggested that Berry can be distinguished from the case at bar because Berry specifically refers to a life estate. We do not believe that one factor can be used to distinguish Berry from the case at bar. The language used in this case effectively gives a life estate to the survivor in any property that passes by virtue of the will, and the fact that the explicit words are not used is of no legal import. We are still of the opinion, however, that Berry does not control the case before us. A court must consider the circumstances of the parties in determining their intent (In re Estate of Jones, 189 Kan. at 36), and when we consider the intent of the parties in this case, plus the fact a joint tenancy is not to be terminated unless the intent to do so is clearly shown, we believe a valid distinction exists between this case and Berry. In Berry, the Court determined that it had been the intent of the testators that the property accumulated by them during their marriage should be ultimately disposed of by one-half of it going to her children by a prior marriage and one-half of it to his children by a prior marriage, subject to a life estate in the surviving testator. The distinguishing feature between the cases, as we see it, is the fact that the will in Berry did not provide for all of the property owned by the survivor to pass under the joint, mutual and contractual will as it does here — there, it was only the property of the deceased that was to be subject to the joint, mutual and contractual will. The Supreme Court in Betry specifically noted at page 256 that if the joint tenancy were not terminated then the title to the real estate in question vested in the survivor and was not subject to the contractual provision of the will. Thus, in order to carry out the intent of the testators, it was determined that the testators intended to terminate the joint tenancy.
If the court in Berry had determined that the testators did not intend to sever the joint tenancy title, it would have defeated the testators’ intent that their respective children by prior marriages share equally in the property accumulated during the marriage and all of the real estate would have passed to the surviving joint tenant’s children. In this case, the intent of the parties as expressed in the will can be carried out without terminating the joint tenancy exactly as it could if the joint tenancy were to be destroyed. We will not construe a joint, mutual and contractual will to conclusively show that it was the intent of the testators to sever a joint tenancy when that intent is not clearly set forth and the true intent of the testators can be carried out just as effectively without severing the joint tenancy. All of the property held in joint tenancy here vested in Ralph Ciochon on the death of Elizabeth, subject to the contract.
The trial judge determined that Ralph Ciochon does not possess the power to sell or otherwise convey the property. We disagree. All of the property of the testators appears to have been held in joint tenancy right down to their checking account in which their social security checks were deposited and from which their current bills were paid. Should we adopt the trial judge’s construction, the survivor would be unable to use any part of the assets to pay current household and living expenses. The survivor would be limited to interest income from the funds. To us, the will expresses an intent that upon the death of the first of the testators, the survivor is to be able to dispose of any property remaining to provide for necessities, subject to the contract that the assets remaining upon the death of the survivor are devised and bequeathed to their issue as set forth in the joint, mutual and contractual will. We are not unmindful of the significance of the word “remainder.” Ordinarily, remainder refers to a future interest. We are convinced, however, that the parties here used the word “remainder” in the same sense as the word “remaining.”
In Sharpe v. Sharpe, 164 Kan. 484, 190 P.2d 344 (1948), the Court construed “remaining property” as used in the following provision:
“ ‘I give, devise and bequeath to my wife, Birdie [the plaintiff], all of my property, real, personal, or mixed, wherever the same may be situated and after her death any remaining property of my estate is to be divided equal between my children who are as follows: [naming them] . . ”
The Court held that the above provision created a life estate in the widow with power of disposition for necessities, stating:
“The use of the word ‘remaining’ by the testator clearly indicates, in our opinion, that the testator intended that the devisee of the real estate should have the power to dispose of such portion of the property as might be required during her lifetime. Otherwise no practical significance would attach to the use of the words ‘remaining property.’ ” 164 Kan. at 490 (emphasis added).
In In re Estate of Jones, 189 Kan. 34, the Court construed the following operative provision of a joint, mutual and contractual will:
“ ‘Second, at the death of either of the testators herein named, all property possessed by the deceased shall and is hereby bequeathed to the survivor, absolutely and without reservations, and at the death of the survivor, it is the will and wish of both testators herein that all property thus possessed shall then be divided equally between our three children or their heirs, as follows: Wilbur Sherbondy, David W. Jones, and Maxine E. Johnson.”
The Kansas Supreme Court reversed the trial court’s determination that the widow took fee simple title to their property upon her husband’s death, stating at pages 38-39:
“Following fundamental rules of English construction, the above use of two independent statements, joined by the co-ordinate conjunction and resulted in a compound sentence, and the use of the words thus possessed in the second independent statement gave Bessie the power of disposition so long as the interests of Maxine, David, and Wilbur in the remaining property left at Bessie’s death were not changed. In other words, the remaining property at Bessie’s death would pass to Maxine, David, and Wilbur share and share alike.
“Under the terms of the will before us, and the authorities discussed, no question remains but that this will is clear, definite, and unambiguous and we need, therefore, not go into other rules of construction to determine the intention of the testators. (In re Estate of Hauck, [170 Kan. 116, 223 P.2d 707]; Johnston v. Gibson, 184 Kan. 109, Syl. ¶ 3, 334 P.2d 348.) Bessie received a life estate with power of disposal for necessities and at her death the remaining property is to be divided among the three children of Charles and Bessie share and share alike, under the terms of their joint, mutual, and contractual will.”
Here, the trial court relied on In re Estate of Weidman, 181 Kan. 718, 719, 314 P.2d 327 (1957), where the Supreme Court held that a will granting a life estate, followed by a remainder to designated heirs, was without power of disposition when the operative provision of the will stated:
“ ‘Second: We give, devise and bequeath to our beloved brothers and sisters the balance of our property, real, personal and mixed of what nature where so ever the same may be at the time of our death.”
The Supreme Court in Weidman stated there was no necessity to state its reason for concluding there was no power of disposition and it did not review the facts it considered in arriving at its conclusion. We thus make no effort to distinguish between Weidman and Jones on the facts. We find the reasoning in the later case of Jones to be the more persuasive. We do note that a legal distinction exists. In Weidman, a life estate was created and therefore no power of disposition existed unless that power was granted either expressly or by implication. In re Estate of Lehner, 219 Kan. 100, 103, 547 P.2d 365 (1976). In the case at bar, fee simple title is vested in Ralph by virtue of the death of Elizabeth and, in the absence of a limitation, the power of disposition exists. In view of this opinion, it is obvious nothing will remain in Elizabeth Ciochon’s estate after the payment of expenses incurred to date.
Even if we were to determine that Ralph Ciochon is barred from taking under the joint, mutual and contractual will by virtue of K.S.A. 59-618, he is not precluded from taking that to which he is entitled by virtue of K.S.A. 59-403. In re Estate of Barnett, 207 Kan. 484, 487, 485 P.2d 1290 (1971). Thus, it is not necessary to determine whether Ralph Ciochon is barred from taking under Elizabeth Ciochon’s will. The contractual provisions of that will are, of course, enforceable as a contract by the persons who may enforce the terms of the contract.
In summary, we conclude that execution of the joint, mutual and contractual will did not sever the joint tenancy titles; that Ralph Ciochon, by virtue of his being the surviving joint tenant, took fee simple title to the real property held in joint tenancy and title to the personal property held in joint tenancy. The will, however, is effective as a contract that Ralph Ciochon shall not dispose of any property subject to the terms of the contract, except for necessities, and any assets remaining upon his death are to be devised and bequeathed to the testators’ issue as provided in the contract.
Reversed and remanded with directions to enter judgment in accordance with this opinion and to give consideration to closing the estate pursuant to K.S.A. 59-2287. | [
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Foth, C.J.:
The Sekan Electric Cooperative Association, Inc., is a non-profit corporation engaged in the distribution of electricity to some 3900 member-customers in southeast Kansas. In November, 1978, it filed an application with the Kansas Corporation Commission for a rate increase to produce an additional $248,379 in operating revenues. The Commission fixed a rate of return which would produce only an additional $18,751. Sekan has sought judicial review, contending that the Commission’s order (1) excluded a portion of its equity capital from its rate base; (2) improperly prevents it from recovering its capital costs; and (3) arbitrarily rejected its proposed rate structure.
In examining these contentions we must bear in mind the limitations on our scope of review, recently recapitulated in Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380-81, 595 P.2d 735, rev. denied 226 Kan. 792 (1979):
“K.S.A. 1978 Supp. 66-118d limits judicial review of an order by the commission to determining whether the order is ‘lawful’ or ‘reasonable.’ Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. ¶ 1, 544 P.2d 1396 (1976). A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 396-7, 565 P.2d 597 (1977). An order is ‘lawful’ if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. ¶ 1, 561 P.2d 779 (1977). An order is generally considered ‘reasonable’ if it is based on substantial competent evidence. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 2.
“The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. at 511. Since discretionary authority has been delegated to the commission, not to the courts, the power of review does not give the courts authority to substitute their judgment for that of the commission. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). The commission’s decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experience as statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 48-9, 386 P.2d 515 (1963). Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975); Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, Syl. ¶ 5, 527 P.2d 1065 (1974).”
I.
The Commission’s order fixed a rate of return, after operating expenses, of 3.43% on a total rate base, as adjusted, of $3,170,310. This assumed that, in line with Sekan’s past practice, none of the net proceeds would be used to repay capital previously contributed by member-customers through paying rates in excess of the cost of service. (Systematic repayment of some of these “capital credits” of members each year is called “capital credit rotation.”) The Commission also gave Sekan the option to demonstrate within sixty days that it intended to commence a capital credit rotation plan, in which case the rate of return would be increased to 4.81%. Sekan chose not to avail itself of this option, and the 3.43% rate went into effect.
The Commission’s findings on the rate issue were based on the testimony of economist Jack T. Blakley, and a rejection of testimony offered by Sekan. Its reasoning is demonstrated by the following excerpt from its order:
“Mr. Blakley derived his 4.81% recommended rate of return by using a methodology that considered a return on equity, recovery of interest on funded debt, and the need for an electric cooperative to achieve a satisfactory times interest earned ratio (TIER). Mr. Blakley calculated the return on equity from a formula that takes into account the period of rotating capital credits designed by the cooperative and an anticipated rate of growth in total capitalization. Mr. Blakley’s alternative rate of return, exclusive of an allowance for capital credit rotation, is 3.43% and represents the return Applicant needs to pay its interest obligations and provide a target TIER of approximately 2.25.
“The Commission finds that Applicant’s requested rates of return overstate the Company’s return requirements. Rate of return is supposed to provide for a return of equity and for cash to meet interest obligations. It is not designed to provide cash for repayment of debt principal or to offset the uncertain effect of inflation on operating and maintenance expenses. Mr. Glassman’s testimony regarding the 10.50% rate of return on equity being less than the return allowed a publicly-owned utility, is not relevant to this proceeding. Equity in a electric cooperative represents the sum of members’ mandatory payments in excess of all expenses, including interest expense.”
It may be seen that the Commission did not “exclude” part of Sekan’s equity capital. It simply adopted a rate to be applied to the entire rate base which allowed no “return” on equity, in the usual sense of corporate profits, at all. This result is justified by the fundamental difference between cooperatives and profit-making utilities. Cooperatives, unlike investor-owned utilities, do not secure equity by stock offerings in the marketplace, but by “overcharging” their customers and placing the surplus in their capital account. Hence a return large enough to pay dividends is not required to attract equity capital or to make a cooperative financially sound; it is enough that its rates safely cover its interest obligations to the federal lending agencies which furnish its long term debt capital (the “TIER” referred to by Blakley and in the order). The rate approved by the Commission meets this objective.
Sekan’s argument about excluding part of its rate base is aimed primarily at the Commission’s economist Blakley, who referred in his testimony to a “hypothetical equity ratio” of about 35%. It is conceded that Sekan’s actual equity is about 55%, with the remaining 45% of its capital being long term debt. In computing an overall rate of return it is common to compute one rate on equity and a different rate on debt, and then allow a weighted average. That was done by Mr. Blakley in his alternative computation, but employing a hypothetical ratio rather than Sekan’s actual ratio.
The authority of a commission to adopt a hypothetical equity ratio for rate of return purposes has been almost universally upheld in the courts. See E. Nichols, Ruling Principles of Utility Regulation, 267-273 (1955). The rationale was explained in E. Nichols and F. Welsh, Ruling Principles of Utility Regulation, Rate of Return Supplement A, 157 (1964):
“It must be kept in mind, of course, that the regulatory commission does not have the actual authority to revise a utility’s capital structure, per se, or to order the utility to change it into a different setup. That is a prerogative of management which cannot be superseded by the substitution of regulatory opinion — that is to say, how much debt should be incurred or common stock issued.
“It is solely in the area of assuming what effect a different or more desirable capital structure would have on the cost of capital, if it were adopted, that the regulatory judgment may function. As a practical matter, of course, such a hypothetical assumption of an ideal or optimum capital structure, as distinguished from that which actually exists, may have the same dollars-and-cents results, as far as the return allowance is concerned, as an actual change in the capital structure. In other words, the regulatory authority may say to the utility company, in effect: ‘We find that if the debt to equity ratio were different from what it actually is, your capital costs would be lower, so therefore we will consider the cost of capital just as if the capital structure were different, in making the return allowance.’
“This distinction between the function of management and that of the regulatory authority has been succinctly stated by the Maryland court of appeals in a recent decision [C. & P. Tel. Co. v. Public Service, 230 Md. 395, 187 A.2d 475 (1963)] wherein it was said that the owners and management of a utility have the right to determine what the debt-equity ratio should be, but they may not always make the ratepayers foot the bill resulting from the choice.”
Cf. also Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 81-82, 386 P.2d 515 (1963).
There is, thus, authority and justification for Blakley’s approach — which would have been applicable had Sekan chosen the offered option to rotate capital credits, but was not under the course chosen by the company.
Both Sekan and the Commission agree in principle that the repayment of capital credits contributed by the company’s early customers is desirable and the fair thing to do so as to equalize the capital contributed by current customers. Sekan points out, however, that to do so without simultaneously retaining an equal amount of capital from current ratepayers will reduce its equity ratio below its present 55%. It argues two reasons why it should not do this. First, it says that under its mortgages if its equity ratio falls below 40% it will be contractually limited in the amount of capital credits it may retire. That may be (although there is nothing in this record to support it), but the day that occurs appears to be some way down the road; there is no such current limitation. Second, it points to a 1964 Commission order which set out general guidelines for rural electric cooperatives. That order recognized the need for cooperatives to accumulate capital credits, and observed that in the utility industry in general “a utility is financially sound and can attract additional amounts of capital when needed if the ratio of indebtedness is approximately 50% of the total capitalization or not greatly in excess of 50% thereof. Therefore, it stands to reason, the effect on the debt ratio should be given consideration before any large amounts of patronage capital are distributed in cash.”
As we read the 1964 order it imposed no hard and fast rule, but was largely aimed at meeting the problem presented by cooperatives which were repaying capital credits while showing capital deficits. Even under the 1964 order Sekan could begin a program of repaying capital. Additionally, although not explicitly overruling or modifying the 1964 order, the present order apparently and implicitly reflects a change in administrative philosophy. We know of no rule which prevents such a change. See Warburton v. Warkentin, 185 Kan. 468, Syl. ¶ 4, 345 P.2d 992 (1959). We certainly cannot say it is unreasonable.
In sum, Sekan’s argument on this issue is aimed at the “building blocks” used to construct the ultimate rate allowed, rather than at the rate itself. The appropriate judicial response to that kind of argument was established in the leading case of Power Comm’n v. Hope Gas Co., 320 U.S. 591, 602, 88 L.Ed. 333, 64 S.Ct. 281 (1944):
“Under the statutory standard of ‘just and reasonable’ it is the result reached not the method employed which is controlling. [Citations omitted.] It is not theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end. The fact that the method employed to reach that result may contain infirmities is not then important.”
Under this test, ignoring the claimed infirmities in the Commission’s mathematical formulae, since the rate adopted meets the legitimate needs of the company, it is not subject to further judicial inquiry.
II.
Sekan’s second argument is that the rate allowed does not allow for the “capital costs of its business.” By this term it apparently means not only repayment of its long term debt but rotation of its members’ capital credits.
Capital credit rotation has been discussed above. Our analysis of Sekan’s cash flow figures reveals that if, as the Commission’s order quoted above suggests, projected payroll increases and anticipated inflationary effects on operating expenses are charged to operating expenses rather than “rate of return,” and if cash generated by depreciation entries and nonoperating revenues is added in, it will have adequate cash to refund some capital credits even under the lower rate it opted to accept. We note that capital credits increased over $100,000 per year in 1976 and 1977, and over $127,000 during the test year ending June 30, 1978.
As to repayment of debt, we find prominent authorities in the utility field making this observation:
“Some mention must be made of debt-retirement problems for utilities, since debt plays such a large part in utility financing. Although there is still some argument over whether long-term debt is temporary or permanent capital, it seems to be pretty well accepted that it usually plays the role of permanent capital. What this means is that, rather than retiring debt in any large quantities, utilities refinance it, issuing a new debt issue to replace an old one.” Garfield and Lovejoy, Public Utility Economics, 421 (1964).
The Commission rejected the idea that long term debt should be repaid out of rate of return, or “operating margin,” suggesting instead that it be either refinanced or paid from depreciation cash if that source is not to be used to rotate capital credits. Sekan offers no authority saying the Commission’s position is unreasonable, and we see nothing to compel such a conclusion on our part.
III.
For its rate schedule Sekan proposed to retain its declining block rate structure whereby the more electricity a customer uses the less he pays per kilowatt hour. The increased rates sought would be spread by increasing each block rate by an equal percentage. The Commission found Sekan’s evidence on this issue unpersuasive. Specifically, it found the testimony contradictory as to which costs — customer, fixed, operating, or energy — were to be recovered by each rate block. It therefore ordered Sekan to fix a customer or minimum bill charge, augmented by a flat kilowatt hour charge for all electricity used.
Sekan contends that the Commission cannot have found that it failed in its burden of proof as to the rate structure when Sekan’s witness provided the only evidence as to rate structure. A similar issue was considered in Central Maine, Etc. v. Public Utilities Com’n, 405 A.2d 153 (Me. 1979). There the Commission rejected the utility’s cost of service study as flawed and discarded declining block rates. In discussing the allocation of rate increases to the various classes of customers the court stated:
“We may initially conclude that the Commission staff’s failure to present a direct case on the proper allocation of the revenue increase among the rate classes does not constrict the Commission’s freedom of decision. Even the uncontradicted evidence of the utility may be weighed, critically examined, and rejected if deemed necessary.” 405 A.2d at 186.
See also PSC v. Continental Tel. Co., 94 Nev. 345, 348, 580 P.2d 467 (1978), where the conceded and accepted rule was said to be:
“The commission is not bound to accept as true unrebutted expert evidence if such evidence lacks credibility. See State v. Public Service Commission, [359 Mo. 109], 220 S.W.2d 61 [1949]; New Haven Water Co. v. Connecticut Public Utilities Comm’n, [30 Conn. Sup. 149], 305 A.2d 863 [1972].”
This follows the general rule of evidence, recognized in Kansas that:
“The trier of fact is the sole judge of the credibility of a witness. While it cannot arbitrarily or capriciously refuse to consider the testimony of any witness it is not obligated to accept and give effect to any evidence which, in its honest opinion, is unreliable, even if such evidence is uncontradicted.” Beard v. Montgomery Ward & Co., 215 Kan. 343, Syl. ¶ 1, 524 P.2d 1159 (1974).
The rate design adopted here accords with the Commission’s apparent policy of “flattening” schedules of rates to be charged for energy. See Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d at 389. This kind of policy decision is legislative in nature, to be exercised by the Commission under legislative mandate. It demands utmost deference from the judicial branch.
The Commission did make reference to the Public Utility Regulatory Policies Act, 16 U.S.C. § 2601 et seq., a federal enactment concededly not applicable to Sekan. We take the reference to be mere argument in support of the Commission’s policy against declining block rates, and not as an “application” of that Act to Sekan.
It is apparent that in light of national and state policy concerns with regard to energy conservation, the Commission weighed Sekan’s evidence as to declining block rates and found it wanting. Even though that evidence was not opposed by direct counter evidence, the Commission could properly find that Sekan had not met its burden of showing its proposal to be “just and reasonable.” Cf. Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 44, 602 P.2d 131 (1979), rev. denied 227 Kan__(1980).
The order of the Commission is affirmed. | [
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Abbott, J.:
This is an appeal by Eva M. Means, widow of the decedent, from an order construing the last will and testament of Claude Means, deceased, so as to include as assets of the estate $97,000 in certificates of deposit and passbook savings that were held jointly by Claude and Eva M. Means at the time Claude Means executed his will and it was consented to by Eva M. Means.
The scrivener of the will was Bert L. Woods, now deceased. The will in pertinent part reads:
“I, Claude Means, a resident of Anderson County, Kansas, being of lawful age, sound and disposing mind and memory, but mindful of the uncertainty of this life and desiring to make disposition of my property while in health and strength do make, publish and declare the following to be my Last Will and Testament hereby revoking any and all former wills or codicils thereto by me at any time heretofore made.
“1. Upon my death I direct that all just debts, funeral expenses, administrative expenses and taxes be fully paid.
“2. I hereby designate and appoint as Executor of this my Last Will and Testament, Bert L. Woods of Garnett, Kansas, and direct that he be permitted to qualify and serve without bond and that he have full power and authority to sell, transfer, and convey both real and personal property without court order or court direction.
“(a) By the terms of this Will I am creating a trust and I direct that the said Executor continue as Trustee after final settlement of said estate to look after, manage, and control the assets of my estate as herein provided.
“3.1 give, devise and bequeath to my wife, Eva M. Means, a one-half part of my estate without restriction, limitation, or reservation and to be distributed to her as by law provided, providing she survives me.
“(a) In addition to such one-half part, I direct that she receive the household goods, automobile and such property as shall be exempt under the laws of the State of Kansas and I direct that the amount of funds to be placed in trust will not exceed the marital deduction under the provisions of .the United States Revenue Code in computing the Federal Estate taxes on my estate and the trust herein established shall be known as “Marital Trust” and shall be held and administered by the Trustee for the benefit for my wife with the powers and duties and on the terms hereinafter set out.
“4. The remaining one-half part of my estate shall be held in trust and not distributed to any devisee until after the death of my wife, Eva M. Means, and upon her death I direct that such remaining funds be distributed in the following manner, to-wit:
. . . . [The individual bequests with a potential value of $120,000 are omitted.]
“5. In event my said wife, Eva M. Means, does not survive me then distribution of my estate shall be made to the remaining devisees as herein directed without unnecessary delay and upon final settlement and distribution as by law provided.
“6. All remaining real and personal property to be sold for cash upon the death of my wife and after expenses are paid, whatever remains is hereby devised and bequeathed, share and share alike, to Marjorie K. Means; the Anderson County Hospital, Garnett, Kansas; and Eula Cudney. In event any devisee should not survive me or my wife, such bequest shall revert to my estate and become a part of the residue, except the bequest to Eula Cudney, Margaret Katzer, Esther Ambler or Daisy Grimes. In payment of taxes herein the Executor is not directed to pay inheritance taxes from my estate assets, but each respective devisee shall pay his or her own inheritance taxes.
“(a) In event Eula Cudney should not be living at the time of the death of my wife, then that share bequeathed to her shall pass to Marjorie K. Means, along with the other funds devised and bequeathed to her.
“7. In event the assets of my estate should not be sufficient to cover all of the bequests made herein in full, after payment of debts, costs, administrative expenses, and taxes, then the remaining assets shall be pro-rated in proportion to the amount devised to each respective devisee.
“8. Providing I precede my wife, Eva M. Means, in death, then the trust portion of the assets shall be held in trust for the exclusive use and benefit of the said Eva M. Means and my trustee is authorized and directed to pay to her from the income thereof sufficient funds for her keep, support, maintenance, and medical expenses.
“9. The trustee herein shall have full power to look after, manage, and control the assets of said trust with power to sell and convey real and personal property at either public or private sale, to pay all costs and administrative expenses necessary in the management of said trust; to pay taxes; to collect funds and profits due; to reinvest funds in said trust assets as he shall deem proper and to the best interest of my said estate.
. . . . [Terms of the trust are omitted. It appears the trustee has no right to invade the corpus for any reason during the lifetime of Eva M. Means.]
“IN WITNESS WHEREOF, I have hereunto set my hand to this my Last Will and Testament, at Garnett, Kansas, this 8th day of April, A.D., 1975.”
[Signature and witness clause omitted.]
The consent, excluding the signature and witness clause, reads:
“I, Eva M. Means, being the wife of Claude Means, state that all my rights under Kansas law have been explained to me and I hereby consent to the terms and conditions of the above and foregoing Will of Claude Means and hereby ratify and confirm said Will in every respect.
“I further state that I have on this date executed a Last Will and Testament wherein and whereby all of my assets are devised and bequeathed to Claude Means, if he survives me, so that all property owned by us jointly and severally can be disposed of in the manner provided for in the Last Will and Testament of the said Claude Means, and in said Will I further directed that upon my death all property remaining in said estate, that is all property remaining in my hands including trust assets are hereby transferred and set over to the trustee under the Will of my husband, Claude Means to be distributed in the manner provided for in the above and foregoing Will and all property including trust assets and my personal property and real estate as may be owned by me shall be transferred and will merge with said trust to be distributed as provided for in the Will of my husband.
