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The opinion, of the court was delivered by
Hutchison, J.:
The appeal in this case is from a judgment in favor of the plaintiff in a compensation case for $1,639.09 in 'lump sum and $11.86 per week for total disability until November 1, 1928, and $7.30 per week for partial disability for three years thereafter. The jury made answers to thirteen special questions, which answers were approved by the trial court. There are several assignments of error, the most of which concern the introduction of evidence and the motion for new trial.
The plaintiff was a metal drawer at the zinc smelter of the defendant company near Cherryvale, Kan., and claims to have accidentally struck his right elbow against a heavy weight which was hanging on the blow-out shield in raising his ladle with a crank, which was for that purpose, while he was molding zinc. The effect of such blow he claims has now developed into a pronounced case of neuritis of the right arm and an affection of the ulnar nerve of that arm, which wholly disables him from- performing any kind of manual labor.
Appellant calls attention to what is charged to be misconduct of the attorney for the successful party in the direct examination of the witness Dick and the cross-examination of the witness Harmond. Plaintiff’s attorney attempted to show by his own witness, Dick, that shortly after he had testified for plaintiff in one of the two former trials of this case, Harmond, manager for the defendant company, discharged or demoted him. The court promptly and properly sustained the objections to all such questions as soon as made, and thus succeeded in excluding all such evidence. Upon the insistence of attorney for plaintiff, the court said:
“This is a compensation case, trying the question of whether this man was injured in the course of his employment. If I understand, Mr. Brady and Mr. Stevens are hired to do the talking for the company and these other men are hired to do the work. . . . It is wholly immaterial whether they increase or diminish his salary, or hire him. It doesn’t hurt this man’s arm, or make it any better. That is what we are trying to determine in this case.”
In connection with this statement the attorney for plaintiff remarked:
“They are hired to do the hiring of the men and discharging of them too— if they discharge them because they gave testimony in this case.”
Any attempt to justify this remark or this line of testimony from the plaintiff’s own witness would be in vain. No authorities or precedents are cited by appellee in its support. But without any semblance of approval we think the trial court took care of the situation by his rulings and his appropriate remarks as to the only issues before the court and jury, so that the possible prejudicial effect was, we think, avoided.
“Before a judgment will be reversed for misconduct of counsel of the prevailing party occurring at the trial it must be made to appear that such misconduct prejudiced the rights of the defeated party.
“Ordinarily where the trial court has directed the jury to disregard the matter and with full knowledge of all the circumstances has approved the verdict and has overruled a motion for a new trial based upon the ground of such misconduct, this court will not reverse the judgment.” (Smith v. Cement Co., 86 Kan. 287, syl. ¶¶ 1, 2, 120 Pac. 349. See, also, Bortnich v. Cudahy Packing Co., 119 Kan. 864, 241 Pac. 442; Harding v. Henderson, 123 Kan. 533, 255 Pac. 969; Clark v. Brady, 126 Kan. 59, 266 Pac. 740.)
In the case of Hanks v. Cab and Baggage Co., 112 Kan. 92, 209 Pac. 977, cited by appellant, the attorney used in his argument to the jury the evidence for other purposes than the limited one for which it had been admitted, and the court held that there was further error in admitting it, even for the limited purpose. In both Huckell v. McCoy, 38 Kan. 53, 15 Pac. 870, and Weaver v. Winchell, 116 Kan. 296, 226 Pac. 719, cited by appellant, the matters complained of went farther than in this case and the apparent opportunity .for prejudice was much greater than in this case.
As to the cross-examination of the witness Harmond, the situation is quite different. Such examination was permissible to affect his credit as a witness, and when the questions went farther than the usual limit for that purpose the court sustained the objections. We find no error in this.
Appellant insists that the expert evidence of the three physicians who testified for the plaintiff as to the nature and extent of the ailment and injury of the plaintiff was incompetent and should have been excluded because it was based partially upon what the plaintiff told them with reference to the history of the case. The proposition as here stated is sound, and numerous cases are cited in support' of it. But the fact that the expert physician has heard the plaintiff state the history of the alleged injury and the subsequent suffering and inconveniences will not of itself disqualify such expert unless he relies upon that history and statement instead of that stated in the hypothetical question propounded to him. It is simply a rule against hearsay evidence, as was so well expressed by Justice Mason in Priest v. Life Insurance Co., 116 Kan. 421, 427, 227 Pac. 538, as follows:
“It is based upon the principle that since the physician cannot testify to what the plaintiff told him, he should not be allowed to bring about practically the same effect by giving a conclusion of his own founded upon statements he would not be permitted to repeat.”
Reference, is then made in the case just cited, as has been made in all subsequent cases on this subject, to the distinction made by Justice Brewer between the two well-recognized classes of evidence and their relation to each other in the case of A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 463, as follows:
“Where the inquiry is as to the extent of certain alleged personal injuries, a physician may be called as an expert to testify concerning them, giving his opinion based upon a personal examination of the party, as well as upon statements made by such party, as to his present condition, feelings and pains, and may also give in evidence such statements.
“But the physician may not testify as to what the party said in respect to the past history of the case, and the cause or duration of the injury; neither can he give an opinion based partially upon his personal examination and partially upon what the party told him in reference to the past history of the case.” (Syl. ¶¶ 1, 2.)
A further elucidation of the rule is found in the first paragraph of the syllabus in the case of George v. Shannon, 92 Kan. 801, 142 Pac. 967:
“Testimony of a physician, so far as it is expert testimony, may be based upon personal examination or upon the facts proved upon a trial or upon both such examination and proven facts’, or, preferably, it may be based upon hypothetical questions.”
The record in this case shows that two of the three physicians who were called by the plaintiff were asked a long hypothetical question containing details as to the alleged injury and the pain, suffering and inconvenience thereafter, which details substantially agreed with the testimony of the plaintiff given on the trial. They were also asked to give their opinions as to the permanency of the injury, both from their physical examination of the plaintiff and the statements contained in the hypothetical question. The first one of these physicians upon cross-examination and the second both upon direct and cross-examination stated that the plaintiff had given a full and complete history of the case at the time they had made their respective examinations of him and his physical condition, and each of them stated that the opinion given by him was based partly upon the statement and history given him by the plaintiff. We do not find that either of them afterwards modified or explained this conclusion as to having based his opinion partly upon the history of the case as given him by the plaintiff himself. It needs no argument to show that this makes these experts’ opinions incompetent as being based upon hearsay evidence. These physicians could not have repeated or restated to the court and jury these statements made to them by the plaintiff, and any conclusions based upon what was told them by the plaintiff, or even partly upon such statements, would be equally incompetent. The rules announced in the Frazier case, supra, have never been modified or changed, but have frequently been confirmed and strengthened by subsequent decisions,' and the admissions of these two physicians that they based their expert opinions partly upon the history of the case, including the injury, make their evidence absolutely incompetent, and all of it should have been withdrawn from the jury. The failure to strike it out after it was shown to have been based partly upon such hearsay evidence was reversible error.
“A physician while testifying as an expert is not permitted to testify to his conclusions as to the permanency of an injury to his patient, based partially upon the history of the injury detailed to him by the patient or other person and partially upon his own examination.” (Betterment Co. v. Beeves, 73 Kan. 107, syl. ¶ 2, 84 Pac. 560.)
“It is error to permit physicians, testifying as experts, to testify concerning the condition of a person examined by them, and base their opinion partly on the history of the case.” (Smith v. Railroad Co., 95 Kan. 451, syl. ¶ 2, 148 Pac. 759. See, also, Telegraph Co. v. Morris, 67 Kan. 410, 73 Pac. 108; Ballard v. Railway Co., 95 Kan. 343, 148 Pac. 764; Hill v. Railroad Co., 113 Kan. 489, 215 Pac. 310.)
In two of the cases above cited the judgment was not reversed because the court found there was ample evidence that was not subject to such objection to establish all the facts necessary to support the verdict and judgment. In this case there was testimony by a third physician, who was a resident of another state and gave his deposition, having known the plaintiff ten years and having examined him three times before his deposition was taken. His testimony was not affected as that of the other two physicians. No hypothetical question was asked him, and he was not asked if he based his opinion upon any history of the case. He disclaimed being a nerve specialist and therefore excused himself from answering some of the most important questions as to the probable cause, the extent or the permanency of the injury. This case is therefore not one with ample evidence along this very important line to support the verdict and judgment after excluding that of the other two physicians rendered incompetent and ineffectual by their own statements. This conclusion compels the reversal of the case and the ordering of a new trial, these matters having been presented to the trial court on the motion for a new trial.
It will not be necessary to review the other errors alleged by the appellant, nor the error as to lump-sum judgment suggested by the appellee by way of cross appeal.
The judgment is reversed and the cause is remanded with instructions to grant a new trial. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves the question of priority of a mortgage over certain mechanics’ or materialmen’s liens. The mortgagee prevailed in part only and appeals.
The facts are substantially these: The United Investment Company, owner of the property in controversy, executed a deed to A. P. Westine dated August 20, 1926. Either on the same day, or the following day, Westine and wife executed a mortgage to the American Building and Loan Association for $5,000 on the same property. The instruments were recorded August 25 following; the deed at 3:05 o’clock and the mortgage at 3:25 o’clock p. m. This, with other property, was already encumbered by a $9,000 mortgage which was released September 26, 1926.
This action is to foreclose the $5,000 mortgage. The defendants answered setting up the mechanics’ or materialmen’s liens above mentioned.
. A check dated August 25, 1926, for $1,000 of the $5,000 was executed by the loan association to the investment company to pay for the lots, there being no building thereon at the time of the execution of the mortgage by Westine and wife to the loan association. The balance of the $5,000 went into the construction of the building on the premises.
The court found the plaintiff entitled to a first lien for $1,000 on the theory that this amount was a part of a purchase-money mortgage on the' property in question. Next, a lien in favor of certain defendants; third, a lien in favor of plaintiff for balance due on its mortgage of something over $4,000; and fourth, a lien in favor of the North American Life Insurance Company for $256.
The theory upon which the defendants claim priority over the lien of the plaintiff’s mortgage (except the $1,000) is that the construction of the building was commenced prior to the recording of the mortgage, while the plaintiff contends that the execution of the deed from the investment company to Westine, the release of the $9,000 mortgage from the investment company to the plaintiff and the execution of. the mortgage from Westine and wife for $5,000 to the loan association, constituted one transaction. It argues that the defendants had constructive notice at least of the $9,000 mortgage which was held by the association in full force until after it had secured a mortgage from Westine for the $5,000; that the $9,000 mortgage was released in order to make the $5,000 mortgage a first lien on the premises; that there was never an interval of time when Westine owned the property free and clear of encumbrances; never a time when he could have conveyed it so as to defeat the loan association’s mortgage; never an interval of time when he had title sufficient to create liens prior to plaintiff’s mortgage. Also, that the $5,000 mortgage was a purchase-money mortgage.
It appears that work on the house in question was begun at 9 o’clock the morning of August 24, 1926. As above noted, the mortgage was delivered to the secretary of the loan association August 25 and recorded at 3:45 p. m. The trial court found that out of the $5,000 only $1,000 was used to pay the United Investment Company for the vacant lots, and that only to this extent could the mortgage be considered a purchase-money mortgage, and to that extent only was a first lien.
The application for the loan stated that the purpose of the loan was for “building.” It showed Westine was in possession, claiming title. Possession under a verbal agreement to purchase property is sufficient ownership for the establishment of liens. Westine’s possession of the property under agreement to purchase was sufficient, therefore, to support the establishment of the liens.
“A person in possession of real estate under a verbal agreement to convey the fee-simple title to him is an owner thereof within the meaning of our statute relating to materialmen’s liens, and may subject his interest therein to such a lien.” (Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019.)
“A party in open, undisputed possession of real property, who afterwards receives a conveyance of the legal title thereto from the holder thereof, has such a title as will enable him to create a mechanic’s lien thereon as against mortgages and grantees of himself.” (Lumber Co. v. Fretz, 51 Kan. 134, syl. ¶ 1, 32 Pac. 908.)
In Oil Co. v. McEvoy, 75 Kan. 515, 89 Pac. 1048, it was said in the opinion:
“In some states there are statutory provisions extending mechanics’ liens to leasehold estates, but regardless, of such provisions it seems to be settled that the word ‘owner’ is not limited in its meaning to an owner of the fee. It has been held that a person in possession of real estate under a verbal promise of a conveyance to him in fee simple is an ‘owner.’ (Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019.) The term also includes an owner of a leasehold estate. In Hathaway v. Davis & Rankin, 32 Kan. 693, 5 Pac. 29, it was held that a lien for materials and labor may attach to a leasehold estate, and that such a lien attached to the buildings, fixtures and materials placed thereon by the tenant. (See, also, Choteau et al. v. Thompson & Campbell, 2 Ohio St. 114; Lyon v. McGuffey, 4 Pa. St. 126, 45 Am. Dec. 675.)” (p. 516.)
We conclude that Westine was at the time of the commencement of the building of the house capable of creating valid liens thereon.
It has been held that a mortgage may be divided; that so far as it is a purchase-money mortgage it constitutes a lien on the property prior to other liens, while the part which does not represent purchase money does not. (Pratt v. Topeka Bank, 12 Kan. 570; Greeno v. Barnard, 18 Kan. 518.) A similar question was considered in New Jersey Bldg., Loan and Invest. Co. v. Bachelor, 54 N. J. Eq. 600, 35 Atl. 745, where it was said substantially that a vendee of land, simultaneously with the delivery of his deed, gave a mortgage to secure borrowed money, a part of which was used to pay for the land, and it was held that as to such part the lien of such mortgage was prior to a mechanic’s lien for improvements made in part before delivery of the deed to the vendee, and under a contract with the vendee made before such delivery, but as to the balance of the mortgage the mechanic’s lien was prior.
In Tiffany on Real Property, 2d ed., sec. 636, it is said:
“In most states, if the purchaser of land, upon receiving a conveyance thereof, as a part of the same transaction executes a mortgage to the vendor to secure a part or the whole of the purchase price, such mortgage, to the extent to which it actually secures purchase money, is entitled to priority over any preexisting claims which may be asserted in favor of other persons against such land as the property of the purchaser.”
We conclude that the defendants had valid liens subject to the $1,000 of the mortgage which was used to purchase the lots, and that no error was committed by' the trial court in the precedence in which such liens were allowed.
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The opinion of the court was delivered by
Dawson, J.:
This appeal relates to a contest between two candidates for the office of county commissioner of Marshall county at the November election in 1928.
Pursuant to the statute the county clerk and the commissioners of Marshall county met in the county clerk’s office on the Friday next following the election and proceeded to open and canvass the election returns, and at the conclusion thereof, on November 9, 1928, the commissioners determined that the appellee, B. N. Welch, had received the highest number of votes and declared him elected.
Within twenty days from the date and time when the votes were thus canvassed and the result so declared, on November 24, 1928, the appellant, Alva B. Stryker, filed with the county clerk his statutory statement of intention to contest the election, setting forth in writing the requisite facts upon which an election contest may be initiated.
The matter was duly brought to the attention of the probate judge and on the same day, November 24, 1928, he approved the contestor’s bond for costs and selected two disinterested persons to serve with him as a court for the trial of this contested election, as provided by statute.
On November 28 the contestee and the two nominated judges were served with notice, and under authority of the statute the probate judge set the contest for hearing on December 18, 1928, at 9 a. m.
On November 30, 1928, the contestee, B. N. Welch, filed and served on the contestor his answer, in which he denied the recitals of fact set up in the statement of the contestor and demurred thereto; and in his answer the contestee also alleged with much detail various irregularities of the election judges and in the precinct returns whereby he was deprived of votes to which he was entitled, and that various illegal votes had been accredited to the contestor.
On November 30, 1928, the contestor filed a reply containing a general denial of all the adverse matters set up in the answer filed by the contestee.
On December 18, 1928, which was the day set for the hearing of the election contest, it was made to appear that Welch, the contestee, was unable to be present by reason of illness, and the hearing was continued until January 3,1929. On that date the contest came on for hearing, the parties and their counsel being present, and the record proceeds thus:
“Whereupon, said contestor having produced in court the ballots cast at the last general election in the township' of Cottage Hill, and having heard the testimony of Clyde K. Rodkey, county clerk, as to the custody of said ballots since said election, said ballots were offered in evidence, to which B. N. Welch, contestee, by his attorneys, objected for the reason that said contest was prematurely filed, the same having been filed on the 24th day of November, 1928, and that the final canvass of said votes was not made and the contestee herein was not declared elected by said Canvassing board until the 3d day of December, 1928, said date marking the final determination of the election, federal ballots being canvassed on that date, and by reason thereof there was no case before the court for consideration.
“And the court having heard the argument of counsel both for and against said objection, and having carefully considered the same,’does sustain said objection.
“Thereupon it is now by the court ordered that this proceeding be and the same hereby is dismissed . . .”
The contestor appealed to the district court, and a motion to dismiss and a demurrer were filed in behalf of the contestee, which matters together with the contestor’s appeal came on for hearing on February 26, 1929. The record recites:
“Whereupon, it appearing to the court by admission of counsel for both parties that the final canvass of the votes in Marshall county for the 1928 general election was held on December 3, 1928, on federal votes mailed in, but none of such votes were counted for either party; and thereupon the court, after duly considering the arguments of counsel for contestor and of the contestee and authorities cited, . . . finds that the motion of contestee to dismiss this appeal should be sustained and the demurrer filed herein by contestee should be also sustained.”
Judgment in favor of the contestee was entered accordingly, and the cause is brought here for review.
Proceedings to contest an election are governed entirely by statute and the pertinent provisions of statute are to be fairly construed to' effectuate and not to frustrate their purpose. When the county commissioners had, on the Friday next following the election (R. S. 25-701), canvassed the returns and determined that the appellee had been elected, the appellant was authorized, within twenty days therefrom (R. S. 25-1415), to institute proceedings to contest the election. While there might have been a postponement of the canvass of the vote for county officers (and a county commissioner is a county officer, Leavenworth Co. v. State, 5 Kan. 688) if votes of electors absent on account of military or federal service were expected (R. S. 25-701, 25-1109, 25-1211), yet the canvass of votes for the office of county commissioner was made and the result declared on November 9, 1928, “the Friday next following the election,” which was quite enough to warrant the appellant in setting in motion his proceeding to contest the election. • According to the journal entry of judgment in the district court it was admitted by counsel that the final canvass of votes in Marshall county for the 1928 general election was held on December 3,'1928, “on the federal votes mailed in, but none of such votes were counted for either party.” Even if there had been such votes so received and canvassed, and such votes had affected or were likely to - affect the result already declared by the county commissioners, there was ample authority of statute for the filing of a supplemental statement of facts before the contest tribunal. (R. S. 25-1424; 60-102; 60-764.) Moreover, if this contest had in fact been prematurely brought, that point should have been squarely and timely raised by the contestee before he answered on the merits. (Anthony v. Smithson, 70 Kan. 132, 134, 78 Pac. 454; 1 C. J. 1152.) Here the point of prematurity in bringing the contest was never broached until after the contestee answered on the merits, and after one continuance at his instance had been granted, nor until the time to institute a contest had altogether expired if the appellee’s theory of the time within which the contest might be commenced were adopted.
In Gribben v. Clement, 141 Ia. 144, 133 A. L. R. 157, 160, 161, which was an action to foreclose a mortgage, and one of the defenses thereto was that the action was prematurely brought, the court in the opinion said:
“Was the suit prematurely brought? . . . If we should so hold, we do not think that such fact would entitle the defendant to a dismissal of the action. The old rule which required an action to be abated, merely because prematurely brought, has been borne down by the trend of modern decisions. Under the later decisions, if the plaintiff’s cause of action is complete and mature before it comes to a hearing, he will ordinarily be permitted to try it out on its merits. If the action was prematurely brought, the court has full power to impose proper terms upon the plaintiff for the full protection of the defendant. The usual terms imposed are that plaintiff be required to pay all costs incurred prior to the maturity of his cause of action. If other terms ought in justice to be imposed, the court has plenary power in the matter. The rule is to permit a supplemental petition to be filed and to allow the case to proceed.” (pp. 149, ISO.)
In Lawrence v. Wheeler, 77 Kan. 209, 213, 93 Pac. 602, it was said:
“This court has held that pleadings in the nature of an answer and reply are proper in contest cases, and if filed they should be construed according to the ordinary rules applicable to such pleadings. (Baker v. Long, 17 Kan. 341.) It has also been decided that the contest should be heard and adjudicated upon the merits and not disposed of upon technicalities. (Buckland v. Goit, 23 Kan. 327.)”
In Buckland v. Goit, 23 Kan. 327, which was an election contest which the contest court had erroneously dismissed on a technicality, this court said:
“At the time that this contest was dismissed it was too late for the contestar to commence a new contest, and hence, if this dismissal were to be sustained, it would be a final determination of the case, and a final determination upon a pure technicality. This the law never encourages, and especially not where cases are to be tried before inferior tribunals, not skilled in the law. It is a dangerous thing for an inferior tribunal, not skilled in the law, to attempt to decide cases upon pure legal technicalities. Superior courts seldom attempt any such thing. And the law always encourages trials upon the merits, and never encourages final determinations upon mere technicalities of any kind.” (p. 330.)
A technical objection to the appeal was raised in the district court because the caption of the notice of appeal and the bond pertaining thereto bore the heading “In the probate court of Marshall county” instead of some appropriate recital that it was an appeal from the court for the trial of contested elections (R. S. 25-1413) in Marshall county. It is not suggested that this inconsequential defect (if it amounted to a defect, which is doubtful, R. S. 25-1430, 25-1431) misled or prejudiced the appellee in any way. Throughout all the files, including those pertaining to the appeal to the district court, the cause was sufficiently identified as “The Matter of Contest of Alva B. Stryker, Contestor, vs. B. N. Welch, Contestee.”
The judgment of the district court is reversed and the cause remanded with instructions to set aside its judgment and to enter judgment directing the probate judge and his selected associates to set aside their order dismissing the contest and directing the contest court to set about the determination of the contest on its merits as alleged in the statement of the contestor and in the answer of the contestee, and for further proceedings consistent therewith. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for damages alleged to have been caused the plaintiffs by defendants conspiring together to control and monopolize the picture-show and theater business of the city of Lawrence. Demurrers to the petition were sustained, and the plaintiffs appeal.
The plaintiffs are the Lawrence Lodge of Independent Order of Odd Fellows, a corporation, and its trustees. The defendant Dickinson operates several moving-picture theaters in the city of Lawrence. The defendant Midland Theatre and Realty Company is a foreign corporation with license to transact business in this state.
The lodge owns two lots on Vermont street. On October 2, 1926, the plaintiffs entered into a -written lease with the defendant Midland Theatre and Realty Company, wherein it was agreed that the plaintiffs would construct a modern, up-to-date theater, which the Midland Theatre and Realty Company agreed to equip and operate for a period of ten years. The lease provided that the lodge should construct the theater portion of the building according to plans and specifications suitable for a theater, and in this respect it set out with much detail how it should be constructed. The contract contained the following provisions among others:
“This lease may be assigned or the property sublet by the lessee for any purpose not in conflict with the business of other tenants then occupying space in- said building, but no such assignment or subletting shall release the lessee named herein unless the lessor shall give consent in writing to such assignment or subletting. . . .
“The parties to this lease agree that the covenants and agreements herein contained shall be binding upon their respective successors and assigns. . . .
“First parties agree to warrant and defend the title to said property and that the same is free and clear of any encumbrance, and to comply with all laws and ordinances affecting the building of which the leased premises are a part, so that second party, on performing the covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy the said premises for the purpose herein provided, for the term aforesaid and any extension thereof.
“Nothing herein contained shall be construed so as to require the lessee to operate said theater continuously, and the failure to operate said theater and/or motion pictures . . . shall not be construed as a breach of this lease by the lessee so long as the lessee shall have complied with all other provisions hereof.”
Thereafter the Midland Theatre and Realty Company assigned the lease to the defendant Dickinson. The assignment contained these provisions:
“. . . Whereas, All of the obligations of the lessee under said lease, up to the date of this assignment, have been fulfilled, and all covenants and agreements contained in said lease to be kept and performed by the lessee have been fully performed and complied with; and
“Whereas, Glen W. Dickinson has offered and agreed to purchase said lease, and Midland Theatre and Realty Company has agreed to sell to Glen W. Dickinson all of its right, title and interest in and to said lease.
“Now, therefore, in consideration of the sum of one dollar (SI) and other valuable consideration to it in hand paid, the receipt of which is hereby acknowledged, said Midland Theatre and Realty Company does by these presents sell, convey, assign and transfer unto said Glen W. Dickinson, his heirs and assigns, the aforesaid lease, executed as aforesaid, dated October 2, 1926, and does hereby sell, convey, assign and transfer unto Glen W. Diokinson all of its right, interest and privileges in and to said lease, or thereunder, or in any wise appertaining thereto, together with any and all interest of the grantor therein of every kind and nature in the premises described in said lease,' and in the improvements erected and to be erected thereon.
“It is further agreed and understood by and between the parties that Glen W. Dickinson shall and does hereby consent and agree that he will specifically and expressly assume all of the obligations and engagements of the lessee under said lease to be kept and performed by the lessee therein, and agrees that he will comply with and be, bound by all of the said covenants and obligations, and that he will promptly and fully comply with each obligation to be per formed by the lessee named in said lease, and that he will fully protect, indemnify and save harmless Midland Theatre and Realty Company, as lessee under said lease, from and against any and all costs, loss, damage or other liability as lessee under said lease.”
Specific allegations of the petition are that the defendant Dickinson owns and operates four of the five theaters in Lawrence; that it is and has been at all times his announced, avowed and determined purpose to obtain and preserve control of the theater business in the city of Lawrence, to the end that he may entirely stifle and prevent any and all forms of competition in that business. The petition contains no allegation that the plaintiffs have complied with their part of the contract to construct the theater, or that they have ever tendered the building to the defendant for furnishing or occupancy. It contains no statement that Dickinson’s alleged co-conspirators retained any interest or profit in his business or that any of his alleged coconspirators received or were entitled to receive any benefits or gains whatsoever as a result of the assignment of the lease other than the direct profit made by the assignment itself. The complaint is that Dickinson purchased an outright assignment of a lease from the Theatre and Realty Company.
The petition alleges that plaintiffs “did let and lease to said defendant for the period and under the terms and conditions . . . stated, the real property above described, and agreed to construct thereon a modern, up-to-date theater, which the defendant, the Midland Theatre and Realty Company, agreed to equip and operate for the period named in said lease.” Plaintiffs in their brief say: “The petition further sets forth that plaintiffs agreed to construct and the defendant, Midland Theatre and Realty Company, agreed to equip and operate a modern up-to-date theater upon said property.” However, as above noted, the petition contains no allegation that the plaintiffs have constructed the theater, nor any allegation of a waiver by defendants of plaintiffs’ performance of this part of the contract. The lease contained a stipulation that the building should be completed on or before December 1, 1927. While the point is not argued in the briefs and need not be decided here, we .are doubtful whether plaintiffs have stated a cause of action without having alleged performance on their part of the contract, or an excuse for nonperformance. It is a general and reasonable rule that a contract must be performed according to its terms before a party can have any right of action thereon. (See 6 R. C. L. 951, 966, 997.) There was no allegation of a repudiation of the contract nor any of its terms by the assignee. On the other hand, he agreed that he would comply with and be bound by all of its covenants and obligations, so we have here no allegation of conduct on the part of the lessee or its assignee which would furnish excuse for nonperformance of the contract by the plaintiffs. (See 6 R. C. L. 1012.) It may be observed that the assignment of the lease was not attached to and made a part of plaintiffs’ petition, but the record discloses that it was filed in the office of the register of deeds and was a matter of record long before the filing of this action, and that it was before the trial court while considering the demurrers to plaintiffs’ petition. Under all the circumstances, do the allegations of a trust and combine state a cause of action? We think not. The essential element of a trust, pool, combine or monopoly, such as are prohibited by law, is a combination of two or more persons, each retaining an interest in the combination. If we are to test the plaintiffs’ petition by its specific allegations and by the terms of the assignment, it rather clearly appears that the only participation the Theatre and Realty Company had in the entire transaction was to lease the property for its own use from the plaintiffs and then sell and assign its rights under that lease to the defendant Dickinson, without reserving to itself any interest therein. We do not understand that the statute prohibiting monopolies or combinations in restraint of trade prevents the individual or corporation from selling its property or holdings to another individual or corporation, or-that one may not purchase or acquire the business, property or holdings of another.
In Cincinnati Packet Co. v. Bay, 200 U. S. 179, it was held that a contract for the sale of vessels (even if they were engaged in interstate commerce), withdrawing them from business for a specified period, was not unlawful. The court said:
“A contract is not to be assumed to contemplate unlawful results unless a fair construction requires it upon the established facts. . . . The withdrawal of the vendors from opposition for five years is the ordinary incident of the sale of a business and good will.” (p. 184.)
In Camors-M’Connell Co. v. M’Connell, 140 Fed. 412 (C. C.), it was said:
“A contract by which a person sells his property and good will to another cannot be repudiated on the ground that the purchaser acquired the prop erty for the purpose of obtaining a monopoly of the business and in pursuance of an illegal combination in restraint of trade.” (Syl. ¶ 2.)
A trust is declared to be “a combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them, for either, any or all of the following purposes,” etc. (R. S. 50-101.) The petition states that Dickinson desired to get control of the theater business in the city of Lawrence and acquire from the Theatre and Realty Company the lease in question. The allegation shows that the statute referred to was not violated, for the reason that there was no combination of capital, skill or acts by two or more persons or corporations, or associations of persons, for the purposes to which reference is made. That is to say, Dickinson purchased this lease from the Theatre and Realty Company; the company retained no interest therein; it retained no right, control or supervision over the business; it will derive no benefit therefrom. The statute specifies a combination and presupposes a conspiracy or plan between two or more persons, each of whom retains an interest in the combination effected before a trust can result. In Davis v. A. Booth & Co., 131 Fed. 31 (C. C. A. 6th C.), it was said:
“There is a clear distinction, which seems to be lost sight of in the argument here, between the aggregation of properties by purchase when the seller no longer retains an interest in the property, and a combination of owners and properties under one management, where each owner’s interest is continued in the combination. . . . We think that the intent which made the contract or combination unlawful was one in which both parties participated, and that the act was not intended to comprise a case where there was a sale and purchase of property, after which the seller should have no interest in the property and therefore would have no intent as to its further use.” (p. 37.)
The statutes of Missouri prohibit any corporation from creating or entering into any pool, trust, agreement, combination, confederation or understanding with any other corporation, partnership, individual or any other person or association of persons to regulate or fix prices or maintain prices when regulated and fixed, but—
“The prohibition to fix and maintain the price of an article does not include a prohibition against one manufacturing company selling out its business to another. If that were true, since this statute applies alike to corporations, individuals and partnerships, it must follow that it also prohibits one individual from selling the assets of his business to another engaged in producing a like article.” (State ex inf. v. Continental Tobacco Co., 177 Mo. 1, syl. ¶ 2. See, also, State ex inf. v. International Harvester Co., 237 Mo. 369.)
In Barrows v. McMurtry Mfg. Co., 54 Colo. 432, there was a contract for the sale of an entire stock iru trade and the good will of a plate-glass company, of which the defendant was president and the largest stockholder. There was a covenant that the sellers would not for ten years engage directly or indirectly in¡ any such business in the state, or accept employment with or work for any house engaged in such business, or invest any money in or become stockholders or directors in any company carrying on such business in the state. It was said:
“ ‘The modem doctrine is well-nigh universal that when one engaged in any business or occupation sells out his stock in trade and good will or his professional practice, he may contract with the purchaser and bind himself not to engage in the same vocation in the same locality for a time named, and he may be enjoined from violating this contract.’ (Beach on Modem Law of Contracts, § 1575.)” (p. 141.)
Plaintiffs cite many cases which in our opinion have no application to the alleged facts. They especially rely on Love et al. v. Kozy Theatre Company, 193 Ky. 336, a case where the owners of four principal moving-picture shows conspired together and operated under the management of an interlocking directorate. It is apparent that case has no application to the facts under consideration here.
Contentions that the petition sets out facts constituting causes of action for fraud under the common law cannot be sustained and require no elucidation. We think the trial court comprehended the allegations of the petition and properly sustained the demurrers thereto.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a policy of insurance on an automobile against loss by fire. The defense was that specific terms and conditions of the policy had been violated, by reason whereof the policy was void. The case was fried to the court, judgment was for plaintiff, and defendant has appealed.
The material facts necessary to be considered are as follows: S. L. Potter was the agent at Wamego, Kan., of the Illinois Indemnity Company, defendant’s predecessor. He and two others were partners doing business under the name of the Kansas Investment Company and had a mortgage on an automobile owned by Samuel L. Nason. On October 14, 1926, the insurance company, through its agent, S. L. Potter, issued the policy of insurance in question to Nason on the automobile. It recited that the automobile was owned exclusively by the insured except $811.67 to the Kansas Investment Company. Later, and in July, 1927, Nason was adjudged a bankrupt. A trustee was appointed for his estate, and the Kansas Investment Company paid the trustee $40 for Nason’s equity in the car and took possession of it under its mortgage, and on July 9 sold the car to F. M. Cless for $750, Cless paying $50 in cash and giving a mortgage on the car for $700. The payment made by ClesS cov ered handling charges and insurance. On the same date S. L. Potter, as agent for the insurance company, made out and attached to the policy previously issued to Nason, the following:
“Special Indorsement.
“Subject to all the terms, conditions and agreements of the policy to which this indorsement is attached, it is understood and agreed that the interest of Samuel L. Nason, as owner of the automobile covered by this policy, is hereby assigned to F. M. Cless, Rossville, Kan.
“This indorsement shall take effect on the 9th day of July, 1927, at noon, and shall terminate with his policy.
“This indorsement when countersigned by a duly authorized agent and attached to policy No. 57994 of the Illinois Indemnity Company shall be valid and form a part of said policy. Illinois lNDEMNITy ^
“By S. L. Potter, Agent. Hunt Wentworth, Secretary.”
On July 21 the car was burned by fire and was practically a total loss. Proof of loss was duly made. The specific conditions of the policy plead by defendant as having been violated, the violation of which rendered the policy void, are as follows:
“Title and Ownership. 10. This entire policy shall be void unless otherwise provided by agreement in writing added hereto: (a) if the interest of the assured in the subject of this insurance be other than unconditional and sole ownership; or in case of transfer or termination of the interest of the assured other than by death of the assured (it shall thereupon cover his legal representative, provided notice is given the company in writing within thirty days of such death) or in case of any change in the nature of the insurable interest of the assured in the property described herein either by sale or otherwise, or (b) if this policy or any part thereof shall be assigned before loss.”
Appellant argues that there was a change of ownership from Nason to the trustee in bankruptcy by operation of law on the adjudication of bankruptcy and the appointment of the trustee; that there was a second change of ownership when the Kansas Investment Company, by permission and order of the referee in bankruptcy, paid to the trustee $40 for Nason’s equity in the car and took possession of it, and that there was a third change of ownership when the Kansas Investment Company sold it to Cless. It will be noted that the specific things mentioned in paragraph 10 of the policy rendered the policy void only in the event it was not otherwise provided by agreement in writing added to the policy. The fact that a short cut was taken in the assignment of this policy from Nason to Cless instead of the more circuitous process of making an assignment first to the trustee in bankruptcy, then to the Kansas In vestment Company, and then to Cless is of no significance if it were properly provided for by agreement in writing added to the policy. There is no reason why the insurance company could not consent to this method of making assignment if it were informed as to the facts and desired to do so. There is no question but what S. L. Potter, the agent of the insurance company, was conversant with all the facts, for he personally handled the various transactions. Cless undoubtedly thought he was getting a valid insurance policy, and no reason is suggested why the insurance company did not want to issue or transfer to him a valid policy. The special indorsement attached to the policy is sufficient in form to assign the policy to Cless —appellant does not seriously contend otherwise.
So the question of liability really turns on the authority of S. L. Potter, the agent of the insurance company, to execute the special indorsement on behalf of the company and attach it to the policy. His authority to do so was put in issue by the pleadings. His agency agreement contained the following provisions, among others:
“The company hereby appoints the above-named as agent for the purpose of procuring insurance and for the other purposes hereinafter named, and for such purposes only. . . .
“The agent shall . . . thoroughly and efficiently canvass the said territory, procure insurance, collect premiums and perform generally such other duties and services in connection therewith as shall best promote the interests of the company.”
The evidence disclosed that in the conduct of the business the insurance company furnished its agent, Potter, the insurance policy, special indorsements, and all other necessary forms, all properly signed by the officers of the company and ready to become valid contracts when countersigned and delivered by Potter. He was not required to forward the application for insurance to the home office nor any other agent of the company. In issuing a policy the application was made direct to him, he passed upon the risk and issued the policy. On a change of ownership of the property insured he executed on behalf of the company, on forms furnished him for that purpose, the consent and agreement of the company to such transfer, and this he did without referring the matter to the officers, or any other agent of the company, for their approval. In the course of about a year he issued some 800 insurance policies on automobiles for this insurance company. Many of these automobiles changed ownership, and the consent and agreement of the company was exe cuted by Potter and attached to the respective policies. The authority of the agent, Potter, to execute on behalf of the insurance company, the special indorsement in question is fairly conferred by his agency agreement with the company and appears to be in accord with the usual course and conduct of his busines.s as agent of the company. The terms “special agent” and “general agent” are somewhat relative terms. There were, of course, some limitations on the authority of Potter, but within the territory mentioned in this agency agreement, in procuring insurance, collecting premiums, and performing generally such other duties and services in connection therewith as would best promote the interests of the company, and doing so in accordance with his own judgment, his authority in these respects was general. He was the insurance company with respect to such transactions. (Despain v. Insurance Co., 81 Kan. 722, 106 Pac. 1027; Funk v. Insurance Co., 82 Kan. 525, 108 Pac. 832.) From this it necessarily follows that the policy as indorsed to Cless was valid.
The judgment of the court below is affirmed.
Johnston, C. J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
In a petition for rehearing plaintiff contends defendant forfeited his privilege because he exaggerated the reports he had received when he communicated them to Clarence Ebaugh and Charles S. McGiffert. The petition goes so far as to say it is “absolutely shown” that defendant embellished and exaggerated the reports. There is no basis in the record for this assertion.
It will be recalled the janitor of the school building reported what he said he saw. In response to inquiry, defendant made statements to McGiffert and Clarence Ebaugh concerning what the janitor said. On the witness stand McGiffert and Clarence Ebaugh made statements concerning what defendant said. The following is what defendant said the janitor reported to him:
“He said that when he first became suspicious he went down in the sewing room one night to close the windows, and he said as he opened the door the preacher jumped back and grabbed his hat and said, ‘Well, I guess that is all,’ and M'iss Ebaugh said, ‘Well, that is all but one thing, and I will attend to that.’ He said he went in and closed the window, and the preacher went out ahead of him, and he said he went up town. . . . He said the longer he studied over it the .more suspicious he became. He said he stayed up town about half an hour, and he went back to the school building and went into the sewing room, and they weren’t there, and he went from the sewing room over into the cooking room, and he said they were in there, and he thought he had his arm around her, . . .”
McGiffert said defendant told him plaintiff and the preacher “were caught in the basement with the door locked one night.”
Whether the word "caught” was appropriately descriptive may be a matter of opinion, but it does not seem to the court to be much of an exaggeration. The description “with the door locked” appeared for the first time, in all the talk about the preacher and plaintiff, in McGiffert’s testimony. Defendant testified, however, that he did not tell McGiffert they were caught in the basement with the door locked. Defendant testified he told McGiffert what the janitor said.
Clarence Ebaugh testified defendant told him “they were caught in the high-school building. She was sitting on his lap, hugging and kissing him.” We get the janitor's report of this incident from what J. C. Johnson testified defendant told him — apparently a letter-perfect account, since plaintiff does not question it in the petition for rehearing:
“Miller then told me that Reverend Pennington had been visiting her in her room after school hours, and staying until after dark; that the janitor had made a peep hole in the ceiling so that he could watch them at the desk, and the janitor saw Reverend Pennington and Miss Ebaugh sitting at her desk and Reverend Pennington had his hand on her thigh, close to her body, while she was combing her fingers through his hair; she then put her arm around his neck and drew his head over to her shoulder and kissed him.”
There is room for difference of opinion as to whether Clarence Ebaugh’s account discloses carnality embellished and exaggerated beyond Johnson’s account, but defendant testified he did not tell Clarence Ebaugh his sister was sitting on the preacher’s lap, hugging and kissing him. Defendant testified he told Clarence Ebaugh what the janitor said.
The result of the foregoing is, it was a question of fact whether defendant gave his interlocutors a hyperbolical account of what had been, told to him. If he did, he did not act in good faith in the matter, and he may have been actuated by malice. The court instructed the jury that defendant’s statements were only qualifiedly privileged; that is, they were privileged provided they were made in good faith and with no malicious intent or purpose. With the general verdict in defendant’s favor, the jury returned special findings of fact that defendant bore no malice toward plaintiff, and did not act in bad faith.
The petition for rehearing chides the court for not referring to this subject in the original opinion. The court preferred not to print the evidence which has been set out above, and supposed reference to the findings that defendant acted in good faith and without malice would be sufficient. Since plaintiff insists on a discussion of the subject the court has no choice in the matter.
There is nothing else of importance in the petition for rehearing, and it is denied. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for damages resulting from an alleged defective highway. Defendant prevailed, and plaintiff appeals.
The facts are substantially these: On the night of November 1, 1926, the plaintiff was driving a Ford car on one of the main thoroughfares leading into Hugoton from the north. In attempting to turn from the highway on to a side road she missed the crossing ’ (a fill) and drove the car into a ditch some fifteen feet wide and seven feet deep, which was adjacent to the roadway and within the highway, paralleling the grade. The car overturned and the plaintiff was pinned beneath it from nine o’clock in the evening until eight o’clock the following morning. She sustained a broken left arm and many minor cuts and bruises.
The highway in question is well graded with a smooth driving surface. Three or four miles north of Hugoton, where' the accident occurred, a side road comes into it from the east. When the main highway was graded some years ago a ditch several feet deep was made and left along the east side of the roadway, now claimed to constitute the defect complained of. There was conflicting testi mony as to whether the side road was a county road or a state road. The jury found that the road at the scene of the accident was in a dangerous condition and that prior to November 1, 1926, no barrier, warning sign or danger signal had been placed near the ditch or the crossing. That there were weeds growing or grown along the ditch and within the highway immediately adjacent to and on each side of the crossing, but found for the defendant on the theory that the plaintiff was guilty of contributory negligence, charging “improper observance and poor control of car.”
A pertinent statute reads in part:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided: . . .. when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained.” (R. S. 68-301.)
The plaintiff contends that the negligence attempted to be found was not the contributory negligence pleaded and relied upon by defendant and that the negligence pleaded and relied upon was not supported by any testimony.
The answer contained this language:
“If any injuries as alleged in plaintiff’s petition were sustained by the plaintiff, such injuries were caused by the reason of the want of care, carelessness and negligence of the plaintiff, for that the plaintiff was familiar with the condition of the automobile in which she was riding, and knew, or by the exercise of ordinary care and diligence should have known, that said automobile was old, worn and defective, and that the same would not respond with any degree of certainty to the demands of human agency, or reasonably comply with, or do and perform the purposes for which it was intended to be used, and that said automobile was not equipped with proper and adequate lighting system and was not equipped with proper driving-wheel brakes, and the equipment intended for the control of said car was in such condition that said automobile would not respond to the human agency for its control when applied, and the plaintiff well knowing these facts approached said place of injury driving at an excessive and dangerous rate of speed in view of the equipment then and there being used by her, and these facts and each of them contributed to the injury complained of.”
The plaintiff, among other things, testified substantially that she knew the point in question was a dangerous place; that she always aimed to use caution when she made the turn, and that on this evening in particular she endeavored to use caution in making this turn, because she naturally cut her car down and put it in low in making' the turn; that she used the same precaution she used on any turn. That when she came from the north the weeds had grown up high and she could see only a faint pathway; that she hadn’t been in the habit of driving over it in the night and took what looked like a dividing of the weeds to be the road, and that there was where her car turned over.
Another witness testified:
“I asked her how she came to run in the ditch and she said she had no lights; that she had a flashlight and that was all the light she had, and wanted me to get it, stating that she had left it out there. I did not get it. I looked at the car when I was there and noticed that one lens was gone and there was no bulb in that light. I can’t say about the other one.”
Still another witness .testified:
“I did not see the accident but I saw the automobile about 10:30 that morning. I looked at the automobile and I found that the lens on the right lamp was gone and the wires were not hooked up on that particular side, but I cannot say about other side. There was no bulb in the lamp on the right side. The wires were old and worn. The wire was broken short and was too short to be hooked up on the right side. It looked like it had been in that condition for quite a spell. I looked at the tracks running into the ditch. I don’t know that I can explain, but she appeared to be coming along the west side of the north and south road, and just drove off the bank five or six feet south of this crossing.
“Q. Did you see any evidence, by looking at these tracks made by her automobile, of the automobile having skidded in any way? A. No, sir; only she started to pull it back up the bank and it slid and turned on over.
“Q. After she was in the ditch? A. Yes, sir. . . . There was plenty of road north of where this woman went into the ditch for her to have gone east. I would judge about fourteen or fifteen feet. I am acquainted with the actions of Ford cars and have driven them extensively. When the lights of a Ford car are run on the magneto the car will give ordinary good and sufficient light with the car running at a speed of three or four miles an hour if the car is in low gear. If it is in high gear, it would not give good lights.”