“Witness my hand this 8th day of April, A.D., 1975.”
On the same date, although before different witnesses, Eva M. Means executed her own will which, excluding signature and witness clause, reads as follows:
“I, Eva M. Means, the wife of Claude Means, do on this date make, publish and declare the following to be my Last Will and Testament hereby revoking any and all former wills by me at any time heretofore made.
“1. Upon my death I direct that all just debts and funeral expenses together with costs, taxes, and administrative expenses be fully paid.
“2.1 designate and appoint as Executor of this my Last Will and Testament Bert L. Woods of Garnett, Kansas, and direct that he be permitted to qualify and serve without bond and that he have full power and authority to sell, transfer and convey both real and personal property without court order or court direction.
“3. In event my husband, Claude Means, survives me, then I give, devise and bequeath all my property, after payment of costs, debts, taxes and expenses to the said Claude Means without restriction or reservation.
“4. In event my husband precedes me in death and is not living at the time of my death, then and in that event I give, devise and bequeath all remaining property to the Trustee appointed in the Last Will and Testament of Claude Means bearing date of April 8, 1975 and direct that said Trustee distribute all property, both real and personal to the remaining devisees mentioned in his Will and that my assets shall merge with the trust assets and all be distributed as one estate and as one unit.
“5. It being my intention that all the property owned by me in my own right, both real and personal, be distributed in a like manner and in the same proportion as provided in the Will of my husband, Claude Means.
“IN WITNESS WHEREOF, I have hereunto set my hand to this my Last Will and Testament at Garnett, Kansas, this 8th day of April, A.D., 1975.”
Mr. Means died on April 15,1976, and the will with the written consent thereto was subsequently proved and admitted to probate. Ona Mae Hunt qualified as executrix on May 21, 1976, and at the same time the widow, Eva M. Means, filed her election to take under the will.
On December 29, 1976, Ona Mae Hunt filed a petition for final settlement. A written defense thereto was filed by Marjorie K. Means, daughter of Claude Means and stepdaughter of Eva M. Means, and among other allegations she alleged that the estate tax returns revealed $107,000 in pérsonal property not inventoried in the estate. The case was then transferred from the magistrate district judge to a district judge. Eva M. Means answered, stating that the $107,000 was composed of certificates of deposit and savings accounts held in joint tenancy with the right of survivor-ship. The record before us establishes that $92,000 was held in joint tenancy and $15,000 was held as tenants in common.
The jointly held property was not inventoried in the estate, but was reported for inheritance and estate tax purposes as joint tenancy property passing to Eva M. Means. Eva M. Means further denied that her consent was a contract. Excluding the jointly held property, the estate was appraised at $100,443.86.
A pretrial conference was held and contentions by Marjorie K. Means concerning the jointly held property were:
“(a) That the execution of the consent by Eva Means to the decedent’s Last Will and Testament terminated the joint tenancy by which the certificates of deposit, savings accounts, and other written evidence of indebtedness jointly owned by the decedent and Eva Means and that this property is to be treated as part of the estate of the decedent and is subject to the trust created by decedent’s Will.
“(b) That the writing designated as1 Consent to the Will contains the written provisions whereby Eva Means agreed in writing that the property owned by her and the decedent jointly and severally was to be administered in the decedent’s estate and distribution of the same made and administered as a part of the decedent’s estate. That said writing in the form of a consent to the decedent’s Will constituted an agreement and contract by which Eva Means is bound and is not entitled to own or hold the jointly owned personal property separately and apart from the estate and that said writing brings the jointly owned property within the trust provisions of the decedent’s Will.”
Marjorie K. Means neither relies on the will as being joint, mutual, reciprocal and contractual, nor contends that it is so; the trial judge did not find it to be, and that issue is not before us.
The trial court determined that a $10,000 certificate issued in joint tenancy on March 3, 1976 (after the will was executed), passed to Eva M. Means as the surviving joint tenant. None of the parties to this appeal question that decision. They do, however, question the decision as to the remaining $97,000. The trial judge determined that $82,000 of that figure was held in joint tenancy by the decedent and Eva M. Means on April 8, 1975, the date of the execution of the will and consent. The remaining $15,000 savings deposit was determined to be held as tenants in common by Claude Means or Eva M. Means. The trial judge then determined that the joint tenancy ownership of the personal property was terminated on April 8, 1975, by the execution of the will and the spouse’s consent thereto. The trial judge reasoned:
“The widow’s contention that In re: Rooney Estate [181 Kan. 1029] applies only if the jointly held property is the subject of a specific bequest is not well taken. See, for example, Brooks v. Olson, 170 Kan. 138. Surely the only real test is one of identifying that jointly held property which is the subject of an effort or mutual agreement to terminate the survivorship aspects of the holding. Each joint tenant while living has a vested identical interest. In re Estate of Shields, 1 KA 2d 688. While one joint tenant may not unilaterally terminate the interest of the other, under the general rule a joint tenancy may be terminated by a contract or by mutual agreement among the tenants. Wilcoxen v. U.S., 310 F. Supp. 1006 (D. Kansas). In the matter of the Estate of Walter L. Laue, deceased, 225 Kan. 177. (Syl. 3)
“There is little question that both decedent and widow intended the jointly held property in existence on the date the will was executed would become a part of and pass under the decedent’s will. Of note is the fact the efforts to achieve a full federal estate tax marital deduction and the benefits accruing therefrom were then and are now meaningless if the will and consent did not terminate the joint tenancy vesting. To pass to the trust created by the will only the farm as trust corpus, the personal property inventoried being insufficient to cover expenses of administration, leaves grave doubt that any of decedent’s bequests could have been paid in full upon Mrs. Means’ death. Notable also is that the bequests go to her relatives as well as to his upon termination of the trust.
“Deciding the matters above mentioned was deferred pending the decision in In re: Laue Estate, supra. In respect to that decision, Mrs. Means relied herein on the use by decedent of the expressions ‘all my interest’ and ‘all the rest and remainder of my property’, and in particular the pronoun ‘my’ as reaching only property solely owned by decedent at his death. Construing the will and the consent together from the four corners of the document the word ‘my’ must give way to the expression ‘all property owned by us jointly or severally’ which is employed by Mrs. Means. Her present position is completely contra to the clear meaning of her executed consent.”
The widow, Eva M. Means, appeals.
Marjorie K. Means contends simply that Brooks v. Olson, 170 Kan. 138, 223 P.2d 721 (1950), In re Estate of Rooney, 181 Kan. 1029, 317 P.2d 416 (1957), and In re Estate of Laue, 225 Kan. 177, 589 P.2d 558 (1979), are conclusive that the will and consent terminated the survivorship feature of joint ownership in the savings accounts and certificates of deposit owned by the decedent and his spouse at the time of the execution of the decedent’s will and the spouse’s consent. Counsel for Marjorie K. Means adopts the position that Rooney does not require the property to be specifically described, but does require it to be described with sufficient clarity to be identifiable to the person consenting and thus binding on that person.
At the outset we are puzzled by the inconsistencies in the decision handed down by the trial court if our interpretation of the position taken by both the trial court and Marjorie K. Means is correct.
The will of Claude Means refers only to “my property.” If the consent is severed from the will, there is absolutely no possibility of construing the will to refer to any property or interest in property owned by Eva M. Means. If the property in question passes by virtue of the will of Claude Means, it necessarily must do so as a result of language found in the consent. Does the consent amount to a contract on the part of Eva M. Means to terminate the joint tenancy ownership? We think not. The first paragraph of her consent to the will is clearly her consent to take pursuant to his will. The second paragraph appears to us to be a mere acknowledgment that she is drawing a will and of the manner in which she is disposing of her property. She specifically refers to “all property owned by us jointly and severally” and includes “all property including trust assets and my personal property and real estate as may be owned by me.” Thus, it appears to us that if the trial court is correct, all property of Eva M. Means would pass under the will of Claude Means. No effort was made to bring in assets that were owned solely by Eva M. Means at the time the will and consent were executed, yet the trial court did include a $15,000 savings deposit that was held by the decedent and Eva M. Means as tenants in common when the will and consent were signed, thus bringing into Claude Means’ estate $7,500 of Eva M. Means’ property.
Rooney leaves many questions unanswered if the trial judge’s interpretation is correct. For example, where is title vested if the joint tenancy is terminated when the will and consent are executed? In the absence of some other agreement, the joint tenancy property would become tenancy in common property and owned one-half by Claude Means and one-half by his wife, Eva M. Means. Thus, if the trial judge is correct that the joint tenancy was severed at the time the will and consent were executed, one-half of the entire $97,000 was separately owned by Eva M. Means when Claude Means died. To be consistent under the ruling by the trial judge, Eva M. Means would have lost complete control over all of her property, including that which she independently owned at the time the will and consent were executed.
We have no difficulty concluding that neither Claude nor Eva Means intended that result. This is particularly so when Eva M. Means’ will is examined, for if it was her intent that all of her property be placed in trust by reason of her consent, there would be no reason for her to make a will. Title to jointly held property may not be terminated and title held in abeyance until one of the parties dies.
Perhaps the basis for the decision in Rooney was not that the execution of the consent amounted to an agreement to terminate the joint tenancy effective with its execution, but rather as suggested by Justice Prager in In re Estate of Laue, 225 Kan. at 185, that “[t]he basis of the decision in Rooney was that the wife, as surviving joint tenant, having given an unqualified general consent to her husband’s will in which he specifically devised her real estate, was bound by her election and was estopped to deny the right of her husband to devise the jointly held real estate as his own property.” (Emphasis supplied.)
This case was presented to the trial court on written and documentary evidence. Since the trial court did not hear evidence and thus have an opportunity to evaluate the credibility of witnesses, this Court has as good an opportunity to examine and consider the evidence as did the trial court and determine de novo what the facts establish. American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, Syl. ¶ 4, 545 P.2d 399 (1976). Although a joint tenancy may be converted into a tenancy in common by one of the parties transferring his or her interest to a third party, that option was not used in this case. Another method is by the mutual consent of the parties, which in this case must be found in the terms and language of the will and consent. Berry v. Berry, 168 Kan. 253, 257, 212 P.2d 283 (1949).
The trial judge, relying on Brooks v. Olson, 170 Kan. 138, rejected the argument that Rooney applies only if the jointly held property is the subject of a specific bequest in the decedent’s will. That reliance, in our opinion, was not justified. Brooks was a creditor of Olson and levied on land to which he claimed Olson had an interest by virtue of an inheritance from his mother. A demurrer was sustained to Brooks’ evidence and the Supreme Court affirmed. Olson’s father was deceased and his mother had remarried. At the time she consented to the will of her second husband, she owned an undivided one-half interest in 240 acres as a cotenant with him. Her second husband died and his estate was probated. She had consented to his will, which specifically described the 240 acres. His will was construed to give Olson’s mother a life estate in the 240 acres with the remainder to go to the children of her second husband. That judgment was final when she died. Brooks claimed Olson, as his mother’s heir, owned a one-fourth interest in the property. The Court held that:
“Where a testator devises property the title to which is held by his wife and she gives her written consent to such testamentary disposition of it, the wife thereby in effect renounces her right of ownership in the devised property and bars all persons whose rights thereto must be claimed under and through her.” (Syl. )
The property was specifically described in the will, as was the real estate in Rooney. Here, no provision of either the will or the consent to the will of Claude Means specifically mentions the property in question, nor do they indicate or even suggest that the joint tenancy bank accounts were to be tied up or restricted in any way if Eva M. Means survived Claude Means. The second paragraph of the consent does not purport to agree to transfer any ownership rights until her death. A joint tenancy can be severed only by clear intent. In re Estate of Biege, 183 Kan. 352, 327 P.2d 872 (1958).
From our examination of the record we cannot say that Eva M. Means is estopped to assert her rights of survivorship in the personal property held in joint tenancy, nor do the will and consent amount to a contract whereby the parties agreed to terminate their right of survivorship.
The judgment is reversed as to the jointly owned property and as to $7,500 of the Topeka Savings Association savings deposit certificate No. 00406 dated February 18, 1970, issued to Claude Means or Eva M. Means. Judgment is affirmed as to the remaining $7,500 of that certificate. | [
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Abbott, J.:
This is an appeal by Yvonne E. Burch from an order surcharging A. Glenn Sowders, Jr., as trustee, the amount of $8,207.19 and granting to Sowders a trustee fee in the amount of $5,000.
The surcharge arises out of Sowders’ admitted failure to invest trust assets that came into his possession as a trustee of the Howard M. Burch Trust No. 1. Sowders suggested to the court that a surcharge of 5 percent simple interest on $50,000 from November 24, 1974, to May 22, 1977, be imposed on him, and agreed that by using those figures his failure to invest the trust assets resulted in a loss of $8,207.19 in interest to the trust. The court surcharged that sum. Mrs. Burch, Howard Burch’s wife, takes the position that the award of $5,000 to Sowders as a trustee fee is excessive and unreasonable under the circumstances; that the trial court abused its discretion in awarding any trustee fee in view of Sowders’ failure to invest the assets of the trust.
There are three trustees. Two of the trustees, C. B. Dodge, Jr., and Middleton S. Carroll, are not parties to this action. They filed a waiver of trustee fees and consented that any fees due the trustees be paid to Sowders. The record indicates they did not participate in the trust and did not keep themselves informed concerning the trust. No attempt was made to surcharge them and no further reference will be made to them in this opinion.
The trial court’s findings of fact and conclusions of law are inadequate to disclose the controlling facts or the basis of the court’s findings, and thus meaningful appellate review is precluded. This is brought on in part by the fact that the parties apparently presented no evidence per se. They filed pleadings, presented oral argument (no record was made) and filed briefs in which the parties put forth their factual contentions. The contentions are not in total agreement and Sowders himself appears to have taken at least two different positions, that prior to November of 1974 he was to invest all monies on hand except $7,500 and subsequently that an agreement was made to invest only the amount that had previously been invested in treasury bills. In either event, Sowders’ suggestion to the trial judge concerning the amount of a surcharge is not consistent with what he alleges the agreement to be.
In order to understand our dilemma and the position of the parties, it is necessary to review the receipts and disbursements of the trust fund. The final accounting was not contested other than to contend additional interest was due, and it shows the first receipt to be $10,081.79 on March 1, 1972. No further funds were received for over two years, then a bowling alley was sold and $61,322.29 was received by the trustee on May 20, 1974. Mrs. Burch argues that the trustee should have invested the $10,081.79 received on March 1, 1972, in an interest-bearing account. Sowders contends he was not sure the money, which came from a VA insurance policy, belonged to the trust until a court order was filed on March 25, 1974. We note the policy was listed as a trust asset in the trust agreement. We further note Sowders made disbursements of over $5,000 from the insurance money to pay trust obligations. Over $4,000 of that sum was paid to the attorneys for the trustee pursuant to a court order, and the attorneys now argue that the trustee could not invest the funds because he was not sure the funds belonged to the estate. Their present position seems somewhat inconsistent with the payment of expenses from the insurance fund.
The court entered an order on March 25, 1974, when the bowling alley was sold, that the trust money was to be invested pursuant to agreement between the trustee and Mrs. Burch, or if they were unable to agree, then pursuant to court order. Other litigation was in progress and Sowders alleges the parties agreed to and did invest $48,872.08 in treasury bills on May 20, 1974. Mrs. Burch does not deny this agreement. Disbursements were made out of the estate on May 20, 1974, reducing the uninvested balance in the trustee account after the treasury bills were purchased to $10,216.58. Sowders claimed in his first brief that the parties agreed to leave $7,500 in immediately available funds to pay necessary and immediate expenses. Mrs. Burch does not deny this, but claims a day-in, day-out passbook account still would have made the funds immediately available. During July of 1974, an additional $25,299.01 was received by the estate. Interest of $997.43 was received on the treasury bills on August 22, 1974, and an additional $1,127.92 interest was received on November 21, 1974. By November 21, 1974, some $4,123.62 had been disbursed, leaving a balance of $33,517.32 in uninvested funds, some $26,000 more than the sum Sowders claims Mrs. Burch agreed not to invest. The money from the treasury bills came back into the trust account and a total of $82,389.40 was then uninvested. The parties apparently made some agreement in November of 1974 concerning the investment of the funds. Counsel for Mrs. Burch admits to a discussion about investing “the funds” in a day-to-day, interest-bearing savings account. Sowders alleges the agreement was to invest the treasury bill money in a day-in, day-out savings account.
There were no receipts in 1975, and after disbursements, $75,701.97 remained on hand to start 1976. The balance was substantially reduced to $48,748.81 in January 1976, and at the start of 1977 it stood at $50,124.27; there were no receipts or disbursements during 1977. In Sowders’ suggested surcharge, which appears to have been adopted in toto by the trial judge, interest was computed to May 22, 1977. Sowders’ accounting shows interest income of $587 as of the last statement from the Plaza Bank & Trust Company dated May 31, 1978, a figure far less than would have been produced had the funds available from May 1977 through May 1978 been invested at 5 percent. Possibly some legitimate reason exists that will be disclosed by adequate trial court findings.
The trial judge’s only finding concerning the surcharge is:
“That trustee A. Glenn Sowders, Jr., shall be surcharged the sum of Eight Thousand Two Hundred Seven and 19/100 Dollars ($8,207.19), for back due interest which should have been earned by the trust funds and he shall pay forthwith into the trust corpus the sum of Eight Thousand Two Hundred Seven and 19/100 Dollars ($8,207.19).”
We are unable to ascertain from the single finding the dates between which the trial court determined the funds should have been invested, or the amount that should have been invested at any given time; or whether the parties made an agreement about how the funds should be invested and, if so, the nature and extent of that agreement, or any changes thereto. Sowders admits to, and the record conclusively shows, mismanagement of the trust funds, but none of the parties dispute the cash balances on hand.
We recognize that the Supreme Court in Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 369, 598 P.2d 188 (1979), appears to have held that a litigant must object to inadequate findings and conclusions at the trial level, which gives the trial court an opportunity to correct them; otherwise, an appellate court may presume the trial court found all of the facts necessary to support the judgment. This appears to be a good rule, as it allows a trial court an opportunity to correct a mistake by granting a new trial; and in the event a mistake was not made, the trial court speeds up the judicial process by supplying additional findings and conclusions of law so that appellate review can be had without the delay of remanding, which results in unnecessary expense to the litigants and wastes judicial time. However, findings are also for the benefit of the appellate courts, as the Supreme Court pointed out in Henrickson v. Drotts, 219 Kan. 435, 441, 548 P.2d 465 (1976), where it stated:
“The requirements of K.S.A. 60-252 and Rule No. 116 [now Rule No. 165, 225 Kan. lxxii] of this court are for the benefit of this court in facilitating appellate review. Waiver of such requirements is not within the rights of the parties or the authority of the court below.”
The record in this case is not consistent with any findings we could presume the trial court made, and thus in the absence of adequate findings of fact and conclusions of law, we vacate the judgment insofar as it surcharges the trustee and remand the case for new findings. Mies v. Mies, 217 Kan. 269, 535 P.2d 432 (1975); Martin v. Hinnen, 3 Kan. App. 2d 106, 590 P.2d 589 (1979). For the trial court’s guidance, we give a brief analysis of our view of the matter.
The concept of surcharge was recently explained by the Kansas Supreme Court in Jennings v. Murdock, 220 Kan. 182, Syl. ¶ 14, 553 P.2d 846 (1976), as follows: “Surcharge is a remedy designed to make the trust estate whole, primarily where losses have been incurred through the negligence or bad faith of the trustee.” Mrs. Burch contends that the proper measure of damages to make the trust whole should be either $12,395.73 (5 percent per annum interest on the assets of the trust from March 1, 1972, through September 25, 1978) or $14,287.90 (6 percent per annum interest on the assets of the trust). Basically, plaintiff’s position is that 5 percent per annum interest income on the trust corpus accumulated over the entire life of the trust is the minimum surcharge to which she is entitled and that it really should have earned income over the entire period based on the legal rate of return of 6 percent per annum. Plaintiff cites K.S.A. 16-201 as authority for the proposition that interest should be paid at the legal rate of 6 percent per annum. Plaintiff also relies on foreign authorities dealing with improper or imprudent sales of assets that hold the aggrieved beneficiaries are entitled to interest at the legal rate of return. Annot., 58 A.L.R.2d 674. We are of the opinion that the rate of interest to be surcharged is discretionary with the court. It is stated in 90 C.J.S., Trusts 342:
“The rate of interest to be charged a trustee is determined by the circumstances of the particular case, and is in the discretion of the court.
“Where a trustee is liable for the payment of interest, there are no particular rates applicable to different classes of cases, but the rate proper to be exacted is determined according to the facts and circumstances of each particular case, and is wholly within the discretion or judgment of the court, which discretion must be exercised equitably in the light of the character of the breach of trust and the degree of fault of the trustee under all the circumstances.”
Restatement (Second) of Trusts § 207 (1959) states:
“(1) Where the trustee commits a breach of trust and thereby incurs a liability for a certain amount of money with interest thereon, he is chargeable with interest at the legal rate or such other rate as the court in its sound discretion may determine, but in any event he is chargeable with interest actually received by him or which he should have received.”
The burden of proving an abuse of this discretion is on the plaintiff, and this Court will not reverse the trial court’s decision unless it can be said that reasonable persons could not differ as to the impropriety of the action taken by the court. McColm v. Stegman, 3 Kan. App. 2d 416, Syl. ¶ 2, 596 P.2d 167 (1979). Mrs. Burch is in a poor position to argue abuse of discretion concerning the rate of interest, having set forth in her brief to the trial court that “[t]he plaintiff suggests that it would have been reasonable to place the trust fund in a day-in, day-out passbook savings account at an interest rate of five percent (5%), which has been the prevailing rate over the past several years.” Having invited the court to use 5 percent as the applicable interest rate, a litigant is now precluded from claiming error by reason of the trial judge having complied with the suggestion. Grimm, v. Pallesen, 215 Kan. 660, 666, 527 P.2d 978 (1974); State v. Gross, 221 Kan. 98, 100, 558 P.2d 665 (1976).
In any event, the general rule for the rate of interest to be surcharged is set forth in Restatement (Second) of Trusts § 207 (1959) as follows:
“Ordinarily if a breach of trust consists only in the failure of the trustee to invest trust money, or in the failure to sell trust property and to invest the proceeds, the trustee is chargeable with interest at the current rate of return on trust investments and not with interest at the legal rate.”
In our view, K.S.A. 16-201 does not dictate a contrary result, as it merely defines the legal rate of interest to be applied in debtor-creditor situations where rio other rate of interest is agreed upon. It does not by its terms apply to the investment duties of a fiduciary, as that duty is governed by K.S.A. 1979 Supp. 17-5004.
Sowders’ proposal to the trial court is based on simple interest and does not take into account any compounding effect. If the trial court finds that the parties agreed to invest only a set amount of the funds on hand pursuant to the court order, then the court must determine whether there was an agreement to withdraw the interest as it was paid from the interest-bearing account rather than to allow it to compound. In the absence of an express agreement, a trustee’s duty under K.S.A. 1979 Supp. 17-5004 would include the investment of interest income, and the estate would not be made whole unless the interest were compounded.
The amount of compensation due the trustee and whether or not his breach of trust should be cause to reduce or forfeit that compensation lies within the sound discretion of the trial court (K.S.A. 59-1711 and 59-1717). The Kansas Supreme Court stated in Achenbach v. Baker, 154 Kan. 252, 254, 118 P.2d 584 (1941):
“[T]he amount of compensation to be allowed is for determination of the trier of the facts, and . . . the action of the trial court will not be set aside unless arbitrary or capricious, unsupported by substantial evidence, and unless the allowances made are clearly shown to be unreasonable or unlawful.”
The surcharge is designed to make the estate whole. Thus, we cannot say the trial judge abused his discretion solely on the basis of the trustee’s failure to invest the funds, as the trial court will surcharge the trustee a sufficient amount to make the estate whole and thus the failure to invest will not result in a loss or detriment to the trust. The defendant served as a trustee for eight years and supervised litigation during that time. Based on the record before us, we cannot say the trial court abused its discretion in awarding a fee, nor can we say the fee awarded was excessive, and we therefore affirm that part of the award.
Sowders has requested attorney fees for this appeal. We have reviewed the supporting documents and briefs and are of the opinion that the issues raised on this appeal are of no benefit to the trust, but are personal in nature for the trustee’s admitted failure to carry out his duty; therefore, attorney fees are denied.
Affirmed in part and reversed in part. | [
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Spencer, J.:
This is an appeal from an order which denied petitioner’s motion filed pursuant to K.S.A. 60-1507.
Petitioner was originally charged with possession of cocaine. After his motion to suppress evidence was overruled, petitioner entered a voluntary plea of nolo contendere. A judgment of conviction was entered and sentence was rendered. Petitioner then sought to obtain review of the denial of his motion in an appeal to this court, which appeal was dismissed December 21, 1978. Petitioner subsequently sought relief pursuant to K.S.A. 60-1507, which was denied by the district court, and this appeal followed.
Petitioner contends his motion to suppress evidence should have been sustained because the evidence he sought to suppress was illegally obtained and he is therefore entitled to be discharged from his sentence pursuant to K.S.A. 60-1507.
Assuming arguendo that the evidence was illegally obtained and the motion to suppress should have been granted, petitioner ignores the effect of his plea of nolo contendere. That plea is defined in K.S.A. 22-3209(2) as follows:
“A plea of nolo contendere is a formal declaration that the defendant does not contest the charge. When a plea of nolo contendere is accepted by the court, a finding of guilty may be adjudged thereon. The plea cannot be used against the defendant as an admission in any other action based on the same act.”
The foregoing was added to our code of criminal procedure in 1970 to bring it into conformity with the federal rules. Seaton & Wilson, Notes on the Code of Criminal Procedure, 39 J.B.A.K. 97, 166 (1970). However, prior to that time the effect of the plea was considered and set forth in Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 68, Syl. ¶ 1, 193 P.2d 656 (1948):
“The so-called plea of nolo contendere, sometimes permitted in the federal court but not used in our state practice, is but a formal declaration by the accused that he will not contend with the prosecuting attorney under the charge. It is in the nature of a compromise between the government and the accused and may indicate the government does not care to prosecute. The accused may not make it as a matter of right. It is allowable only by leave of and acceptance by the court. When accepted by the court it becomes an implied confession of guilt for the purpose of that case only. It cannot be used against the accused as an admission in any civil suit involving the same matters.”
As stated in Annot., 89 A.L.R.2d 540, 579:
“As to the legal effect of the plea of nolo contendere after it has been offered by the defendant and accepted by the court, most of the cases hold that the plea of nolo contendere, when accepted by the court, becomes an implied confession of guilt, and, for the purposes of the case only, equivalent to a plea of guilty.”
Other courts faced with the identical issue now before us have denied post-conviction relief. See Clark v. Western District of Oklahoma, 399 F. Supp. 305 (W.D. Okla. 1975); Frazier v. Warden, 243 Md. 676, 221 A.2d 60 (1966).
When the plea of nolo contendere is accepted by the court, a finding of guilty may be adjudged thereon and there is no need for the State to introduce evidence of the offense. Conditions for acceptance of the plea as set forth in K.S.A. 22-3210 are identical to those for acceptance of a plea of guilty. Furthermore, the right to appellate review of a conviction entered upon either a plea of guilty or of nolo contendere is limited by the provisions of K.S.A. 1978 Supp. 22-3602(a), which provides:
“[N]o appeal shall be taken by the defendant from a judgment of conviction before a district judge or associate district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507.” Emphasis supplied.
Defendant’s formal declaration that he did not contest the charge against him, his plea of nolo contendere, is tantamount to a plea of guilty, limited only as provided by K.S.A. 22-3209(2). See Authors’ Comments, Vernon’s Kansas C. Crim. Proc. § 22- 3209, p. 39 (1973). A conviction based on a plea of nolo contendere may be collaterally attacked only on “jurisdictional or other grounds going to the legality of the proceedings . . . .” The order which denied the motion to suppress evidence in this case does not provide those grounds.
In the case of Dexter v. Crouse, 192 Kan. 151, 386 P.2d 263 (1963), defendant sought a writ of habeas corpus contending that the judgment and sentence were founded on evidence which he alleged was obtained by illegal search and seizure. It was there stated:
“The fallacy in all claims made by him on this point rests in the fact that such judgment was based on his voluntary plea of guilty to the crimes charged in the information without the introduction of any evidence whatsoever.
“It has long been the law of this state that once a plea of guilty has been voluntarily entered by a defendant in a criminal action there is absolutely no need to introduce any evidence to maintain a conviction. [Citations omitted.]
“Moreover, this court has repeatedly held that a defendant’s voluntary plea of guilty in a criminal case is a confession of guilt of the crime charged and of every fact alleged in the charge, and that, legally speaking, it is the most formal and binding confession possible for him to make. [Citations omitted.]” 192 Kan. at 152-153.
As stated in Perry v. State, 200 Kan. 690, 693, 438 P.2d 83 (1968):
“It is the law of this jurisdiction that where an accused appears in open court with his counsel and freely and understanding^ enters a plea of guilty with full knowledge of the consequences of such plea, the requirements of the Fourteenth Amendment to the Constitution of the United States, making obligatory the provisions of the Sixth Amendment to the Constitution upon the states, have been fully complied with and the application under 60-1507 for post-conviction relief will be denied. [Citations omitted.]”
The foregoing is equally applicable to a plea of nolo contendere.
Petitioner’s reply brief on file with this court asserts that he was not informed of the consequences of his plea of nolo contendere in that he was not advised at the time he entered his plea that he was waiving his rights to appeal or to bring a habeas corpus action. It is therefore contended the trial court failed to discharge its duty. This ground was not contained in petitioner’s 1507 motion, nor was it presented to the trial court. Where constitutional grounds for reversal of a judgment are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Budden, 226 Kan. 150, Syl. ¶ 3, 595 P.2d 1138 (1979). Furthermore, we have not been favored with a transcript of the proceedings had when petitioner made his plea. It is incumbent upon the appellant to include in the record on appeal any matter upon which he intends to base a claim of error. State v. Wilson & Wentworth, 221 Kan. 359, Syl. ¶ 4, 559 P.2d 374 (1977).
Affirmed. | [
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Parks, J.:
This is an interlocutory appeal taken by the State pursuant to K.S.A. 1978 Supp. 22-3603, from an order granting defendant’s motion to suppress the results of a blood test.
Trooper Stackhouse of the Kansas Highway Patrol arrived at an accident scene on January 18, 1979, to find a car stuck in a snowbank. He was informed by a “good Samaritan,” who stopped to lend assistance, that defendant Arwit Mezins was the only person who got out of the car. Defendant, however, stated he was only a passenger and that his friend, Jerry, was the driver of the vehicle. The physical evidence at the scene — one set of footprints in the snow by the wrecked vehicle and condensation on the driver’s side of the floorboard — also indicated that the defendant was alone in the car. The officer observed Mezins to have a strong odor of alcohol, slurred speech and coordination difficulty, leading him to believe defendant was intoxicated. After Mezins was transported to the hospital, Stackhouse placed him under arrest, informed him of his Miranda rights, and requested a blood sample. Defendant signed a consent form and a blood sample was taken by a physician. A later analysis revealed a .27 percent blood alcohol content by weight. When advised that defendant was to be admitted to the hospital, Stackhouse testified that he “unarrested” the defendant and asked the hospital staff to notify the Kansas Highway Patrol when defendant was released because there would be charges pending against him. On January 23,. 1979, Trooper Stackhouse picked up the defendant at the hospital and transported him to jail where he was charged with felony theft (this charge was later dismissed) and driving under the influence of intoxicating liquor (K.S.A. 1978 Supp. 8-1567). Without stating its reasons, the trial court sustained defendant’s motion to suppress the results of the blood test. From this ruling the State appeals.
Although neither party has raised the issue, we note that the district court failed to make findings of fact and conclusions of law pursuant to Rule 165 of the Supreme Court and K.S.A. 60-252 when it sustained defendant’s motion to suppress evidence. Although we are reversing this decision on other grounds, we remind the district court of its obligation to make adequate findings of fact and conclusions of law in future hearings. Since the trial court failed to state its reason for granting defendant’s motion to suppress, we shall consider the merits of each of the arguments asserted by defendant.
The governing statute in this case is K.S.A. 1978 Supp. 8-1001(a) and (c), which provides in part:
“(a) Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given consent to submit to a chemical test of breath or blood, for the purpose of determining the alcoholic content of his or her blood whenever he or she shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to arrest the person was driving under the influence of intoxicating liquor. The text shall be administered at the direction of the arresting officer ....
“(c) If the person so arrested refuses a request to submit to a test of breath or blood, it shall not be given and the arresting officer shall make to the division of vehicles of the state department of revenue a sworn report of the refusal, stating that prior to the arrest the officer had reasonable grounds to believe that the person was driving under the influence of intoxicating liquor. Upon receipt of the report, the division immediately shall notify such person of his or her right to be heard on the issue of the reasonableness of the failure to submit to the test . . . .”
Defendant contends that an arresting officer has a duty to inform an accused of his right to refuse a blood alcohol test, and failure to do so renders the test results inadmissible. In Hazlett v. Motor Vehicle Department, 195 Kan. 439, 442, 407 P.2d 551 (1965), our Supreme Court considered a similar question of whether an arresting officer is required to explain the consequences of a refusal to submit to a blood alcohol chemical test. In holding that no such duty existed, the Court noted:
“In the first place a careful scrutiny of the statute K.S.A. 8-1001 . . . fails to reveal any mandate directing the arresting officer to inform the accused of the consequences of refusal.”
We, like the Supreme Court, are reluctant to write something into the statute not included by the legislature. We conclude that there is no statutory authority compelling an arresting officer to inform a motorist of his right to refuse a chemical test under K.S.A. 1978 Supp. 8-1001.
Defendant also argues that the test results were the product of an involuntary consent and therefore inadmissible. K.S.A. 1978 Supp. 8-1001 provides that a person who operates a motor vehicle shall be deemed to have given consent to submit to a chemical test upon the occurrence of several contingencies. The provisions of the statute become operative only after a person is arrested or otherwise taken into custody. Before arrest, a person may voluntarily agree to a blood test but is free to refuse. State v. Gordon, 219 Kan. 643, 647, 549 P.2d 886 (1976). In the present case, the parties stipulated that defendant was arrested and given his Miranda warnings prior to signing the consent form and receiving the blood test. There is no contention that defendant was unconscious or incapable of making a voluntary response to Officer Stackhouse’s request to submit to the blood alcohol test. See State v. Garner, 3 Kan. App. 2d 697, 600 P.2d 1166 (1979).
We interpret the “implied consent statute,” K.S.A. 1978 Supp. 8-1001, to mean that once a person is arrested and requested to submit to a test the overriding issue becomes whether the person refuses such a request. The statute operates so as to provide the requisite consent to the test in the event the accused fails to invoke his refusal right. What constitutes a refusal must depend upon the facts of each case. Here the only evidence which suggests such a refusal was that defendant at first seemed apprehensive; however, he ultimately said “why not” and signed the consent form. Because defendant consented, impliedly by statute and in writing, we cannot say that defendant refused the test within the meaning of the statute.
The final issue presented is whether Officer Stackhouse’s “unarrest” of defendant voided the initial arrest thereby rendering the seizure of defendant’s blood inadmissible. Stackhouse testified that if defendant remained in the hospital under arrest he would have to be under continuous guard; his reason for “unarresting” defendant was to obviate the requirement for a guard. It is clear Stackhouse did not inform defendant of the “unarrest” but requested hospital authorities to notify the patrol of defendant’s release. It is equally clear that Stackhouse still had reason to believe defendant had committed the crime at the time of the “unarrest”; therefore K.S.A. 22-2406 would not, as defendant would have us believe, be applicable.
Here the blood sample was taken incidental to defendant’s valid arrest and consent. What took place later had no bearing upon that arrest or the admissibility of the chemical test. In an analogous situation the Court in People v. Superior Court In and For the County of San Mateo, 35 Cal. App. 3d 1, 6, 110 Cal. Rptr. 504 (1973), said that the failure to maintain close police custody oyer a hospitalized suspect, or to place a police hold on him, did not reasonably or retroactively affect the validity of an otherwise lawful arrest at the accident scene. We agree with that ruling and hold that Officer Stackhouse’s statement that he “unarrested” defendant did not vitiate the legality of defendant’s arrest or the results of the blood test.
We conclude that the suppression of the results of defendant’s blood test was erroneous.
Judgment is reversed. | [
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Spencer, J.:
Defendant was charged with one count of burglary, K.S.A. 21-3715, and one count of felony theft, K.S.A. 1979 Supp. 21-3701(a). He was found guilty of theft but the jury did not return a verdict on the charge of burglary. This was the second trial of defendant on these charges, an earlier trial having resulted in a hung jury.
On appeal, defendant argues (1) it was error to permit endorsement of an additional witness for the State; (2) the composition of the jury panel was such as to deny a fair and impartial trial; (3) it was error to admit certain State exhibits into evidence; and (4) the verdict forms were improper in that they permitted a finding of guilty of theft without a finding of guilty of burglary.
At trial, Mark Ewing, owner and manager of Mark’s College Hill Apeo Service Station in Wichita, testified he locked his station at about 7:00 p.m. on November 6, 1978, and that the police called him during the early morning hours of November 7th to inform him the station had been broken into. When he returned to the station at about 1:30 a.m. on November 7th, he found a broken window, a damaged door, and that some tires and approximately $160 in money were missing. He described the tires as “GR 78-15, Goodyear steel-belt radials, whitewall.” Ewing then examined State’s Exhibits 1 through 4 (the tires) and stated: “Well, these are the tires that were removed from my shop, same size and style of tire.” He also stated it was probable he had the tires six months before they were stolen; that he recognized certain marks on the tires as paint he used on his tire racks; and that he was “quite sure” the tires were stolen from his station. Ewing identified State’s Exhibit 5 as “an adding machine tape that’s out of my adding machine.” He further testified that his trash can was located between the tire rack and the desk; that his adding machine was located on the desk; that he found State’s Exhibit 5 inside one of the tires during the preliminary hearing; and that “[m]ore than likely it was thrown in for the trash can and didn’t hit the trash can and got inside the tire.” Defendant’s objection to admission of State’s Exhibits 1 through 5 was overruled.
At the end of the first day of trial, the State moved to endorse David Hollis as an additional witness, which motion was granted over defendant’s objection. Defendant then lodged an objection to the composition of the jury panel, which was overruled.
Additional State’s evidence indicated that in the early morning hours of November 7th, defendant, accompanied by a male and two females, parked his car in a residential area of Wichita. Defendant and his male companion walked to the service station and gained access through the back door of the locked building. Police arrived on the scene and followed defendant’s car. The occupants of the car thereafter fled on foot. Police caught one of defendant’s female companions, and this led to defendant’s arrest. The tires were found in the back seat of a 1970 Buick automobile previously owned by David Hollis, who testified he had sold the car to defendant. Hollis also stated he had talked to defendant about November 9th concerning purchase money still owed Hollis on the car, and that defendant still had the car and was going to pay whatever he could.
The defense consisted of an alibi, defendant testifying he was sick on the night in question and did not leave his home.
On rebuttal, the State called Richard Cook, a latent fingerprint examiner with the Wichita Police Department, who identified State’s Exhibit 15 as an eight by eight card with a set of rolled ink fingerprint impressions with defendant’s signature on it. Cook also identified State’s Exhibit 14 which had previously been identified by Detective Jonker as a “piece of mat acetate card which has a piece of fingerprint tape on it which has retained latent prints which I did recover from the rear view mirror of the vehicle” that defendant was allegedly driving on the night in question. It was Cook’s opinion that the latent prints on Exhibit
14 were the same as those of the right index and the right middle fingers of the right hand as shown on Exhibit 15. Exhibits 14 and
15 were offered. Defense counsel was permitted to examine Cook as follows:
“MR. COBB: When you took the rolled ink impressions here there was another court proceeding in progress; is that right?
“A. That is correct.
“MR. COBB: You indicated that on November the 7th, ’78, you made a comparison of State’s Exhibit 14. It must have been with some other rolled ink impressions; is that right?
“A. It was another set of rolled ink impressions, yes.
“MR. COBB: You did not take another set of impressions, did you?
“A. No, I did not.
“MR. COBB: Your Honor, we’ll object to the admissions of Exhibit 15. It’s not the original impressions that the officer used to identify or compare with Exhibit 14 taken during the progress of the previous court proceeding.”
Defendant’s objection was overruled and Exhibits 14 and 15 were admitted.
1. Defendant contends he was prejudiced by the late endorsement of David Hollis as a witness for the State. K.S.A. 1979 Supp. 22-3201 provides in relevant part:
“(6) The prosecuting attorney shall endorse the names of all witnesses known to said attorney upon the complaint, information and indictment at the time of filing the same. Said attorney may endorse thereon the names of other witnesses as may afterward become known to said attorney, at such times as the court may by rule or otherwise prescribe.”
The right of the State to endorse additional witnesses rests within the sound discretion of the trial court and its ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion. State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977); State v. Mitchell, 3 Kan. App. 2d 635, 599 P.2d 1025 (1979). The test is whether the rights of the defendant were unfairly prejudiced by the endorsement. State v. Rueckert, 221 Kan. at 730; State v. Taylor, 217 Kan. 706, 538 P.2d 1375 (1975).
The motion to endorse was presented to the court outside the presence of the jury, at which time defendant and his counsel were made aware of the nature of the testimony expected from David Hollis and it was stated the witness would be made available to defense for interview prior to giving his testimony. In ruling on the motion, the court specified that defendant was to have ample time to interview Hollis prior to his giving testimony. There is no showing of surprise or prejudice and defendant did not at any time express the need for additional time due to the late endorsement of this witness. It has not been shown how defense strategy was adversely affected. We find no abuse of discretion.
2. Defendant contends he was denied a fair and impartial trial because there was only one person of his race on the jury panel, which did not, therefore, represent a cross-section of the community. Nothing more is offered. The case of State v. Reed, 214 Kan. 562, 563, 520 P.2d 1314 (1974), is dispositive of this issue:
“The appellant bases his claim on the racial make-up of this one jury panel. That is not enough. Further, even if his claim were discrimination in the compilation of the master roll from which the panel was drawn, some proof would be required. A bald assertion in appellant’s brief does not establish a prima facie case.”
Defendant does not suggest or offer proof there was unlawful discrimination in the makeup of the jury panel, absent which we find no merit to this contention.
3. Defendant argues the trial court erred in admitting State’s Exhibits 1 through 5 because they were “incapable of being positively identified and prosecution also failed to substantiate a complete chain of custody.” Rules relevant to this issue were recently stated in State v. Nicholson, 225 Kan. 418, 419-420, 590 P.2d 1069 (1979):
“The admissibility of physical evidence lies within the sound discretion of the trial court and is to be determined on the basis of its relevance in connection with the accused and the crime charged. . . . Moreover, relevant evidence is defined under K.S.A. 60-401(¿) as evidence having any tendency in reason to prove any material fact. The determination of relevancy is a matter of logic and experience, not a matter of law. . . . Furthermore, when a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it.”
See also State v. Ponds and Garrett, 218 Kan. 416, Syl. ¶¶ 4, 5, 543 P.2d 967 (1975). Obviously, the tires and the adding machine tape were relevant evidence if properly identified, and the record reveals sufficient identification to justify their admission into evidence.
When objects of physical evidence have been kept in police custody the chain of possession must be reasonably complete, but this rule may be relaxed when the object is positively identified at the trial and it is established the object remains unaltered. State v. Treadwell, 223 Kan. 577, Syl. ¶ 2, 575 P.2d 550 (1978). A party who offers an object into evidence must show that it is reasonably certain there have been no material alterations of the object sincé it was first taken into custody. It is not necessary that the object should have been kept continuously under lock-and-key or continuously sealed up, nor is it necessary that all possibility of it being tampered with should be excluded. State v. Hernandez, 222 Kan. 175, 176, 563 P.2d 474 (1977); State v. Beard, 220 Kan. 580, Syl. ¶ 4, 552 P.2d 900 (1976). We find no error in the admission of State’s Exhibits 1 through 5.
Defendant also argues that State’s Exhibit 15, the fingerprint card, was not properly admitted into evidence because it “was taken during the course of [defendant’s] first trial without defendant’s consent, and was not the card originally used to compare the prints found in the course of the investigation of the crime.” No authority is cited in support of this contention, nor has research revealed any. It was the duty of the police officers, immediately upon the arrest of defendant for the commission of a felony, to cause fingerprint impressions to be made pursuant to K.S.A. 1979 Supp. 21-2501, and defendant’s consent was not required. It is not made clear why it should matter whether the fingerprints were taken for defendant’s first or second trial. We find no merit in this argument.
4. Finally it is argued that a verdict of guilty on the charge of burglary was a “necessary prerequisite” to a verdict of guilty on the charge of theft. This contention assumes that inconsistent verdicts are improper. It is a well-settled rule that even though verdicts may appear irreconcilable, a conviction will not be reversed on grounds of inconsistency. State v. Goering, 225 Kan. 755, Syl. ¶ 6, 594 P.2d 194 (1979); State v. Shultz, 225 Kan. 135, Syl. ¶ 8, 587 P.2d 901 (1978); State v. McCorgary, 218 Kan. 358, 366, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976).
Affirmed. | [
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Meyer, J.:
This is an appeal from the trial court’s denial of relief as to an application by Carl J. Johnson, a/k/a Hershel B. Wesson (appellant), filed pursuant to K.S.A. 60-1507.
Appellant is presently incarcerated in Texas and is serving a life sentence imposed upon his conviction for burglary in that state in 1973. The normal sentence for burglary was enhanced to the life term pursuant to the Texas habitual criminal act, based upon a 1954 felony conviction in Texas and upon a 1964 felony sentence in Kansas upon his guilty plea. Appellant filed this action for relief pursuant to K.S.A. 60-1507, challenging the propriety of the Kansas sentence. Appellant’s petition and his deposition filed in this case indicate that he was unconditionally discharged from the Kansas State Penitentiary in June, 1971, having fully completed the sentence imposed.
At the outset, it is appropriate to discuss the jurisdictional aspects of this case due to the novel facts presented herein. Although neither party raised the issue of jurisdiction, nor did the trial court speak to the matter, such facts do not abrogate this court’s obligation to determine jurisdictional questions. Stanton v. KCC, 2 Kan. App. 2d 228, 230, 577 P.2d 367, rev. denied 225 Kan. 845 (1978).
K.S.A. 60-1507(a) provides;
“A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence. ” (Emphasis added.)
K.S.A. 60-1507 thus provides relief only when a person is “in custody under sentence of a court of general jurisdiction.” The statute clearly contemplates that the sentence being attacked is the one resulting in the present custody. In this case appellant attempts to challenge a Kansas conviction which has expired, but which was used for enhancement purposes for his present Texas confinement. Our statute does not permit such a challenge since plaintiff is not “in custody” under the Kansas sentence he attempts to challenge.
The present situation is to be distinguished from that of a Kansas prisoner who attacks his present Kansas confinement on the basis that his current Kansas sentence relies on invalid prior convictions obtained elsewhere. See, e.g., James v. State, 220 Kan. 284, 553 P.2d 345 (1976). K.S.A. 60-1507 permits such an action since the prisoner is in custody under the sentence he seeks to attack. The Texas courts have recognized a similar remedy under their counterpart to K.S.A. 60-1507. See Craig v. Beto, 458 F.2d 1131, 1134 (5th Cir. 1972).
Kansas cases have recognized the propriety of relying on federal interpretation of 28 U.S.C. § 2255 in construing the provisions of K.S.A. 60-1507, which was patterned after the federal statute. Baier v. State, 197 Kan. 602, 604, 419 P.2d 865 (1966); State v. Richardson, 194 Kan. 471, 472, 399 P.2d 799 (1965). Numerous federal decisions have recognized that relief under 28 U.S.C. § 2255 is authorized only to persons in custody under the sentence which is sought to be set aside. For example, in Blair v. United States, 349 F.2d 405 (10th Cir. 1965), Blair was convicted and sentenced to federal custody. After completing the federal sentence Blair was imprisoned at the Kansas State Penitentiary under a separate sentence. Blair brought an action under 28 U.S.C. § 2255 seeking to set aside the prior federal sentence. The Tenth Circuit held that § 2255 was an inappropriate vehicle for challenging the prior sentence since a motion to vacate sentence “will not lie unless the movant is in custody under such sentence.” 349 F.2d at 405. See also Lopez v. United States, 186 F.2d 707 (9th Cir. 1950): United States v. Tees, 211 F.2d 69, 71-2 (3d Cir. 1954); United States v. Bradford, 194 F.2d 197, 200 (2d Cir.), cert. denied 343 U.S. 979 (1952).
Under these cases appellant is not “in custody” within the meaning of K.S.A. 60-1507, and we hold that the district court was without jurisdiction to entertain his petition under that section.
The judgment is vacated and the case is remanded to the district court with directions to dismiss for lack of jurisdiction. | [
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Abbott, J.:
This is a direct appeal by the defendants from their conviction of one count of robbery in violation of K.S.A. 21-3426.
The defendants were tried on twelve counts of aggravated robbery and each was convicted on one count of robbing Cecil Weber. From the record before us, it appears that Mitchell McHenry was convicted by virtue of aiding and abetting James E. Antwine. The charges arose out of an incident that occurred at a dice game in Topeka, Kansas. The evidence is highly conflicting, but sufficient evidence was presented to the jury which, if believed, would have supported either conviction or acquittal on all charges of aggravated robbery or the lesser included offense of robbery. The jury obviously disbelieved or rejected a considerable amount of testimony from both sides, and it was not entirely consistent in what evidence it rejected and accepted. Both de fendants were sentenced to not less than four nor more than twenty years and are presently incarceratéd. This appeal followed.