We think the allegations of defendant’s answer were sufficient to cover the negligence found by the jury. The question of plaintiff’s contributory negligence was one for the jury (Clark v. City of Hutchinson, 114 Kan. 172, 217 Pac. 305), and we are of the opinion the evidence was sufficient to support the jury’s finding. It will be noted there was testimony that the plaintiff had no lights or that her lights were in poor condition; that one lens was gone and that there was no bulb in that light; that the right light or lamp was gone and that the light wires were not hooked up on that side or were broken off; that with no lights, or with one light gone, or with poor lights she could not properly have observed where she was going; that she did not look where she was going; that she took the weeds to be the road; that there was no gap or break in the weeds at the point where she drove into the ditch; that there was no gap in the weeds at or near this point where the fill of the east-and-west road joined on to the highway, except the gap itself where the road turned east, and there was no gap in the weeds for about six feet. That at the point where the car went into the ditch there could not have been anything like the gap or break in the weeds that there was at the point where the side road turned off; that if she had had good lights and had properly observed or looked where she was going she would not have mistaken a gap two or three feet wide in the weeds for the side road, which must have had a gap or break'in the weeds several times that wide.
It has been held to be the duty of every automobile driver to have lights sufficiently good to enable him to see for such distance as it would require for him to stop, and it is his duty to keep a vigilant watch ahead. In Fisher v. O’Brien, 99 Kan. 621, 162 Pac. 317, it was said:
“Independently of any statute it is negligence as a matter of law to drive an automobile along the highway on a dark night at such speed that it cannot be stopped within a distance that objects can be seen ahead of it.” (Syl. ¶ 1.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in accounting and for a part of the profits of a partnership, or, more accurately, a joint enterprise, engaged in by plaintiff and defendant in the purchase and sale of fruit, principally apples. The action was tried to a jury, which returned a verdict for plaintiff for |1,000, which verdict was approved by the court and judgment rendered thereon. The defendant has appealed.
Plaintiff alleged, in substance, that he and defendant entered into an oral agreement by which defendant was to purchase the fruit and place it on board cars at Blair, Kan., at cost, and ship it in carload lots to places designated by plaintiff, who was to sell the same; that after paying from the proceeds of the sale the freight and other expenses, plaintiff was to receive one-half of the profits; that twelve cars of fruit were purchased, shipped and sold under this agreement; that defendant had received all the proceeds and had all the records pertaining to the costs and expenses of the business, and that there had been a substantial profit in the business, the amount of which was unknown to plaintiff. The prayer was for an accounting and a money judgment for half of the profits.
The answer admitted the contract as alleged by plaintiff, and as to each car of fruit shipped alleged that it cost a stated sum, and that a named sum was received as the proceeds of the sale. A motion to make the answer more definite by stating from whom the fruit was purchased, and the cost thereof, and the other expenses as to each car, was sustained. Defendant then filed an amended answer, alleging that the agreement between plaintiff and defendant was that the cars of fruit were to be billed to plaintiff at the price for like fruit f. o. b. cars at Blair, Kan., and with each shipment should go a list showing the kind and quality of fruit in the car, with the price of such fruit then prevailing at Blair, and that the difference between such bills, plus other expenses and the receipts, should be divided. The answer then set out the billing of each car and the receipts from sale, which, after deducting the sum stated in the bills and other alleged expenses, showed a loss. The answer also contained a counterclaim of several items. The reply was a general denial.
It will be noted there is a substantial difference in the agreement between the parties as alleged by plaintiff and that as alleged by defendant in his amended answer, plaintiff having alleged that the profit to be divided was the difference between the actual cost of the fruit plus the expenses and proceeds of sale, while defendant alleged that the profits were to be the difference between the sums at which the several cars of fruit were billed, plus expenses, and the receipts. On the trial plaintiff testified that the billing of the cars was prepared for trade purposes, was not intended between the parties to represent actual cost, and was so understood. Defendant testified that he did not know from whom he purchased the fruit shipped in the several cars, or the actual cost thereof, nor did he have any books or records from which that could be ascertained. Plaintiff produced several witnesses who testified as to the market value of the various grades of fruit at Blair, Kan., on the date of the respective shipments. Appellant complains of this evidence. There is no merit in this complaint, for several reasons: First, it is admitted without objection; second, it is competent under defendant’s answer, for he alleged that the cars of fruit were to be billed at the prevailing prices of like fruit at Blair, Kan., at the time of the shipment, and there was an issue as to whether they were so billed; and, third, it was secondary evidence as to the cost of the fruit in view of defendant’s inability or refusal to furnish the primary evidence of its cost.
Appellant next argues that the bills sent for each of these cars purporting to state their cost themselves constituted a contract, and were binding on the plaintiff. This contention is not correct. If the bills were made for trade purposes and bore no necessary relation to the cost, and if, as alleged and testified to by plaintiff, the actual cost of the fruit was to be taken as the basis for computing profits, the sums stated in the bills would not be controlling. It was the function of the jury and the trial court to weigh this evidence and determine its value.
' It is next argued by appellant that there is no basis for the evidence from which the jury could have returned a verdict for an even $1,000. Defendant, by not keeping a record of actual cost and expenses, made it impossible for the jury or the court to get at the exact figure. The evidence as to the market value of the kinds and quality of fruit shipped from Blair at the dates of the respective shipments varied somewhat as testified to by the several witnesses on that question, and really was the only evidence of actual cost the jury had to go by. The amount of the judgment was within the figure as computed from the evidence of some of those witnesses, and hence it cannot be said it was not supported by evidence.
Appellant argues that since there were no separate findings of fact it is clear from the verdict that the jury did not allow defendant anything on his counterclaim. There was one item in the counterclaim of $61.43 which was admitted by plaintiff. The verdict fairly discloses that the jury took that item into consideration. The defendant offered no evidence in support of the other items alleged in his counterclaim, hence there was no reason for the jury to give consideration to it.
Finding' no error in the case, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the Wheat Growers Association against E. W. Lucas, a member of the association, to recover damages resulting from an alleged noncompliance with a marketing contract, in that defendant failed to deliver to plaintiff wheat alleged to have been grown by him during the years 1922, 1923, 1924 and 1925. It was stipulated in the contract between the parties that if defendant did not deliver the wheat in accordance with the agreement he would pay to plaintiff twenty-five cents per bushel as liquidated damages. At the end of the first trial the court sustained a demurrer to plaintiff’s evidence, and upon an appeal this ruling was reversed. (Kansas Wheat Growers Ass’n v. Lucas, 124 Kan. 773, 262 Pac. 551.) A second trial was had which resulted in a verdict for defendant. The verdict was accompanied by four special findings. The first was to the effect that no wheat was produced by or for the defendant, either directly or indirectly, or had been acquired by him and not retained for feed or seed to be sown by himself during the years 1922, 1923, 1924 and 1925. The other special findings are not material in this appeal. The plaintiff moved to set _ aside all of the special findings, but the motion was overruled except so far as it related to that part of finding No. 1 that no wheat was produced by or for defendant in the year 1922, and except as to that the motion was overruled. Motions were made by plaintiff for judgment on the evidence and for a new trial, but these were denied and judgment entered for defendant. Plaintiff appeals and complains that the evidence required a judgment for plaintiff notwithstanding the verdict and that there was error in the instructions given.
The plaintiff contends on this appeal that, regardless of its right to the delivery of other crops, it was entitled to the delivery of the crop of 1922, amounting to 928 bushels. It is insisted that the damages ■should have been awarded on that crop admitted to have been grown by the defendant notwithstanding that it had been mortgaged to other parties before the contract with the association was made. It appears that on September 11, 1922, the defendant wrote to the association stating’ that the wheat he had raised in that year had been mortgaged and informed the plaintiff of the liens and of the demand of the mortgagees for the crop. In answer to that letter' the association wrote as follows:
“Wichita, Kan., Sept. 22, 1922.
“Mr. E. W. Lucas, Nashville, Kan.:
“Dear Sir — We have your letter of September 15 in which you have advised us that you have 928 bushels of wheat to market this season and that you have two mortgages on this wheat, one'for $800 and one for $675. Therefore, it appears to us that you will probably be unable to markdt your wheat through the association, as the holder of these liens has the right to take delivery of your wheat and have it sold to apply on their claim. As the value of your wheat is so much less than the amount of the mortgages, the association would be unable to take up this mortgage and take delivery of your wheat. Yours very truly,
“The Kansas Wheat Growers Association, (Signed) “Ernest R. Downie, Sec’y-Treas.”
That crop, by reason of the declination of the plaintiff to receive it, as well as other concessions made, may be regarded as out of the case, leaving only for consideration the right of the crops of 1923, 1924 and 1925. Apart from plaintiff’s letter declining to accept the crop of 1922, on account of the mortgage thereon, the plaintiff upon the first appeal of this case conceded that defendant was not under obligation to deliver that crop. In its brief then filed it stated:
“The plaintiff was always willing and anxious to receive the wheat of the defendant except the crop of 1922, to which it was not entitled.”
This court, observing that plaintiff itself had taken that question out of the case, determined the other questions raised in the appeal relating to the crops of the subsequent years. The plaintiff is not in a position to revive its claim for the crop of 1922 on this appeal. In 'the former appeal the question principally involved was whether a lease made to the wife of the defendant was a bona fide transaction or as plaintiff contended was a" mere subterfuge to avoid compliance with defendant’s contract. There was some evidence which tended in a slight degree to support plaintiff’s contention, and hence it was held that this question of fact should have been submitted to the jury. On the second trial the matter in controversy was likewise the good faith of the leasing transaction. That question, as already stated, was settled by the jury in favor of the defendant and upon some evidence tending to show that it was made in good faith. The land upon which the crop had been grown was owned by W. T. Manson, the father of Grace Lucas, who was the wife of the defendant. The lease to her was executed by Manson on August 1, 1922, and there was testimony tending to show that she controlled the leased land, directed what fields should be sown to wheat and to other crops. While the defendant and his brother worked on the farm, it is shown that she also helped to plow the land, helped drill in the wheat, drove a truck in transporting the wheat as well as oil and gas for the tractor, and also raised cattle and hogs. When the crops were thrashed she settled with her landlord and turned over to him his share of the wheat, delivering it at a certain place in accordance with the terms of the lease, and she testified that the defendant had nothing to do with these transactions or the control of the crop. There was testimony, too, that her husband, the defendant, was in poor health and had been for about three years of the period in question, having submitted to two operations, and that he had been able to do farm work only a part of the time. There was testimony that she controlled and sold the wheat that was produced. It is conceded that Mrs. Lucas had the same right to carry on business, to rent the land and to farm it and to dispose of the crop as she wished, but it is insisted that the leasing of the land by her and the exercise of control over the crops was a mere subterfuge to avoid compliance with the marketing contract of the defendant with the plaintiff. The fact that defendant helped to cultivate the ground and to raise and harvest the crops on the land leased by his wife does not necessarily imply that it was a fraudulent arrangement. It was competent, of course, for the plaintiff to produce evidence as to the part defendant had in working the leased farm, as tending to show that the lease was a mere subterfuge. On that phase of the case the court instructed the jury that—
“If you further find that the lease of said wheat land was made to the wife of the defendant as a device or subterfuge designed to enable defendant not to deliver any wheat grown by him to the plaintiff and that such wheat in truth and in fact was raised by the defendant, and not by his wife, such device or subterfuge would not relieve the defendant from liability to the association.”
The defendant was not compelled to continue the growing of wheat during the full term of his membership in the association. He could, if he wished, abandon the wheat growing and let others assume that responsibility and devote his attention and time to other purposes. He was required to deliver wheat raised by himself but not to deliver wheat raised by others. (Kansas Wheat Growers Ass’n v. Garnett, ante, p. 337, 278 Pac. 5.)
Some complaint is made of the instructions given and refused, but an examination of these discloses no material error. Like so many other appeals this is essentially a fact case,'and while some evidence was produced by plaintiff in support of its contention that the lease in question was not a good-faith transaction, we cannot hold that the finding of the jury in favor of the defendant is not supported by sufficient evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This case involves the construction of a deed with reference to a part of a railroad right of way through a tract of 120 acres described by metes and bounds and concluding as follows:
“Less one acre in southeast corner for school purposes and 3.81 acres taken by the Kansas City, Wyandotte & Northwestern Railway, containing 117.19 acres, moré or less.” ' !'""
The contention is between the grantor in this deed, executed in 1887, and the present owners of a part of the tract lying immediately north of the railroad right of way, which is now abandoned. The proceeding is in the form of an ejectment action brought by the former owner, who executed the deed above described, against the present adjacent owners, who took possession of the right of way when it was abandoned by the railroad.
The case was tried to the court upon an agreed statement of facts, and the trial court held that the above words of exception in the deed excluded from the conveyance to the grantee all and every interest in the 3.81 acres taken by the railroad, and that upon abandonment it reverted to the original owner and not the present landowners abutting on the right of way, who claim title • through the above-described and subsequent conveyances.
The defendants appeal and insist that the conveyance of the 120 acres through which the right of way was condemned included all of appellee’s interest in and to the servient estate of the right of way, and upon subsequent abandonment the right of way reverted to the adjoining landowners deriving title through the deed in question. Appellee concedes this to be the rule of law unless a specific exception or reservation is made by the grantor, as she maintains was made in this case; that the excepting clause absolutely and clearly excludes this excepted portion from the conveyance, which is further confirmed and clarified by the specific acres excepted and the specific remainder conveyed, as expressed in acres.
Four important Kansas cases, viz., Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208; Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 Pac. 913; Platt v. Woodland, 121 Kan. 291, 246 Pac. 1017; and Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 Pac. 661, are cited and applied by both parties to the question here involved.
In the Abercrombie case the distinction is readily observed between the facts in that case and this one. There the right of way was acquired by the railroad by deed, which was held to be of the same effect as by condemnation, and was after abandonment conveyed by the railroad to the plaintiff, who brought ejectment action against the owner of the adjoining land. It was not a question between the grantor and the grantees of the adjoining land, as in this case.
In the Bowers case it was held that the owner of a twenty-five-foot strip between a railroad right of way and an abandoned highway'acquired title to the middle of the highway, although the deed bounded the land on the highway, but without mentioning it, and stated and limited the quantity of land conveyed.
In the Platt ease the extent of the interest conveyed was the question- involved rather than the quantity of the land, it being a contingent interest. And it was held that a quitclaim deed conveyed all the' interest of the grantors, intent to pass a lesser interest not expressly appearing or being necessarily implied from the terms of the grant.
The Roxana case is more nearly in point, because it makes a specific exception of the railroad right of way, but does not designate the acres excepted and the acres remaining, as in this case. In that case it was held:
“Deeds of a quarter section of land in which the numerical descriptions were followed by the expressions ‘less railroad right of way’ and ‘excepting railroad right of way’ of a named railroad, interpreted, and held to convey the interest of the grantors in the right-of-way tract.” (Syl. ¶ 2.)
In the Roxana case and the Platt case reference is made to R. S. 67-202, which is as follows:
“And every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.”
In the Platt case the word “estate” in this statute was construed to mean “interest” and to include “whatever the grantor could convey.”
The -question here is, Does the clause in the deed in this case reserve any interest or estate in the grantor?
“In order to keep a portion of their own estate it was necessary for them to do so by express exclusion. There is no basis in these transactions for necessary implication.
“The words ‘less railroad right of way’ are words of diminution. They expressly refer to the railroad company’s estate; and by confining the reference to the railroad company’s estate, import of the diminution is fully satisfied. The words do not make it expressly appear that besides the railroad company’s estate the estate of the grantors also should not pass.
“Ambiguity in a conveyance does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. Should there be doubt in a right-of-way case above what a grantor intended to pass, the totality of his own interest would pass, by virtue of the statute prescribing method- of manifesting intention, because the purpose of express manifestation is to leave no room for well-founded doubt.” (Roxana Petroleum Corp. v. Jarvis, supra, p. 372.)
In the case of Roxana Petroleum Corporation v. Sutter, 28 F. (2d) 159, the circuit court of appeals, eighth circuit, recently held in a similar case involving part of the same right of way and other property in the same town as in the Kansas case last above cited:
“When owner conveys a tract of land abutting on a railroad right-of-way tract, in which such grantor owns the servient estate and the railroad the dominant estate for right-of-way purposes, his conveyance passes to his grantee such servient estate, unless the intention not to do so be clearly indicated.” (Syl. ¶ 2.)
In the case at bar there is nothing more than in the Roxana case to express the intent to reserve to the grantor the servient estate in the right of way, except the statement of three acres included in the right of way and the statement of one hundred and seventeen remaining instead of one hundred and twenty. Appellee argues that this should conclusively show the conveyance was intended to be limited to the remaining portion, or one hundred and seventeen acres, but we do not think the enumeration of acres changes the evident intent of the grantor when she was required by the statute to make any such reservation expressly appear. The most apparent purpose of such statement of acreage excepted for the purpose named and statement of acres remaining was to protect the grantor against the warranties of the deed and to indicate that the railroad held the dominant estate to the three acres and she only the servient estate thereto, leaving only one hundred and seventeen acres free from a dominant right of the railroad company.
“The question whether a right reserved, excepted, or created is one which runs with or is annexed to the land or is one of a temporary or personal character is not ordinarily to be determined by the use of either of the words ‘reservation’ or ‘exception’; but the intent of the parties is to be ascertained by looking to the entire instrument and the circumstances attending the transaction. A reserved right in a conveyance which is not in its nature temporary or personal will be held to run with the land in the absence of some controlling provision to the contrary.” (18 C. J. 351.)
A reservation is always construed more strictly than a grant (18 C. J. 344), and it is difficult to conclude- that businesslike people, able to own, sell and buy land, could reasonably have had in mind at the time of the sale and purchase the leaving of a long, narrow strip of land through the 120-acre tract that was to remain the absolute property of the grantor in the happening of a very possible contingency. In the Bowers case above cited this is spoken of as being so absurd and unreasonable as even to be against public policy.
“The deed was to be interpreted most favorably to the grantee. The probability that the grantor would purposely deprive his grantee of the benefit of the servient soil, and reserve what in the great majority of instances would be of no use to the grantor, was .always slight. Experience revealed that separate ownership of long, narrow strips of land distinct from the territory adjoining on each side was prolific of private dispute and public disturbance, and public policy became an important factor in the interpretation. Therefore it became settled doctrine that a deed of land abutting on a road passes a moiety of the road, unless intention not to do so be clearly indicated.” (p. 204.)
The following is from the opinion of Justice Taft on this question, as found in Paine v. Consumers’ Forwarding & Storage Co., 71 Fed. 626, 632:
“The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in' deeds of the abutting lots. And modern decisions are even more radical in this regard than the older cases.”
The cases cited from other jurisdictions do not greatly assist in the determination of this question. An examination of them shows very few of them are from states having a statute on the subject, as we have, and in those states having a similar statute the decisions are in favor of grantor’s title passing to the grantee except in cases where peculiar and unusual words are used in the exception clause.
We conclude that the exception made in the deed here in question is not such as to make it expressly appear that a less estate than that which the grantor had was intended to be conveyed to the grantee. On the contrary, the language employed is that which is usually and ordinarily used to express the fact that a dominant estate to a certain portion of the land was already in another.
The judgment is reversed and cause is remanded with directions to render judgment for the'defendants. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an original proceeding in quo warranto, brought in the name of the state of Kansas, on the relation of the county attorney of Wyandotte county, against the board of county commissioners and William G. Bird, county treasurer of that county, to obtain declaratory judgments on two matters, one defining the powers of the board of county commissioners and of the county treasurer over the deposit of funds belonging to the county, the other declaring to whom the contract price for public work shall be paid where bond has been given for the performance of the contract and where the proceeds arising from the contract have been assigned.
The county commissioners argue that, under section 19-530 of the Revised Statutes, they have the power to name the bank or banks in which shall be deposited all the funds or moneys of whatsoever kind that shall come into the possession of the county treasurer.
The county treasurer contends that, under chapter 89 of the Laws of 1927, he has the power to name the banks in which such funds shall be deposited.
The solution of the controversy depends upon the interpretation of the two statutes mentioned. So far as material to the question under consideration section 19-530 of the Revised Statutes reads:
“That in all counties of this state the county treasurer shall deposit daily all the funds and moneys of whatsoever kind that shall come into his possession by virtue of his office as such county treasurer, in his name as such treasurer, in one or more responsible banks located in the county and designated by the board of county commissioners as county depositories . . . Before making such deposits the said board shall take from said bank or banks a good and sufficient bond, in a sum double the largest approximate amount that may be on deposit at any one time.”
That statute appeared in chapter 94 of the Laws of 1897. It was amended by chapter 101 of the Laws of 1909 so as to read as it now appears in the Revised Statutes. It has not since been amended.
Chapter 89 of the Laws of 1927, so far as material, reads:
“That section 9-142 of the Revised Statutes of Kansas, 1923, be and the same is hereby amended to read as follows: No bank, bankers, or bank officer shall give preference to any depositor or creditor by pledging the .assets of the bank as collateral security, except that bonds of the United States, of the state of Kansas, or of some county, school district, or municipality of the state of Kansas, or other securities, may be deposited with the state treasurer as security for the deposit of state money, and with the trustees of postal savings bank funds, and with any county treasurer, any city treasurer, the treasurer, or other fiscal officer responsible for public funds, of any township, board of education, school district', or other municipal body, for the security of such funds: Provided, That such treasurer or other fiscal officer shall be responsible under his bond for the safe-keeping of such bonds. And such bonds (except such as are deposited with the state treasurer or the trus tees of postal savings bank funds) shall be forthwith deposited in a burglarproof vault of a responsible safe deposit company or bank equipped with adequate modern facilities for the safe-keeping of securities, located within the state of Kansas, under contract with such safe deposit company or bank that such bonds may be withdrawn or coupons detached only by the joint consent of the owner thereof and the treasurer or other fiscal officer representing the public body to which such bonds are pledged; but no bonds belonging to a depository bank shall be deposited for safe-keeping in any safe deposit vault owned or controlled by such depository. . . .”
Chapter 89 of the Laws of 1927 amended section 9-142 of the Revised Statutes, which before it was amended, so far as material, reafd:
“No bank, bankers, or bank officer shall give preference to any depositor or creditor by pledging the assets of the bank as collateral security, except bonds of the United States, of the state of Kansas, or of some county, school district or municipality of the state of Kansas, or other securities may be deposited with the state treasurer as security for the deposit of state money and with the trustees of postal savings bank funds for the security of such funds.....”
Prior to the enactment of chapter 89 of the Laws of 1927 the question of control of the deposit of money belonging to the county was before this court in a number of actions. The court held that control was vested in the county commissioners. In State v. Lawrence, 80 Kan. 707, 103 Pac. 839, decided July 9, 1909, this court said:
“A county treasurer held to have no authority to place public funds on general deposit in a bank not designated by the county commissioners as a depositary.” (Syl. ¶ 2.)