Defendants raise seven issues which include failure to instruct on theft and self-defense, errors in admission of evidence, insufficient evidence to support the verdict and alleged violation of defendants’ statutory and constitutional rights to be present at every stage of their trial. It is impossible in the limited space available to do justice to the conflicting evidence. Twenty-one witnesses testified, many of whom either were involved in a illegal dice game for money or, if not actually engaged in gambling, were in the room and had the opportunity to participate.
The State’s evidence generally was that a dice game was in progress at 804 East 15th Street, Topeka, Kansas. Various witnesses who testified estimated that as few as fifteen to as many as thirty-five persons were in the house the night of the crime. The State’s evidence was that defendant Antwine produced a sawed-off shotgun and along with McHenry and two other men proceeded to rob at least fourteen individuals of a considerable amount of cash (over $3,000) as well as jewelry consisting of rings and watches. The alleged victims were forced to strip and lie on the floor. Several of the victims were physically assaulted during the alleged robbery. Not all of the victims could identify the defendants as having been present when the robbery occurred.
Evidence from both sides showed that defendants fled the house and a chase ensued on the Kansas Turnpike. A group of heavily armed (handguns, a fully automatic Ml rifle with a 45-round clip, and a shotgun) alleged victims, several highway patrol troopers, local police and a Topeka Police Department helicopter all were looking for a white Cadillac-that was seen leaving the vicinity of the alleged robbery. The white Cadillac was stopped by law enforcement officers and was searched. Over $2,000 in cash and two pistols were recovered. Only two men and a woman were in the white Cadillac, and the officers knew four men were involved. The helicopter observed an eastbound Mercury automobile make a U-turn and drive very slowly west. That vehicle was stopped and the two defendants were found to be the sole occupants. They were arrested and the vehicle was then searched. A holster was recovered but no weapons were found in the car. At trial, defendant Antwine testified he had grabbed the holster when the fight broke out. For two and a half hours during the following morning, several officers searched the roadside from the point where the Mercury made its U-turn to where the white Cadillac was stopped. They found nothing. Two days later near the same point, officers found a sawed-off shotgun and two weapons within one foot of the roadway. They appeared to have been deliberately placed there. One of the weapons was a derringer of a size similar to that of the holster. The derringer was not identified as having been used at the alleged robbery, and no one claimed ownership of it or the holster.
The two defendants testified in their own behalf. Their version was that they, two other men and one woman came to Topeka in two cars. Their express purpose in coming was to use “loaded” dice to cheat in a dice game. Defendant Mitchell McHenry was acquainted with at least one of the victims, and both the victim and McHenry testified each recognized the other and they spoke before McHenry entered the dice game. At trial McHenry produced dice of various sizes, shapes and colors. He testified that he observed the dice in use at the gaming table, then went into the restroom and took a similar pair from his dice pouch; his dice would roll only even numbers, thus making it impossible for him to lose. The “loaded” dice were in McHenry’s possession when he was arrested. Cecil Weber is the victim who defendants were convicted of robbing, and McHenry identified Weber as the houseman who ran the game and cut the pot. McHenry testified he won a lot of money and that he borrowed a yellow handbag from Weber to put the cash in. He also testified that from time to time he accepted jewelry on pawn from the game’s participants and put that in the bag. He stated it was his practice while cheating to stand beside a woman or someone who appeared to him to be an inexperienced dice player, but that he became careless and the woman next to him picked up the “loaded” dice and accused him of cheating. According to McHenry, Weber then pulled a gun and threatened to kill him. The defendant Antwine allegedly hit Weber in the head and another member of the group picked up Weber’s gun. Antwine then grabbed their money along with other money that was lying on the gaming table and fled. A witness whom defendants had met in jail testified in their behalf that he was present when the incident occurred at the dice game and verified in part the defendants’ version of what occurred.
It is our opinion that several complaints made by defendants are valid, and that because of the errors defendants are entitled to a new trial on the robbery charge.
I. Admission of Guns Into Evidence.
Defendants objected at trial to the admission into evidence of a sawed-off shotgun, a derringer and another pistol that were found along the turnpike near the point where their car had been stopped the night of the alleged robbery. Their main objection was that the guns turned up near the roadway laid out in an orderly fashion two days after the incident, although a search had been made of the area the morning after the incident.
The standards for identification and admission of physical evidence are discussed in State v. Robinson, 203 Kan. 304, 311-12, 454 P.2d 527 (1969):
“The admissibility in evidence of a physical object is to be determined by the trial judge on the basis of its relevance and connection with the accused and with the crime charged. In order to justify its admission its identity must be shown to the satisfaction of the trial judge.
“In 2 Wharton’s Criminal Evidence (11th Ed.) § 762 at page 1293 it is said:
“ \ . . However, the prevailing view is that it is not necessary that such identification should positively and indisputably describe and relate to such evidence. If a question of fact as to the connection of the articles sought to be admitted with the defendant or the crime is raised, the evidence should be admitted for the determination of the jury. The lack of positive identification in such a case affects the weight of the article or substance as evidence, rather than its admissibility. . . .’
“We see no lack of positive identification in the present case.
“Physical objects connected with the proscribed criminal act, or which serve to unfold or explain it, are generally exhibited in evidence whenever the criminal act is under investigation. (State v. Joseph Little, 201 Kan. 101, 439 P.2d 383; State v. Jerrell, 200 Kan. 415, 436 P.2d 973.)
“Although admissibility in the first instance rests in the judicial discretion of the trial judge, if the circumstances surrounding possession of an article are sufficient to infer relevance to the offense charged an issue of fact is presented. The final decision is left for the jury to determine whether the accused owned or possessed the articles. (2 Wharton’s Criminal Evidence [11th Ed.] § 765, p. 1290, 1292.)”
Evidence is relevant if it has any tendency in reason to prove a material fact. State v. Nemechek, 223 Kan. 766, 576 P.2d 682 (1978). Subject to certain exceptions not present in this case, the admission of evidence lies within the sound discretion of the trial court. State v. Jakeway, 221 Kan. 142, 558 P.2d 113 (1976). One who claims abuse of discretion on the part of the trial court has the burden of proving that contention, and when reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. McColm v. Stegman, 3 Kan. App. 2d 416, Syl. ¶ 2, 596 P.2d 167 (1979).
The weapons were discovered at a place near where defendants’ car had been. The sawed-off shotgun was identified as having been wielded by defendant Antwine during the commission of the robbery. The derringer pistol fit the holster recovered from the glove compartment of defendants’ car. In our opinion, the trial judge properly admitted the weapons into evidence. In any event, it is difficult to see how the defendants were prejudiced in view of the jury verdict having found them not guilty on all counts of aggravated robbery (robbery committed by a person who is armed with a dangerous weapon) and guilty on only a single count of robbery (robbery committed by force).
II. Were the Charges Multiplicitous?
Defendants contend there was only one robbery committed despite the existence of numerous alleged victims. The improper charges, they argue, denied them a fair trial by providing so many charges that a compromise verdict easily could have occurred. As the sole support for their position, defendants direct this Court’s attention to State v. McQueen & Hardyway, 224 Kan. 420, 582 P.2d 251 (1978). Defendants did not raise the issue of multiplicity at trial, and subject to well-defined exceptions a defendant may not present matters or issues on appeal that were not raised before the trial court. Safeway Stores, Inc. v. Workers’ Compensation Fund, 3 Kan. App. 2d 283, Syl. ¶ 1, 593 P.2d 1009 (1979). As a result, this Court need not determine the issue on appeal. In any event, McQueen & Hardyway is distinguishable from the case before us. See State v. Stoops, 4 Kan. App. 2d 130, 139, 603 P.2d 221 (1979). The trial court did not err in allowing the State to prosecute defendants for multiple charges of robbery.
III. Evidence Returned To Alleged Victims.
Prior to trial, apparently without court approval, money and jewelry seized from defendants were turned over to the alleged victims by the Topeka Police Department. Testimony concerning that fact was presented to the jury. Defendants did not object to the introduction of that evidence at trial; they did not move that it be stricken nor did they request a cautionary instruction. De fendants contend the admission of evidence that the money and jewelry had been returned to the victims prior to defendants’ trial prejudiced them by giving to the jury an impression that the property had indeed been stolen, contrary to defendants’ contention that the money and jewelry had been won by them in the dice game. They argue that in any event a cautionary instruction should have been given to the jury, but they cite no legal authority to support their position.
It is not difficult to envision a situation when it would be highly prejudicial to permit testimony before a jury that the court or law enforcement authorities had returned money or property to an alleged victim despite a claim by the accused that the money or property belonged to the accused. When ownership of property is in dispute, the trier of facts should determine the question without injecting the possibility of prejudice by admitting evidence of law enforcement officers’ implied opinion of ownership.
The evidence in this case could have been highly prejudicial, but neither defense counsel objected to its introduction. A verdict or finding will not be set aside, nor will the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless it appears of record that an objection to the evidence was timely interposed and stated so as to make clear the specific ground of the objection. Schlatter v. Ibarra, 218 Kan. 67, 71, 542 P.2d 710 (1975); K.S.A. 60-404. Likewise, it was not error for the court to fail to give a cautionary instruction to the jury when no such instruction was requested by counsel. K.S.A. 22-3414(3). Furthermore, it is difficult to perceive just how defendants here were prejudiced given the fact that they were acquitted by the jury on all counts of robbery but one and the property was returned to each of the alleged victims.
IV. Sufficiency of Evidence.
Defendants argue there is no evidence that property was taken from Cecil Weber; and further, that the verdict is inconsistent because the evidence presented at trial supported only aggravated robbery, not simple robbery. They reason that if the jury had believed Weber and the State’s other witnesses, they would have been found guilty of aggravated robbery and according to their version they were not guilty of either robbery or aggravated robbery.
Our scope of review is limited to determining whether the evidence when viewed in the light most favorable to the State convinces this Court that a rational factfinder could have found the defendants guilty beyond a reasonable doubt. An appellate court looks only to the evidence in favor of the verdict, it does not weigh the evidence; and if the essential elements of the charge are sustained by any competent evidence, the conviction stands. State v. Smolin, 221 Kan. 149, Syl. ¶ 6, 557 P.2d 1241 (1976). Moreover, an inconsistent verdict is not erroneous when substantial competent evidence exists to support it. State v. Shultz, 225 Kan. 135, 141, 587 P.2d 901 (1978). Substantial competent evidence exists in the form of multiple eyewitnesses who identified defendants as the persons who took the proceeds of a dice game at gunpoint. The money and jewelry were found in the possession of three others who defendants admitted were members of their group. While the verdict may be somewhat inconsistent, substantial competent evidence exists to support it and we find no error. Our Supreme Court has recognized that a jury may sometimes reach its verdict partially out of clemency for the accused. State v. McCorgary, 218 Kan. 358, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976); State v. Brundige, 114 Kan. 849, 220 Pac. 1039 (1923).
V. Failure to Instruct on Theft and Defense of Oneself Or Another.
Defendants contend they were entitled to instructions presenting their theory of defense and that the trial court erred in failing to instruct on theft and a person’s justification in the use of force to defend oneself or another person. Counsel for both defendants approved the instructions given by the court in this case, and neither counsel requested of or suggested to the trial judge that an instruction be given to the jury on either theory. An instruction was given to the jury concerning a person’s justification in threatening to use force and in using force to stop an unlawful interference with property lawfully in a person’s possession (PIK Crim. 54.19). An accused is entitled to instructions on his theory of defense if that theory is supported by any evidence whatsoever (State v. Christon, 3 Kan. App. 2d 372, 375, 595 P.2d 356 [1979]), and it does not matter that the only evidence adduced is the unsupported testimony of the defendant. State v. Sullivan & Sullivan, 224 Kan. 110, 120, 578 P.2d 1108 (1978). The law is also well established that the trial court has a duty to instruct on lesser included offenses even though such instructions have not been requested. State v. Sullivan & Sullivan at 120; K.S.A. 21-3107(3). If an accused fails to give the grounds for an objection, or fails to request an instruction on something other than a lesser included offense, then the accused may not claim error unless the court’s action is clearly erroneous. State v. Worth, 217 Kan. 393, 395, 537 P.2d 191 (1975), cert. denied 423 U.S. 1057 (1976). It is equally well established that the court’s duty to instruct on the defendants’ theory goes only as far as that theory is supported by competent evidence and is germane to the issues raised by the pending charge. State v. Runnels, 203 Kan. 513, 516, 456 P.2d 16 (1969).
Our Kansas Supreme Court has said that in order for an offense to be considered a lesser included offense under K.S.A. 21-3107(2)(d), all elements necessary to prove the lesser offense must be present to establish the elements of the greater offense, and if the lesser offense requires proof of an element not necessary in the greater, it is not a lesser included offense and the court should not so instruct. The Supreme Court has applied a very narrow definition of what constitutes a lesser included offense. Battery is not a lesser included offense of attempted rape because battery requires touching the person of another in a rude manner, while attempted rape does not. State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978). Aggravated battery is not a lesser included offense of attempted murder, because aggravated battery requires unlawful touching or application of force to the person of another, while attempted murder does not. State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977). Aggravated assault is not a lesser included offense of aggravated battery, because aggravated assault requires an immediate apprehension of bodily harm, while aggravated battery does not. State v. Bailey, 223 Kan. 178, 573 P.2d 590 (1977). Carrying a concealed firearm and an aggravated weapons violation are not lesser included offenses of the unlawful possession of a firearm, because carrying a concealed weapon requires that the defendant knowingly possess a firearm that has a barrel less than twelve inches long, while an aggravated weapons violation requires that the defendant knowingly carry a firearm concealed on his or her person; the unlawful possession of a firearm requires proof of neither of these elements. State v. Hoskins, 222 Kan. 436, 565 P.2d 608 (1977). Conspiracy to commit burglary is not a lesser included offense of burglary, because conspiracy to commit burglary requires an agreement between two or more persons, while burglary does not. State v. Burnett, 221 Kan. 40, 558 P.2d 1087 (1976).
In considering whether the trial court erred in failing to give an instruction on theft, we are mindful of the holding in State v. Thompson, 221 Kan. 165, 558 P.2d 1079 (1976), to the effect that the statutory crime of robbery is the taking of any property from a person or the presence of another by threat of bodily harm or by force, and the requirement of a specific intent to deprive the owner permanently of his property was eliminated with the enactment of our present statute, K.S.A. 21-3426. The statutory crime of theft (K.S.A. 21-3701) is a crime against property as opposed to a crime against persons, and it requires proof of “intent to deprive the owner permanently of the possession, use or benefit of his property.” Although Thompson suggests that robbery and theft contain distinct elements, we believe our Supreme Court has determined that theft is a lesser included offense of robbery and we are duty bound to follow that determination. In State v. Russell, 217 Kan. 481, 484, 536 P.2d 1392 (1975), the Court said:
“As a subsidiary contention defendant claims that the evidence here tended to show robbery rather than theft, which he says is a separate and distinct crime. This state has long recognized that robbery and theft (formerly termed larceny) are kindred crimes. In State v. Segermond, 40 Kan. 107, 108, 19 Pac. 370, the court accepted the definition of robbery as being ‘larceny committed by violence of the person of one put in fear.’ In Guffey v. Casualty Co., 109 Kan. 61, 197 Pac. 1098, Syl. ¶ 2, the court held that ‘Robbery includes larceny and may be deemed forcible larceny, and in order to constitute it there must be an intent to deprive the owner of the property taken, not temporarily but permanently.’ The principle that the crime of theft is necessarily included in a robbery was recognized by implication in the recent case of State v. Harris, 215 Kan. 961, 529 P.2d 101. There we held that in a robbery prosecution an instruction on theft (‘unauthorized control over property as proscribed in K.S.A. 1973 Supp. 21-3701[a]’) was not necessary, but only because the evidence at the trial excluded guilt of the lesser offense.”
The Supreme Court has subsequently approved the Russell holding in State v. Colbert, 221 Kan. 203, 557 P.2d 1235 (1976); State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976); and Morrow v. State, 219 Kan. 442, 444-45, 548 P.2d 727 (1976). Of particular significance to us is that Colbert was filed by the Supreme Court on the same day as State v. Thompson, 221 Kan. 165, indicating that the Supreme Court apparently did not intend to depart from its previous line of cases holding theft to be a lesser included offense of robbery by reason of eliminating the requirement in robbery of a specific intent to deprive the owner permanently of his or her property.
The credibility of the witnesses is for the jury to determine and according to the defendants’ testimony and the testimony of Tyra L. Arnold, defendants’ jail acquaintance and another alleged participant in the game, the pair was discovered cheating and the houseman, Cecil Weber, pulled a gun on them. In fear for his safety, defendant Antwine claims that he struck Weber and in the process contributed to disarming him. In the ensuing melee, Antwine claims that he grabbed some money off the table just as everyone else was doing and ran. Defendant McHenry testified that he never took any money off the table, he just ran out of the house in fear. (McHenry is directly affected by any error in Antwine’s instructions, however, since he was apparently convicted for aiding and abetting Antwine.) Under defendants’ theory, no force was used in taking the money from the table but, instead, the money was stolen from the presence of its owners amidst the confusion of the fighting. If the jury believed defendants’ evidence, sufficient evidence existed to support a conviction for theft, and in our opinion the trial court’s failure to give an instruction on theft pursuant to K.S.A. 1979 Supp. 21-3701(a) constitutes reversible error. State v. Sullivan & Sullivan, 224 Kan. at 122; State v. Satterfield, 3 Kan. App. 2d 212, 221, 592 P.2d 135, rev. denied 226 Kan. 793 (1979).
The claim of error by virtue of the trial court’s failure to give an instruction on a person’s justification in the use of force to defend oneself or another person presents an entirely different problem. The failure to give such an instruction cannot be assigned as error unless clearly erroneous by reason of defendants’ failure to request such an instruction. K.S.A. 22-3414(3). There is evidence in the record to support such an instruction based on defendants’ testimony that Cecil Weber pulled a gun and was threatening to kill McHenry for cheating. Although K.S.A. 21-3214 does not permit the use of self-defense for an aggressor who is engaged in the commission of a forcible felony, if defendants’ evidence was accepted by the jury (and it is obvious that a considerable amount of it was accepted) then defendants were not engaged in a forcible felony and K.S.A. 21-3214 would not bar such a defense despite the State’s evidence that defendants were engaged in the commission of aggravated robbery. An instruction was given concerning defense of property which would have allowed the jury to consider the use of reasonable force to protect property (including money) lawfully in defendants’ possession. The jury rejected the State’s evidence that the defendants used guns and thus it appears the jury believed the defendants used force in obtaining property from Weber. Just what property is unknown. Was it the pistol taken from Weber? Was it the money Antwine admitted taking from the table after striking Weber? After retiring to deliberate, the jury did ask if taking money by use of crooked dice could be construed as intentionally taking money or robbery. Thus, it is impossible to tell from the record what the jury determined was taken from Weber. Generally, self-defense does not justify the taking of money or property from an aggressor, and the lawfulness of the force used to accomplish the theft is immaterial. People v. Beebe, 38 Colo. App. 80, 557 P.2d 840 (1976). The taking and retention of a gun until it is safe to return it, however, is permissible where self-defense is justified. State v. Campbell, 214 N.W.2d 195 (Iowa 1974). Based on the record before us, we cannot say the failure to give an instruction on a person’s justification in the use of force to defend oneself or another person was clearly erroneous; however, if such an instruction is requested on retrial, the trial court may want to consider giving an instruction appropriately modified from that found in PIK Crim. 54.17 in view of this opinion, State v. Aldershof, 220 Kan. 798, and K.S.A. 21-3214.
VI. Right of Defendants to be Present.
Defendants complain that the court and counsel held a conference in chambers without defendants concerning the admissibility of the weapons found alongside the Kansas Turnpike. This issue was not raised in the trial court and will not be considered for the first time on appeal. Safeway Stores, Inc. v. Workers’ Compensation Fund, 3 Kan. App. 2d 283, Syl. ¶ 1. If we were to consider defendants’ argument, it is without merit. In State v. Mantz, 222 Kan. 453, 463-464, 565 P.2d 612 (1977), the Supreme Court determined that defendant’s presence at in chambers conferences is not constitutionally required since the right to be present applies only to proceedings when presence is essential to a fair and just determination of a substantial issue and does not extend to proceedings involving only questions of law. The term “question of law” includes arguments concerning the admissibility of evidence. See Annot., 85 A.L.R.2d 1111, 1112.
The trial judge did err, however, when in the absence of the defendants, but with the permission of counsel for both defendants, he permitted the court reporter to enter the jury room and read to the jury the entire recorded testimony of Odell Scott. The trial judge also erred under the facts of this case when, again with permission of counsel for both defendants, he communicated with the jury concerning application of the instructions and allowed a review of some evidence presented at trial. In view of our disposition of this appeal, we need not consider whether the error was harmless or prejudicial.
An accused has a constitutional right (K.S.A. 22-3405[l]) to be present at every stage of his or her trial, and K.S.A. 22-3420(3) provides that if a jury requests information regarding any part of the law or the evidence submitted in the case, the requested information must be given in open court in the presence of the accused unless the accused is voluntarily absent.
We previously held in State v. Gammill, 2 Kan. App. 2d 627, 585 P.2d 1074 (1978) that a read-back of testimony must be done in the courtroom in the presence of the defendant. Gammill held that an attorney cannot waive the right of an accused to be present during the read-back without first having discussed the matter with the accused. The Supreme Court of Kansas has since held that an attorney may waive a client’s right to be present at trial when based on the record at trial it is shown that the defendant voluntarily waived the right to be present. State v. Sandstrom, 225 Kan. 717, 721, 595 P.2d 324, cert. denied November 5, 1979. The record in this case is silent as to any attorney-client consultation, and such a conference and waiver will not be presumed from a silent record. For additional authority, see Cross v. United States, 325 F.2d 629, 631-33 (D.C. Cir. 1963), and Miles v. State, 222 Ind. 312, 53 N.E.2d 779 (1944).
A trial judge’s communication with the jury concerning application of the instructions and a review of some of the evidence presented at trial was held to be error in State v. Dunnan, 223 Kan. 428, 431-32, 573 P.2d 1068 (1978). Again, the record is silent that the defendants waived their right to be present or that their attorney waived that right after consultation with them. While we need not consider whether the court’s action here was prejudicial error, it would seem a jury could not help but speculate that an accused who is absent from such stages of the proceedings must be in jail, possibly because the court considered the accused to be too dangerous to remain in the building.
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Foth, C.J.:
Mr. and Mrs. Dennis Mitchell brought this action on behalf of themselves and their son, Dennis, Jr., against a neighbor couple, Mr. and Mrs. James Wiltfong. All three plaintiffs claimed damages resulting from defendants’ nine-year-old son. The trial court dismissed the petition under K.S.A. 60-212(h)(6) for failure to state a claim on which relief could be granted. Plaintiffs appeal.
The petition in the first three paragraphs stated the names, residences, and relationships of the parties. It went on:
“4. That plaintiffs’ child, and other children in this neighborhood have been the subject of physical beatings, harassment and assaults by the defendants’ child. That the defendants have failed, neglected and refused to control the misconduct of their child and therefore as a direct and proximate result thereof the plaintiffs have suffered injuries in the nature of intentional mental duress, worry and concern and furthermore actual physical pain and suffering their child has received from these physical assaults.
“5. Not only have the defendants failed and neglected to properly raise and control their child, but furthermore have incited him into the conduct he has exhibited for the past months and has encouraged him in such conduct.
“6. That the defendants’ child, due to the misguidance and inciting of the defendants and each of them has become a public nuisance and dangerous instrumentality in the neighborhood. Attached hereto and incorporated herein by reference as if fully set out are statements of other area residents which sets out their personal knowledge concerning this misconduct and how it has damaged both them and their children.
“7. That this conduct is so bad that some people have literally sold their home and moved from the area to protect their property and children from the assault and misconduct of the defendants’ child, all due to the defendants’ fault.
“8. That the Police Department has been called on numerous occasions by the plaintiffs and others but due to the tender age of the defendants’ child, effective police action is thwarted.
“9. The plaintiffs and each of them seek monetary relief for the injuries and suffering caused by the defendants’ conduct; moreover, seek injunctive relief to protect them and their property in the future, and moreover seek, as far as it is possible for the Court to enforce, orders that the defendants and each of them seek such psychiatric and other forms of treatment as are necessary to curb and otherwise control the unlawful actions and aggressive misconduct of their child. The above relief besides such other and further orders of the Court as are just and equitable are the forms of relief sought by the plaintiffs herein.”
The prayer on behalf of each plaintiff was for $2,500 in damages plus equitable relief.
The trial court’s dismissal was for lack of jurisdiction to grant equitable relief, and because “[t]he negligence is not imputed to the father in the absence of specific acts by the child which resulted in specific nameable injuries and amounts,” (Appellants’ Br. 5.)
On appeal plaintiffs abandon any claim for injunctive or other equitable relief, conceding the trial court’s lack of jurisdiction in a limited action. K.S.A. 1979 Supp. 61-1603. They insist, however, that their petition states a cause of action based on defendants’ own causal negligence, and not on any theory of imputation. We agree that the petition, however inartfully drawn, states such a cause of action when liberally construed — as it must be on a 60-212(b)(6) motion. Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. ¶ 2, 479 P.2d 875 (1971).