See, also, Phillips v. Bank, 98 Kan. 383, 387, 158 Pac. 23; Bank v. Stanton County, 99 Kan. 80, 160 Pac. 980; Skinner v. Mitchell, 108 Kan. 861, 869, 197 Pac. 569.
Those decisions control in the present action unless chapter 89 of the Laws of 1927 takes control of public county funds from the county commissioners. Chapter 89 does not specifically'say who shall have control of the deposit of the securities therein mentioned. It does say the county treasurer shall be responsible for the safekeeping of the bonds deposited with him by banks as security for the deposits made in them. Responsibility for the bonds deposited with the county treasurer by the banks is not the same as responsibility' for money depqsited by the county treasurer in the banks. The statute giving to the county commissioners power to say where the funds of the county shall be deposited can exist side by side with the statute saying that the county treasurer shall be responsible for the bonds deposited by the banks with him as security for money-deposited in them.
To whom is the county treasurer responsible for the bonds deposited with him as security for county funds? Two parties are interested in those bonds, the depositor and the county. The depositor is the owner of the bonds. The county in effect has a lien on them to secure the funds deposited in the bank. If the bank should fail to pay back the funds deposited with it as required by law the county could look to the bonds for reimbursement for such funds. Until there is a default by the bank the county’s right to the bonds is. limited to possession and lien.
Section 19-530 of the Revised Statutes regulates the manner in which the funds of a. county may be deposited in a bank. Chapter 89 of the Laws of 1927 specifies one manner in which a bank may-secure a county for public funds deposited in the bank and directs how those securities shall be kept.
On the other matter the petition contains the following allegations :
“12. (m) It has been the practice of the banks of this county where a contract for a public improvement has been let to a contractor to take assignments of all the proceeds due under the contract and advance money on such assignment to the general credit of said contractor, contending that such assignment has priority over all other claims, including the claims of sureties of such contractors who take at the time of executing the bonds, required under it. S. 68-704, a prior assignment to them, said sureties of said contract; and it is contended by the county treasurer who has the honoring of the warrants provided for in R. S. 68-704, that the.surety company has'a legal and equitable right to a lien upon the proceeds of the contract inuring to them through subrogation of the rights and properties not only of the construction company (the surety companies’ principal) but also to the right under said section of the board of county commissioners, which right and lien attached as of the date of the execution of the bond by the sureties.
“(n) The board contends that the funds ordered disbursed by its warrants, referred to in R.S. 68-704, belong to said contractor and that said contractor has a right to make a valid assignment of said funds covered by said warrants notwithstanding and regardless of the said claimed prior rights thereto of said sureties.
“13. That the board and treasurer herein are each, by reason of their varying view of the law governing them in the premises, failing to perform the duties imposed upon them by the various laws relating to their official duties in connection with the matter of bonds and securities required of the various depositories now being used by the treasurer for the deposit of the public funds coming into the possession of said treasurer as said treasurer.
“14. That the board and the treasurer are each pursuant his own said views of his authority, power and duty in said matters, conducting his said office and each in said views, and said consequent exercise of official powers cannot be right.”
No bank, surety, contractor, or assignee of a contractor, is made a party to this action. Their rights would be involved in any judgment by this court on the matters presented by the quoted allegations of the petition. As between the county commissioners and the county treasurer there can be no such controversy over the matters presented as is contemplated by the declaratory judgment law. The county treasurer and the county commissioners may disagree as to the law, but there is no justiciable controversy between them. The controversy, if there is any, is between them on the one side and the bank, surety, contractor, or the assignee of the contractor, on the other side. The county treasurer and county commissionérs are asking for instructions in matters concerning which there is no such controversy. In the absence of those beneficially interested in the question presented the supreme court has no power to declare what the law is. Such a' declaration would be legislation.
The court declares that the public funds in the hands of the county treasurer must be deposited in banks in obedience to the order of the board of county commissioners; and that the county treasurer is responsible for the bonds deposited with him by banks as security for the deposit of public funds in those banks and may deposit them in safety deposit vaults in the manner prescribed by chapter 89 of the Laws of 1927.
The court declines to declare the law governing to whom the payment for public works for the county shall be made where bond for the performance of the contract has been given, and where the proceeds arising from such work have been assigned. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs prosecuted this action to have judgment rendered against the defendants, declaring that they held the title to certain real property in Oklahoma in trust for the use and benefit of the plaintiffs; that the plaintiffs were the holders of the legal and equitable title thereto; and prayed that the defendants be required to convey the property to the plaintiffs by deed free and clear of encumbrance. The defendants answered and alleged that the interest claimed to be owned by the plaintiffs in the real property had been acquired from the defendants through fraud practiced by the predecessors of the plaintiffs on the defendants, and filed á cross petition in which they asked that the plaintiffs be compelled to convey the real property by quitclaim deed to the defendants. A demurrer to the evidence of the Peoples Finance Company was overruled, but a demurrer to evidence of A. W. Hershberger, receiver, was sustained. Judgment was rendered “that the plaintiffs take nothing by their action and that the defendants have judgment against the plaintiffs for the costs of this action.” The plaintiffs appeal.
The case was tried by the court without a jury. Special findings of fact and conclusions of law were made as follows;
“First: The Secured Investment Company was organized in 1923 with an authorized capital stock of $25,000. All of the capital stock was issued to the various incorporators, who gave their notes therefor.
“Second: Early in 1925 the bank commissioner of the state of Kansas directed that the capital stock be paid for in cash or its equivalent or that the company cease doing business. In order to comply with the requirements, the officers of the company interested Clark Burdg in the company, and for the purpose of influencing him in investing therein represented to him that the capital stock was fully paid up and worth its par value; that the company was in a good financial condition and was making money.
"That such statements were false and untrue and known to the officers of .the said The Secured Investment Company to be false and untrue at the time they were made.
"Third: In reliance upon such statements, the defendants agreed to convey the real estate described as the southeast quarter (SE%) of section twenty-one (21), township twenty-five (25), range four (4) west of the Indian meridian, Grant county, Oklahoma, owned by the defendant Jessie Burdg, which had a value of $14,000, for one hundred forty (140) shares of stock in the said The Secured Investment Company.
“In order to secure the one hundred forty shares of stock the owners of the stock transferred the same back to the company and received their notes which were executed to the company therefor.
“The defendants thereupon executed and delivered a warranty deed to said real estate to the said The Secured .Investment Company and there was issued to Clark Burdg seventy-two (72) shares of stock, and sixty-eight (68) additional shares of stock were placed in escrow.
“Minutes of the said The Secured Investment Company do not disclose that the warranty deed was ever accepted by the corporation, and the evidence discloses affirmatively that the deed was never recorded.
“Fourth:. Clark Burdg was elected president of the said The Secured Investment Company on April 18, 1925, and exercised the usual functions of that office until June 15, 1925, when he resigned.
“Fifth: Prior to his resignation, Clark Burdg demanded a return of the deed to the real estate and offered to return the stock received by him, and it became necessary to secure other capital to permit the business to be continued.
“Additional capital was secured when D. F. Callahan and C. A. Gwinn gave a note for $7,200 and S. S. Williamson transferred a farm in Alfalfa county, Oklahoma.
“Sixth: On June 15, a director’s meeting was held, the deed to the Burdg land returned to him and the resignation of Burdg accepted. The seventy-two shares of stock to him were indorsed and the certificate canceled. New directors and officers were thereafter elected and the company continued to operate until on February 11, 1927.
“Seventh: In reports to the banking department of the state of Kansas, after June 15, 1925, the Secured Investment Company listed the Williamson farm as an asset of the said The Secured Investment Company of the value of $13,000 and did not list the Burdg farm.
“Eighth: On February 11, 1927, on an application of the state of Kansas, the said The Secured Investment Company was declared insolvent and A. W. Hershberger was appointed receiver.
“The report and inventory of the receiver did not list the Grant county real estate as an asset, nor was any claim against the defendants until this suit was commenced.
“The receiver, by approval of the court, sold all of the assets of the insolvent' company to the Peoples Finance Company, the conveyance reciting that it was the intention of the receiver to convey all of the property of the insolvent company as shown by the inventory.
“Ninth: The defendants have been in possession of the Grant county land since June of 1925, and have paid the taxes thereon.
“Tenth: In a proceeding in the receivership matter, S. S. Williamson sought to recover the Alfalfa county land and claimed in the proceedings that he had not received any consideration for the transfer of the land to the Secured Investment Company. The plaintiffs herein defended such proceedings and prevailed upon the proof that part of the Clark Burdg stock had been transferred to Williamson.
“conclusions of law.
“The plaintiffs are not entitled to recover herein and judgment should be rendered in favor of the defendants.”
The plaintiffs complain of a number of matters which maybe disposed of as one. They are as follows:
“As the defendant kept part of the consideration, he could not rescind.”
“The representations of Williamson did not bind the corporation.”
“The defendant, Clark Burdg, did not rely upon any representations made by Williamson.”
The answer to these propositions is that by the action of the Secured Investment Company and the defendants, the entire transaction by which Clark Burdg became a stockholder in that company was rescinded. Whether or not he could have compelled rescission is not material.
Two matters complained of, as set out in other portions of appellant’s brief, are as follows:
“Since the farm was listed as an asset of the company for the purpose of permitting the company to sell bends under the blue-sky law, defendant cannot rescind.”
“Under no circumstances can there be a rescission for subscription obtained by fraud after the company has become insolvent where the subscriber has been in active charge of the business of the company.”
To permit the plaintiffs to prevail on either of these theories would be to justify and complete the fraud practiced on the defendants by the Secured Investment Company and its officers. The' plaintiffs are not innocent purchasers or third parties in this transaction. They are assignees and successors of the Secured Investment Company and have no greater rights than that company.
The plaintiffs say that “mere surrender of deed does not transfer title back to grantor.” That principle of law may be conceded, but it does not control in the present action because the plaintiffs are seeking to compel the defendants to execute a deed conveying the land to the plaintiffs. The defendants asked that the plaintiffs be compelled to execute to them a quitclaim deed conveying the property to the defendants. The defendants were not given any affirmative relief. The plaintiffs were denied the relief they asked. The judgment was for the defendants for costs. To compel the defendants to convey the property to the plaintiffs would be to justify and complete the fraud. The plaintiffs came into court without clean hands because they are the successors in interest of those who practiced the fraud on the defendants.
Two other propositions advanced by the plaintiffs are that—
“A Kansas corporation cannot purchase its own stock.”
“By taking over the sixty-eight shares of stock, the defendant, Clark Burdg, became liable for the unpaid subscription therefor.”
The Secured Investment Company did not purchase from the defendants its own stock. The transaction between that company and the defendants by which the stock that had been acquired by the latter was returned to the company, did not amount to a pur chase and sale of the stock. It was a mutual rescission of the transaction by which the defendants acquired that stock. Rescission annulled all obligations of the defendants.
The plaintiffs argue that the second, fifth, seventh and tenth findings of fact were wholly or in part not sustained by any evidence. The court cannot agree with the plaintiffs in this argument. The fifth, seventh and tenth findings of fact may be entirely eliminated because they are immaterial. The abstract of the evidence has been carefully examined. Evidence to support each of the first, second, third, fourth, sixth, eighth and ninth findings of fact, and every part of them, is disclosed in the abstract. It will not serve any good purpose to summarize or detail that evidence. It would make this opinion unnecessarily long to do so. Eliminating the fifth, seventh and tenth findings, it is sufficient to say that the remaining findings are a correct summary of the evidence on which the ultimate, controlling and necessary findings could have been properly based.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff brought this action to foreclose a-mechanics’ lien on real property on which a residence had recently been constructed. Three other mechanics’ lien claimants and a mortgagee were made parties defendant, and they sought to foreclose their respective liens. Between the mechanics’ lien claimants and the mortgagee the question involved was priority of liens. The trial court made findings of fact and decreed that the mortgagee have a first lien for $777.15; that the four mechanics’ lien claimants coordinate with each other, have a second lien for the amount of their claims, aggregating $2,510.61; and that the mortgagee have a third,lien for $1,503.18, being the balance due under its mortgage. The mortgagee has appealed and contends that it should have had a first lien for the entire sum due it.
The mortgage was dated August 30 and recorded September 2, 1926. The money was to be advanced on the mortgage as needed to pay for the construction of the building, interest to be computed only from- the date money was advanced. The mortgage was for $3,000. The mortgagee advanced to the mortgagor $1,000 October 14 and $1,000 November 8,1926. Of the money so advanced only $700 was paid on labor and material which went into the building; the balance was appropriated by the mortgagor to his own use. On September 16,1927, the mortgagee charged to the mortgagor $153.26, being the interest on the two advancements to that date, and a few days later paid three bills aggregating $77.15 for labor and material used in the building.
The court made no specific finding of the date when the work was first done on the building. The mortgagee asked the court to find that no work, labor or improvements on the building were commenced on the property until about September 20, 1926. The court declined to make that finding, but did make a general finding that all issues of fact are found generally in favor of the lien claimants and against the mortgagor and the mortgagee. There was evidence tending to show that the work was actually begun on the building about August 20. In view of this evidence the findings of the court are to the effect that the work of constructing the building was actually commenced before the mortgage was executed and recorded.
The court’s decree made the lien in favor of the mortgagee for the money furnished by it which went into the building and mechanics’ lien claims for work and material which went into the building prior to the lien in favor of the mortgagee for money furnished by it which the mortgagor appropriated to some other purpose. In the view that the building was commenced before the mortgage was executed and recorded, there is nothing wrong with this decree of which the mortgagee can complain. Perhaps the first and second liens should have been made coordinate, but there is no cross appeal on that point, and as a practical question it is said to be immaterial.
It is well established, of course, that the liens of mechanics’ lien claimants date from the beginning of the work and are prior to that of a mortgage later executed and recorded. (R. S. 60-1401; Mortgage Co. v. Weyerhaeuser, 48 Kan. 335, 340, 29 Pac. 153; Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236.)
Much of appellant’s argument is predicated on the theory that the building was not commenced until after the mortgage was recorded, Tut the findings of fact are against appellant on that question. There :3s evidence to support them, hence this argument is not in point.
There is quite a little criticism by appellant of the findings of fact made by the trial court, but as to these we find no substantial error. 'The argument that a mortgage for future advancement should, under some circumstances at least, have priority over mechanics’ liens subsequently acquired likewise goes out of the case when it is ■once determined that the work on the building began before the .mortgage was executed and recorded.
We find no error in the case of which the appellant can complain, .and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained when plaintiff was struck by a bicycle ridden by defendant’s messenger boy. Plaintiff recovered, and defendant appeals.
Minnesota avenue in Kansas City, Kan., is an east and west ■street, which is intersected by Seventh street, a north and south street. A traffic signal overhangs the center of the intersection. On the day of the accident plaintiff walked westward on the sidewalk on the north side of Minnesota avenue, stopped at the corner of the two streets, looked at the traffic signal, and saw the green light which permitted her to proceed with the traffic westward. She looked for vehicles, saw none and started to cross Seventh street. When three or four feet from the Seventh street curbing she was struck on the left side and was knocked down, her head toward the north and her face toward the west. After some seconds, “probably .a minute,” she got back on her feet, turned around and saw a boy with a bicycle south and east of her, near the curb. He was scrambling around, picking up some envelopes. He sort of lifted and pushed his bicycle over to her, said he did not mean to do it, he could not help it, and he was sorry. She said “All right,” and walked ■on. She identified the boy as an employee of defendant. She had ■seen him before, had waited on him in a restaurant, and he wore the ■cap and uniform of a messenger of defendant.
When plaintiff turned around after rising from the street, she saw .another boy further to the south of the place where she was struck —perhaps fifteen feet away. He was sitting on a bicycle, with his feet on the ground, and was facing toward the north. She did not ■speak to him. She had not seen him before the accident, did not see him after the accident, and testified she did not believe she would recognize him. On cross-examination she undertook to tell how he was dressed. The boy testified he was not dressed in the manner she described. It appeared at the trial that the messenger boy’s name was Cecil Keele, and when the accident occurred he was in the course of his employment by defendant. The other boy’s name was Leo Burton.
Both boys testified that as they were riding their bicycles westward on the north side of Minnesota avenue, a westbound automobile passed them, and at the intersection turned northward into Seventh street. Cecil testified the automobile slowed down when it came to the intersection, he was almost beside it and four or five feet from it, and it cut to about the center of Seventh street. Leo testified the automobile went almost to the center of Seventh street, and turned quickly toward the north. Cecil testified he was not expecting the automobile would turn, and he turned northward to avoid running into it. Leo testified he was “right on top of the car” before he saw it, and he was obliged to turn northward to avoid running into it. Cecil testified he passed behind plaintiff and went on northward about twelve feet, intending to circle back into Minnesota avenue. He said he turned northward right around the curb and within a foot of it. When twelve or fourteen feet from the corner he stopped to get a clear road to turn and go back, and as he stopped he noticed the boy, Leo Burton, hit the woman. Cecil said plaintiff was six or eight feet west of the curb when he passed behind her. Both boys testified Leo was eight or ten feet behind Cecil. Leo testified that when he turned the corner Cecil was eight or ten feet ahead of him, but he said he went around on Cecil’s left-hand side, and struck plaintiff and knocked her down.
After the accident and “just as a matter of form,” Cecil had Leo go to defendant’s office and tell the manager that he, Leo, struck plaintiff. Leo testified he went up and took the blame; Cecil was his friend anyway, and Leo knew that if Cecil hit the woman it would cost him his job. Leo’s brother took Cecil’s place after Cecil quit.
The petition contained the following allegation respecting defendant’s negligence:
“That she received her said injuries bjr reason of the wrongful and neglectful acts of the said employee of the defendant for the reason that this plaintiff had no warning of the approach of said bicycle, and that said employee saw this plaintiff and carelessly and negligently ran into her with said bicycle, and thereby caused the said injuries heretofore described.”
The answer denied generally the allegations of the petition, and denied specially that plaintiff was struck by an employee of defendant.
Defendant contends negligence was not established by the evidence. Cecil said he saw the plaintiff, told where she was in the street, said she was looking west and walking west, and said he saw her at the time he turned north to avoid striking the automobile. Both boys said they were going slowly- — five or six miles an hour— a little faster than a walk. Cecil testified that at the rate of speed he was going he could stop his bicycle almost instantly, and when he turned toward the north he turned quickly, and did not try to stop. Plaintiff testified that when she reached Seventh street she was walking about the middle of the sidewalk along the north side of Minnesota avenue, that she continued in the same direction, and that she had gone into Seventh street only three or four feet when she was struck. Cecil was south of the Minnesota avenue curb line, and the automobile was, four or five feet farther out from the curb line. Both boys testified that the automobile (which plaintiff said she did not see) went about to the center of Seventh street in making its turn, and Leo testified that when the automobile got about half way in the middle of the street, the driver decided he wanted to turn quickly. The result is, the jury was warranted in believing Cecil did not need to turn sharply toward the north; he could have stopped and should have stopped, and instead of doing so he blunderingly ran into plaintiff.
Defendant contends the negligence pleaded was not established, in that there was no evidence plaintiff was-not warned. Assuming this to be true, pleaded negligence, seeing plaintiff and carelessly running into her was established, and the variance was immaterial. However, the testimony covered all the details of the accident, and while the word “warning” was not used, the proof disclosed that plaintiff had no warning.
Defendant contends the court erred in not submitting to the jury the question whether plaintiff was warned. The contention is based on an interpretation of the court’s instruction No. 10. The third instruction submitted to the jury the negligence pleaded in the petition, and the tenth instruction requested the jury to find from the evidence, “substantially as alleged in plaintiff’s petition,” that an employee of defendant negligently ran against plaintiff.
Defendant contends the court erred in refusing to give four requested instructions. Numbers four and five related to the subject of negligence and warning, which have been discussed. Numbers two and three related to identity of the person who struck plaintiff, and were sufficiently covered by instruction No. 10.
Defendant contends the court erred in refusing to submit to the jury the following special questions:
“(1) Did the plaintiff see the boy who ran into her with the bicycle, either at the time of the collision or before the collision?
“ (2) If you answer the foregoing question in the affirmative, state the name of the boy who ran into plaintiff.
“(3) If you answer question No. 1 in the affirmative, state the place where said boy was at the time the plaintiff last saw him before the collision.”
Plaintiff testified she did not see where the bicycle came from or see it before it struck her; she did not know whether it came north on Seventh street or turned north from Minnesota avenue; she did not know that people turned north on Seventh street, from Minnesota avenue on the green light; she looked at the light and then walked straight ahead; and she did not see either of the boys or bicycles until after she got up and turned around after being knocked down. This testimony was not disputed by anybody, and Cecil testified that when he turned north she was walking west and looking west. Since there was no basis in the evidence for an affirmative answer to question No. 1, it was not error to refuse to propound it. Answers to the second and third questions were not required unless the first question was answered affirmatively.
So far as the question related to identity of the boy who propelled his. bicycle against plaintiff, the general verdict was a sufficient answer, because the court’s instructions required the jury to find, as a prerequisite to return of a verdict for plaintiff, that the boy was an employee of defendant acting within the scope of his employment.
There was sufficient evidence that plaintiff suffered physical injuries as a result of the blow she received to sustain the verdict.
The judgment of the district court is affirmed. | [
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The opinion' of the court was delivered by
Marshall, J.:
This action, prosecuted by Clara M. Aldred and Elsie Daugherty against G. H. Hogan and Esther Hogan, his wife, is one to collect unpaid installments for the purchase of real property, to have the amount unpaid declared a lien on the property, and to foreclose the lien. Judgment was rendered in favor of the plaintiffs, and the defendants appeal.
An opinion in this action was filed December 8, 1928. This court, without a motion therefor, ordered a rehearing in the action. The former opinion is set aside and revoked. The facts are restated. On March 1, 1920, Anthony Dull, by written contract, leased to G. H. Hogan certain real property in the city of Hutchinson for a period of sixty-seven months for the sum of $1,000, with interest at the rate of eight per cent per annum, payable $15 each month. By the terms of the lease G. H. Hogan was to pay all taxes and assessments and keep the house on the property insured for the benefit of Anthony Dull. On the same day the same parties entered into a written contract, by which Anthony Dull gave to G. H. Hogan the right to purchase the property on the payment of one dollar on or before the first day of October, 1925, after the terms of the written lease had been fully performed by G. H. Hogan. Afterwards Anthony Dull died, leaving as his heirs two daughters, the plaintiffs herein. The petition alleged that $38.50 of taxes for the years 1923, 1924 and 1925, $500 rent, and $95 interest had not been paid. The answer alleged full compliance with the terms of the lease; that the defendants were not indebted to the plaintiffs in any sum whatever; that the defendant Hogan was the owner of the property; arid that on March 20, 1926, one of the plaintiffs, Clara M. Aldred, for herself and as assignee of the other plaintiff, Elsie Daugherty, commenced an action against G. H. Hogan before a justice of the peace in Reno county in forcible detention to recover possession of the real property, and joined therewith an action to recover the unpaid rent provided for in the lease, reducing the amount of rent claimed to $300 so as to place it within the jurisdiction of the justice of the peace. That action was tried and judgment was rendered in favor of the defendant G. H. Hogan, declaring that Clara M. Aldred was not entitled to the possession of the property, and that the defendant therein was not indebted to the plaintiff in any sum for rent. No appeal was taken from that judgment.