The leading Kansas case which discusses the liability of parents under a negligence theory for the torts of their minor children is Capps v. Carpenter, 129 Kan. 462, 283 Pac. 655 (1930). The defendant there had permitted his eight-year-old son, Joe, to have and use a BB gun. While Joe was playing with Carrol Capps, a seven-year-old playmate, Carrol’s eye was injured. Carrol sued Joe’s father, alleging that: (1) Joe was not only mischievous, but was also cruel, treacherous, selfish, arbitrary, domineering, and prone and inclined to impose upon, chastise, and inflict punishment on his playmates; (2) Joe’s father knew or should have known Joe’s disposition and habits; (3) nevertheless, the father gave Joe a dangerous agency, the gun; and (4) while playing on a lawn swing with Carrol, Joe said, “You turned my rabbit out, and I’m going to shoot your eye out,” whereupon Joe shot Carrol in the right eye. The jury awarded plaintiff damages.
The Supreme Court reversed, holding:
“[T]he court improperly submitted to the jury the nature of the gun as a dangerous agency, the essence of the cause of action being not the nature of the chattel, but whether Joe had such a malignant disposition he would likely shoot some playmate if he had the gun, and his father knew or from known facts should have known of the disposition.” 129 Kan. at 462, Syl. ¶ 1. Emphasis added.
In its opinion, the Court first criticized the “dangerous instrumentality” approach, saying it confused the issue in negligence cases, and then discussed the admissibility of certain evidence relating to the father’s knowledge of Joe’s malignant disposition. Finally, the Court summarized its prior decisions involving the liability of parents for the tortious acts of their minor children and concluded:
“These cases were all well decided, and they all illustrate nonliability of a parent for torts of his minor child. Attempts, however, to state a universal rule of nonliability, as in Smith v. Davenport [45 Kan. 423, 25 Pac. 851 (1891)], are likely to fail, and may confuse.
“A doting parent reluctantly consents that his beseeching minor child may drive the parent’s automobile for the child’s own personal pleasure, and the parent knows, or has reason to know, the child will likely undertake to drive on a city street crowded with pedestrian and vehicular traffic. Because of known lack of discretion and experience in driving, the child is unfitted to manage the automobile in such traffic, and he has an accident. It is idle to say the parent consented to the act which caused the injury. It is equally idle to say the automobile was used in the parent’s business. The parent, however, is subject to liability, not because of his relation to the automobile as owner, or because of his relation to the child as parent, but because of his own negligence — because of not taking reasonable precaution against an injurious result which he could well foresee. The same would be true if the child were a neighbor’s child, or if the borrower were an adult who, as the lender knew or had reason to know, could not, for lack of experience, or because of recklessness, or intoxication, be trusted to drive the automobile. In this instance the alleged disqualification of the child was savagery.” 129 Kan. at 469. Emphasis added.
The decision in Capps clearly indicates that parents may be liable for the tortious acts of their child, not because the child’s acts are imputed to them, but because of their own negligence in failing to exercise reasonable care to control the child. That is the theory of our many cases involving the negligent entrustment of a vehicle to a known reckless or incompetent driver. See e.g., Neilson v. Gambrel, 214 Kan. 339, 342, 520 P.2d 1194 (1974); Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 150-1, 519 P.2d 737 (1974); Fogo, Administratrix, v. Steele, 180 Kan. 326, 328, 304 P.2d 451 (1956), and cases cited therein.
Other jurisdictions have recognized a cause of action against the parents of a minor child for injuries intentionally inflicted by the child where the parents know, or should have known, that injury to another was a probable consequence of failure to exercise control over the child. These cases are collected in 54 A.L.R.3d 974 (1973). The Restatement (Second) of Torts § 316 (1965) puts it this way:
“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.”
Liberally construed, the petition here alleges (1) defendants’ child has a vicious or malignant disposition (see first sentence of § 4); (2) defendants know or have reason to know that they have the ability to control their child (this can reasonably be inferred from §§ 4 and 5); (3) defendants know or should know of the necessity and opportunity for exercising such control (this can reasonably be inferred from §§ 4, 6, 7 and 8); and (4) defendants’ breach of their duty to exercise reasonable care in controlling their child is the proximate cause of injuries received by plaintiffs’ child (see § 4). It would appear that the petition pleads all the elements of a cause of action under Capps and the Restatement.
Both the trial court and defendants assert that mere negligence on the part of parents is not enough; there must be a specific tort or torts of their child before the parents may be liable for negligently permitting them. A fair reading of paragraph 4 meets that requirement. It refers to physical beatings of the plaintiff Dennis, Jr., at the hands of defendants’ child, resulting in pain and suffering. Under the notice pleading authorized under our present codes this was specific enough. If defendants wanted dates and details, their remedy was a motion for a more definite statement under K.S.A. 60-212(e), a provision applicable to limited actions under K.S.A. 61-1708(b). (Now they could, in addition, seek to serve interrogatories under K.S.A. 1979 Supp. 61-1725a.)
The judgment is reversed and the case is remanded for further proceedings. | [
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Foth, C.J.:
Plaintiff, a real estate broker, brought this action for a commission claimed to have been earned under an agreement with the defendant landowners denominated a “Joint Exclusive Right to Sell.” Defendants filed a “Motion for Dismissal of Plaintiff’s Petition” which was sustained by the trial court. Plaintiff appeals.
Our first problem is to discern the nature of the trial court’s order. In form it merely sustained defendant’s motion and dismissed the petition; it contained no findings of fact or conclusions of law. No record of the hearing on the motion was made, so no oral findings were preserved. Plaintiff served and filed a statement of proceedings under Rule No. 3.04 (225 Kan. xxxvii), and defendants served and filed a proposed amendment; neither was submitted to the trial judge for approval as required by the rule. Defendants assert that their motion, although it didn’t say so, was a 60-212(h)(6) motion for failure to state a claim. It appears, however, that the ruling was necessarily based both on the trial court’s construction of the listing agreement, attached to defendants’ motion, and on factual statements of counsel made at the hearing on the motion. Since matters outside the pleadings were considered the net effect, under K.S.A. 60-256, was the rendition of summary judgment. Putting aside the failure of the trial court to comply with the mandatory requirements of K.S.A. 60-252(a) and Rule No. 165 (225 Kan. lxxii), we conclude that summary judgment was premature.
The “joint” listing agreement in question was entered into between defendants and two brokers, plaintiff and Hardin-Stockton. Plaintiff’s petition essentially alleges that: (1) the parties entered into a contract under which the defendants granted plaintiff a joint exclusive right to sell their property; (2) pursuant to that contract plaintiff produced willing buyers who entered into a contract of sale with the defendants; (3) the execution of the contract of sale entitled the plaintiff to a commission under the “joint exclusive” contract; (4) defendants reneged on their contract with the buyers produced by plaintiff; and (5) defendants’ breach of the contract of sale caused damage to plaintiff in the form of loss of commission and miscellaneous expenses and costs. These allegations, if proved, would prima facie entitle plaintiff to his commission under the long established rule reiterated in Winkelman v. Allen, 214 Kan. 22, Syl. ¶ 1, 519 P.2d 1377 (1974):
“The general rule is that a real estate agent or broker is entitled to a commission if (a) he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal; (b) he is the efficient and procuring cause of a consummated deal. The latter is subject to a qualification where failure in completion of the contract, or closing title, results from the wrongful act or interference of the principal.”
Defendants did not and do not at this stage contend that thé buyers produced by plaintiff and originally accepted by them were not “able” to purchase. Rather, they say that the peculiar terms of the joint listing agreement permitted them to repudiate their contract with the buyers produced by plaintiff and accept a later, presumably better, offer from buyers produced by Hardin-Stockton. Those terms include, after routine provisions for advertising and showing, the following:
“5. The Owner agrees to pay the Realtor who makes the sale the regular commission recommended by the Johnson County Board of Realtors, Inc., which is 7% of the selling price, if the Realtor produces a purchaser ready, willing and able to purchase said property at the price and on the terms stated, or later agreed upon. In the event the property is sold by any other Realtor in cooperation with one of the undersigned Realtors, only then the commission will be divided between the cooperating Realtor and said undersigned Realtor. The undersigned Realtor(s) not participating in the sale shall receive no commission.
“6. Payment of 7% sales commission, computed on the accepted sales price to either of the undersigned Realtors, shall relieve the Owner of all liability to the said companies for payment of additional sales commission.”
Defendants’ theory, apparently accepted by the trial court, is that under paragraph 6, by selling to Hardin-Stockton’s buyer and paying a commission to Hardin-Stockton they were relieved of any obligation to plaintiff.
In concluding that this construction of the contract is wrong we apply certain accepted rules:
A cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to such intention. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, Syl. ¶ 2, 508 P.2d 889 (1973). The meaning of a contract should always be determined by a consideration of all pertinent provisions, not by a critical analysis of a single or isolated provision. Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, Syl. ¶ 3, 519 P.2d 646 (1974). If possible, every provision must be construed “so as to be consistent with every other provision and to give effect to all.” Wiles v. Wiles, 202 Kan. 613, 619, 452 P.2d 271 (1969). When placing a construction on a written instrument, the law favors reasonable rather than unreasonable interpretations. “Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided.” Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, Syl. ¶ 3.
In trying to find a reasonable construction which will avoid “absurdity,” we regard paragraph 5 as the operative paragraph dealing with commissions. Under it a commission would be due to “the Realtor who makes the sale” by producing a ready, willing and able buyer. If a nonsigning broker participated, the commission was to be divided with him. If a signing broker did not participate in the sale, that broker did not share the commission. Paragraph 6, as we read it, merely clarified the parties’ intent that disputes over division of the commission were to be settled between the brokers; so far as the sellers were concerned, payment of one commission fulfilled their obligation for one sale.
What is not covered, nor for obvious reasons even contem plated, was the sellers’ obligation for two sales. We assume that each party contracted in the expectation of good faith conduct by all other parties, including a recognition of the binding effect of contracts. To say that paragraph 6 clearly exonerates the sellers from the obligation to plaintiff which would be incurred if he fully performed reads far more into it than we can find there.
Rather, we construe the contract to fix the parties’ respective positions and liabilities whenever the first of the two brokers produced a qualified and accepted buyer. After that, if the sellers (defendants) repudiated their contract without just cause they did so at the risk of owing a commission to the first broker, whether they chose to take the property off the market, sell it themselves, or, as here, sell it through the other broker.
The facts in this case, of course, have not been developed. Whether plaintiff can prove his allegations or whether defendants had good cause to repudiate the alleged contract with plaintiff’s purchasers remain to be seen. Summary judgment, therefore, was not appropriate under the view we take of the contract.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. | [
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Rees, J.:
This is an appeal from a dismissal order of a district judge holding that he had no jurisdiction to review an order admitting a will to probate entered by a magistrate judge of the same district. We affirm.
Erie L. Kempkes died on September 13, 1977, leaving as her sole heir at law a daughter, Carol Spillman, the appellant. Three days later, on September 16, a petition for admission to probate of a July 22, 1976, will was filed in the Republic County district court by an individual named in the will as a co-executor. The petition identified by name and address Carol, seventeen other persons including five minors, and a children’s home as the devisees and legatees under the will. A guardian ad litem for the minors was appointed. Carol filed written objection to the admission of the will alleging the decedent was mentally incompetent at the time of the execution of the proffered will. A hearing on the petition and objection was held on October 14, 1977, before the magistrate judge of the Republic County district court. By order entered October 20, he admitted the will to probate. Carol filed a notice of appeal on December 29. No appeal bond was contemporaneously filed. Copies of the notice of appeal were served upon one of the co-executors and the guardian ad litem; there was no semblance of contemporaneous service of notice of the appeal upon thirteen of the identified devisees and legatees.
The will provisions included the bequest of one dollar each to Carol, her husband and her two minor children. Except for this four dollar bequest, the will directed distribution of the estate to the other fifteen devisees and legatees. As to Carol’s appeal, the thirteen devisees and legatees not contemporaneously served with notice clearly were not only parties to the action, they were adverse parties.
Although neither a written request nor a written order was filed, the record establishes it was on June 29, 1978, that request was made by Carol to the magistrate judge that the amount of an appeal bond be fixed and it appears he immediately and orally fixed the amount at $50,000. On the next day, June 30, Carol filed a written motion for reduction of the bond; as will be seen, the motion came on for hearing before the district judge; it was never considered by the magistrate judge.
On May 5, 1978, six and a half months after the entry of the order admitting the will to probate, the co-executors had filed written defenses to Carol’s appeal alleging lack of jurisdiction. The asserted theories were deficiency of service of notice of appeal and failure to file an appeal bond.
The co-executors’ written defenses to the appeal and the motion to reduce bond came on for hearing before the district judge on July 5,1978. He dismissed the appeal because of service of notice deficiency and failure to file an appeal bond. He also orally held the deficiencies were not technical errors or irregularities within the operation of K.S.A. 60-2105.
Certain observations need be made concerning the posture of this proceeding in the trial court as shown by the record before us. Even though the transcript of the July 5 hearing includes the statement of Carol’s counsel that “on or about June 30th notice was sent by registered mail to all the listed heirs, devisees and legatees .... The notice of appeal was delivered to them,” there is no certificate of service or affidavit of mailing of record. The same transcript reflects appellant’s counsel’s further statement that “we are now [sic] in contact with the District Magistrate Judge for the purpose of him setting a bond, and we are prepared to file that bond and have it on file today; however, because of the size of the amount of the bond [fixed] we felt perhaps it might be better and save some time if we took this matter up with you directly in view of the fact . . . the amount [fixed is] $50,000 [and] [t]he estate itself is only worth $44,000.” However, the record reflects no oral or written ruling on appellant’s motion for reduction of bond. Carol’s first efforts to have the amount of the appeal bond fixed and to serve notice of her appeal upon the mentioned thirteen parties were not made until eight months after entry of the order admitting the will to probate, six months after the filing of the notice of appeal, eight weeks after the filing and service of the co-executors’ written defenses to the appeal, and five days prior to the hearing before the district judge. Furthermore, the record compels the conclusion that notice of the appeal from the magistrate judge’s order has never been served upon the thirteen parties and an appeal bond has never been filed. There are no contentions to the contrary.
The appeal was properly taken to a district judge. K.S.A. 59-2404; K.S.A. 1978 Supp. 20-302b(c); K.S.A. 1978 Supp. 60-2103a(a). Carol understandably concedes noncompliance with the service of notice of appeal requirement of K.S.A. 1978 Supp. 60-2103a(a) (see K.S.A. 1978 Supp. 59-2401[c]) as well as her failure to file an appeal bond as required by K.S.A. 1978 Supp. 59-2401(fe).
Carol does not take issue with the co-executors’ contention that prior to court unification on January 10, 1977, failure to serve notice of appeal on all adverse parties and failure to file an appeal bond within six months following the order admitting the will to probate were each a jurisdictional defect. In re Estate of Demoret, 169 Kan. 171, 218 P.2d 225 (1950) [failure to serve notice of appeal]; In re Estate of Torrence, 204 Kan. 443, Syl. ¶ 4, 464 P.2d 193 (1970) [failure to file appeal bond]. Without noting that Demoret and Torrence were each specifically decided upon the language of K.S.A. 59-2405 (Corrick) which was repealed as of January 10, 1977, the date of court unification, she argues to us as she did to the district judge that as a result of court unification the defects are not jurisdictional.
Carol argues there now is but one district court having general original jurisdiction over all cases before it and, therefore, this entire probate proceeding was within the district court’s, i.e., the district judge’s, jurisdiction from its inception even though the petition for admission of the will was heard by a magistrate judge and his order was then appealed to the district judge. She points to the following statutory language in support of her argument:
“There shall be in each county a district court, which shall be a court of record, and shall have general original jufisdiction of all matters, both civil and criminal, unless otherwise provided by law, and also shall have such appellate jurisdiction as prescribed by law.” K.S.A. 1978 Supp. 20-301.
“(a) On January 10, 1977, the following courts of limited jurisdiction shall be and are hereby abolished:
“(6) probate courts established pursuant to section 8 of article 3 of the Kansas constitution, prior to the revision of said article in 1972.” K.S.A. 1978 Supp. 20-335(o)(6).
Carol’s argument is without merit.
Although a magistrate judge and a district judge have certain concurrent jurisdiction, including probate actions (K.S.A. 1978 Supp. 20-302b[a]), it is statutorily provided that an appeal from a decision or order of a magistrate judge be tried and determined by a district judge or an associate district judge. K.S.A. 1978 Supp. 20-302b(c).
Appellate jurisdiction exists only as provided by statute. See Brinson v. School District, 223 Kan. 465, Syl. ¶ 1, 576 P.2d 602 (1978). A district judge is vested with appellate jurisdiction to hear appeals from decisions and orders of a magistrate judge. K.S.A. 1978 Supp. 20-302b(c). The appellate jurisdiction of a district judge in an appeal from a decision or order of a magistrate judge is not affected by the fact that both judges may have concurrent original subject matter jurisdiction. The existence of concurrent original subject matter jurisdiction does not avoid the need to take statutorily required steps to perfect an appeal.
Relying upon Underwood v. Alimon, 215 Kan. 201, 523 P.2d 384 (1974), and Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756 (1976), Carol argued to the district judge and argues to us that the deficiency of service of notice of appeal and failure to file an appeal bond were technical errors or irregularities that by virtue of K.S.A. 60-2105 are to be disregarded.
Underwood and Avco are distinguishable. Neither involved an appeal from a probate order. Neither involved service of the notice of appeal. Each was concerned with K.S.A. 1973 Supp. 61-2102 which read:
“All appeals from magistrate courts in civil cases shall be by notice of appeal . . . filed with the clerk of the court from which the appeal is taken .... The appealing party shall cause notice of the appeal to be served upon all other parties to the action in accordance with the provisions of K.S.A. 60-205. Upon filing of the notice of appeal and such security for costs as may be required, the appeal shall be deemed perfected.” (Emphasis added.)
In Underwood it was held the filing of a bond to secure costs was permissive and not mandatory; the filing of a bond to secure costs was not necessary to perfect the appeal unless required by the court; although no bond to secure costs was filed, the magistrate court had required none prior to docketing in the district court; and the district court had exclusive jurisdiction upon the filing of the notice of the appeal in the magistrate court and docketing in the district court. 215 Kan. at 203-204.
In Avco, it was held that payment of the district court docket fee was not required to perfect an appeal from the magistrate court to district court. The district court dismissal for lack of jurisdiction entered after payment of the docket fee was reversed on appeal. The district court docket fee had been paid some three months after the filing of the notice of appeal. 219 Kan. at 60-61. The Avco opinion includes the following:
“The appellee seems to argue the payment of a $35 docket fee in the district court must be accomplished in the ten day period within which the appellant must perfect his appeal from the magistrate court by giving notice of the appeal. Obviously, if the appellant perfected his appeal by filing the notice of appeal at five minutes before the close of the tenth day, the magistrate judge or clerk of the court from which the appeal is taken could not ‘prepare a complete transcript of the proceedings before him and transmit the same, together with all papers in the case, to the clerk of the district court’ (61-2103, supra) prior to the expiration of the ten day period. The time within which the docket fee must be paid in the district court is not specified by the legislature in any of the statutes applicable to this matter.
“On the facts in this case the appeal was perfected in accordance with 61-2102, supra, the magistrate court complied with 61-2103, supra, by transmitting the necessary papers in the proceedings before it to the district court and the clerk of the district court filed these papers upon receipt, September 12, 1974. Thereafter, the clerk of the district court had no authority to return the papers to the magistrate court or to dismiss the appeal. Absent the payment of a $35 docket fee, the appeal on file in the district court was subject to dismissal only upon action taken by the district judge. Prior to any action by the district judge concerning the appeal, the $35 docket fee was paid on December 6,1974. Thereupon the clerk was required to docket the appeal.
“It must be noted 60-2001, supra, requires the payment of a docket fee because it uses the mandatory ‘shall’ as follows: ‘No case shall be filed or docketed, whether original or appealed, without payment of a docket fee in the amount of thirty-five dollars ($35) to the clerk of the district court.’ In other words, the payment of a docket fee to the clerk of the district court is required in appeals from Courts of Limited Jurisdiction, but the payment is not jurisdictional to the perfection of an appeal in the sense that it must accompany the notice of an appeal. Filing of the notice of appeal in the magistrate court within the ten day period set forth in 61-2102, supra, is jurisdictional.
“The time within which a docket fee is paid is secondary to actual payment (U. S. National Bank v. Lloyd’s, 239 Or. 298, 382 P.2d 851 [1963]) as we construe the conflicting statutes here in question.” (Emphasis added.) 219 Kan. at 62.
As in Avco, where the time within which the docket fee was to be paid in the district court was not statutorily specified, in the case before us the time for filing of the appeal bond prescribed by K.S.A. 1978 Supp. 59-2401(h) is not statutorily specified. Also, as Avco notes, K.S.A. 1974 Supp. 60-2001 uses the mandatory word “shall”; in the case before us K.S.A. 1978 Supp. 59-2401(h) uses the mandatory word “shall” as follows: “[T]he appellant . . . shall file in the court from which the appeal is taken a bond in such sum and with such sureties as may be fixed and approved by the court, conditioned that said appellant will without unnecessary delay prosecute the appeal and pay all sums, damages and costs that may be adjudged against said appellant.”
We conclude that where an appeal is taken from an order admitting a will to probate as allowed by K.S.A. 1978 Supp. 59-2401(a), the filing of the appeal bond prescribed by K.S.A. 1978 Supp. 59-2401(h) is mandatory. We do not reach the issue of what constitutes timely filing of the appeal bond required by K.S.A. 1978 Supp. 59-2401(h). In this case, no appeal bond had been filed by the appellant, Carol Spillman, when the co-executors’ objections to the appeal came on for hearing before the district judge; nor has one been filed since.
Except as to the appeal bond (see K.S.A. 1978 Supp. 59-2401[b]), Carol’s appeal to the district judge was to be taken in the manner provided by chapter 60 of Kansas Statutes Annotated. K.S.A. 1978 Supp. 59-2401(c). Reference to chapter 60 leads us to K.S.A. 60-2103 and K.S.A. 1978 Supp. 60-2103a. The latter directs that the notice of appeal from an order of a magistrate judge be filed with the clerk of the district court (K.S.A. 1978 Supp. 60-2103a[a]); both direct that notice of the appeal be served on all other parties to the action or judgment; and together both provide in substance that the appeal shall be deemed perfected upon the filing of the notice with the clerk of the court with failure to make the directed service of notice of the appeal not affecting the validity of the appeal. K.S.A. 1978 Supp. 60-2103a(a); K.S.A. 60-2103(h).
Notwithstanding the fact that by legislative action the validity of an appeal is not affected by lack of service of notice of the appeal, we find it patent that in this case the district judge was powerless to effectively sustain Carol’s appeal, for if he ruled the will should not have been admitted to probate, his order would have determined interests of the thirteen nonserved devisees and legatees without due process. In Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, 94 L.Ed. 865, 70 S.Ct. 652 (1950), it is said:
“Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”
See also Weaver v. Frazee, 219 Kan. 42, 45-46, 547 P.2d 1005 (1976).
Again, we hold Carol’s argument concerning the effect of the statutory changes implementing judicial unification in Kansas is without merit. We also hold that here the deficiency of service of notice of the appeal and the failure to file the appeal bond as statutorily mandated were not mere technical errors or irregularities within the operation of K.S.A. 60-2105 as of the time of entry of the district judge’s order from which this appeal has been brought to us. These are the sole issues raised before the district judge and presented to us for review.
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Parks, J.:
This is an appeal from an order dismissing plaintiffs’ action to establish paternity and obtain child support filed pursuant to K.S.A. 1979 Supp. 39-755.
Ta-Talinda was born October 27, 1974; however, this suit brought by her mother and the State of Kansas was not filed until March 30, 1977. In a letter decision the court dismissed the action, holding (1) the mother had failed to bring a paternity action within the one-year statute of limitations (K.S.A. 38-1104) and (2) the mother had no existing support rights at the date of the assignment. Plaintiff appeals and we reverse.
A similar factual situation was recently presented to this court in Smith v. Simmons, 4 Kan. App. 2d 60, 602 P.2d 546 (1979), where we said:
“[T]he child has a separate cause of action to enforce his right to support. Doughty v. Engler, 112 Kan. 583, 211 Pac. 619 (1923). This action is a chose which is vested in the child (Lawrence v. Boyd, 207 Kan. 776, Syl. ¶ 2, 486 P.2d 1394 [1971]) and may not be alienated by its parents (Myers v. Anderson, 145 Kan. 775, 778, 67 P.2d 542 [1937]). Any settlement of the nonstatutory right to support (Myers, 145 Kan. at 778) or assignment of the companion duty of support (Grimes v. Grimes, 179 Kan. 340, 295 P.2d 646 [1956]), is ineffective. More importantly, the common law action for support has been exempted from the operation of the statute of limitations of K.S.A. 38-1104. Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974).” 4 Kan. App. 2d at 61.