The question for determination is: Does the judgment in favor of the defendant before the justice of the peace bar the plaintiffs’ claim for-recovery of the unpaid installments provided for in the contract for the purchase of the property? The complaint in the forcible detention action was entitled, “Clara M. Aldred, Plaintiff, v. G. H. Hogan, Defendant.” Nothing was said in the complaint about Elsie Daugherty being interested in the property, nor about her having assigned her claim for rent to Clara M. Aldred. The bill of particulars on which the plaintiff in the forcible detention action sought to recover $300 for rent showed that the property on which rent was claimed was that which the plaintiff sought to recover in that action.
The present action was tried without a jury, and the court found—
“That $550 only has been paid on the lease indirectly applicable to the optional contract, and that the taxes are due and unpaid for four years last past, so that under and by virtue of the terms of the contract itself the owner is entitled to have the same forfeited and canceled, . . . that the contract in the petition set out should be canceled and held for naught for default of defendant thereunder, and that possession and occupancy of said real estate . . . should be given plaintiffs, and their possession and title confirmed in them, and that defendant is now in default in payments under said above-mentioned contract and taxes in the sum of $678.58, with interest at 8 per cent from July 19, 1927, and payments heretofore made, are forfeited.”
The court ordered' — •
“That said contract in the petition set out, giving defendant an option of purchase of said real estate, be forfeited and canceled and held for naught, and the occupancy of the defendant and his possession of said premises be forfeited, and plaintiffs give entire and unrestricted possession of occupancy of same; and that the sheriff of Reno county do place said plaintiff in possession and occupancy; provided, however, that within sixty days from the date of this decree the defendants shall pay off and discharge to plaintiffs the unpaid balance due plaintiffs, due under said contract, or shall pay same into court for the use and benefit of plaintiffs, then in that event upon payment of said sum of $678.58, and interest and taxes being completed, title, possession and occupancy shall be to defendant under said option contracts.”
Section 61-1301 of the Revised Statutes gives to a justice of the peace jurisdiction over actions in forcible detention of real property, but section 61-1303 provides that—
“Judgments either before a justice or in the district court, in actions brought under this article, shall not be a bar to any after action brought by either party.”
There is another matter that is fatal to the defendants’ claim and that is that the plaintiff in the action before the justice of the peace was not the same as the plaintiffs in the present" action. There Clara M. Aldred was plaintiff; here she and Elsie Daugherty are plaintiffs. In the former action the subject matter was the exclusion of the defendant from the possession of the property and the collection of rent; here the plaintiffs seek to recover the unpaid installments on the option contract for the purchase of the land, to have the amount unpaid declared a lien on the land, and to have the lien foreclosed.
The parties to the former action were not the same as those in the present action, the subject matter of the litigation was not the same, and the justice of the peace did not have jurisdiction to determine whether the rights of Hogan under the option contract had been forfeited.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The question involved in this appeal is whether or not a decree of divorce granted to the husband on the ground of gross neglect of duty should be set aside as void because the defendant had another husband living at the time of the marriage, from whom she had never been divorced. In other words, can there be a legal separation where there has been no legal marriage or union?
It is contended by the appellant that although a divorce may be granted under our statute “when either of the parties had a former husband or wife living at the time of the subsequent marriage” (R. S. 60-1501), it is in effect not a divorce but an equitable action to formally annul the pretended marriage which was already absolutely void, and as the action was not based on this statutory ground, no other ground would apply because- there was no marriage relation to be dissolved and no existing union from which there could be a separation.
The defendant was married in Pennsylvania to one Jack Houle about the year 1886 and separated from him shortly thereafter. The colorable marriage between plaintiff and defendant took place in August, 1891. The plaintiff commenced this action for divorce in September, 1919, and secured a decree on January 17, 1920, based on the ground of gross neglect of duty- and with an entry of appearance by the defendant. The motion of defendant to set aside this judgment as void was filed October 20, 1928. The motion contains the additional ground of fraud, but that has not been pressed by the appellant. The trial court overruled the motion, from which order this appeal is taken.
Other facts as to the good faith of the defendant in believing she had been divorced, and the knowledge of the plaintiff of. all the circumstances before the pretended marriage, are in the record, but we do not see how they can affect the result of this case.
This court held in the case of Fuller v. Fuller, 33 Kan. 582, 7 Pac. 241:
“That a marriage, where one the parties at the time has a husband or wife living, is void, absolutely and in all its aspects, we suppose no one will question. It requires no judgment of divorce or of nullity to render it void. It is void inherently and from the beginning. Under our statutes, however, for prudential reasons, the innocent party is allowed, if he or she chooses, and by an ordinary action for divorce, to have the supposed or colorable marriage set aside and annulled.” (p. 585.)
In that case the plaintiff alleged- the additional ground of extreme cruelty, but later by leave of court withdrew it.
The issues in the case of Werner v. Werner, 59 Kan. 399, 53 Pac. 127, although framed as a divorce action, were held by the court to be only for annulment of a void marriage. The decision in that case was made upon that basis following the ruling in the Fuller case, supra, and mostly concerned the rights of property.
The logic of the appellant is sound, if divorce means dissolution, but the very inclusion in our statute of the first ground — that of having another husband or wife living — disturbs and refutes that as the sole purpose of divorce. Under that ground of our statute parties can be divorced who were never legally joined in marriage. And while it may not be in fact a dissolution or separation, it is a divorce under our statute upon one of the ten grounds that are grouped together, without distinction as to results. This confusion of terms and the usual meaning thereof is well expressed in section 166 of the work on Marriage and Divorce by Keezer (2d ed.) as follows:
“Although the term ‘divorce’ is sometimes used to designate a suit for the annulment of a marriage, -it is generally conceded that such use is a mis nomer. There cannot possibly be a decree of divorce or a change in the legal status where no marriage existed, while a suit for annulment determines what the status of the parties is without changing it. ‘Divorce means a dissolution of the bonds of matrimony based upon the theory of a valid marriage, for some cause arising after the marriage, while an annulment proceeding is maintained upon the theory that, for some cause existing at the time of marriage, no valid marriage ever existed.’
‘‘Various legislatures, however, have not made this distinction and have provided for ‘divorce’ where common-law reasons for ‘nullity’ exist, frequently making no distinction except in the form of relief granted and not always in that particular.”
In 38 C. J. it is said:
“The judicial or legislative termination of the marital relation may be effectuated by a divorce of the parties or by an annulment of the contract and status.” (p. 1347.)
In 2 Schouler on Marriage, Divorce, Separation and Domestic Relations (6th ed.) the modification and transition in the use and application of these terms is stated as follows:
“Proceedings for annulling a marriage have one obvious distinction from actions for divorce in that the latter is predicated on a valid marriage while an action for annulment presupposes that the marriage is void or voidable. The latter is based on facts existing at the time of the marriage, while an action for divorce is necessarily based on matters occurring since marriage. But neither legislators nor the courts in these times adhere to so strict a distinction.” (§1153.)
As stated in the opinion in the Fuller case, .supra, this elimination of literal distinction is probably encouraged “for prudential reasons.”
We therefore conclude that a decree of divorce is not void when granted upon other grounds under our statute than that of having another husband or wife living at the time of the subsequent marriage, although such subsequent marriage may be admittedly illegal and absolutely void.
In order for the appellant to set aside the judgment giving the plaintiff a decree of divorce on the ground of gross neglect of duty, she must show that it was void or rendered without jurisdiction of the person of the defendant or the subject matter.
The allegations as to residence and the entry of appearance of the defendant establish the jurisdiction of the person of the defendant, and the district court unquestionably has jurisdiction of the subject matter of divorce actions. After jurisdiction is once obtained, whatever follows is in the exercise of that jurisdiction. Such proceedings may be irregular and voidable, but they do not make the judgment void. The court has the right to hear the evidence and decide the questions involved. If all the allegations of the petition were false, except those of residence and other jurisdictional matters, and the evidence supporting such allegations was false and the decision based thereon was wrong, still the judgment would not be void for want of jurisdiction. (Blair v. Blair, 96 Kan. 757, 153 Pac. 544; Bank v. Prescott, 60 Kan. 490, 57 Pac. 121.)
It is not claimed that Butler county was not the proper county in which action should have been brought, or that the petition does not state facts sufficient to constitute a cause of action for divorce-. And under such circumstances and in the absence of fraud and with jurisdiction of the person and the subject matter, the judgment is not void.
The ultimate purpose of this motion and appeal is, of course, to determine the rights of property in one of the ways outlined as appropriate under such circumstances. The petition alleged: “That the plaintiff and the defendant have heretofore settled their property rights and made a division of their property to the satisfaction of the defendant herein,” and the journal entry of judgment finds “That the allegations contained in plaintiff’s petition are true.” The appellee cites many cases on the question of alimony, the effect of a decree of divorce as to property rights and the equitable distribution of jointly accumulated property under such circumstances as exist in this case, and outside of the record both parties refer to the fact that another case is pending in a different jurisdiction between the same parties awaiting the conclusion of this appeal. There are no matters before us in this case that would justify our extending this opinion to cover the question of property rights.
We sustain the trial court in overruling the motion to set aside the decree of divorce, and thereby uphold the decree of divorce as valid and binding.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to quiet title to certain lands in Pottawatomie county which belonged to the late George A. McVicar in his lifetime. The contest is between Hattie L. McVicar, widow and second wife of George, on one side, and the only son of George. and -two grandchildren, children of George’s deceased daughter, on the other. The son and grandchildren claim to inherit the land and that the widow, Hattie, barred herself of all interest by an ante-nuptial contract.
The pertinent facts were these: George A. McVicar was a longtime resident of Pottawatomie county. . About 1915 he and his first wife, Lilly McVicar, removed to California. By that wife he had a son, Robe E. McVicar, the plaintiff. He also had a daughter who married one Daniel Fraser and died in 1923, leaving two minor children, Ward Fraser and Mary Jane Fraser, who are named as defendants in this action. The first Mrs. McVicar died in California, and some time later, in 1924, George A. McVicar returned to Kansas and contracted a marriage with Hattie L. Booth, defendant in this action. She was the widow of one George W. Booth, a substantial citizen of Onaga who had died some years previously without issue, and who left a considerable estate to her upon her promise that at her death she would dispose of what she should leave in a certain way suggested by him. Partly on account of that promise to her first husband and in consideration of the pending matrimonial engagement, Hattie and her affianced husband, George, entered into a written antenuptial contract defining their individual rights in their separate properties and renouncing certain marital rights in and to each other’s property. The correct interpretation of this contract is the important matter to be determined in this lawsuit. The contract was drawn by one J. W. Dunn, an Onaga banker, who made several drafts before he succeeded in phrasing it to suit the parties; but eventually one draft of it was signed by Hattie L. Booth and George A. McVicar and witnessed by one Lillian J. Hunt. The original contract was not produced. A copy whose disputed authenticity was established at the trial will have to be set down here:
“This agreement made this 21st day of October, a. d. 1924, between Hattie L. Booth, of Onaga, Kan., party of the first part, and George A. McVicar, of --, party of the second part, witnesseth:
“That whereas, a marriage is about to be solemnized between the said parties; and whereas, the said Hattie L. Booth is the owner and possessed of certain real estate, notes, mortgages, stocks, securities and other personal property; and whereas, the said George A. McVicar is the owner and possessed of certain other real estate and other personal property; and whereas, it is mutually desired and agreed by the said parties that the estate of each of said parties shall remain separate, and be subject to the sole control and use of its owner as well after as previous to the solemnization of said marriage.
“It is hereby mutually covenanted and agreed:
“First. That the estate of the said Hattie L. Booth shall remain and be her separate property, subject entirely to her individual control and use the same as if she were unmarried; and that the said George A. McVicar shall not acquire by force of said contemplated marriage, for himself, his heirs, assigns, or creditors, any interest in her said property or estate, or right to the control thereof, or any interest in the income, increase, rents, profits, or dividends, arising therefrom; and it is further agreed by the said George A. McVicar that any property that the said Hattie L. Booth may hereafter acquire or become entitled to shall be owned and held by her as though she had acquired it before the solemnization of said marriage; and the said George A. McVicar hereby agrees, in consideration of the said contemplated marriage and of the covenants of the said Hattie L. Booth herein set forth, that he will waive, release and relinquish unto the said Hattie L. Booth all right to the use and control of her separate property and estate, and the income therefrom; and further agrees that the said Hattie L. Booth shall have the right at all times to dispose of any part or all of her separate property and estate by deed, will or otherwise, upon her sole signature, hereby ratifying and consenting on his part to any and all such disposition of her said property or estate.
“Second. That the estate of the said George A. McVicar shall remain and bo his separate property, subject entirely to his individual control and use the same as if he were unmarried; and the said Hattie L. Booth shall not acquire by force of the said contemplated marriage, for herself, her heirs, assigns or creditors, any interest in his said property or estate, or right to the control thereof, or any interest in the income, increase, rents, profits or dividends arising therefrom; and it is further agreed by the said Hattie L. Booth that any property that the said George A. McVicar may hereafter acquire or become entitled to shall be owned and held by him as though he had acquired it before the solemnization of the said marriage; and the said Hattie L. Booth hereby agrees, in consideration of the said contemplated marriage and of the covenants of the said George A. McVicar herein set forth, that she will waive, release and relinquish unto said George A- McVicar all right to the use and control of his separate property and estate, and the income therefrom; and further agrees that the said George A. McVicar shall have the right at all times to dispose of any part or all of his separate property or estate by deed, will or otherwise, upon his sole signature, hereby ratifying and consenting on her part to any and all such disposition of his said separate property or estate.
“Third. This contract is to be binding on the heirs, assigns and legal representatives of both parties hereto.
“Witness our hand in duplicate on the day and date first above written.”
Following the execution of this or some such contract George and Hattie were married and went to California. George died in 1927 while on a visit to Onaga, and this action was brought to determine whether Hattie has any claim on the Kansas lands of George. Issues were joined and the cause was tried by the court with the aid of an advisory jury, which answered two special questions:
“1. Did George A. McVicar and Hattie L. McVicar enter into an ante-nuptial agreement? A. Yes.
“2. If you answer question 1 in the affirmative, which is that agreement, the one claimed by plaintiff or the one offered in evidence by the defendant Mrs. McVicar? A. One claimed by plaintiff.”
The trial court adopted these special findings and made additional general findings and gave judgment for the son and the minor grandchildren and against the claim of Hattie to a widow’s share of the Kansas land.
In this appeal defendant argues three propositions: (1) That the evidence was insufficient to prove that the antenuptial contract executed by the parties was identical in terms with the one accredited by the jury and trial court; (2) that by the terms of that contract, if genuine, defendant had not barred herself of her right of inheritance; and (3) that defendant should have been granted a new trial.
Touching these in order, the fact that George A. McVicar and Hattie L. Booth had made some such contract as that set out above was not in dispute. The one which was executed could not be found. Naturally Mrs. McVicar, nee Booth, would have a copy and Mr. McVicar would have a copy- — perhaps each had a duplicate — and naturally the son and the grandchildren would not have access to the originally signed instrument, whether there was but one such document or whether there were duplicates. And so the plaintiff made proper demands upon defendant and her counsel to produce the antenuptial contract and for an inspection of it. Plaintiff was not quite fairly treated in response to this demand. Defendant’s agent, J. W. Dunn, promised plaintiff’s counsel that he would get him a copy of the antenuptial contract. He failed to do so, but later told plaintiff’s counsel a copy of it could be obtained if he would meet Dunn in California. Plaintiff’s counsel went there and met Dunn and defendant, but no copy was forthcoming. Dunn then told plaintiff’s counsel that he had a carbon copy of the contract in his' bank in Onaga, Kan., and that plaintiff could get a copy of it from Mrs. McVicar’s attorney, C. A. Leinbach. Plaintiff’s attorney then returned to Kansas and made formal demand on Leinbach. The latter ignored the demand, but did eventually furnish the copy which was established as genuine at the trial. Armed with this copy, plaintiff’s attorney returned to California and took the depositions of Mrs. McVicar, of Lillian J. Hunt, who had witnessed the original contract, and of ,Q. A. Knouse, a former Kansan and long-time acquaintance of McVicar, who had seen the original contract. The gist of these depositions tended to establish the authenticity of the copy furnished by Leinbach. Moreover, another copy of one of the drafts of the antenuptial contract prepared by Dunn and tentatively put forward by defendant as the ■genuine did not differ materially from the one accredited by the court. The difference in the two was merely in the use of the word •“estate” instead of the word “property,” thus:
“Defendant’s Exhibit A.
“It is hereby mutually covenanted and agreed:
“First. That the property of the said Hattie L. Booth shall remain and be her separate property. . . .
“Second. That the property of the said George A. McVicar shall remain and be his separate property. . . .”
In the copy adopted by the trial court and jury as genuine the ■ corresponding language read:
“It is hereby mutually covenanted and agreed:
“First. That the estate of the said Hattie L. Booth shall remain and be her separate property. . . .
“Second. That the estate of the said George A. McVicar shall remain .and be his separate property. . . .”
It is plain that in the substitution of the word “estate” in the later draft for the word “property” in the earlier draft the draftsman’s only concern was to avoid repetition of the word “property,” and that the contracting parties had no technical purpose to serve in the use of the word “estate.” As used in these excerpts quoted above the words “property” and “estate” were synonymous. Both words meant the entire worldly wealth in land, gear and goods owned by the contracting parties, and not merely what they had which would descend to their heirs or devolve on an administrator when they died. We hold that the contract as found by the court was sufficiently established by evidence, and that the difference between the two drafts was not of sufficient consequence to make any difference in the rights of the parties, whichever of them was found to be authentic.
Coming, then, to the main question, did the antenuptial contract bar the defendant from her statutory right to inherit an undivided half interest in the lands of George A. McVicar?
It is not in dispute that a surviving spouse may bar or limit her statutory right of inheritance by an antenuptial contract. Contracts to that effect have frequently been upheld by this court. (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; Matney v. Linn, 59 Kan. 613, 54 Pac. 668; Henry v. Butler, 87 Kan. 122, 123 Pac. 742; Gordon v. Munn, 87 Kan. 624, syl. ¶¶ 4, 5, 125 Pac. 1; Eberhart v. Rath, 89 Kan. 329, 131 Pac. 604; Watson v. Watson, 104 Kan. 578, 180 Pac. 242; 182 Pac. 643; id. 106 Kan. 693, 189 Pac. 949; Burns v. Spiker, 109 Kan. 22, 202 Pac. 370; Getter v. Getter, 118 Kan. 150, 233 Pac. 1016; Fischer v. Leach, 124 Kan. 97, 258 Pac. 295.) To be valid, of course, such contracts must have been understanding^ and fairly made, and no strained interpretation of language will be permitted to strip a surviving spouse of his or her inheritable interest in the property of the other spouse who has died. It is on this .latter principle of law which defendant chiefly relies to overthrow the construction given to the contract at bar by the trial court, and the cases of Kistler v. Ernst, 60 Kan. 243, 56 Pac. 18, and Rouse v. Rouse, 76 Kan. 311, 91 Pac. 45, are cited as controlling here. A copy of the contract in the Kistler case is set out in the opinion, and the court failed to find in its terms any language which purported to renounce the surviving spouse's right of inheritance. To the same effect was Rouse v. Rouse, supra, in which, however, this court said:
“We have frequently held that agreements of this character should be liberally construed to carry into effect the intention and purpose of the parties; nevertheless, their terms are not to be extended by mere implication to exclude the right of the survivor to take by inheritance. . . .
“While we are not prepared to say that an express provision must always appear in order to deprive the survivor of the rights of inheritance, there are authorities which go to that extent.” (pp. 317, 318.)
In the case at bar, however, the parties agreed that their respec tive properties should remain and be their several respective properties the same as if each of them were unmarried, and further—
“The said Hattie L. Booth shall not acquire by force of said contemplated marriage, for herself, her heirs, . . . any interest in his [George A. MeVicar’s] property or estate. . . .”
MeVicar’s renunciation of interest in his affianced wife’s property was reciprocally sweeping in its terms, and this court finds it impossible to qualify or limit the fair meaning of this language. It simply means what it says. Neither George nor Hattie, nor their heirs, were to acquire any actual, potential, or inchoate rights in each other’s property as a consequence of their contemplated marriage; and the trial court did not err in its judgment to that effect.
Defendant’s motion for a new trial was chiefly predicated on the following incident. In defendant’s deposition, she had testified:
“Q. I will ask you if after reading exhibit A it, in your judgment, contains the substance of the agreement entered in between you? A. Yes, sir. It was made in duplicate. My first husband’s name was George W. Booth.
“Q. You made a will, did you, after the execution of the contract? A. Yes, sir.
“Q. Can you tell me where your copy of the agreement is? A. I destroyed it.
“Q. When? A. After Mr. MeVicar’s death.”
It may be that some disparaging reference to the destruction of defendant’s copy of the agreement was made at the trial, and counsel for defendant sought to correct any hurtful impression which such testimony may have created by procuring an affidavit from defendant in which she averred that in her first deposition she meant that she had destroyed her will after Mr. MeVicar’s death, and that she did not mean to say she had destroyed the antenuptial contract or her copy of it. This affidavit was adduced in support of the motion for a new trial. If the judgment of the court had been arrived at by a determination of sharply controverted facts, wherein an inference detrimental to defendant might be drawn by her seeming admission that she had willfully destroyed an important evidentiary document, this affidavit explaining that seeming admission would have required the serious concern of the trial court. But, as we have seen, this case does not greatly depend upon controverted evidence or disputed facts, but largely and almost entirely upon the proper interpretation of the antenuptial agreement which the parties did make, and upon the undisputed circumstances which prompted the parties to make it. Therefore the court’s ruling on the motion for a new trial was not erroneous, nor would a new trial have served any advantageous purpose in defendant’s behalf.
There is no error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a promissory note for $3,306 executed by defendant May 29, 1918, to the plaintiff bank. The answer did not deny the execution of the note, but averred that it was without consideration, and by cross petition alleged that defendant had been engaged in the mercantile business; that on October 4, 1914, he had been induced by plaintiff’s cashier to give notes aggregating $6,000 to the bank for a claimed overdraft which did not exist; that about that time he turned over to the bank notes in the sum of $906.89 as collateral security for the notes given; that in March, 1915, he had turned over to plaintiff’s cashier, as collateral security for the notes previously given, about 250 itemized times sales accounts known as “McCaskey accounts,” aggregating $7,-525.68, and about 150 book accounts amounting to $5,472.77, and that about July 15, 1915, he had indorsed promissory notes payable to him and delivered them to the plaintiff bank in the sum of $5,098.48 for collection, and at the same time paid plaintiff $1,500 in cash to apply upon his notes; that he had borrowed through plaintiff $5,000 of a bank at Kansas City to pay certain notes and overdrafts, for which he had not been given credit. He asked for an accounting, and alleged there was a substantial sum due him from the bank, for which he prayed judgment. The allegations of the cross petition were put in issue by appropriate pleadings. The trial court appointed Hon. Otis E. Hungate referee to take the evidence on the issues made by the pleadings and to make findings of fact and conclusions of law, and to report to the court. This was done. Later the matter was rereferred to the same referee for the taking of additional testimony. The referee resigned without making an additional report, and the matter was then referred to Hon. Clayton E. Kline, with directions to make findings of fact and conclusions of law upon the evidence offered before the former referee and which might be offered before him. He filed his report June 11, 1927. Plaintiff moved for a new trial. Defendant also moved for a new trial and for the modification of many of the findings and conclusions of the referee. The court modified two of the referee’s findings, denied other requests for modification, overruled the motions for a new trial, and rendered judgment for plaintiff for $1,716.65 in accordance with the findings of the referee.
Defendant has appealed, and discusses several questions. One relates to the time of the filing of the report of the referee. The order appointing Hon. Clayton E. Kline referee was made February 2, 1927, and directed hind to make his report in sixty days. On March 29, 1927, the time was extended to April 30, 1927. On May 3,1927, the time was again extended to June 11, 1927, and his report was filed on that date. Appellant contends that the powers of a referee are limited by the order of his appointment; that when such order directs him to report within a stated time and he does not do so, his authority ceases (De Long v. Stahl, 13 Kan. 558), and that at the time for filing — the report not having been filed — the court was without authority on May 3 to make an order further extending the time. We think the court did not lose jurisdiction of the case because the referee had not filed the report within the time required. (23 R. C. L. 297; 34 Cyc. 832.) The case could have been tried to the court or rereferred. The order of May 3 was tantamount to an order rereferring the matter to the same referee upon the same terms as the original order of reference to him, except as to the time of his making this report. No objection was made on this ground to the hearings before the referee, or to his report or its consideration, until October 26, 1927. The fact that the order extending the time was not made as early as April 30 is a technical error not affecting the substantial rights of the parties and should be disregarded. (R. S. 60-3317.)
On June 28, 1927, the referee made application to the court for leave to amend in part one of his findings of fact on the ground that the same was entered by mistake and oversight. The court, on hearing this application, granted the referee leave to so amend his report, and the amendment was then made. Appellant contends that this amendment was without authority. It would have been had the referee undertaken to make the amendment without applying to the court for leave to do so and showing cause, but we think the court had authority to permit the amendment. The case was then pending before the court upon motion for a new trial and to modify the report of the referee, and it was within the jurisdiction of the court, in the exercise of its judicial discretion and for good cause shown, to permit the amendment.
On consideration of the report of the referee, the motions for a new trial and to set aside or modify the report, the court modified the report in two respects. Appellant contends that the court had no authority to modify the report. The contention is hardly consistent with his request that the court modify it in many respects. But, passing that, there was no lack of power in the court to entertain the motion and to make the modification. (Kelley v. Schreiber, 82 Kan. 403, 405, 108 Pac. 816; Sims v. Construction Co., 111 Kan. 179, 181, 206 Pac. 878; Baker v. Craig et al., 117 Kan. 491, 232 Pac. 248.)
Appellant contends that the referee, Kline, went outside of the scope of the order appointing him in changing findings previously made by the former referee. The order of the court appointing Kline referee contained a provision that the referee then appointed—
. . Shall consider the findings of fact and conclusions of law heretofore made by Hon. Otis E. Hungate, referee, as prima facie correct, and such former findings and conclusions shall not be set aside or modified unless the plaintiff or defendant shall point out that the same ought to be modified or set aside in furtherance of justice or because wrong in point of fact or law or because of new evidence material to the issues.”
While many of the findings of the referee, Kline, were identical with findings made by the former referee, some of them differed materially, and appellant contends that the order appointing Clayton E. Kline as referee prohibited him from making such changes. We do not so interpret the order. While it did direct that the referee should consider the findings made by the former referee as prima jade correct, it authorized their modification for reasons pointed out by counsel on either side, or in furtherance of justice, or because wrong in point of fact or law, or because of new evidence. Obviously this is a grant of rather extended authority with respect to the modification of findings made by the former referee.
The contention made by defendant in his answer, that the notes aggregating $6,000 given October 4, 1914, were for an overdraft claimed by plaintiff which did not in fact exist, was in effect abandoned at the trial. The referee found against defendant on that point, and it is not now seriously urged that this finding is incorrect. Also, the contention made in defendant’s answer that he never got credit for $5,000 which plaintiff obtained for him from a Kansas City bank was abandoned. The files contain a stipulation that defendant received credit for this item; the referee so found, and it is not now contended otherwise. Hence, these questions- are no longer in dispute.
The evidence disclosed that defendant had delivered to plaintiff accounts known as the McCaskey accounts, book accounts, and notes aggregating substantially the sums pleaded by defendant in his answer. The findings of the two referees differed materially as to the terms or circumstances under which these notes and accounts were delivered by defendant to plaintiff’s cashier and the manner in which they were handled thereafter. The first referee’s findings were to the effect that these notes and accounts were delivered by defendant to plaintiff as collateral security for his indebtedness to plaintiff, to be collected by plaintiff, the proceeds applied upon such indebtedness, and the balance placed to his account. Based upon that theory appellant has presented an extended argument, and cited many authorities in support thereof, to the effect that under such a situation it became the duty of plaintiff to proceed with reasonable diligence to collect the notes and accounts so turned over to it by defendant, to apply the proceeds on the indebtedness of defendant to plaintiff, and to place the balance to his credit, or return to him notes and accounts then uncollected, and that if plaintiff failed to do so that it was liable to defendant for the reasonable value of such notes and accounts, irrespective of whether it collected them or not. This argument becomes inapplicable if we follow the findings of referee Kline, which are to the effect that these notes and accounts were turned over to plaintiff’s cashier about the time defendant sold out his store, with the understanding and agreement between defendant and plaintiff’s cashier that each would endeavor to collect the notes and accounts; that in fact each of them did endeavor to do so, and each of them made some collections, and that, because of this agreement and the method in which the business was handled, each was the agent of the other in making the collections, from which the legal conclusion was reached that plain tiff was liable to defendant only for collections actually made by its officers. On this point appellant argues , that there is no evidence to support the findings of the referee, Kline, which in this respect were approved by the trial court. We have examined the evidence and think there is sufficient to support the findings of the referee and the trial court.
Upon the issues finally in dispute between the parties we regret to say that counsel have not greatly aided this court in preparing their abstracts and briefs. There is an abstract, a counter abstract, a supplemental and corrected abstract, with repeated accusations by counsel on each side that the other did not correctly or completely abstract certain features of the case. Because of this we deemed it necessary to send for the original transcript, exhibits and files, and have performed the laborious task of examining the parts of those questioned to determine if there was evidence to support the findings of the referee and the trial court. We shall not undertake a detailed analysis of this evidence, for it is voluminous, and on many points is sharply in conflict. These issues really resolve themselves into questions of fact, and it is sufficient to say that the record contains substantial evidence sufficient to support the findings of the referee as modified by the trial court. That is as far as we are authorized to examine the evidence.
The result is that there is no substantial error in the record, and the judgment of the court below should be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction of violating the prohibitory liquor law.
There was evidence showing substantially that she was conducting a hotel or rooming house in Coffeyville known as the Metropolitan hotel. Detectives or under-cover men, whose services were obtained by the authorities of Montgomery county, procured the evidence and testified against her. The evidence, which need not be detailed, was sufficient to sustain the verdict and judgment.
Complaint is made of the introduction of evidence showing a raid on defendant’s premises more than a year previous to the offenses for which she was prosecuted in the instant case. It has been held that evidence of similar acts and offenses may be introduced to show the intentions, inclinations and tendencies of the defendant. (State v. King, 111 Kan. 140, 206 Pac. 883; State v. Bisagno, 121 Kan. 186, 246 Pac. 1001, and cases cited.) For example, evidence showing a person previously to have been in the possession of intoxicating liquor or to have been in charge of a place where intoxicating liquors are kept and stored, or a place where persons were permitted to resort for the purpose'of drinking intoxicating liquors at other times than that charged in the information, tends to establish the inclinations and intentions of the accused. Therefore we are of the opinion the evidence was not only competent but was highly probative as bearing upon the guilt of the defendant of the present charges against her. She admitted that she is the Josie Dunkerton referred to in the cases of Fort Scott v. Dunkerton, 78 Kan. 189, 96 Pac. 50, and State v. Dunkerton, 103 Kan. 748, 175 Pac. 981; also, prosecutions for violation of the prohibitory-liquor law. See, also, State v. Smith, 113 Kan. 737, 216 Pac. 302; State v. Turner, 114 Kan. 721, 220 Pac. 254; State v. Hendren, 127 Kan. 497, 274 Pac. 274.
Complaint of error in permitting a witness to testify in rebuttal as to the transaction which occurred at defendant’s place above referred to cannot be sustained. It is claimed by the state, and we think fairly so, that the evidence was actually in rebuttal of testimony elicited from defendant in her own direct examination.
Complaint is made of the action of the court in permitting a witness to testify that in his judgment the defendant was worth $100,-000. It appears that the defendant gave the witness (a federal prohibition officer) a financial statement in which an estimate of her worth was made, showing that it would run over $100,000, and in which conversation she stated that she was selling alcohol and whisky in order to raise money to pay the expenses of her son’s schooling. The testimony touching the defendant’s financial worth was likely immaterial, but it cannot be said to have affected the defendant’s substantial rights.
A complaint that the court committed error in limiting defendant’s attorneys to forty-five minutes in which to argue the case to the jury cannot be sustained. The time allowed for oral argument is a matter ordinarily within the sound discretion of the trial court, and error can be based thereon only by a showing of the abuse of such discretion.
Complaint is made of the manner in which the clerk of the court selected the jurors. The names of women were placed on slips in one pile and the names of men in another. First the name of a woman and then of a man would be called, resulting in an equal number of men and women being called into the jury box. While such a method was irregular and perhaps should not be followed, no prejudice to the rights of the defendant was shown to have resulted therefrom.
The judgment is affirmed. | [
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The opinion of the court'was delivered by
Hopkins, J.:
This controversy involves . consideration of an accusation by the state board of law examiners, in which the board seeks disbarment of Clement L. Wilson from the practice of law. Hon. Carl Van Riper, of Dodge City, was appointed commissioner to take testimony and make findings of fact and conclusions of law. After due hearing, the examination of a number of witnesses and the taking of considerable testimony, the commissioner returned findings of fact and conclusions of law against the accused.
The accusation contained three counts. Very little evidence was offered in support of the second count; none in support of the third, and findings were returned covering the first count only. Therein the commissioner found substantially that the accused was, at the time of the occurrences upon which the first count was based, residing at Tribune, Greeley county; was engaged in the practice of law and was also carrying on a real-estate business and an abstracting business, and was president and quite active in the management of the Kansas State Bank of Tribune.; that the offices in which he carried on his law practice and his real-estate and abstract business were located adjacent to the banking rooms of the bank; that the accused entered into negotiation with the Hill Investment Company, of Arkansas City, concerning a quarter section of land in Greeley county; that a deed was procured from the Hill Investment Com pany purporting to convey title to the land in question, when as a matter of fact the Hill Investment Company had no title to the land; that the Hill Investment Company had previously claimed under a sheriff’s deed which conveyed no title because of an extant tax deed which had been held to convey a superior title (Hahn v. Hill, 79 Kan. 693, 100 Pac. 484); that the accused carried on negotiations with the Hill Investment Company between October, 1925, and January 18, 1926; that the company advised him that it did not own the land, but on his solicitation consented to make its quitclaim deed therefor for $40; that in order to conceal his connection with the transaction the accused caused the deed to be made to another person, who was merely a dummy in the transaction; that thereafter the accused caused the dummy to make deed to Charles Beech and the latter to execute back, as of January 28, 1926, his promissory notes aggregating $900 and a trust deed on the land as security, and caused his dummy to transfer, without consideration, the notes and trust deed; that on February 24, 1926, accused negotiated these virtually bogus notes and trust deed to the Kansas State Bank of "Tribune, of which he was president and managing officer, and received and appropriated to his own use the proceeds therefrom; that in these transactions the accused knew the investment company transmitted no title and his purpose was to utilize a bogus title for the purpose of wrongfully acquiring said sums of money and to conceal his connection therewith. The accused claims that the purchase of the quitclaim deed from the Hill Investment Company was consummated by A. P. Tone Wilson and George S. Babb without his knowledge and that he had no interest in any of the subsequent dealings or transactions, but the commissioner believes and therefore finds that he was the real party in interest in these transactions.
Other than as above recited we deem it neither necessary nor profitable to analyze the evidence or findings. We have given both full consideration and feel that the evidence fully sustains the findings, which are adopted and confirmed.
The commissioner recommends only a suspension of the accused for one year on the ground that his fraudulent acts were not performed by him in the capacity of attorney. It has been held that an attorney who commits fraudulent acts, even though not in his capacity as attorney, is subject to disbarment. (In re Wilson, 79 Kan. 674, 100 Pac. 635; Notes, 9 A. L. R. 189 et seq. and 43 A. L. R. 107 et seq.; In re Macy, 109 Kan. 1, 196 Pac. 1095.)
Under all the circumstances we conclude that the accused should no longer be permitted to practice law in this state, and he is therefore disbarred.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for workmen’s compensation under R. S. 44-501 et seq. The only contested question in the case is the extent of plaintiff’s injury. He sustained an accident in which his hand was cut in such a way as to injure the thumb. The jury found a total disability for a period of four weeks and three days, and as to that there is no serious controversy. Plaintiff contended there was a permanent partial disability, while defendant contended that there was no partial disability compensable under the statute. On the evidence the jury found that there was a partial disability, but that the same was temporary in character and would exist for four years. Compensation was allowed accordingly. The defendant has appealed.
Appellant contends that the evidence did not justify any award for the reason that it disclosed that plaintiff, notwithstanding the condition of his hand and thumb, was able to do his work as well, and did in fact receive the same pay, as before the injury, and it is argued that under the compensation act an injury which is so slight as not to interfere with earning capacity is not compensable, citing Zwaduk v. Morris & Co., 109 Kan. 186, 197 Pac. 868, and allied cases. But it has been held that the amount a workman received as wages is not necessarily an accurate test of his earning capacity. (Hood v. Transit Co., 106 Kan. 76, 186 Pac. 977.) There was evidence in this case tending to show that after the injury plaintiff was able to perforin labor of the character which he had previously performed only with the aid of specially designed tools, or by pain, and inconvenience, or the aid of his fellow workmen. Under such circumstances it has been repeatedly held that the fact that the-workman received as much wages for his labor after his injury as before does not bar his right to compensation (Raffaghelle v. Russell, 103 Kan. 849, 176 Pac. 640; Trowbridge v. Wilson & Co., 102 Kan. 521, 170 Pac. 816); hence this point raised by appellant is not well taken.
It is argued that the evidence did not justify the jury in finding partial disability for a period of four years. On this point there was medical evidence to the effect that the partial disability would be permanent. Had the jury followed that evidence alone it would have awarded partial disability for a term of eight years. There was other medical evidence to the effect that the partial disability would last for a few months only, or not to exceed a year. Had the jury followed that evidence alone it would have found the partial disability accordingly. It is quite clear the jury considered all the-evidence — that of the medical witnesses, also the evidence of plaintiff and of the other witnesses — endeavored to harmonize the same as much as possible, and reached the conclusion as found. We see po serious objection to this.
Appellee has a cross appeal in which objection is made to specific instructions given by the court to the jury, but since he does not care to press that in the event the judgment of the court below is affirmed, we pass it without further consideration.
The record discloses no serious error of which the appellant can complain, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The only question involved in this appeal is jurisdictional and whether or not the defendants by their notice to take depositions, and taking them, upon the merits, and filing an answer raising an issue on the merits, waived the jurisdictional question.
The plaintiff brought an action in the district court of Sedgwick county against H. H. Dunn arid thirteen others, all residents of Comanche county, for damages for assault and battery, and obtained personal service on Dunn in Sedgwick county and thereafter upon ten other defendants in Comanche county. Dunn answered by general denial. The others appeared specially and filed a plea in abatement, alleging that the action was not brought in good faith against the defendant Dunn; that Dunn took no part in the assault; that he did not make any threats or enter into any conspiracy to commit the assault, and for that reason the defendants appearing specially were improperly served in Comanche county and the court had no jurisdiction over them, and that such service was an abuse of judicial process and a fraud upon the court and these defendants.
Thereafter the defendants, appearing specially, served a notice to take depositions “to be used as evidence on the hearing of the plea in abatement and also upon the trial of the action.” Such depositions were taken and many questions were asked by the attorneys for these specially appearing defendants as to the encounter, and in particular as to the presence or absence of the defendant Dunn and anything done or said by him in connection therewith. When the matter came on for hearing upon the plea in abatement 'the depositions were offered in evidence and the following action was taken by the trial court and order made:
“And thereupon the plea in abatement coming on for hearing, the court upon due consideration of the depositions of the witnesses offered in evidence by the said defendants, and of the argument of counsel, finds that under the allegations of the petition the question raised by said plea in abatement cannot be raised by such plea, but that said defendants must raise said question by answer as a question of fact to be determined by the jury.
“It is therefore ordered that said plea in abatement be and the same is hereby overruled. And the said specially appearing defendants are given twenty days from and after this date in which to plead to plaintiff’s petition.”
Later these defendants filed separate answers substantially the same as the plea in abatement, with the addition of a formal general denial.
When the case was regularly reached for trial the court ordered the jurisdictional question to be tried first and separate from the issues on the merits. The depositions and other testiriiony were introduced in evidence, the jury instructed, and the following verdict and answers to special questions were returned as to four of the defend ants, the court having disposed of the case by an order as to the other defendants appearing specially:
“We, the jury impaneled and sworn in the above case, do upon oath find that the plaintiff, W. J. Masemore, did not act in good faith in making H. H. Dunn a party defendant and in joining with him as defendants [naming defendants], and that the plaintiff, W. J. Masemore, did not have an honest belief that he had a cause of action against said defendants.
“1. Did the defendant H. H. Dunn participate in the assault on the plaintiff on the 18th day of July, 192¡j ? A. No.
“2. Was the defendant H. H. Dunn in Coldwater at the time the assault on the plaintiff was made? A. No.
“3. Did the plaintiff, Masemore, at the time he commenced this action and had a summons served on H. H. Dunn in Sedgwick county believe in good faith that H. H. Dunn had participated in the assault which had been made on Masemore, or had any part in--connection therewith, on the 18th day of July, 1925? A. No.”
The court overruled the motion for new trial and rendered judgment for these defendants for costs. ' The cause of action between plaintiff and Dunn had not been tried at the time of this appeal.
Appellant insists that even if defendants were entitled' to present the jurisdictional question as to service upon them, they waived that right by at least three different acts on their part — serving notice to take depositions on the merits as well as the'jurisdictional issue, taking the same, and by the general denial in their answers.
Appellant also urges that the plea in abatement having been overruled, defendants were not entitled to a retrial or second tidal thereof. As to this last ground it was not a retrial or second trial, because ^he. order shows conclusively the court declined to try the plea in abatement, and for that reason overruled it. It involved an issue of faqt and was a proper question for a jury, and the record does not justify any assumption or conclusion of the issue being tried a second time. Even if it were a second trial, the courts are open to hear and determine such matters presented in another form by different pleadings.
“Where a defendant upon a special appearance objects to the service he does not lose the right to have the overruling of his objection reviewed on appeal by afterward filing a plea in abatement in which jurisdictional and nonjurisdietional matters are united, or by contesting the plaintiff’s claim on its merits.” (Shearer v. Insurance Oo., 106 Kan. 574, syl. ¶ 4, 189 Pac. 648.)
On the question of waiver the appellant cites numerous authorities to the effect that pleading to the merits or taking any action in court on the issue of the merits will constitute a waiver of the jurisdictional question, but they have reference to the merits as concern the specially appearing defendants and not, as in this case, to the merits of the case between the plaintiff and Dunn, where the merits as to him go to the good faith of the service upon him and the consequent validity of the service upon the other defendants. This distinction is clearly and forcibly shown in the second paragraph of the syllabus of King v. Ingels, 121 Kan. 790, 250 Pac. 306:
“Where nonresident defendants filed a motion to quash the service of summons in an action in which they were joined with a defendant upon whom valid local service of summons was obtained, an allegation in such motion that plaintiff’s petition ‘fails to state any cause of action against the said [local defendant] J. C. Burrus, and these [nonresident] defendants, or any of them,’ is in substance a demurrer and has the effect of a general appearance in the action.” (Syl. ¶ 2.)
Suppose one brings an action upon a note signed by A and B, nonresidents of the county, but to obtain service in the county joins C as a maker thereof. Will it not be pertinent to the jurisdictional question to. show that C never signed the note and never had any connection with the transaction involved? Justice Brewer, in a similar case, Meixell v. Kirkpatrick, 29 Kan. 679, 682, said:
“The action was commenced in Wilson county, against Matthewson and Meixell. Matthewson was served in that county, and Meixell in Labette county. Now, if Matthewson and Meixell were improperly joined as defendants, and that fact was made to appear, and the single question of jurisdiction over Meixell presented, it may be conceded that no jurisdiction over Meixell was obtained, and that the plea to the jurisdiction should have been sustained.”
The merits of which the appellant in this case complains are nearly all as to the issues between plaintiff and defendant Dunn, although some of the evidence would necessarily apply to the issues on the merits as to the other defendants. Yet we do not understand that because some of the facts may apply to all the defendants that it is necessarily an attempt to prove the merits as to these other defendants.
“A general appearance is not effected by the insertion, in a motion to set aside the service of summons, of allegations concerning some of the facts on which the plaintiff’s claim is founded, which are made because of their bearing upon the validity of the service, and which are material to that question.” {Shearer v. Insurance Co., supra, syl. ¶ 3.)
“A defendant who is served with summons in a county other than the one in which the action is brought will not be held bound by such service if the resident-defendant was joined for the purpose of obtaining jurisdiction of the person of the former and not in good faith to recover a judgment against him.” (Hawkins v. Brown, 78 Kan. 284, syl. ¶ 4, 97 Pac. 479.)
The case of Bentz v. Eubanks, 32 Kan. 321, 4 Pac. 269, cited, is hardly in point because there the notice to take depositions was served by the plaintiff, and the court held the appearance of the defendant in response thereto was involuntary and therefore not a waiver. But in this case it was necessary for defendants appearing specially to take depositions in order to make their showing on the jurisdictional point, and substantially all the evidence taken was for that purpose. Cases from other jurisdictions show a difference of opinion on the question of taking depositions upon the merits as a waiver. But our courts have recognized the purpose for which papers are filed in court as helping to determine the question of waiver, as in Poorman v. Carlton, 122 Kan. 762, 253 Pac. 424.