Thus we held in Smith that a paternity suit brought by a mother as guardian and next friend and represented by SRS may be properly maintained as an action for enforcement of the child’s nonstatutory right to support and that as such, the action is not subject to the provisions of K.S.A. 38-1104.
After the trial court’s judgment was entered in Smith, K.S.A. 1979 Supp. 39-753(g) and 39-755(a) were enacted to permit SRS to assist in establishing paternity, when appropriate or necessary, and in securing and enforcing orders for support. It is the effect of these statutes which is now at issue in this case.
Defendant argues that the operation of K.S.A. 1979 Supp. 39-755(a), which reads:
“In cases where the secretary of social and rehabilitation services has accepted, on behalf of the state, an assignment of support rights from a person applying for or receiving aid to families with dependent children in accordance with the provisions of K.S.A. 1976 Supp. 39-709, the secretary of social and rehabilitation services is authorized to bring a civil action in the name of the state of Kansas to enforce such support rights and, when appropriate or necessary, to establish the paternity of a child.”
depends upon the effectiveness of the assignment made in accordance with 39-709. We do not agree.
The construction of a new statute entails application of two basic principles. The first is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. Brown v. Keill, 224 Kan. 195, Syl. ¶ 2, 580 P.2d 867 (1978). This principle must then be applied in light of the following:
“In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested. [Citation omitted.] In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words as phrases which conflict with the manifest purpose of the legislature. [Citation omitted.]” 224 Kan. at 200.
It is apparent that the intent of the legislature in enacting K.S.A. 1979 Supp. 39-755 was to provide a procedure, complementary with federal law, which would permit the State to obtain reimbursement for welfare assistance paid to children who have a right to support from some other person. Report on Kansas Legislative Interim Studies, Part I, Special Committees, 1022-26 (1976). To construe K.S.A. 1979 Supp. 39-755 to be dependent on an assignment of the mother’s rights would be to defeat this purpose in all cases in which the assignment is not given within one year of the child’s birth since K.S.A. 38-1104 clearly applies to the mother’s support action. Such a result would be inconsistent with Smith and with the intent of the legislature.
Defendant’s argument also ignores subsection (d) of K.S.A. 1979 Supp. 39-755 which provides:
“The provisions of this section shall also apply to cases brought in accordance with the provisions of this act involving persons who are not applicants for or recipients of aid to families with dependent children.” (Emphasis supplied.)
In order for subsection (d) to have any meaning, the assignment referred to in K.S.A. 1979 Supp. 39-755(o) is merely a condition of eligibility for aid to families with dependent children (K.S.A. 1979 Supp. 39-709) and not a prerequisite to an action by the State to enforce the child’s support rights.
We hold that this action, premised as it is on K.S.A. 1979 Supp. 39-755, is substantively the same as Smith and is not barred by K.S.A. 38-1104. Because the sufficiency of the assignment does not control whether the State of Kansas may bring an action to enforce the child’s support rights, the defendant’s motion to dismiss the appeal as being moot is denied.
The trial court’s order to dismiss is reversed with directions to reinstate the case and proceed to trial. | [
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Abbott, J.:
This is an appeal from the denial of a post-judgment motion for attorney fees pursuant to K.S.A. 40-256. The actual loss to plaintiffs has been paid as a result of the acceptance of defendants’ joint offer to confess judgment. The facts are simple and are basically undisputed. The insureds discovered structural damage to their building in January of 1975. They ultimately filed suit against three insurance carriers that had provided coverage during the 1971 to 1975 period, alleging the damage had occurred in either 1971 or 1975. Ohiq Casualty Insurance Company provided coverage from September 1, 1973, through 1975. Federal Insurance Company provided coverage during 1971. The third carrier, which the insureds subsequently dismissed from the suit, provided insurance between the periods covered by Ohio Casualty and Federal. Other facts will be supplied throughout the opinion as they become necessary.
The district court based its decision on its review of the entire record, which included pleadings, depositions and exhibits. No testimony was presented to the trial court; thus, this Court is afforded the same opportunity as the trial court to consider the evidence and determine de novo what the facts establish. United States Fidelity 6c Guaranty Co. v. Continental Ins. Co., 1 Kan. App. 2d 722, 723, 573 P.2d 1106 (1977). We arrive at the same conclusion as did the trial court.
I. OHIO CASUALTY INSURANCE COMPANY
A bona fide factual dispute existed as to whether the loss occurred during the period Ohio Casualty’s policy was in effect. We cannot say that Ohio Casualty’s denial of the insureds’ claim was frivolous or unfounded. The record shows that Ohio Casualty promptly and independently investigated the claim after it received notice of the loss. It relied on Max Coleman, a qualified expert, who advised that the loss occurred in 1971 prior to Ohio Casualty’s coverage becoming effective on September 1, 1973.
In plaintiffs’ answers to interrogatories propounded by Ohio Casualty, plaintiffs listed Max Coleman, the same expert that Ohio Casualty named, as the expert they would rely on to prove the damage occurred in January of 1975. This was probably because Mr. Coleman first checked the building at the request of Ewing Construction Company, which was the company employed by plaintiffs to correct the damage after it was discovered. Plaintiffs’ petition raises a substantial question of whether the loss occurred during the policy period, for it alleges the loss occurred “either in January of 1975 or February of 1971.”
Coleman was of the opinion that the roof failure occurred as a result of an overload of snow that accumulated during a storm in February of 1971. He testified three other buildings with similar roof structures failed during the February 1971 storm. Coleman’s report was sufficient to create a valid question of fact as to whether the loss was within Ohio Casualty’s policy period. An insurer is not required to pay a claim while a bona fide question of liability exists (Lord v. State Automobile & Casualty Underwriters, 208 Kan. 227, 491 P.2d 917 [1971]) if it has fulfilled its duty to make a good-faith investigation before final refusal. Brown v. Continental Casualty Co., 209 Kan. 632, 489 P.2d 26 (1972).
Plaintiffs’ argument that there was never a dispute regarding coverage is without merit. It is the type of loss that was never questioned as being within the policy coverage of both Ohio Casualty and Federal. The time of loss, which is the factor in dispute concerning coverage, was clearly disputed by both Ohio Casualty and Federal. It is the insured’s burden to prove that the loss fell within the coverage of the contract of insurance. Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P.2d 401 (1974).
The fact that Ohio did not inspect the building prior to issuing its policy, as plaintiffs argue is required by K.S.A. 40-906, is immaterial under the facts of this case. The truss failure was concealed by ceiling tile below and layers of roofing above and, until the ceiling dropped in January of 1975, would not have been detectable without removing ceiling tile. We are satisfied it was not the legislative intent in adopting K.S.A. 40-906 to require an insurance carrier to check for structural damage. The statute deals only with the duty of an insurance company to properly and fully describe the property or premises insured. No one here disputes that the building as described was insured or that the particular type of loss involved was not covered by the policies. The sole question is when did the loss occur.
When the general rules governing allowance of attorney fees under K.S.A. 40-256, as set forth in the cases cited herein and in Brown v. Combined Ins. Co. of America, 226 Kan. 223, 597 P.2d 1080 (1979), are applied to the facts in this case, we are satisfied that the trial judge did not err in refusing to award attorney fees against Ohio Casualty.
Before turning to Federal Insurance Company, we consider one argument by plaintiffs that applies to both insurance carriers. Plaintiffs argue that even had the damage occurred in 1971 it was a continuing damage as the roof did not sag until 1975. The trial court record reflects plaintiffs’ position was that the damage occurred either in 1971 or 1975. Illustrative of their position is the fact that plaintiffs amended their petition and dismissed their lawsuit against the insurance carrier that provided coverage between that provided by Ohio Casualty and by Federal. The continuous damage position was not raised at the trial court level and we will not consider it for the first time on appeal. Landrum v. Taylor, 217 Kan. 113, 535 P.2d 406 (1975).
II. FEDERAL INSURANCE COMPANY
It is the burden of the insured to prove by a preponderance of the evidence that the insurance company refused to pay “without just cause or excuse.” Thompson Transport Co. v. Middlestates Construction Co., 195 Kan. 172, 403 P.2d 999 (1965). We are in complete agreement with the memorandum opinion of the Honorable Porter K. Brown, trial judge, who stated in pertinent part:
“In its answer of December 15, 1975, Federal admits that it received notice of the loss on March 14, 1975, and that it refused to pay plaintiffs’ claim. No other information is available with regard to any investigation conducted by Federal. As the burden of proof is upon the plaintiff to prove that Federal refused to pay without just cause or excuse and there is no evidence on the question, I am compelled to find that the plaintiff has failed to sustain this burden and attorney fees against both defendants are denied.”
Counsel for plaintiffs have included material and facts in their brief that were not offered into evidence in the district court; therefore, those are not properly a part of the record. We do not consider evidence that was not submitted to the trial court. Medill v. McIntire, 136 Kan. 594, 16 P.2d 952 (1932).
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Abbott, J.:
This case involves an action for peaceable entry and forcible detainer brought by the plaintiff, Otto J. Koerner, pursuant to K.S.A. 61-2301 et seq., to evict the defendants from commercial premises in Valley Center, Kansas, and to recover accrued but unpaid rent for the use of those premises. The trial court granted plaintiff possession and a judgment in the amount of $8,955 for past due rent. Defendants appeal.
The defendants are Custom Components, Inc., Elmer Wiechman and Terry Wiechman. Elmer and Terry are father and son. They are the officers and sole stockholders of Custom Components, Inc. The written leases hereinafter referred to were signed by the Wiechmans both in their corporate capacity and individually.
Otto J. Koerner, a Wichita lawyer, had been counsel for the Wiechmans for many years and for Custom Components, Inc., since it was formed in 1973. Custom Components manufactures roof and floor trusses and various other components used in the building trade. In July of 1974 the defendants were having financial problems and lost possession of the building in which they manufactured their products. Koerner’s aid was obtained in an effort to secure new quarters. The record indicates that considerable effort was made to locate suitable existing quarters, but when that effort was unsuccessful the parties decided to build. Two and a half acres of land located in Valley Center were purchased and an option was taken to purchase an additional seven and a half acres. The Wiechmans, due to their financial condition, were unable to obtain financing. An attempt was made to issue industrial revenue bonds but the bond companies advised that the bonds would not sell because of the Wiechmans’ financial condition. They finally decided that Koerner’s credit would be used to build a building.
Defendants executed an agreement with Koerner on July 18, 1974. The agreement provided that Koerner would purchase the two-and-a-half-acre tract and that defendants would then provide the labor to erect a building thereon for use as a manufacturing facility. The agreement further provided that Koerner would advance sums to defendants for site preparation and materials to be used in erecting a building. The same day, the parties entered into a lease agreement covering the same property. The lease was for a ten-year term, with rent at $500 a month. A separate provision of this contract provided that Koerner was to provide legal, financial and managerial advice in return for one percent of the defendants’ gross business. Koerner made arrangements for long-term financing of $60,000 and for interim financing in the same amount, and ultimately the building was constructed.
Defendants made no rent payments nor payments on the retainer portion of the contract. After the permanent loan was made and the parties knew what the cost of servicing the loan would be, the parties entered into a new agreement, effective July 1,1975, in which Koerner waived all past due amounts owing and the rent was raised from $500 to $810 a month, an amount corresponding to Koerner’s new mortgage payments on the property. In other respects the agreement was similar to the previous one, requiring defendants to pay the taxes and the insurance premiums.
Defendants’ payments under this second agreement were irregular from the start. In July of 1976 they quit making payments on the retainer portion of the contract. (Koerner makes no claim in this lawsuit for money due under the retainer provision.) In the summer of 1976, Koerner gave defendants notice of default and defendants responded by bringing their payments current by December 7,1976. By November of 1977, defendants were $4,860 behind on their rent. Koerner sent them a second notice of default on November 28, 1977. A corrected notice of default was sent on December 1,1977. It provided that the lease would be terminated if defendants did not become current within forty days.
Defendants contend that thereafter a meeting of the parties occurred at Koerner’s office. They testified that an agreement was reached at that meeting between the parties wherein defendants would make double monthly payments for the months of January, February and March 1977, at which time defendants would be current. Koerner denies such an agreement, as did a second lawyer who was representing Koerner and was present during part of the meeting. On January 3, 1978, defendants paid $1,620, but they were still in arrears. A notice of termination was served on defendants on January 16, 1978. Defendants were notified on January 31, 1978, that if they remained in possession it would be on a month-to-month basis and rent would be $2,000 a month, a sum Koerner testified he felt was the reasonable rental value. On May 26, 1978, after having received no rent payments since January, Koerner served notice to quit and notice of suit on defendants. This lawsuit was filed June 19, 1978.
Defendants have admitted Koerner has legal title to the property and that they received the notices. Defendants further admit they were behind on rent at the time default was declared and that they have remained in possession without making any attempt since January 1978 to pay rent.
The case was tried to the court. At the conclusion of trial the court ruled that there existed a valid lease which was breached by defendants; that defendants owed rent in the amount of $8,955 (evidently computed by adding the $2,430, which the court found unpaid at the time Koerner attempted to raise the rent, to the sum of five months’ accrued rent, which the court concluded had a reasonable monthly value of $1,305 per month); and that defendants be evicted from the premises. Defendants posted a supersedeas bond in the penal sum of $17,910 and have remained in possession of the premises pending appeal. Further facts will be set forth as they become relevant.
Defendants do not allege fraud, and they stated at oral argument that they neither allege nor rely on violation of the Code of Professional Responsibility. They raise the following issues:
1. Did the trial court err in construing the proffered testimony of O. J. Baalman?
2. Did the trial court err in construing the June 9, 1975, agreement as a lease?
3. Is the plaintiff estopped from proceeding in this action because the June 9, 1975, agreement is one of conditional sale rather than lease?
4. Did the trial court err in overruling defendants’ demand for jury trial?
O. J. Baalman is a management and marketing consultant for small corporate entities and was employed in that capacity by defendants to help solve their financial difficulties. He began performing services for the corporation in the summer or early fall of 1977, almost a full year after the defendants quit paying Koerner for legal and managerial services.
The trial judge ruled that Baalman’s testimony pertaining to his acts subsequent to Koerner’s participation in the management of the corporation was irrelevant and inadmissible. Defendants’ counsel then made a proffer that their purpose in calling Baalman was to establish that plaintiff’s faulty management contributed to their inability to pay the rent and carry out the provisions of the lease, thereby creating an estoppel defense to the eviction proceeding.
Koerner made no claim for defendants’ deficiency on the employment contract which provided for one percent of monthly gross receipts. When his counsel endeavored at trial to question one of the defendants concerning the fees due under the employment contract, defendants’ attorney objected that any discussion of the employment contract was irrelevant because the proceedings entailed only the issues of possession of the building and rent. In response, the trial judge stated that he would not take into consideration testimony concerning the accrued fees provided for in the management contract. Despite objection made by defendants to the trial judge, urging him to limit the testimony concerning the employment contract, they attempted to introduce evidence that Koerner failed to provide financial and managerial advice under the employment contract that purportedly might have improved the corporation’s financial standing and allowed it to pay the rent. Admission of this testimony was refused on the basis of relevance. “Where a party procures a court to proceed in a particular way and invites a particular ruling, he is precluded from assailing such proceeding and ruling on appellate review.” Grimm v. Puliesen, 215 Kan. 660, Syl. ¶ 3, 527 P.2d 978 (1974). That is exactly what the defendants have done in this case by requesting a limited scope of examination in the area of the employment contract and then charging as error an evidentiary exclusion in the same area.
Moreover, a ruling on the remoteness of the relevancy of evidence ordinarily rests in the discretion of the trial court and will not be reversed unless it clearly appears the ruling constituted an abuse of sound judicial discretion. Holmquist v. D-V, Inc., 1 Kan. App. 2d 291, Syl. ¶ 2, 563 P.2d 1112 (1977). This Court recently reviewed the rules for establishing an abuse of judicial discretion in McColm v. Stegman, 3 Kan. App. 2d 416, 420, 596 P.2d 167 (1979):
“Appellants have a heavy burden, for one who claims abuse of discretion has the burden of proving that contention. Krueger v. Krueger, 174 Kan. 249, 255 P.2d 621 (1953). To find the trial court abused its discretion, an appellate court must determine that no reasonable person could take the view adopted by the trial court. In re Pennington, 224 Kan. 573, 577, 581 P.2d 812 (1978), cert. denied 440 U.S. 929 (1979). If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Stayton v. Stayton, 211 Kan. 560, 506 P.2d 1172 (1973).”
When viewed in light of defendants’ own question on the relevancy of testimony in the area of the employment contract, it is clear that defendants have not sustained their burden of showing that no reasonable person could take the view adopted by the trial court.
Defendants also argue that the June 9, 1975, contractual arrangement which they entered into with Koerner amounted to a conditional sale contract rather than a lease with an option to purchase, thereby vesting defendants with an interest in the land which could not be extinguished by the statutory summary possession remedy. In support of this position, defendants cite Stevens v. McDowell, 151 Kan. 316, 98 P.2d 410 (1940), at 319:
“But if the monthly payments have been made with reasonable promptness and have been made for such a length of time that their aggregate amount constitutes the equivalent of a substantial payment on the purchase price, or where substantial improvements have been made by the tenant-vendee, then equity may not permit the interest of the tenant-vendee to be summarily extinguished in forcible detainer, but will deal with the situation according to equitable principles, and may require proceedings as in equitable foreclosure before the interest of the latter can be extinguished.”
Koerner counters by arguing that the agreement was, in fact, a lease, but even if it should be interpreted now as a contract for the purchase of land, the interest was still properly extinguished by forcible detainer.
The trial judge, after examining the document and listening to testimony concerning the parties’ intent and actions in relation to the agreement, found the contract to be a lease with an option to buy. When a case is tried to the court and the evidence is heard orally, the district court’s findings in the case have the force and effect of a jury’s verdict, and if supported by substantial evidence the findings will not be disturbed on appellate review. Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 259, 531 P.2d 428 (1975). The evidence supports the trial court’s findings that the contractual agreement in question is a lease with an option to buy (also called a “pure-option,” Letzig v. Rupert, Executor, 209 Kan. 143, 147, 495 P.2d 955 [1972]) and not a contract for sale of the “optional-agreement flat-payment” variety as discussed in Stevens v. McDowell, 151 Kan. 316, and upon which defendants heavily rely. In Fourth National Bank v. Hill, 181 Kan. 683, 693-94, 314 P.2d 312 (1957), the Kansas Supreme Court found that the lessee in a lease with an option to purchase had no interest in the property beyond his leasehold interest. The factors considered by the Court in its finding were that (1) the lessee was never obligated to purchase the property; (2) there was no completed contract of sale on which the lessor could have sought and obtained specific performance against the lessee; (3) all payments made by the lessee were paid as rent, not as purchase money; (4) the option was never exercised. In the case before the Court, the facts are the same. The defendants were under no obligation to buy the property and did not interpret the contractual agreement as requiring them to do so; in fact, at one point, months after the contract had gone into effect, the defendants considered the possibility of buying the property. Defendants met with Koerner after they fell behind on their rent and they testified they sug- ® gested that one way they might resolve their differences was to “buy” the property. The parties agreed to hire an appraiser so that a fair price could be ascertained.
The evidence also supports the trial court’s finding that both parties intended the agreement to be a lease. A cardinal rule in the interpretation of contracts is to ascertain the intention of the parties from the contract as a whole and to give effect to that intention if it can be done consistently with legal principles. Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917 (1976); Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, Syl. ¶ 1, 519 P.2d 646 (1974).
The terms of the June 9 contract clearly indicate that the parties regarded the transaction as a lease with an option to purchase, not as a sale:
1. The June 9, 1975, contract provisions speak of its being a ten-year lease for which rent is due in monthly installments;
2. Title was neither placed in escrow nor transferred to defendants;
3. Defendants made no down payment;
4. The contract provided that any building erected would be the property of the lessor, and the lessee should have only a leasehold interest therein;
5. The contract provided in the event the premises were appropriated by eminent domain, the contract would be terminated and the lessor would have the exclusive right to make claim against the condemning authority for any damage done;
6. The contract provided that upon default or abandonment by the tenant, the lessor could enter and relet for the remainder of the term;
7. Section 19 of the contract provided that the tenant would allow the lessor at any time within the last one-half year prior to the expiration of the agreement to place on the demised premises any usual or ordinary “to let” or “to lease” signs and exhibit the premises to prospective tenants at reasonable hours;
8. The contract provided that the tenant had the right to renew for another ten-year term on the same terms and conditions, except that the rental payments would be renegotiated.
We further note that even when our Supreme Court has considered an agreement as a conditional sale contract, it has affirmed trial courts that strictly enforced the contract according to its terms. Hively v. Graff, 151 Kan. 594, 100 P.2d 685 (1940); Coryell v. Hardy, 144 Kan. 194, 58 P.2d 1151 (1936); Atchison Savings Bank v. Richards, 131 Kan. 81, 289 Pac. 975 (1930). In Atchison Savings Bank, the defendants argued they had made substantial improvements, as do the defendants in the case at bar, and that the plaintiff by accepting late payments had waived the right to declare forfeiture. The Court rejected both contentions. It reasoned that it was not inequitable to declare forfeiture since the defendants had made improvements with the full knowledge that under the contract such improvements would be forfeited if the installments were not paid promptly when due. Since the contract provided that time was of the essence, the late acceptance of payments did not waive a breach.
Here, defendants contend the value of their labor in erecting a building on the property gives them an equitable interest. The rent payments of $810 per month covered only the cost of servicing the loan. The trial court found that the reasonable monthly rental value of the premises was $1,350, which also included payment of insurance and taxes. When the evidence is considered in a light most favorable to the prevailing party, as we are required to do, there is testimony that the property has a fair market value as low as $80,000. As noted by counsel for Koerner, that figure would not keep up with the rate of inflation on Koerner’s $60,000. Based on the record before us, we cannot say the trial court erred in finding the defendants had no equitable interest in the property and declaring forfeiture.
The defendants claim reversible error by reason of the trial judge’s refusal to grant their request for a jury trial. They argue that they are entitled to a jury trial by express statutory provisions by virtue of Kansas Bill of Rights § 5. The express statutory provisions on which defendants rely are K.S.A. 1977 Supp. 61-1716(a), which reads in pertinent part, “All civil actions brought to trial pursuant to this chapter shall be tried by the court, unless a trial by jury is demanded by one of the parties,” and that portion of K.S.A. 61-2309 reading, “If the suit be not continued or place of trial changed or neither party demands a jury trial, the judge shall try the case at the time appointed for trial.” (Emphasis supplied.)
We dispose first of defendants’ contention that a jury trial is mandatory under K.S.A. 61-2309 if either party demands it pursuant to K.S.A. 1977 Supp. 61-1716(a), regardless of whether the action is legal or equitable. Koerner seems to concede that historically in Kansas a jury trial generally has been provided for in forcible entry and detainer statutes. He argues that the question is whether a jury trial is required in all forcible entry and detainer cases in which a party has requested one regardless of the nature of the case.
Plaintiff contends, and we agree, that the reference to a jury trial in K.S.A. 61-2309 is mechanical and not mandatory. It provides no independent substantive guarantee of a jury trial, rather it is a mechanical provision concerning the timing of the trial in cases when there is no delay because of a continuance, a change of venue, or the mechanics of calling a jury. The language mentioning a jury merely recognizes that in some cases a jury may be appropriate; it does not require a jury in all instances.
Neither does K.S.A. 1977 Supp. 61-1716(o) require a jury trial. In our opinion, it parallels the provisions of K.S.A. 60-238 and 60-239, but is in somewhat more abbreviated language. The Kansas Supreme Court has repeatedly held that the provisions of 60- 238 and 60-239 merely implement the constitutional guarantee contained in Kansas Bill of Rights § 5. Hindman v. Shepard, 205 Kan. 207, 468 P.2d 103 (1970), cert. denied 401 U.S. 928 (1971). The construction suggested by defendants would require jury trials on request in other chapter 61 proceedings such as attachment, garnishment, replevin and actions to foreclose security interests. We are satisfied the legislature did not intend such a result. In Windholz v. Willis, 1 Kan. App. 2d 683, 573 P.2d 1100 (1977), this Court considered K.S.A. 61-1716 in determining whether a party in an action brought under the small claims act (K.S.A. 61-2701 et seq.) was entitled to a jury trial. We stated that the test used to determine if a civil litigant is entitled to a jury trial is whether the action is essentially a legal rather than an equitable one. We conclude that 61-1716(o) cannot be read to permit a party to receive a jury trial upon request if the action is essentially equitable in nature.
We are of the opinion that Windholz v. Willis further buttresses Koerner’s argument that the language in K.S.A. 61-2309 is mechanical and not mandatory. When the statutory language in 61- 2309, that if “neither party demands a jury trial, the judge shall try the case,” is compared to the statutory language in 61-1716 considered in Windholz, that the action “shall be tried by the court, unless a trial by jury is demanded by one of the parties,” it is virtually identical. We are thus satisfied that the statutes do not provide the right to a jury trial independent of constitutional dictates.