We conclude that neither in letter nor spirit did the notice to take depositions, the "taking of them, or the filing of the general denial in the answer with the plea to the jurisdiction have the effect of, or amount to, a waiver.
“Where a defendant to a civil action pending in a county other than that of his residence is served with a summons in such a way as to 'be an abuse of legal process, and the fraud being shown in time, the court will, upon proper proceedings, set aside the service.
“A party who denies the jurisdiction of a trial court over his person must present that question at as early a stage in the proceedings as is possible. If he cannot properly present the question of jurisdiction of the court by motion or plea in abatement, he may do so by answer. If he unites a defense to the merits in his answer with his plea to the jurisdiction, the trial court ought to settle the question of jurisdiction before proceeding to try the other issues in the case.” (Wells v. Patton, 50 Kan. 732, syl. ¶¶ 3,4, 33 Pac. 15. See, also, Hembrow v. Winsor, 94 Kan. 1, 145 Pac. 837; Vann v. Railway Co., 103 Kan. 857, 176 Pac. 652.)
The judgment is affirmed. | [
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'The opinion of the court was delivered by
Hopkins, J.:
The action was one under the workmen’s compensation law (act of 1911, R. S. 44-501 et seq. and amendments thereto). The plaintiff prevailed, and defendants appeal.
The facts were substantially as follows: The plaintiff was a butcher in the employ of defendants. He suffered an injury to the ring finger and little finger of his right hand. He was opening a hitch on the carcass of a beef with a knife, stubbed the knife and drove it back through his hand. He was laid off for a week, but at the request of defendants returned to his employment the day following the injury.
The matter was submitted to an arbitrator, who found, among other things—
"There js no dispute between the parties as to the employee having been injured, but there is some dispute as to the date of his injury. There is no serious dispute as to the notice of the accident for the reason that the employee was immediately treated by a physician in the employ of either the insurance carrier or the employer. The only matter in controversy is the nature, character and extent of the injury. . . .
“All of the physicians were of the opinion that the little finger was injured to the extent that it was impossible for the employee to close the little finger in a normal manner; that is to say, that the little finger was slow in coming down, and the employee testified that very frequently, in the skinning or butchering of beef, that the little finger protruded in such a manner that it made the work difficult and substantially lessened his effectiveness as a butcher. On the whole the testimony shows that the employee has suffered a permanent partial incapacity. The testimony further shows that whatever improvement that could be expected had reached its terminus, and. that the condition of the ring and little fingers would remain stationary except that the testimony indicated that a member of the body which had been partially destroyed or its ability to function had been impaired, that nature would reeducate such member so that the employee would be undergoing a change toward making better use of said injured member along reéducative lines. . . .
"The arbitrator is therefore of tire fixed opinion:
"(1) That the employee received an injury, by accident,- arising out of and in the course of his employment, while in the employ of the employer.
“(2) That the notice of the accident was immediately given to a foreman and that medical attention was given by a doctor employed by the employer or the insurance earlier, covering the employer.
“(3) That a claim for compensation was made within the statutory period, by the employee, and the employer paid compensation for a period of a few weeks.
“(4) That the employee has sustained a permanent, partial incapacity to the ring and little fingers of the right hand.
“The arbitrator therefore awards compensation as and for permanent partial disability at the rat'e of $6 per week from the 15th day of April, 1925, for a period of 415 weeks. The arbitrator finds that there is due and owing at the time of the filing of this award 173 weeks from the 15th day of April, 1925, up to the 22d day of August, 1928, making total due and owing from April, 1925, to August, 1928, the sum of $1,050, 175 weeks at $6 per week. . . .
“It is therefore adjudged and decreed, by the arbitrator, that the employee is entitled to recover of and from the employer, and the Maryland Casualty Company, the sum of $6 per week from April of 1925 to the 22d of August, 1928, or the sum of $1,050, to be paid in a lump sum, and the sum of $6 per week for a period of 230 weeks, making in all not to exceed 415 weeks, at the rate of $6 per week.”
The defendants contend that the plaintiff was not entitled to compensation" for the reason that his alleged injury did not disable him for a period of at least one week from earning full wages at which he was employed. They argue.that under the facts and provisions of the statute (R. S. 44-528) it became the duty of the court upon review of the award to cancel and end the compensation because plaintiff returned to work for the same employer in whose employ he was injured, and for other employers, and continued to earn the same or higher wages than he did at the time of the injury. The contention cannot be sustained.
The plaintiff testified that he intended to lay off for a week and came back only because his employer was short-handed; and that he did most of his work with his left hand; that he did not do a full day’s work and never has since he was hurt; that he is not working all the time; that his arm hurts him; that he did not go on his regular job.
“Q. Were you able to do a full day’s work, and do the work you did before? A. Never. Not yet.
“Q. Are you yet able to? A. No, sir.
“Q. Can you handle a knife and do the work that you were doing before, as readily and without any inconvenience at all, like you did before? A. No, sir.
“Q. Why? A. Because my little finger is always in the way and I am always stubbing it. . . . And this next finger, if I stub a knife I have not got the strength to hold it back from slipping and hurting my hand.”
In Sauvain v. Battelle, 100 Kan. 468, 164 Pac. 1086, it was said:
“Rule followed that a workman partially or totally incapacitated is not to be denied compensation on account of obtaining work even more remunerative which he has the physical ability to do.” (Syl. ¶ 4.)
In Dennis v. Cafferty, 99 Kan, 810, 163 Pac. 461, it was held:
“The minimum of three dollars a week for partial disability is a sum fixed by the legislature with the general view and purpose of compensation, and is not to be withheld merely because in a given case before the expiration of the period of partial incapacity the workman has found other employment and is earning more wages than before the injury.” (Syl. ¶ 4.)
See, also, Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431; Raffaghelle v. Russell, 103 Kan. 849, 176 Pac. 640; Brewer v. Vinegar Hill Zinc Co., 119 Kan. 355, 239 Pac. 762.
We are of the opinion the court was justified in refusing to cancel the award. The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy presents two questions: (1) whether gasoline pumps, tanks, air compressors or similar appli anees generally used in the operation of filling stations are fixtures within the meaning of the bulk-sales act (R. S. 58-101), and (2) whether the rule applies where such articles are bolted, screwed or otherwise attached to the real estate by the proprietor of the filling station who is also the owner of the real estate. The plaintiff sought to subject the appliances mentioned to the provisions of the bulk-sales act, was defeated, and appeals.
The facts are substantially these: Prior to March 24, 1927, the defendant, O. E.-Bedell, was the owner and operator of a filling station, including the real estate, with the usual fixtures and with a stock of merchandise, including gasoline, lubricating oils and accessories. The stock of merchandise was inventoried at $464. About the date mentioned the defendant moved to California, owing the plaintiff $844.31 for gasoline. At the same time he transferred the merchandise and miscellaneous unattached appliances to his brother, E. R. Bedell, who thereupon assumed proprietorship of the business, and he (O. E. Bedell) deeded the real 'estate for a money consideration to his brother’s wife, Achsah Huffman Bedell. The principal appliances in controversy were attached to the real estate in such manner as is usual at filling stations. They were treated by the parties as passing with the real estate to Achsah Huffman Bedell. No attempt was made in either transfer to comply with the bulk-sales act. The plaintiff, having secured judgment against O. E. Bedell, sought recovery from E. R. and Achsah Huffman Bedell as garnishees. The trial court held that the attached articles (the gasoline pump, tanks and the air compressor) had become part of the real estate and therefore ceased to be fixtures within the meaning of the act. The garnishees contend that the question whether or not the appliances in question were fixtures was one of fact which the court determined in their favor by holding that such articles were part of the realty.
The subject of filling-station fixtures as affected by taxes levied thereon was considered in Boxer v. Sears, 119 Kan. 733, 241 Pac. 443, where it was held that when erected upon leased ground the whole filling station with all its parts and appurtenances might be treated as removable personal property. In Water Co. v. Irrigation Co., 64 Kan. 247, 67 Pac. 462, water pipe under a platted subdivision of a city was treated as a removable trade fixture. In Review Printing Co. v. Hartford Fire Insurance Co., 133 Minn. 213, 158 N. W. 39, a fire insurance policy on a printing establishment in- eluded “furniture and fixtures.” The question was raised whether this included a heavy linotype machine which was attached to the building. The court said:
“Whether an article is a fixture depends very much upon the circumstances and the intention of the parties. It would serve no useful purpose to discuss the meaning of the word as between landlord and tenant, vendor and vendee, mortgagor and mortgagee, or to enumerate circumstances under which a chattel may or may not become a fixture. (See 1 Dunnell, Minn. Dig., secs. 3772, 3773.) A distinction is recognized between a fixture which is a part of the realty and a removable fixture (Pond & Hasey Co. v. O’Connor, 70 Minn. 266, 268, 73 N. W. 159, 248), but the chattel is generally termed a fixture whether permanently attached or removable.” (p. 214.)
In Sawyer v. Long, 86 Me. 541, 30 Atl. 111, there was a mortgage on “my stock and fixtures in the store now occupied by me.” The mortgagee sued in replevin. It was held that the mortgage covered all shop appliances of a permanent nature used in connection with the business which his mortgagor could have removed as against his landlord. It was held to be immaterial whether any particular appliance was temporarily a part of the real estate as a technical fixture.
Plaintiff argues (we think with sound reason) that the “nontechnical use of the word ‘fixture’ seems to be the sensible interpretation which ought to be applied. Otherwise we become lost in the shifting rules as to what is removable, for example, as between landlord and tenant, mortgagor and mortgagee and heir and executor, so that no creditor would ever know upon what to rely.” A .similar matter was discussed in Thurston v. Union Ins. Co., 17 Fed. 127, a case which involved a fire insurance policy on a store building which excluded “store fixtures.” The court said:
“There is no doubt that an exception of fixtures out of a policy upon buildings refers to things which are, under some circumstances, removable, and not necessarily and always a part of the buildings. If we could suppose a printed exception in a policy to be intended to adapt itself to the various relations of landlord and tenant, mortgagor and mortgagee, heir and executor, so that fixtures refer to what may be removed in the particular case, all the disputed items in this case would be within the policies, because they are undoubtedly irremovable, as between the plaintiff and the mortgagee. But if these same things had been affixed by a tenant there is no doubt that he might remove them during his term. Such a shifting construction would be unreasonable. We must look for a meaning of ‘store fixtures’ which has a more general application. And I find it in the context and the popular meaning of the words. I hold it to mean, in this connection, store fittings or fixed furniture, which are peculiarly adapted to make a room a store, rather than something else.” (p. 128.)
In the instant case no good reason is advanced, in our opinion, why the appliances in question should not be treated separately from the real estate in order to bring -them within the provisions of the bulk-sales statute. The statute prohibits “the sale or disposal of any part or the whole of a stock of merchandise or the fixtures pertaining thereto,” etc. (R. S. 58-101.) It was designed to prevent the very thing here attempted by the vendor. At the time of the installation of the appliances it must have been his thought— his intention — to put in those things which pertained to the merchandising business such as is conducted in a modem filling station. They were undoubtedly installed for the conduct of the business rather than as an improvement to, the real estate itself. We are not unmindful of the rules for ascertaining whether an article is a chattel or an irremovable fixture and that such rules embody: “First, real or constructive annexation of the article in question to the realty; second, appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; third, the intention of the party making the annexation to make the article a permanent accession to the freehold.” (See cases cited in 2 Words and Phrases [2d series], p. 578, under “Fixtures.” Also same work, vol. 4, p. 956, under “Trade Fixtures.”) It may be noted that the court’s finding that it was the intention of the parties that the appliances in question be regarded as part of the realty, referred to the vendor and purchaser instead of referring to the intention of the owner (vendor) at the time the appliances were annexed to the realty. Had Bedell been a mere tenant, the gas pumps, tanks and the air compressor would without question be held to be removable tenant’s fixtures and under the decisions would clearly be held subject to the bulk-sales act. Under all the circumstances, the fact that the owner of the real estate himself attached them makes no difference. They are just as removable by its owner as any tenant’s fixture and in the eyes of any creditor have all of the same obvious attributes.
The judgment is reversed and the cause remanded with instructions to render judgment for plaintiff for the value of the gasoline pumps, tanks and air compressor as of the date purchased by the garnishee. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Fred Lentz was charged jointly with Emma Nesbit in an information containing two counts: first, of breaking into and entering a store building in the nighttime, in the city of Lyons, belonging to George Lantz & Co.; second, in taking, stealing and carrying away therefrom seventy-five suits of men’s clothing. Lentz was convicted of both burglary and larceny, and from the judgment rendered the defendant appeals, and assigns as error the admission of certain testimony and the giving of a certain instruction.
There was testimony as to the breaking into the store and that the clothing kept there had been taken out, and that the suits of clothing so taken had been kept and hung upon an unusual type of hanger. R. H. Middlekauff, a member of the firm of George Lantz & Co., testified that the clothes were kept upon the hangers of the unusual type mentioned; that such hangers were not generally used in the community and were only handled by one other store in the city. A witness, Mrs. Owens, who was in defendant’s home shortly after the breaking and the larceny, testified that she saw hangers of the type stolen in a closet of defendant’s home. She also testified that shortly after the burglary she heard a conversation between the defendant and his wife, in which the wife asked defendant what he and Emma Nesbit had done with the clothes taken from the store, and he replied that they had taken them to Kansas City and traded them for sixty gallons of alcohol. She chided him with running around with Emma Nesbit, saying, "she wished he would not fool around with Emma Nesbit for fear she would get him in the penitentiary.” Defendant replied, witness said, that “he was not afraid, that he only went along with her.” He also said in the conversation that he had an awful time trying to get the alcohol in Kansas City. The witness further says that defendant and his wife quarreled about his association with Emma Nesbit, and that the quarrel reached the stage where the defendant slapped his wife, and that he kept on slapping her when she told him “she knew enough to send him to the pen. She knew all about the robbery at Lyons, and if he didn’t quit she.would call the law, and I told him if he didn’t quit I would call Brown [the sheriff], and he asked me not to tell, and I told him I would not.”
Defendant objected to the reception of the evidence of Middlekauff as to the type of hangers with their unusual characteristics and which another witness had said she found in defendant’s home. Hangers of that kind had been taken with the clothing stolen. It is argued that many such hangers were manufactured and sold throughout the country, and that the finding of some of that kind in defendant’s possession did not constitute competent proof that they had been stolen from the store by the defendant. The type of hangers being unusual and not in common use in the community, the finding of such hangers in defendant’s possession tended in a degree to connect defendant with the offense. Although not strong, the evidence cannot be regarded as being destitute of probative value. It was not improper to admit the evidence and leave to the jury the determination of the weight to which it was entitled when considered in connection with the other evidence in the case touching the identity of the things charged to have been stolen by the defendant.
Complaint is made that the following instruction was given to the jury:
“The state has introduced evidence tending to prove that the defendant shortly after the alleged burglary and larceny had possession of the property claimed to be stolen, and in this connection I instruct you that the possession of stolen property recently after it is stolen is prima facie evidence of guilt, and throws upon the possessor the burden of explaining the possession, and, if unexplained, may be sufficient of itself to warrant a conviction, and it is for the jury to say from all the facts and circumstances proven upon the trial whether or not the defendant did have possession of the property stolen, if you find it was so stolen, considering all the circumstances of the case as shown by the evidence.”
It is conceded that the one given is the ordinary and proper instruction where a defendant is shown to have been in recent possession of stolen property, but it is argued that the instruction had no place in this case because of a lack of competent evidence that the property was ever in defendant’s possession. He insists that the evidence that the hangers mentioned were found in his house was so remote as to be insufficient as a ground for instructing the jury on the question of recent possession. The - circumstance of the hangers being found in defendant’s house, although not a conclusive or strong one, was not the only evidence as to the possession by •defendant of the property stolen. In addition there was the evidence that in a discussion with his wife, had within the hearing of a witness, the defendant admitted that he and Emma Nesbit had taken the clothing to Kansas City and there traded it for sixty gallons of alcohol. This statement was expressly denied by defendant, and it is argued that the testimony of Mrs. Owens was weird and incredible, but the court could not ignore the testimony produced. It was the duty o.f the court to instruct the jury on the basis of the evidence admitted in the case and leave to the jury to determine the credibility of witnesses and the truth of their testimony. On the whole we think the evidence justified the instruction given.
No error being found in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, a resident of France, sued the Modern Woodmen of America to recover as a beneficiary named in the certificate issued by that organization to Edward L. Swain, the father of the plaintiff. Anna Swain, the widow of Edward L. Swain, was made a -party defendant. Each of the defendants answered. The plaintiff demurred to each of the answers. The demurrers were overruled. From those orders the plaintiff appeals.
The petition alleged that on September 12, 1907, a beneficiary certificate was issued to Edward L. Swain in which Anna Swain and the plaintiff were named as beneficiaries, one-half payable to each; that Edward L. Swain died on March 6, 1928; that proof of death was made; and that there was due the plaintiff $1,000 under the certificate which the defendants refused to pay.
The answer of Anna Swain pleaded that the application for the certificate and for membership in the order contained the following: “Do you understand and agree that the laws of this order now in force, or hereafter enacted, enter into and become a part of every contract of indemnity between the members of the order and govern all rights thereunder? Answer, ‘Yes’ ”; that the certificate issued to Edward L. Swain provided “that all the conditions contained in this certificate and the by-laws of this society, as the same now exist, or may be hereafter modified, amended, or enacted, shall be fully complied with”; and that the conditions contained in the certificate were accepted in writing on the face of the certificate in the manner following: “I hereby accept the above benefit certificate, and agree to all of the conditions therein contained. — Edward L. Swain.” The answer- of Anna Swain further alleged that in June, 1925, the Modern Woodmen of America enacted that part of section 51 of the by-laws which provided that “the amount to be paid under the benefit certificate shall not be paid to any person who is not an actual resident of the United States, or its dependencies, or the Dominion of Canada”; that such enactment became effective September 1, 1925; that the plaintiff is a resident of Paris, France; that $1,000 had been paid under the certificate to Anna Swain; that both the plaintiff and Anna Swain were claiming the other $1,000 payable under the certificate; and that the defendant Modern Woodmen of America had paid the money into court to abide the judgment of the court as to who should receive the money, the plaintiff or Anna Swain. The answer of Anna Swain concluded with a prayer that the plaintiff take nothing and that Anna Swain be decreed the lawful owner of the remaining $1,000 due under the certificate.
A copy of the by-laws of the Modern Woodmen of America was attached to the answer of Anna Swain and made a part of it. In section 51 of the by-laws reference is made to section 50, which provided that “no certificate shall be made payable to any person or charitable institution that is not an actual resident of the United States, or its dependencies, or the Dominion of Canada.” The answer did not disclose when this provision became a part of section 50.
The question argued is the binding effect of that part of section 51 of the by-laws which prohibited the payment of the certificate to any person not a resident of the United States, or its dependencies, or of the Dominion of Canada, which provision was adopted after the certificate had been issued. The plaintiff contends that it had no binding effect on the certificate issued to Edward L. Swain or on the beneficiaries named in the certificate. Anna Swain argues that when Edward L. Swain made application for membership in the Modern Woodmen of America, and when the certificate was issued to him, he agreed that the organization could properly enact subsequent by-laws and that they would be binding on him and on the beneficiaries named in the certificate.
The rule is that the subsequently enacted rules, regulations and by-laws of a fraternal insurance organization, adopted after the issuance of a beneficiary certificate therein, are binding on both the member of the organization and on the beneficiaries named in the certificate where the certificate provides that it is issued subject to all rules, regulations and by-laws then existing or that may thereafter be adopted. (Miller v. National Council, 69 Kan. 234, 76 Pac. 830; Boman v. Bankers Union, 76 Kan. 198, 204, 91 Pac. 49; Maccabees v. Nelson, 77 Kan. 629, 635, 95 Pac. 1052; Hart v. Annuity Assoc., 86 Kan. 318, 323, 120 Pac. 363; Moore v. Annuity Association, 95 Kan. 591, 148 Pac. 981; Kirk v. Aid Association, 95 Kan. 707, 149 Pac. 400; Uhl v. Life Association, 97 Kan. 422, 155 Pac. 926; Dey v. Knights & Ladies of Security, 113 Kan. 86, 213 Pac. 1066; Roper v. Columbian Circle, 113 Kan. 280, 283, 214 Pac. 421.) The rule stated is modified by the principle that subsequently adopted rules, regulations and by-laws must be reasonable. There is nothing in the pleadings in the present action to indicate that the adopted by-law operated unreasonably.
The quoted part of section 51 of the by-laws was adopted in 1925 and made that section conform to the provisions of section 50, which prohibited the issuance of a certificate from being made payable to any person not a resident of the United States, or of its dependencies, or of the Dominion of Canada. It may be inferred from the petition of the plaintiff and the answer of Anna Swain that the plaintiff, when the certificate was issued to Edward L. Swain, was a resident of the United States and was a competent beneficiary, qualified to be named as such under section 50 of the by-laws. By his voluntary act in transferring his residence from the United States to Paris, France, he disqualified himself to receive payment as a beneficiary and cannot enforce payment under the certificate.
The by-laws of the Modern Woodmen of America provided for a change of the beneficiary named in a certificate issued to á member. Under those circumstances, the plaintiff did not have a vested interest in the certificate until the death of Edward L. Swain and then only in the event that no change had been made in the beneficiary during the lifetime of Edward L. Swain. (1 Bacon on Benefit Societies and Life Insurance, 3d ed., §§ 291a, 304; 45 C. J. 196; Sluder v. National Americans, 101 Kan. 320, 166 Pac. 482.) The contract was between Edward L. Swain and the organization. The plaintiff was not a party to that contract. It could be changed without his consent.
It would have been error to have sustained the demurrer to the answer of Anna Swain.
The answer of the Modern Woodmen of America set out a copy of the certificate issued to Edward L. Swain, set out a copy of by-law No. 51, and alleged that the plaintiff was a resident o'f Paris, France; that the plaintiff, on account of his residence, was disqualified to take as a beneficiary under the certificate; that payment of $1,000 had been made under the certificate to Anna Swain; and that both the plaintiff and Anna Swain were claiming the remaining $1,000 due under the certificate. The answer prayed that the Modern Woodmen of America be permitted to deposit the disputed $1,000 with the clerk of the court to abide the judgment and order of the court. The money was deposited with the clerk and is there to abide the final determination of this action. There was a substantial compliance with section 60-418 of the Revised Statutes, and the defendant was thereafter discharged from liability to the plaintiff. It was not error to overrule the plaintiff’s demurrer to the answer of the Modern Woodmen of America.