We turn now to whether defendants are entitled to a trial by jury by virtue of Kansas Bill of Rights § 5. Our Supreme Court reviewed some of the guiding principles to be followed in determining a civil litigant’s entitlement to trial by jury in Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, 600-01, 561 P.2d 825 (1977), as follows:
“(1) The right of trial by jury is a substantial and valuable right. The law favors trial by jury and the right should be carefully guarded against infringement. (Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 497 P.2d 110.)
“(2) The constitutional right to a jury trial guaranteed by Section 5 of the Bill of Rights of the Constitution of the State of Kansas refers to that right as it existed at common law. (Craig v. Hamilton, 213 Kan. 665, 518 P.2d 539; Hasty v. Pierpont, 146 Kan. 517, 72 P.2d 69.) Judge Spencer A. Gard in Kansas Code of Civil Procedure § 60-238, in discussing the repeal of former statute G.S. 1949, 60-2903 and in analyzing K.S.A. 60-238 states as follows:
“ ‘There is now no general statute defining what issues are triable to a jury as a matter of right and which are not. That question is determinable on the basis of common law tradition as preserved by the Kansas Constitution, section 5 of the Bill of Rights. See Hasty v. Pierpont, 146 K 517, 72 P 2d 69, which discusses the basic principle that under the common law a party was entitled to a jury if the case was based on legal principles as distinguished from actions in equity. Kansas jurisprudence does not seem to have suffered any loss by the repeal of former section 60-2903.’
“(3) At common law and under the Kansas constitutional provision in a suit in equity a party is not entitled to a trial by jury as a matter of right. (Spena v. Goffe, 119 Kan. 831, 241 Pac. 257.)
“(4) In determining whether an action is one in equity the test is whether the essential nature of the action is grounded on equitable rights and is one in which equitable relief is sought. (Akins v. Holmes, 89 Kan. 812, 133 Pac. 849; Houston v. Goemann, 99 Kan. 438, 162 Pac. 271; Hasty v. Pierpont, supra; Sutherland v. Sutherland, 187 Kan. 599, 358 P.2d 776; Hindman v. Shepard, 205 Kan. 207, 468 P.2d 103.)
“(5) The issues raised by the pleadings or as modified by the pretrial order determine the nature of the action, and where the issue is not one justiciable at common law, a jury trial is not available. (Craig v. Hamilton, supra.)
“Prior to the adoption of our present code of civil procedure whether or not a party was entitled to a jury trial was determined exclusively from the pleadings. (Estey v. Holdren, 126 Kan. 385, 267 Pac. 1098; Hasty v. Pierpont, supra; McCalester v. National Reserve Life Ins. Co., 151 Kan. 378, 99 P.2d 758; Nusz v. Nusz, 155 Kan. 699, 127 P.2d 441; City of Osawatomie v. Slayman, 182 Kan. 770, 323 P.2d 910; Sutherland v. Sutherland, supra.) The rule which required a consideration of the pleadings alone was appropriate under our former code of civil procedure where the plaintiff was required to plead in his petition all of the facts constituting his cause of action. Under our present code of civil procedure which requires only ‘notice’ or ‘claim’ pleading, the former rule is not as workable from a practical standpoint. This was recognized in Craig v. Hamilton, supra. The rule to be applied today should be one which permits the parties to complete their discovery so that the basic issues involved in the case can be clarified and the essential nature of the action determined at a pretrial conference. It is at that stage of the litigation that the trial court should determine the issue whether a party is entitled to trial by jury as a matter of right.
“(6) The substance of the pleadings, not the form of the pleadings, determines the character of an action as equitable or legal in nature. (Estey v. Holdren, supra; Russell v. Bovard, 153 Kan. 729, 113 P.2d 1064; Cloonan v. Goodrich, 161 Kan. 280, 167 P.2d 303; City of Osawatomie v. Slayman, supra.) The fact that the plaintiff prays for a money judgment only is not controlling where the action is essentially one in equity. (Sipe v. Taylor, 133 Kan. 449, 300 Pac. 1076.)
“(7) Where a court of equity obtains jurisdiction of an action for the purpose of granting some distinctively equitable relief, the court will take jurisdiction for all purposes and determine all issues in the case so that a full, effective, and determinative decree adjusting the rights of the parties may be entered and enforced. (Seibert and Lykins v. Thompson, 8 Kan. 65; Martin v. Martin, 44 Kan. 295, 24 Pac. 418; Sanders v. Visser, 165 Kan. 336, 194 P.2d 511; Place v. Place, 207 Kan. 734, 486 P.2d 1354.)”
The fact that there are some legal issues in what is otherwise essentially an equitable case does not entitle one to a jury trial. When it is established that the essential nature of the case is equitable, the court will take jurisdiction for all purposes and determine all issues so as to administer complete relief. Place v. Place, 207 Kan. 734, 486 P.2d 1354 (1971); Gaynes v. Wallingford, 185 Kan. 655, 347 P.2d 458 (1959).
Koerner does not seriously contend that a peaceable entry and forcible detainer case is not normally an action at law. Substantial authority exists that it is an action at law. McCracken v. Wright, 159 Kan. 615, 619, 157 P.2d 814 (1945); Stevens v. McDowell, 151 Kan. at 319; Dineen v. Olson, 73 Kan. 379, 386, 85 Pac. 538 (1906); Kellogg v. Lewis, 28 Kan. 535, 537 (1882). What Koerner basically contends is that after the issues were framed at pretrial, the essential nature of the case was equitable and any questions of law that remained were only incidental thereto. He relies primarily on Karnes Enterprise, Inc. v. Quan, 221 Kan. 596. Karnes had leased a restaurant to the Quans. The lease called for a monthly rental payment equal to ten percent of the gross sales of the restaurant less sales tax. Karnes discovered that Quans were not reporting all of the gross sales and therefore were not paying enough rent. Karnes brought suit, asking for possession of the property, rent due and owing, an accounting, and punitive damages. The Quans admitted the lease, denied that any rent was past due and counterclaimed for malicious prosecution. They timely demanded a jury trial. The demand was denied and the Quans appealed, claiming there were legal issues and factual questions involved in the suit so that they were entitled to a jury trial. The Kansas Supreme Court rejected this claim, stating at 603:
“In this case the petition filed by Karnes Enterprises sought relief not only by way of money judgment but also types of relief which were essentially equitable in nature. At the time the case was filed the Quans were in possession of the restaurant premises. The petition prayed for cancellation of the lease and restoration of the property to the lessor. In addition the plaintiff specifically asked for an accounting of all amounts received by the Quans from the vending machines located on the restaurant premises. It should also be noted that in its demand for a money judgment for rentals due and unpaid the plaintiff requested judgment against the Quans in the sum of $29,857.65 ‘together with any additional sums Plaintiff may be entitled to from Defendants as rentals . . .’It is obvious that the specific sum mentioned was the minimum estimate of what the plaintiff believed was owed to it by the Quans. When we consider the substance of the allegations set forth in the petition, we arrive at the inescapable conclusion that Karnes Enterprises, Inc. is seeking a full accounting of the gross receipts received by the restaurant business during the period the Quans operated the same. Considering the pleadings, the relationship of the parties, and the contentions of the parties in our judgment the district court did not err in denying to the defendants Quan a trial by jury. The essential nature of the action was one for an accounting grounded on equitable rights, and clearly one in which equitable relief was sought. Since the action was one in equity, the court properly proceeded to determine all issues in the case so as to render complete and final relief to the parties in the controversy.”
In the case at bar, defendants admitted at pretrial that Koerner had title to the property, that they had fallen behind on their rent and that they had received proper notices while in default. Most of the remaining issues were equitable in nature, i.e., defendant claimed an equitable interest by reason of labor furnished in erecting the building and claimed accord and satisfaction. Actions for the recovery of money are actions in law. The money damages sought in this case were (1) for past due rent, the amount of which was not in question, and (2) rent which the trial court equitably determined on the basis of reasonable value as opposed to the amount plaintiff claimed. The question of substantial performance is legal in nature. It was not the primary issue, however, and based on the admitted facts the trial judge well could have decided that issue summarily. The primary defense was that the lease-option contract should have been construed as a sale. The interpretation of a contract is a question of law for the court. West v. Prairie State Bank, 200 Kan. 263, Syl. ¶ 5, 436 P.2d 402 (1968).
Having reviewed the record in the manner in which we are required to view it, we are of the opinion that this case is analogous to Karnes Enterprise, Inc. v. Quan, 221 Kan. 596; that the trial judge correctly determined the essential nature of the action to be equitable in nature and no reversible error is found. Since it is essentially equitable in nature, the trial court properly determined all the issues in the case.
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Swinehart, J.:
Plaintiff appeals from the denial of a K.S.A. 60-260(b) motion to set aside a judgment of dismissal of her cause of action against defendant. The sole question on appeal is whether the trial court abused its discretion in denying the motion.
Plaintiff was allegedly injured when the vehicle in which she was a passenger was struck by a vehicle driven by defendant. Plaintiff retained John D. Logsdon, a Prairie Village attorney, to represent her in a personal injury action. A petition alleging defendant’s negligence and seeking damages was filed December 27, 1976. At a pretrial conference in March, 1978, defendant admitted liability, leaving the nature and extent of plaintiff’s injuries as the only triable issues. Settlement negotiations ensued.
On June 13, 1978, pursuant to negotiations between Mr. Logs-don and defendant’s attorney, two drafts totaling $10,000, together with a stipulation and order of dismissal and a release were mailed to Mr. Logsdon. The first draft was for $6,287.69 and was made payable to “Irene Miotk and John D. Logsdon, her attorney.” The second draft was for $3,712.31 and was made payable to plaintiff’s PIP carrier and Mr. Logsdon. Logsdon thereafter failed to return the stipulation or the release despite requests by the defendant’s attorney in letters of July 17 and August 31, 1978. The trial court set the matter for trial on October 16,1978. On that date neither plaintiff nor Mr. Logsdon appeared. Defendant’s attorney advised the court that he had spoken by telephone to Mr. Logsdon that day and that the settlement was still “on.” Mr. Logsdon was then personally contacted by the court and affirmed that the settlement was agreed to. The court then approved the settlement and dismissed plaintiff’s action with prejudice.
Unknown to all parties or the court, Logsdon had apparently forged plaintiff’s endorsement to the draft made payable to plaintiff and Logsdon as her attorney, and received the proceeds. At some point after plaintiff’s action was dismissed, she retained new counsel. By letter on November 8,1978, defendant’s attorney informed plaintiff’s new counsel of the settlement reached with Logsdon and provided copies of the endorsed draft. On March 13,1979, plaintiff filed the present K.S.A. 60-260(b) motion to set aside the dismissal of her action. The motion was supported by the following affidavit of plaintiff:
“Irene Miotk, of lawful age, being first duly sworn, deposes and says:
“She is the named plaintiff in the case styled Irene Miotk v. Vernon F. Rudy, Case No. 66314, filed in the District Court of Wyandotte County, Kansas, which she filed through her attorney John Logsdon on December 27,1976. She at no time authorized the settlement of the case independently or through her attorney for any amount. She was advised of a settlement offer in the case from defendants by her attorney in May, 1978. She stated to her attorney her objection to the settlement offer at the time she became aware of it. She never heard from her attorney after that meeting in May, 1978 and was never offered any sum of money by or through him as settlement of her case. She never endorsed any checks made out to her and her attorney representing settlement of her case.
“Further affiant says not.”
The trial court denied the motion, holding that if the plaintiff is aggrieved by the settlement approved by the court, she has a cause of action against her then-attorney whom she chose and retained to prosecute the action. Plaintiff appeals.
Defendant categorizes plaintiff’s motion as a collateral attack on the judgment of dismissal. He points out that plaintiff learned of the settlement and dismissal, as evidenced by the November 8, 1978, letter from his attorney to plaintiff’s new counsel, within time to appeal from the dismissal. He maintains that this should in some way preclude consideration of plaintiff’s motion.
It is well settled that a motion filed pursuant to K.S.A. 60-260(b) for relief from judgment does not affect the finality of the judgment or suspend its operation, nor does it toll the time for filing a notice of appeal from such judgment. In addition, an appeal from an order denying such a motion brings up for review only the order of denial itself and not the underlying judgment. Giles v. Russell, 222 Kan. 629, Syl. ¶¶ 2, 4, 567 P.2d 845 (1977). However, the fact that plaintiff might have appealed from the judgment of dismissal does not, in this case, preclude a motion under K.S.A. 60-260(b) nor limit the power of the court to grant relief thereunder if otherwise proper. In Reimer v. Davis, 224 Kan. 225, 580 P.2d 81 (1978), judgment was entered in magistrate court on a stipulation by the parties’ attorneys. Defendant, contending she had not authorized the stipulation settlement, appealed to the district court. That court refused to dismiss the appeal on a claim of compromise settlement and considered the case on its merits. On appeal to the Supreme Court, it was held that the district court did not err in doing so. The court indicated, however, that the preferred method of challenging the unauthorized stipulation settlement was by a K.S.A. 60-260(b) motion.
“Although the general rule is that a party is bound by a judgment entered on stipulation or consent and may not appeal from a judgment in which he or she has acquiesced there is a well-recognized exception in those cases when the party attacks the judgment because of lack of consent or because the judgment deviates from the stipulation or when the party’s attorney had no authority to settle the case and did so without the agreement and consent of his client. (Anno. Consent Judgment — Appellate Review, 69 A.L.R.2d 755: Edwards v. Cary, 20 Kan. 414 [1878]; Swift & Co. v. United States, 276 U.S. 311, 72 L.Ed. 587, 48 S.Ct. 311 [1928].)
“It would appear the better vehicle to use to challenge a consent decree on the narrow grounds constituting the exception in the above rule would be a motion for relief from the judgment. Such a motion could be filed in the court entering the consent judgment. See K.S.A. 60-260(i>), (3) or (6). This procedure is adopted by reference for courts of limited jurisdiction. See K.S.A. 61-1725. See also Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966), in which a motion for relief was filed under Federal Rule 60(b) to challenge a consent to entry of a judgment. The fact that a motion under K.S.A. 60-260(h) is a better remedy in such a case does not make it the exclusive remedy. Where the consent judgment is questioned on appeal to the district court from a court of limited jurisdiction we see no reason why the matter cannot be properly presented and decided before conducting the trial de novo as was done in the present case.” 224 Kan. at 228-229.
The reason that a motion under K.S.A. 60-260(h) is the better remedy is clear. The questions of whether the attorney lacked authority to compromise and whether the client consented are essentially factual. The trial court is thus in a far better position to assess those issues than an appellate court, especially where no evidence on this issue exists in the record because it was never presented below. Thus, the fact no appeal was taken from the judgment in this case should not affect consideration of the merits of plaintiff’s K.S.A. 60-260(fe) motion. Finally, it should be noted that defendant makes no specific argument that plaintiff’s motion was not filed within a “reasonable time” as required by the statute.
We turn then to the merits of plaintiff’s motion. The scope of appellate review of the denial of a K.S.A. 60-260(b) motion is limited to whether the court abused its discretion. Giles v. Russell, 222 Kan. 629; Richardson v. Richardson, 3 Kan. App. 2d 610, 599 P.2d 320, rev. denied 226 Kan. 792 (1979).
Plaintiff relies on the rule as to an attorney’s authority to settle a case stated in Reimer v. Davis, 224 Kan. at 229:
“We have previously considered the nature and extent of an attorney’s authority in handling a client’s case. It has been recognized generally that a client is bound by the appearance, admissions, and actions of counsel acting on behalf of his client. (Meyer v. Meyer, 209 Kan. 31, 39, 495 P.2d 942 [1972].) The rule is limited, however, to control over procedural matters incident to litigation. The client has control over the subject matter of litigation. (Giles v. Russell, 222 Kan. 629, 635, 567 P.2d 845 [1977].) An attorney has no authority to compromise or settle his client’s claim without his client’s approval. (Jones v. Inness, 32 Kan. 177, 4 Pac. 95 [1884]; Rickert v. Craddock, 98 Kan. 143, 157 Pac. 401 [1916], See also Sette v. Sette, 132 Kan. 375, 295 Pac. 1096 [1931], and 7 Am. Jur. 2d, Attorneys at Law § 128, pp. 128-129.)”
Defendant, while recognizing the rule in Reimer, characterizes it as “idealistic in concept, but extremely difficult ... to follow.” He points out that he clearly relied on the representations of plaintiff’s attorney and that the dismissal was entered pursuant to the express representation of plaintiff’s attorney to the court and defense counsel that the settlement was authorized. Defendant urges as a matter of public policy that the dismissal should not be set aside.
Defendant’s argument is essentially that an attorney should be held to have apparent authority to settle an action. This appears to be the rationale of the trial court’s denial of the plaintiff’s motion. This argument is at first glance appealing. It is clear that the relation of attorney and client is one of agency and the general rules of law that apply to agency apply to that relation. Pearcy v. First National Bank, 167 Kan. 696, 208 P.2d 217 (1949). The law recognizes two distinct types of agency, actual and ostensible or apparent. Brown v. Wichita State University, 217 Kan. 279, 286, 540 P.2d 66 (1975), vacated in part on other grounds 219 Kan. 2, 547 P.2d 1015 (1976). The evidence is uncontradicted that Logs-don lacked actual authority to settle plaintiff’s case and there is no issue in that regard. However, the liability of the principal for the acts and contracts of his agent is not limited to such acts and contracts of the agent as are expressly authorized, necessarily implied from express authority, or otherwise actually conferred by implication from the acts and conduct of the principal. All such acts and contracts of the agent as are within the apparent scope of the authority conferred on him, although no actual authority to do such acts or to make such contracts has been conferred, are also binding upon the principal. Apparent authority, or ostensible authority as it is also called, is that which, though not actually granted, the principal knowingly permits the agent to exercise or which he holds him out as possessing. Accordingly, an apparent agent is one who, with or without authority, reasonably appears to third persons to be authorized to act as the agent of another. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 268, 553 P.2d 254 (1976), quoting Greep v. Bruns, 160 Kan. 48, 55-56, 159 P.2d 803 (1945).
The difficulty in the present case is that there is no evidence of apparent authority on the part of Logsdon to settle plaintiff’s case other than his retention as her attorney. In 7 C.J.S., Attorney and Client § 105, p. 931, the rule is stated:
“If there has been nothing beyond a mere employment or retainer of the attorney to represent the client in a cause the attorney . . . thereby acquires no apparent authority to make a compromise or settlement, and if the attorney seeks to do so it is incumbent upon the opposing party to ascertain at his peril whether actual authority to take such action has been conferred upon the attorney. In other words, if the client has not held his attorney out to the opposing party as having any other or greater power than an attorney authorized to take charge of litigation for a client commonly has, such other party is charged with knowledge that agreements of compromise or settlement do not come within the implied authority of the attorney; and it is open to the client to show any restrictions or limitations that may have been placed on the attorney’s authority to compromise.”
See also Annot., 30 A.L.R.2d 944. Kansas law is in accord on the general agency principle that those who deal with an agent whose authority is limited to special purposes are bound at their peril to know the extent of his authority. Bohart, Dillingham & Co. v. Oberne, Hosick & Co., 36 Kan. 284, 13 Pac. 388 (1887). It is clear from Reimer v. Davis, 224 Kan. 225, that an attorney, as agent for his client, is limited to control over procedural matters incident to litigation. Under the facts of that case it may be said that an attorney ordinarily has no apparent authority to settle his client’s action without the client’s consent.
There being no evidence other than Logsdon’s employment as plaintiff’s attorney of Logsdon’s apparent authority to settle plaintiff’s action, we hold that the trial court abused its discretion in denying plaintiff’s motion pursuant to K.S.A. 60-260(b) to set aside the judgment of dismissal. The case is remanded with directions to grant plaintiff’s motion and proceed with trial of the issues on the merits.
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Abbott, J.:
This is a direct appeal by the defendant, Keith Wright, from his convictions of driving while under the influence of intoxicating liquor or drugs in violation of K.S.A. 1978 Supp. 8-1567 and failure to stop at a stop sign in violation of K.S.A. 8-1528.
On December 15, 1978, two Chanute police officers while on routine patrol at approximately 12:45 a.m. observed the defendant’s automobile swerve out of its lane and into the parking area near the curb. The officers then proceeded to follow defendant’s automobile and, after observing it run a stop sign, stopped defendant for a traffic violation. Upon detecting a strong odor of alcohol and noting defendant’s slurred speech, the officers requested that defendant perform two sobriety tests involving physical coordination. When he failed these tests, defendant was arrested for driving while under the influence of intoxicating liquor and was given a blood alcohol test which registered an alcoholic content of 0.19, well above the 0.10 statutory presumption of intoxication. The trial judge found defendant guilty of driving while under the influence of intoxicating liquor and failure to stop at a stop sign. On appeal, defendant raises three challenges to his convictions:
1. Did the police officers have probable cause to stop defendant’s automobile and arrest him?
2. Did the trial court err in allowing the State to amend its complaint at trial?
3. Did the trial court err in permitting the police officer to refer to a copy of his police report while being cross-examined at trial?
Defendant’s first point on appeal may be quickly dismissed based on his failure to properly preserve for appeal the question concerning lack of probable cause. Defenses and objections based on defects in the institution of the prosecution, such as probable cause for a warrantless arrest, may be raised only by motion before trial. State v. Brocato, 222 Kan. 201, 202, 563 P.2d 470 (1977); K.S.A. 22-3208. Here, there is no evidence in the record that defendant raised such a motion prior to trial or that he ever requested the trial court to set aside his implied waiver of the issue. This alone is sufficient authority upon which to dispose of the probable cause contention but an alternative ground exists. Not only did defendant fail to raise this question before trial, he also failed to argue the issue at any point during trial. It is well-settled that a litigant may not for the first time on appeal change the theory of his case from that on which it was presented to the trial court, nor may he present matters or issues which he did not bring to the attention of that court. Goff v. American Savings Association, 1 Kan. App. 2d 75, 78, 561 P.2d 897 (1977).
Moreover, even if this contention were to be considered upon the merits, we are of the opinion probable cause existed to support the officer’s actions. The officers observed defendant’s car swerve and later run a stop sign. Based on this observation, the officers had probable cause to stop the car and, when confronted with the strong odor of alcohol in the car plus the inability of defendant to pass basic sobriety tests, there then existed adequate grounds upon which to make the arrest.
Defendant’s second point on appeal alleges error in the trial court’s decision to allow the State to amend its stop sign complaint at trial. The traffic ticket complaint issued at the scene charged defendant with running a stop sign at Third and Evergreen Streets in Chanute, Kansas. At trial, both arresting officers admitted that the stop sign had actually been located at Fourth and Evergreen and the trial court granted the State’s motion to so amend the complaint. There is no stop sign at Third and Evergreen. The officers correctly described the physical characteristics of Fourth and Evergreen as being the place where the offense occurred. They further testified that Third Street becomes Fourth Street where the street makes a slight jog west of the intersection in question. Defendant contends this amendment was prejudicial to him because his defense was based on the fact that no stop sign existed at Third and Evergreen and that the amendment at trial allowed him inadequate time to prepare a defense.
The amendment of a criminal complaint is controlled by K.S.A. 1978 Supp. 22-3201(4): “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” Defendant relies principally on the Kansas Supreme Court’s interpretation of this statute in State v. Johnson, 223 Kan. 185, 573 P.2d 595 (1977). In that case, defendant’s felony conviction for possession of a semiautomatic pistol was reversed because the trial court permitted the State to amend its original complaint charging defendant with possession of a revolver after all of the evidence was in. Two handguns, one pistol and one revolver, were found in different locations in the car driven by defendant at the time of his arrest. The court found that the defendant had structured his firearms defense around the revolver and its location in the car, and that amendment of the complaint to include the pistol after the case had already been argued to the jury destroyed his defense to the original charge without allowing him the opportunity to present his new defense, thereby prejudicing his substantial rights. In the case now before us, we find no such bar to defendant’s defense; after the amendment he still had his right of cross-examination and his entire side of the trial to prepare a different defense strategy. Defendant, however, offered no new theory to the trial court; in fact, he elected not to put on any witnesses at all. We find defendant’s contention that the amendment occurred too late in the trial for him to react to be groundless given his failure to follow the normal procedure for surprise and request a continuance. See State v. Ferguson, 221 Kan. 103, 106, 558 P.2d 1092 (1976). In State v. Rives, 220 Kan. 141, 145, 551 P.2d 788 (1976), the Court indicates that it looks with suspicion on a defendant’s claim of prejudice based on an amendment at trial when the reasons evidencing such prejudice are not advanced at the time the objection is lodged. Here, defendant failed to state at trial why he would be prejudiced by the amendment, he only argued that it would be unfair to his case.
Amendments to criminal complaints have been freely granted by the Kansas courts provided there has been no demonstrable prejudice. State v. Bell, 224 Kan. 105, 577 P.2d 1186 (1978); State v. Ferguson, 221 Kan. 103; State v. Rives, 220 Kan. 141; State v. Osburn, 216 Kan. 638, 533 P.2d 1229 (1975); State v. Lamb, 215 Kan. 795, 530 P.2d 20 (1974); State v. Hill, 211 Kan. 239, 505 P.2d 704 (1973). We find the trial court committed no error when it allowed the complaint to be amended at trial.
Defendant further alleges that the trial court erred in allowing the arresting officer, Jerry Carney, to refresh his recollection from his police report while he was being cross-examined as to events which had been recorded in the report. As support for this proposition, defendant directs our attention to K.S.A. 60-422(a) which states:
“[I]n examining the witness as to a statement made by him or her in writing inconsistent with any part of his or her testimony it shall not be necessary to show or read to the witness any part of the writing provided that if the judge deems it feasible the time and place of the writing and the name of the person addressed, if any, shall be indicated to the witness.”
We find this statute to be inapplicable to the present case. K.S.A. 60-422(a) is designed to strengthen cross-examination by removing from the cross-examining party the burden of reading or showing a written prior inconsistent statement to the witness. It does not prohibit the witness from taking his own notes to the stand to aid in the recollection of pertinent events. In this case, the police report in question was originally in the possession of Officer Carney, was then taken from Officer Carney by defense counsel during cross-examination, and defense counsel now complains because the trial court made him return it to Officer Carney. Defendant was not required to read or show a prior written statement to the witness; he was merely requested to allow the officer to refer to a copy of his own police report which the officer had previously used during direct examination.
We perceive the essence of defendant’s argument to be that his right of cross-examination was thwarted because Officer Carney was permitted to refer to a copy of his police report while being examined as to some of its contents. Defendant cites no cases which support this rather novel argument and our research has also failed to turn up any authority substantiating the claim. It is difficult, however, to envision how defendant was prejudiced by the trial court’s action. Defendant’s counsel had in his possession the police report which Officer Carney had used on direct examination as was his right under K.S.A. 22-3213. See State v. Johnson & Taylor, 223 Kan. 119, Syl. ¶ 2, 573 P.2d 976 (1977). Consequently, he had before him the source of any potential impeaching material and he had complete freedom to inquire into any matter he deemed appropriate. Although it may be true, as defendant argues, that the witness’s access to the report undermined some of the possible traps of cross-examination, it seems to us more logical that a witness who must refresh his recollection on direct examination in order to be able to testify does not automatically become able to testify without such aid on cross-examination. We have found no authority which states that a witness may use his notes on direct examination but must then give them up on cross-examination and we are of the opinion such a rule would place a witness at the mercy of the examiner. Years ago the Eighth Circuit Court of Appeals held that “[i]t would be practically impossible for officers, making daily investigations of alleged violations of law, to remember the names, dates, and what took place, without referring to notes made by them at the time or immediately thereafter.” Taylor v. United States, 19 F.2d 813, 817 (8th Cir. 1927). Forcing an officer to undergo cross-examination without access to these notes would give the defense attorney an unfair advantage over the officer.
The decision as to whether or not memoranda may be used to refresh recollection is a matter left to the discretion of the trial judge. United States v. Cranson, 453 F.2d 123 (4th Cir. 1971); State v. Gallagher, 151 Mont. 501, 445 P.2d 45 (1968); 3 Wigmore on Evidence § 765 (Chadbourn rev. 1970). One who claims abuse of discretion has the burden of proving that contention and, when reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. McColm v. Stegman, 3 Kan. App. 2d 416, Syl. ¶ 2, 596 P.2d 167 (1979). Given the officer’s need to consult the police report to determine what defendant had previously stated in regard to what he had been drinking, it can reasonably be said that Officer Carney could not adequately recall the case without using his report and the trial judge did not abuse his discretion in allowing him to use the report to refresh his recollection.
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Meyer, J.:
This case arose when a mother complained to a teacher about a spanking given by the teacher to her minor son. Appellant, Mary Cutshall (Mary), telephoned the teacher, Mrs. Schultz, to complain and made an appointment to meet her after school. After receiving the telephone call, Mrs. Schultz asked Mr. Goedeke, another teacher, to stay around. The criminal activity giving rise to this case resulted from the claim that Mary assaulted Mrs. Schultz while Mary’s husband, Colvin Cutshall (Colvin), and her son, Earnie Cutshall (Earnie), restrained Mr. Goedeke from going to Mrs. Schultz’s aid.
The jury found Colvin, Mary, and Earnie Cutshall guilty of battery of Mrs. Schultz. Earnie was also found guilty of battery of Mr. Goedeke, while Colvin was acquitted of battery of Mr. Goedeke. The case involving Colvin and Earnie’s battery of Mrs. Schultz was submitted to the jury under an instruction of criminal responsibility for the actions of another. Also, since Mary claimed that Mrs. Schultz struck the first blow, the jury was instructed on self-defense.
Appellants’ first claimed error is that the convictions of all the Cutshalls should be reversed since they were never arraigned. While the record does not specifically reflect an arraignment, appellants’ counsel referred to arraignment four times in the trial transcript.
K.S.A. 22-3205 provides:
“Arraignment shall be conducted in open court and shall consist of reading the complaint, information or indictment to the defendant or stating to him the substance of the charge and calling upon him to plead thereto. He shall be given a copy of the indictment or information before he is called upon to plead. If the crime charged is a felony, the defendant must be personally present for arraignment; if a misdemeanor, he may with the approval of the court, appear by counsel. The court may direct any officer who has custody of the defendant to bring him before the court to be arraigned.”
A defendant effectively waives arraignment when he goes to trial without objection and submits the question of guilt to the jury. State v. Jakeway, 221 Kan. 142, 143, 558 P.2d 113 (1976). Here, no objection was raised until after the verdict was entered; hence there is no merit to this issue.
Appellants claimed they were not given an opportunity to object to the instructions. The record does not bear this out. At one point appellants’ counsel said:
“. . . I can recall going over the instructions but I cannot recall a record being made of objections as to the instructions or of any time when the Court inquired of Counsel as to objections . . . .”
Furthermore, appellants’ counsel submitted an instruction on self-defense himself, and this instruction was included among those given to the jury.
The record discloses that after both parties had rested their case the court held certain proceedings in chambers. At such time appellants’ counsel moved for discharge separately as to each of the appellants, and at the conclusion of submitting such oral motions, appellants’ counsel stated as follows:
“In addition to that, in the event the Court overrules the motion on Mary Cutshall, I want and have prepared an instruction for self-defense, and I want the court to submit that.”
The court indicated the instruction would be given.
The preferred method relative to instructions is that the trial court, having first given the attorneys an opportunity to read the instructions, specifically inquire of them as to whether or not they approve of the same. Further, the record should specifically show that counsel approved of the instructions, or if they did not approve of all of them, that their objections be noted and specifically ruled upon. While the record in the instant case does not specifically show that this procedure was followed, we do conclude that it sufficiently shows the parties had an opportunity to object to the instructions outside the presence of the jury as required by K.S.A. 60-251. Since, according to the record, no objection was made, the court’s scope of review is limited to a determination of whether the instructions are clearly erroneous (Coleman v. Brotherhood State Bank, 3 Kan. App. 2d 162, Syl. ¶ 2, 592 P.2d 103 [1979]); a review of all of the instructions convinces us that they are not.
Specifically, on appeal, appellants complain of that instruction which appears in PIK Crim. 54.05, and reads as follows:
“A person is responsible for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or assist in the commission of the crime, he intentionally aids or advises the other to commit the crime.”
The instruction given was sufficient to advise the jury as to what evidence was necessary for it to decide whether or not Colvin and Earnie Cutshall were criminally responsible for Mary’s battery of Mrs. Schultz because of their acts in restraining Mr. Goedeke.
Appellants argue that since the jury acquitted Colvin of the battery of Mr. Goedeke, there was no evidence which would indicate that Colvin intentionally aided or advised Mary to commit the battery.
State v. Wilson & Wentworth, 221 Kan. 359, Syl. ¶ 11, 559 P.2d 374 (1977), states the rule as to what would justify submission of the issue to the jury:
“Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider or abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury.”
There was evidence that Colvin Cutshall participated in restraining Mr. Goedeke himself. The jury might have determined that his action did not arise to a battery, even though he may have participated in restraining Mr. Goedeke. Even if Colvin did not himself restrain Mr. Goedeke, he drove the family to the school and did nothing to stop his son from restraining Mr. Goedeke when he was standing right by them, nor did he attempt to stop his wife from hitting the school teacher. There was sufficient evidence from which the jury could have found the defendant aided and abetted the battery.
Appellants next complain that the conviction of Earnie Cut-shall was error since his real name was Earnest L. Karkikanen. There is no merit to this issue because all of the evidence supported the fact that the Cutshall son was the person arrested and tried and was the person who participated in the incident, regardless of his name.
K.S.A. 22-3207(1) provides:
“If a defendant be charged or prosecuted by a wrong name, unless he declare his true name before pleading he shall be proceeded against by the name in the complaint, information or indictment.”
Appellants’ claim of error of the trial court in failing to dismiss several jurors for cause is likewise without merit. A disqualification for cause is an issue of fact to be determined by the trial court and rests within the trial court’s sound discretion. State v. Carpenter, 215 Kan. 573, 577, 527 P.2d 1333 (1974). We find no abuse of discretion in this regard.
Appellant Earnie Cutshall complains that there was not suffi cient evidence to support the verdict of battery as against him. He claims this is so because Mr. Goedeke had no fear of him and stated so in his testimony. Apprehension of bodily harm is not an element of battery; defense counsel has confused battery with assault. There is no merit to this claim of error.
Appellants also claimed that the court erred in admitting evidence concerning spankings of one of the Cutshall children even though such evidence had previously been ruled inadmissible. There likewise is no merit to this claim of error. It is clear that this evidence developed only after Mary herself mentioned the incident while repeating a statement she made to Mrs. Schultz to the effect that if Mrs. Schultz ever beat her kid again like that that she would “get more of it.” Under the circumstances it was not an abuse of discretion for the trial court to admit such evidence.
Our Supreme Court held in Manley v. Rings, 222 Kan. 258, 261, 564 P.2d 482 (1977):
“Generally the relevancy of testimony elicited by a party from any witness and scope of both direct and cross-examination of that witness is subject to reasonable control by the trial court. Exercise of reasonable control by the court will not constitute reversible error absent a showing of abuse resulting in prejudice.”
Appellants also complain that the verdicts were delivered under the influence of passion and prejudice. In this regard appellant cites large media coverage, rumors, the fact that only one member of the jury panel had no knowledge of the case, that the trial happened within only one month after the incident and that there were numerous spectators in the courtroom. We note, however, that there was only one motion for a 15-day continuance, which was granted by the trial court. Appellants made no motion for a change of venue, nor is there any indication that counsel was denied opportunities to lessen prejudice on the part of the jury, if indeed such existed. Appellants conducted an extensive voir dire examination and the answers of the jury were such that they were not influenced so as to disqualify them to sit.
The change of venue statute specifically provides for change of venue “upon motion of the defendant” where there “exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.” K.S.A. 22-2616. The defense counsel did not make such a motion.
“ ‘[Prejudice must be established “not as a matter of specula tion but as a demonstrable reality.” ’ ” State v. Gander, 220 Kan. 88, 92, 551 P.2d 797 (1976), citing from Woods v. Munns, 347 F.2d 948, 951 (10th Cir. 1965). Appellants have not met their burden of proof.
Affirmed. | [
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Swinehart, J.:
In this nonstatutory paternity action, defendant appeals from that portion of the trial court’s judgment allowing plaintiff attorney fees and expenses.
In this action plaintiff Erikka Lynette Crooms, a minor child born August 18, 1975, through her mother as next friend, asked that defendant Robert L. Whitfield be adjudged her father and liable for child support until she reaches the age of majority. She also sought hospital expenses incident to her birth, attorney fees and expenses.
After trial to the court on April 10 and 11, 1978, the defendant was found to be the natural father of plaintiff. The court further ordered him to pay child support of $58 biweekly, hospital and medical expenses of $426.50, attorney fees and expenses, and court costs of $100. The court’s order provided that the amount of attorney fees and expenses due plaintiff’s attorney would be determined after the parties submitted memoranda in support of their positions.
On November 3,1978, the court sustained plaintiff’s request for attorney fees, and awarded $1,270 for fees and $2.21 for expenses.
Defendant appeals from the court’s order awarding fees and expenses to plaintiff’s attorney.
Kansas cases have recognized two distinct proceedings in which the paternity of an illegitimate child may be determined. One proceeding is purely statutory and provides that an unmarried woman may bring a civil action to determine paternity wherein child support and medical expenses incident to birth may be ordered. K.S.A. 38-1101 et seq. The statutory paternity proceeding allows the court, in its discretion, to award plaintiff reasonable attorney fees. K.S.A. 38-1103. The father of an illegitimate child too young to care for itself is under a nonstatutory obligation to support it and that obligation may be enforced in an action brought by the illegitimate child through its next friend. Doughty v. Engler, 112 Kan. 583, Syl. ¶ 1, 211 Pac. 619 (1923). This is an alternative type of paternity proceeding to the statutory provisions set forth in K.S.A. 38-1101 et seq. The child’s cause of action under Doughty is not dependent upon the enforcement of the mother’s rights under the paternity statute nor subject to the one-year statute of limitation contained in K.S.A. 38-1104. Huss v. DeMott, 215 Kan. 450, 451, 524 P.2d 743 (1974); Smith v. Simmons, 4 Kan. App. 2d 60, 602 P.2d 546 (1979). The present case is a nonstatutory proceeding and the sole issue presented is whether the trial court erred in awarding plaintiff attorney fees and expenses.
The trial court’s reasoning for awarding attorney fees is not readily apparent from the record before us. Defendant suggests that the court relied on K.S.A. 38-1103. However, such provision is an integral part of the statutory scheme governing paternity actions brought by an unmarried mother, and we conclude the legislature did not intend the provision to apply to nonstatutory proceedings. Likewise, there is no basis in Kansas case law to support an award of attorney fees in a nonstatutory paternity action. Our review of the cases following Doughty reveals no instance where attorney fees were assessed against the putative father in a nonstatutory proceeding.
The long-standing rule in this state is that attorney fees and expenses of a prevailing party in litigation are not recoverable from the defeated party in the absence of a clear and specific statutory provision therefor. Newton v. Homblower, Inc., 224 Kan. 506, 525, 582 P.2d 1136 (1978). Plaintiff states the equities of the present case justify a departure from the general rule, arguing that the award of attorney fees guards against dilution of the support order and that the “payment of attorney fees in this action is actually in the nature of support to the child.” Although equitable considerations may exist, we believe the trial court is adequately empowered to fashion a suitable support order and to guard against its dilution even in the absence of authority to award attorney fees and expenses. Once the parent-child relationship is established, the court is always open to make appropriate support orders in the future to meet the best interest and welfare of the child. Lawrence v. Boyd, 207 Kan. 776, 779, 486 P.2d 1394 (1971).
As there is no clear and specific statutory provision authorizing an award of attorney fees and expenses in a nonstatutory paternity action, we hold the trial court erred in making such an award. Although similarities may exist between the statutory and non-statutory proceedings, our conclusion comports with other cases which have recognized and preserved the distinctions between the two types of paternity actions. Huss v. DeMott, 215 Kan. 450, Syl. ¶ 3; Myers v. Anderson, 145 Kan. 775, 778, 67 P.2d 542 (1937).
The judgment is reversed as to the allowance of attorney fees and expenses. | [
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Rees, J.:
This is a worker’s compensation proceeding in which there has been an award for nonscheduled injury. The claimant had a preexisting physical impairment as the result of a prior industrial injury in 1970. The present award is the result of a second accident arising out of and in the course of claimant’s employment in 1975. The district court ordered the Workmen’s Compensation Fund to pay 25% of the cost of the award and the employer to pay 75% of that cost. The determination that claimant’s work disability following the second injury is 100% permanent partial general bodily disability is not challenged. The appeal concerns the district court apportionment of responsibility for payment of the award. K.S.A. 1975 Supp. 44-567(o)(2) requires that the apportionment be equitable and reasonable and based upon medical evidence.
The parties’ contentions attacking and supporting the apportionment are wholly founded upon the opinions of three doctors. Whether the apportionment determination was based upon medical evidence is not in issue. The question for decision is whether under the medical evidence in this case the district court apportionment is equitable and reasonable.
Dr. Alexander Lichtor examined the claimant on two occasions after the second accident. He “felt that [claimant] had some disability” attributable to the first injury. Although the doctor’s testimony may be read to include statements that claimant’s second injury disability is overwhelmingly or primarily attributable to the second accident, the doctor directly testified he could not express with medical certainty an opinion as to the extent of the second injury disability attributable to the first injury.
Dr. Edward Prostic examined the claimant on two occasions after the second accident and after Dr. Lichtor’s examinations. Dr. Prostic’s rating of claimant’s second injury disability was 60% permanent partial general bodily disability. He described this 60% rating as a “combined” rating having as its two constituent elements a 40% permanent partial disability of the left knee attributable to the first injury and a 25% permanent partial general bodily disability. With respect to the 25% permanent partial general bodily disability element, it was his opinion that no more than 20% of it was attributable to the first accident and at least 80% was attributable to the second accident. The doctor’s testimony also included his statement that “I would say that the preponderant damage was done through the [second] accident, on at least a functional basis.”
The third physician, Dr. Harry Overesch, examined claimant after the first accident and again after the second accident. He concluded claimant’s second injury disability was a 5% to 10% permanent partial general bodily disability and as a part of this there was a 2-Vz% permanent partial general bodily disability attributable to the second accident. It is made clear in Dr. Overesch’s testimony that his references to 2-Vz% disability and 5% to 10% disability were work disability evaluations.
With the exception of the above noted comment of Dr. Prostic and three clarifying questions and responses in Dr. Overesch’s testimony, no references were made by the doctors or the three participating counsel to functional disability. Under the Act, general bodily disability is nonscheduled injury and is work disability, while disability of the knee is scheduled injury and is functional disability. Gross v. Herb Lungren Chevrolet, Inc., 220 Kan. 585, 552 P.2d 1360 (1976); K.S.A. 1975 Supp. 44-510d (15), (16), (18), (21); K.S.A. 1975 Supp. 44-510e(a). To say that any of the physicians or counsel spoke other than in the context of our Workers’ Compensation Act definitions of disability would be unrealistic; it is obvious they were all experienced practitioners in this field.
We recently dealt with apportionment under K.S.A. 1975 Supp. 44-567(a)(2) in Desbien v. Key Milling Co., 3 Kan. App. 2d 43, 588 P.2d 482 (1979). We need not repeat what is said there.
In the teeth of Dr. Lichtor’s acknowledgment of his inability to express an apportionment opinion with medical certainty, his nonspecific references to overwhelming or primary attribution of claimant’s second injury disability to the second accident cannot be medical evidence of the quality required by K.S.A. 1975 Supp. 44-567(cz)(2). Cf. Rowe v. Maule Drug Co., 196 Kan. 489, 413 P.2d 104 (1966) (doctor’s “honest expression of professional opinion” of causal connection between accident and physical complaints as well as consistent lay testimony held sufficient evidence of causation in auto accident case).
Dr. Overesch’s testimony afforded ground for apportionment to the second accident of 25% to 50% of the cost of the award (2-Vfe% is 25% of 10%; 2-Yz% is 50% of 5%). Conversely, Dr. Overesch’s testimony afforded ground for apportionment to the first accident of 50% to 75% of the cost of the award.
Dr. Prostic concededly testified “preponderant damage” was attributable to the second accident, but we find this conclusion too tenuous for material reliance in view of his specific apportionment testimony. This latter testimony requires analytical consideration in somewhat reverse order. He found claimant’s second injury disability to be 60% permanent partial general bodily disability, work disability. As noted above, he concluded this 60% work disability included two elements, (1) a work disability element of 25% and (2) the first injury element, 40% permanent partial disability of the knee. Inasmuch as permanent partial disability of the knee is functional disability, it is not illogical to find the sum of the 25% work disability rating and 40% functional disability rating to be a work disability rating of 60% rather than 65%. Under Desbien, the two component ratings, one functional disability and the other work disability, could not be compared if it were not for the “combined” or resultant 60% work disability rating. Dr. Prostic’s testimony reflects no two stated or ascertainable functional disability factors, only work disability factors.
What is discerned when there is added to Dr. Prostic’s testimony that no more than 20% of the 25% work disability element was attributable to the first accident and not less than 80% of the 25% work disability element was attributable to the second accident? First, the 20% and 80% are abstract percentages; neither both nor either relates to functional disability or work disability; they relate to an apportionment of the 25% work disability element.
Second, since Dr. Prostic’s second injury rating was in the aggregate sum of 60% work disability and 25% work disability was one of its two elements, it follows that under his testimony the 40% disability of the knee, functional disability, must be equated to 35% work disability. The ratio of the constituent elements, of the 60% work disability is 25:35.
Third, disregarding the “no more but not less than” feature of Dr. Prostic’s apportionment of the 25% work disability element for lack of certainty, we find his opinion to be that to the first injury element (35% work disability) of the second injury rating (60% work disability), there is to be added 20%, or one-fifth, of the 25% work disability element. Upon making this adjustment the resulting ratio becomes 20 to 40, or 1 to 2.
The result of analysis of Dr. Prostic’s testimony is that upon his evaluation the apportionment between the second accident and the first accident is in a ratio of 1 to 2 and the cost of the award should be apportioned one-third to the second accident and two-thirds to the claimant’s preexisting physical impairment.
Summarization of the three doctors’ testimony discloses that upon it, 50% to 75% (Prostic - %; Overesch - 50% to 75%) of the cost of the award is attributable to claimant’s preexisting physical impairment, and 25% to 50% (Prostic - %; Overesch - 25% to 50%) of the cost of the award is attributable to the second accident.
By reason of the requirement of K.S.A. 1975 Supp. 44-567(a)(2) that apportionment be “based upon medical evidence,” we hold the district court apportionment to be erroneous for the reason that it is not within the ranges established by the doctors’ testimony.
Reversed and remanded for modification of determination of amount to be paid by the Fund and amount to be paid by the employer and its insurance carrier. | [
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The opinion of the court was delivered by
Hopkins, J.;
The action was one to recover under an alleged burglary insurance policy. Plaintiff prevailed, and defendant appeals. The chief question presented is whether the policy covers the loss, the defendant contending it does not.
The original policy is submitted for our examination. It shows that it is the standard residence burglary policy except that it bears a rider containing the clause “on the highway.” It contains a schedule which enumerates the location of the residence of the insured; that it is private; occupies the entire building; that the occupation of the insured is millinery; and appears in every detail to correspond to the ordinary burglary policy. At the head of the policy in large capitals appear the words “Burglary Policy.” Without setting out the policy in more detail it is sufficient to say that the record indicates plaintiff purchased a burglary insurance policy for the purpose of protecting herself against such a loss as occurred.
Plaintiff contends that the agent of the company at the time he Bold the policy to her understood perfectly that it was to cover her jewelry, her personal knickknacks, her household silverware, etc., in the amount of $3,000; that she is a business woman and never at any time had any idea of insuring herself solely against “robbery on the highway.”
In Pfiester v. Insurance Co., 85 Kan. 97,116 Pac. 245, it was said:
“An agent for a life insurance company whose authority is limited to negotiating for, taking and transmitting applications for the approval or rejection of the company is the agent of the company and not of a person whom he solicits to take insurance, and for these purposes he has all the power the company itself possesses. . . .
“Agreements made between such an agent and a person whom he solicits to take insurance as to what the application shall contain are in legal effect made with the company and bind it as to the contents of the application. . . .
“It is the duty of such an agent to prepare the application of a person solicited to insure so that it will accurately and truthfully state the result of the negotiations, and the agent’s failure to do so is in legal effect the fault of the company. ...
“If such an agent fail to write into the application an agreement which he has made with the applicant respecting the terms of the insurance desired his knowledge of the agreement is in legal effect the knowledge of the company. . . .
“If in the case stated in paragraph 4, the company accept and approve the application, receive and retain the initial premium and issue the policy, a binding contract of insurance is effected according to the agreement.” (Syl. See, also, Hunley v. Union Ins. Co., 121 Kan. 674, 249 Pac. 685; Nichols v. Casualty Co., 113 Kan. 484, 214 Pac. 1111.)
In Kansas Amusement Co. v. Maryland Casualty Co., 122 Kan. 800, 253 Pac. 405, it was said:
“The allegations of a petition in an action brought to reform a burglary insurance policy so as to express the real contract of insurance and to recover for a loss sustained, is considered and it is held, following Insurance Co. v. Darrin, 80 Kan. 578, 103 Pac. 87, that it is the duty of an insurer to write a policy in accordance with the application or agreement for insurance, that an insured who receives a policy may assume that the insurer has discharged its duty and written the policy upon the basis of the application or agreement, and he is not obliged to read the policy in order to see that it is correctly written, and that if such application is written and delivered and the premium is paid by the applicant and retained by the company, a binding contract of insurance is effected on the basis of the application or agreement.” (Syl. ¶ 1.)
Under the ordinary rule of construction this policy taken as a whole covers the loss suffered. The defendant is bound by the acts and agreements of its agent, and the policy, in our judgment, is a straight residence burglary policy. The loss suffered was covered by the policy and the plaintiff is entitled to payment of the actual loss suffered.
A contention that plaintiff could not recover because of failure to-ask a reformation of the policy cannot be sustained. The language of the contract considered in all its details was sufficient basis for the recovery.
The judgment is affirmed. | [
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