The judgments are affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a conviction of Herbert Redmon of murder in the first degree. The defendant and John Edwards were charged jointly in the information with shooting and killing Marie Redwine. After the state had presented its evidence a motion was made to discharge both defendants upon the ground that there was no evidence to put them on their defense. The court did discharge defendant Edwards in overruling the motion as to Redmon. No testimony was offered in behalf of Redmon, and .after the jury was instructed covering the different degrees of murder and also of manslaughter, he was found guilty of murder in the first degree. He appeals, and only three grounds for reversal are urged here and these relate to the omission of the court to give •certain instructions to the jury.
One of them is that the court omitted to tell the jury that the discharge of Edwards, his codefendant, was not to be construed as a conclusion in the court’s mind that Edwards was innocent and the defendant was guilty. No such inference was warranted and no request for such an instruction was made; nor is there any reason to think that such a surmise would arise in the minds of the jury because of the ruling. The ruling of the court was in effect that the state had failed to produce evidence as against Edwards, and so he was discharged, but that the evidence as against defendant required the submission of the case to the jury for its determination whether or not he was innocent or guilty of the offense charged. The court charged the jury in general terms- as are ordinarily given in such cases and told them that defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, •and also if any member of the jury was not satisfied of his guilt beyond a reasonable doubt, he.could not be convicted. All the instructions carried the idea th'at.the guilt or innocence of the defendant had not been determined by the court and was then submitted to the jury for its decision.
Another point made is that the court erred in not telling the jury that the fact that defendant did not take the witness stand in his •own behalf should not be construed against him. No request was made for that instruction. It is enough to refer to State v. Younger, 70 Kan. 226, 78 Pac. 429, where it was said:
“An omission to instruct the jury in a criminal case that the neglect or refusal of the defendant to testify shall not be considered by the jury, and shall not raise any presumption of guilt or be construed to affect his innocence or guilt, is not error, in the absence of a request for suoh an instruction.” (Syl. ¶[ 2.)
If without a request from the defendant the court had volunteered such instruction there might have been complaint that the court had unduly emphasized the matter of the appellant’s failure to testify. A waiver by the defendant of his right to testify is one to which the prosecuting attorney may not refer and which the court may not consider. Under the circumstances the omission of the instruction is not a ground of error.
Complaint is also made that the court did not give a specific instruction on circumstantial evidence. An instruction defining that class of evidence was not requested. What is called direct evidence was produced, as well as circumstantial, and all evidentiary facts were submitted to the jury with the admonition that every ingredient of the offense charged must be established by the evidence beyond a reasonable doubt before the defendant could be found guilty. All evidence is more or less circumstantial, as in most evidence inferences are to be drawn from one relevant fact of the existence of another. There is no claim here that the circumstantial evidence was not pertinent and admissible, and having been received as of some probative value it then became a question for the jury to determine its force and worth. There may be cases where an instruction defining the different classes of evidence would be helpful to a jury, but it has been uniformly held that in the absence of a request for a specific instruction in reference to circumstantial evidence the defendant cannot complain of the omission of it. (State v. Woods, 105 Kan. 554, 185 Pac. 21; State v. Davis, 106 Kan. 527, 188 Pac. 231; State v. Boone, 124 Kan. 208, 257 Pac. 739; State v. Hancock, 127 Kan. 510, 274 Pac. 209.)
These are the only objections presented by defendant, and finding no error in them the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to forfeit and cancel an oil-and-gas lease for breach of the implied covenant reasonably to develop it. It was tried to the court, who made findings of fact and rendered judgment for defendants. Plaintiff has appealed.
Plaintiff was the owner of a quarter section of land in Sumner county. On March 10, 1923, he executed an oil-and-gas lease on this land to R. H. Stewart for a term of five years, and as long thereafter as oil or gas should be produced from the land. The lease contained a provision that if the lessor owned a less interest in the land than the entire undivided fee simple estate therein, the royalties and rentals should be paid the lessor only in the proportion which his interest bears to the whole undivided fee. The lease contained the further provision:
“If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed, the covenants hereof shall extend to their heirs, executors, administrators, successors, or assigns. . . .”
R. H. Stewart assigned the lease, so far as it pertained to the west half of the quarter section, to H. C. Weber, W. G. Obins and Mark Weber, but neither Stewart nor these assignees have ever made any effort to develop this part of the leased premises for oil or gas. R. H. Stewart assigned the lease, in so far as it pertains to the east half of the quarter section, to the Alcorn Oil Company, which thereafter assigned it to the Marland Oil Company, and thereafter assigned it to the Marland Products Company, one of the defendants herein. This company is a successor in interest, by a reorganization or change of name, of the Marland Oil Company. The Mar-land Oil Company had leases on other land adjoining this 80 acres on the north and east, and sometime in 1924 drilled a well, which is located about 300 feet east and 300 feet south of the northeast corner of this 80 acres. This proved to be a gas well which, to the time of the trial in this case, had produced gas of the value of $54,-842.86 at the well. In-December, 1924, plaintiff executed a written agreement with the Marland Oil Company by which he waived and released his right to demand the drilling of a well on his land to off set the gas well above mentioned if the oil company would drill a well in the southwest corner of the 80 acres of land, which it agreed to do, and later did do. This well was completed in. May, 1925, and to the time of the trial of this case had produced 66,116.77 barrels of oil. Neither the Marland Oil Company nor its successor, the Marland Products Company, did any more developing on plaintiff’s land. Since May, 1925, a well was drilled at a point 300 feet east and 300 feet north of the northeast corner of plaintiff’s land, which proved to be a gas well, and also a well was drilled 300 feet west and 300 feet north of the northeast corner of plaintiff’s land, which proved to be an oil well. Plaintiff has never waived nor released his right to demand the drilling of a well on his land to offset these two wells.
In December, 1924, plaintiff executed a royalty conveyance to the New Royalty Company for an undivided one-fourth of the oil, gas and minerals under the quarter section of land. It was “subject to the terms” of the lease which plaintiff had executed to Stewart, and provided that the original terms of the lease should not be extended without the written consent of the New Royalty Company, and in the event the lease “for any reason becomes canceled or forfeited,” then an undivided one-fourth of the leased interest and future rentals and bonuses should belong to the New Royalty Company. In April, 1925, plaintiff executed a similar royalty conveyance for an undivided one-eighth interest in the oil and gas under this quarter section to The United Royalty Company, and in May, 1925, plaintiff executed a similar royalty conveyance for an undivided one-eighth interest in the oil and gas under this quarter section to the Land Owners Royalty Trust.
This action was filed in July, 1928. Prior to bringing, the action plaintiff had requested the other owners of royalty interests to join with him as plaintiff in the action, but they had not agreed to do so. He named as defendants the lessees and the owners of the royalty interests. The defendants Weber, Obins and Weber, assignees of the lease on the west half of the quarter section, made default. The Marland Products Company, the assignee of the lease on the east half of the quarter section, answered and “specifically denies that this plaintiff can maintain this action for the reason that there is a defect of parties plaintiff, in that said plaintiff does not own the entire undivided fee in and to the oil, gas and mineral rights.” The answer contained other matters in opposition to plaintiff’s right to cancellation of the lease. The defendant, the New Royalty Company, answered to the same effect and objected to the cancellation of the lease in so far as it was concerned. The defendants, the United Royalty Company and the Land Owners Royalty Trust, answered, setting up their interests as royalty owners, but joined with the plaintiff’s request for the cancellation of the leases.
The trial court found that in no event should the plaintiff be given a cancellation of the lease so far as it refers to a tract 600 feet by 600 feet in the southwest corner of the east half of the quarter section, where the defendant, the Marland Products Company, had drilled a well, which was then producing; this area to be extended, if need be, on the showing that more area is required conveniently to operate the well. As to the remaining portion of the lease, the court found—
“ . . . that there has been a breach of the implied covenant to develop the land, and that the extent and amount of the damages sustained are so indefinite and uncertain that they cannot be justly estimated, and that the plaintiff has no adequate remedy at law.”
The court denied plaintiff any relief, however, upon the ground that the cause “may not be maintained by the plaintiff without the joinder or consent of all of the royalty holders.” The 'judgment entered was without prejudice to a future action in which all the royalty owners would join.
When the action was brought, and when it was tried, the plaintiff was the owner of an undivided one-half of the royalty interest to the oil and gas in place in the entire quarter section. The United Royalty Company was the owner of an undivided one-eighth of such royalty interest, the Land Owners Royalty Trust was the owner of an undivided one-eighth of such royalty interest, and the New Royalty Company was the owner of an undivided one-fourth of such royalty. The owners of three-fourths of the royalty interests prayed for a cancellation of the lease, while the owner of one-fourth of the royalty interests was objecting to such cancellation.
The sole question presented to us is: Can one or more tenants in common, less than the whole number, maintain an action against a lessee to cancel and forfeit the lease, in so far as their interests are concerned, for a breach of an implied covenant properly to develop the lease, where one tenant in common has waived the breach or is willing to do so?
We first note that the implied covenant reasonably to develop a lease is as much a part of the lease as though provisions to that effect were expressly stated in the lease. (See La France v. Kashishian, [Cal.] 269 Pac. 655; Brewster v. Lanyon Zinc Co., 140 Fed. 801, and authorities cited therein.)
The lease contained several provisions with respect to the interests of the parties to the lease less than the whole, and specifically provided that the privilege of either* party to assign, in whole or in part, was expressly allowed, and that the covenants thereof should extend to the assignees. By the terms of the lease, therefore, the interests of the parties to the instrument were recognized as being divisible, and it was further provided, by the express terms of the lease, that its covenants should extend to such assignees. Appellees concede that by these provisions of the lease its covenants with reference to the payment of rent and royalties were stipulated to be divisible in character, but argue that such divisibility does not extend to an action to cancel the lease. The wording of the lease does not make this distinction. ■ It would seem, therefore, that by the terms of the lease the right of the assignee of the whole, or any part, of the interests of either of the parties to the lease to maintain any appropriate action to protect his interests, was expressly recognized and provided for.
Any person in possession of real property may bring an action against any person who claims an estate or interest therein for the purpose of determining such adverse estate or interest (R. S. 60-1801). All persons having an interest in the subject of the action and in obtaining the relief’ demanded may be joined as plaintiffs (R. S. 60-410), and any person may be made a defendant who has, or claims, an interest in the controversy adverse to plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved. (R. S. 60-411.) Of the parties to the action, those who are united in interest must be joined as plaintiffs or as defendants, but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason for so doing being stated in the petition. (R. S. 60-412.) In short, our statutes are so framed as to permit any person who has, or claims, an interest in real property to bring and maintain an action against any one or more persons claiming adversely to him for the determination of such interest. Naturally, parties having interests in common should be joined as plaintiffs or as defendants, but the fact that one having an interest in common with plaintiff declines to join with plaintiff in bringing the action does not prevent plaintiff from bringing an action and having his interests determined, for such a person may be made defendant, plaintiff stating the reasons for so doing. From what is here said it necessarily follows that the argument of appellees to the effect that all the royalty interests must join as plaintiffs in the action is without merit.
Appellees argue that the implied covenant of the lease that the lessee would reasonably develop the leased premises is an indivisible covenant, and that the owner of an undivided interest in the oil and gas in place in the land cannot maintain an action to have the lease declared canceled because of the failure of the lessee to perform this covenant, but that it is essential for all of the owners of such oil and gas units to unite either as plaintiffs or as defendants in such an action. This was the view taken by the trial court, and formed the basis of its judgment. Let us examine this question. We have heretofore seen that the implied covenant reasonably to develop the leased premises is as much a part of the lease as though it were expressly written therein. The covenants of the lease are of a nature that they naturally go with the land. If the land were sold within the term of the lease, such sale would not abrogate the lease, but it would continue in force, notwithstanding such sale. Such a sale need not be for the entire body of the land owned by the lessor. He might sell the land in tracts, dividing it vertically, or he might sell an undivided interest in it, or any part of it, such as the surface or the minerals, thus dividing it horizontally. If the covenants of the lease go with the land, they naturally go with each portion of it, however it may be sold, whether vertically or horizontally. In 15 C. J. 1259 it is said:
“A covenant that runs with the land is divisible into as many parts or interests as the land itself may be divided into by subsequent successive conveyances, and the grantee of each parcel or interest may, as to the same, maintain suit upon such covenant against the original covenantor or his legal representative; but the interest of the grantee must be in part of the land as distinguished from part of the estate.”
Many authorities are there cited giving application of the rule and the reasons for it.
It is argued that in this case the owners of the royalty interests are tenants in common, and that one tenant in common cannot do anything to the detriment of the other tenants in common, and from this it is argued that the plaintiff, who is the owner of an undivided one-half interest in the oil and gas, and the defendants, the United Royalty Company and the Land Owners Royalty Trust, each owning an undivided one-eighth interest, cannot have this lease canceled over the objection and against the interest of the New Royalty Company, the owner of an undivided one-fourth interest. The premise of this argument is sound, but its conclusion is fallacious. The New Royalty Company, which is willing to waive the nonperformance of the covenants of the lease, has no right to bind its other cotenants, the plaintiff and the United Royalty Company and the Land Owners Royalty Trust, and thus require them to waive it. Each of the tenants in common has the right to insist on the cancellation of the lease so far as he is concerned, or to waive it, as he likes, but whichever position he takes in the matter should not be controlling as to the other cotenants. Appellees argue that such a holding would give the lessee the right to operate on the leased premises under authority from one cotenant and make it a trespasser as to the other cotenants. But this conclusion is inaccurate. The royalty conveyances executed by plaintiff to the New Royalty Company, the United Royalty Company, and the Land Owners Royalty Trust, authorize each of them (subject to the existing lease) to go on the premises and develop for oil and gas to the extent of their interest conveyed by the instrument. If the present lessee were to surrender its lease, any one of the royalty owners could exercise any right on the premises consistent with the terms of the instrument which created his royalty interest without being, as to the other royalty owners, a trespasser in exercising such rights; and any royalty owner could assign or transfer any right which he has under the instrument which created his royalty, and the assignee or transferee could exercise the rights so assigned or transferred without being, as to the other royalty owners, a trespasser in exercising such rights. If this lease be now canceled as to all of the royalty interests except that of the New Royalty Company, its situation and that of the lessee would be the same as though the present lease were canceled in its entirety and the New Royalty Company were to execute a new lease for the development of the premises.
We are not unmindful of the cases cited by the appellees (Calvert et al. v. Bradley et al., 16 How. 580 [U. S.]; Union Gas & Oil Company v. Gillem, 212 Ky. 293; Howard v. Manning, 79 Okla. 165; Krost v. Moyer, 166 Minn. 153; Cochran v. Gulf Refining Co., 139 La. 1010) and allied cases, each of which holds that certain leases or covenants are indivisible, and that all the parties must join in an action based on such covenants. We shall not stop to analyze these cases in detail. They tend to support the ruling of the court below. We do not regard them as being in harmony with the scheme of the law of this state, nor with the former decisions of this court, and there are many decisions to the contrary. (Blake v. Everett & others, 1 Allen 248; Fields v. Squires (No. 4776), 9 Fed. Cas. 29; Empire Gas & Fuel Co. v. Saunders, 22 F. (2d) 733; Pearson v. Richards et al., 106 Ore. 78; Kelly v. Parker et al., 221 Ill. App. 273; Roberts v. Holland, 1 Q. B. 665 [1893]; Dickinson v. Hoomes’s Adm’r & als., 8 Gratt. [Va.] 353; Sullivan v. Sherry and another, 111 Wis. 476; Bayside Land Co. v. Dabney, [Cal.] 265 Pac. 566.)
But we do not deem it necessary to analyze these authorities in detail. Our own statute (R. S. 16-101) provides that contracts which by the common law are joint only should be construed to be joint and several, and the scheme of our law, as previously outlined herein, is that anyone having, or claiming, an interest in property, whether that be real or personal, may bring an action to have that interest determined, and join with him, or make defendants, all persons necessary for a proper determination of the questions involved. The relief to be granted must necessarily depend upon the facts disclosed by the evidence. (Greer v. Higgins, 8 Kan. 519; Jeffers v. Forbes, 28 Kan. 174; King v. Hyatt, 51 Kan. 504, 34 Pac. 461; Curry v. Railway Co., 58 Kan. 6, 18, 48 Pac. 579; Horner v. Ellis, 75 Kan. 675, 90 Pac. 275; Banchor v. Proctor, 88 Kan. 510, 129 Pac. 526; Jewell v. Gann, 100 Kan. 43, 163 Pac. 645; Finley v. Dubach, 105 Kan. 664, 185 Pac. 886; Klingbiel v. Neubauer, 111 Kan. 716, 208 Pac. 255.)
In Zinc v. Freeman, 68 Kan. 691, 75 Pac. 995, this court canceled a lease as to some cotenants and let it stand as to others, but this decision was not based on the question here presented. Repeatedly this court has canceled a lease as to part of a tract of land and let it stand as to the remaining portion. Hence to cancel the lease in this case in so far as it pertains to some of the cotenants and let it stand as to another is neither novel nor new in the jurisprudence of this state.
Any conclusion other than the one we have reached would make it possible for the lessee to become the holder, either directly or through an associate, of a small share of the royalty interest, and defeat either the proper development of the lease or its cancellation, to the serious detriment of the other royalty owners. This would create a situation decidedly unjust to them. Indeed, in this case there was evidence tending to show that the New Royalty Company was owned by the Marland Products Company or its officers, but the trial court made no finding on that point and we do not find it necessary to predicate a decision thereon.
Since the facts are found, and no one controverts them, there is no necessity for a new trial. The judgment of the court below is reversed with directions to enter judgment in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appellees move to dismiss the appeal in this case because the appellant has accepted substantial benefits of the judgment, and has thereby waived his right of appeal and is estopped to maintain such after receiving and appropriating the benefits of the judgment. The benefit referred to is an attorney fee of $500'allowed by the trial court as a fee for plaintiff’s attorney, and was a part of the judgment rendered from which the appeal is taken.
Appellant maintains that the nature and character of this action make it an exception to the general rule; that the plaintiff’s attorney would be entitled to a fee in the case regardless of the final result thereof on review, because it involves the construction and validity of a will, and in such cases both sides are entitled to attorney fees paid out of the estate, regardless of their success or defeat in the litigation, and cites the case of Singer v. Taylor, 91 Kan. 190, 137 Pac. 931, where it was held:
“Where there is ambiguity in the provisions of a will and a real controversy as to its construction it is competent for the court to allow reasonable attorneys’ fees out of the estate to the defeated as well as the successful party.” (Syl.112.)
The appellees maintain that the case at bar does not involve the construction or validity of a will, but is one to set aside for want of jurisdiction and other reasons the judgments rendered in two former cases involving the construction of the will, and, as far as the allegations of the petition might indicate that the construction of the will is involved, it is res adjudicata, and they rely upon the rule announced in Coal Co. v. Brick Co., 52 Kan. 747, 35 Pac. 810, as follows:
“The doctrine of res adjudicata forbids a repetition of vexatious lawsuits, and a former trial and judgment upon one of the items is conclusive between the same parties as to all matters which were or might have been litigated in all other actions, whether commenced before or after the action in which the adjudication was made.” (p. 749.)
We think, following and adhering to the rule in the Singer case, supra, the decision on the motion to dismiss this appeal will depend upon the question of whether or not this -action is really one involving the construction and validity of the will and codicil. If it is such a case it should not be dismissed, because attorney fees are proper for both sides and are not a benefit by virtue of the judgment. But if it is a case to set aside former judgments and secure a rehearing of a matter already adjudicated, then attorney fees are not a matter of right, and the acceptance of such would be a benefit derived from the judgment and a waiver of the right to appeal from such judgment.
The appellant in this case is one of three sons, of the deceased, who left a will and a codicil, which were admitted to probate. The appellant appealed from such ruling of the probate court to the district court, and in such court that cause was numbered 5,197. Later, and before any hearing on the appeal case, the appellant filed an action against his two brothers, involving the validity and construction of the will and codicil, which cause was numbered 5,281. Issues were joined and both cases were tried together, and the judgment was rendered November 10, 1927, in both cases substantially the same, holding the will valid and the codicil inoperative and ordering distribution of the estate under the will, which judgment the journal entry says was reached by agreement between the parties. Eight days-after the last order in these two cases was entered this action was commenced by this appellant in the same court, making the same and other parties defendants. The appellant speaks of it in his brief as an action “for the purpose of determining the validity and effect of the will and codicil and the two preceding cases.” The prayer of the petition is as follows:
“Wherefore, plaintiff prays that all the defendants be required to set up all of their claims of right, title and interest in and to the property owned by Samuel E. Fadely at his death, and prays the court to determine the validity, effect and construction of exhibits 1 and 2 in the light of the foregoing facts; and determine the rights, titles and interests of all the parties to this action in and to the property of all kinds whatsoever- left by Samuel E. Fadely, deceased, at his death; and that the court determine the rights, titles and interests of these parties in and to the bonds in the sum of $12,500, and trust fund attempted to be created in relation thereto, and the other property mentioned in the journal entry of November 10, 1927, a copy of which is attached hereto as exhibit 7, and that the court grant such other and further relief as is just and proper under the facts set forth in this petition, and that the plaintiff recover his costs herein expended.”
There were nine exhibits attached to the petition, among which were copies of the will, the codicil, petition and answer in the second case, No. 5,281, journal entries of judgment on November 10, 1927, in both cases, and ruling on subsequent dates. The prayer of the petition in case No. 5,281 is as follows:
“Wherefore, plaintiff prays for judgment that said last will and testament and codicil thereto of said Samuel E'. Fadely be set aside and he be held to have died intestate, and that all and singular his estate descend under the statute in equal shares to plaintiff and defendants as his heirs at law.”
The answer in this case of the defendants, now appellees, is in effect a plea of former adjudication. Upon the trial of the cause the court found -the nature of the case to be as follows:
“The court finds that there exists an actual controversy concerning the effect and construction of the last will and testament and the codicil therein of Samuel E. Fadely, deceased, and the effect and construction of the trust estate of which the defendant, C. A. Garber, is trustee, and of the force and effect and construction of judgments and decrees and orders of this court heretofore entered in eases No. 5,197 and No. 5,281.”
The court further found as to the jurisdiction of the court in the two former cases, after describing them by number, title and other details, as follows:
“The court finds that in said two actions above described this court had jurisdiction of the subject matter and of the parties, and that the judgments, orders and decrees entered in said actions are valid and binding.”
The court reiterated and restated the findings and orders of' the court in the two former cases and made them the findings of this case at great length and in detail; and in connection with such restatements is the following paragraph:
“It is further b3r the court considered, ordered and adjudged that the parties have fully settled and compromised all the matters in controversy herein, as set forth in journal entries entered as of November 10, 1927, in the cases above mentioned and numbered 5,197 and 5,281, and that said orders are valid and binding upon the parties; that the jurisdiction of this court of the subject matter and of the parties in said two actions above described and numbered respectively 5,197 and 5,281 was full, complete and valid, and that the judgments, orders >and decrees entered in those actions are valid and binding.”
The specifications of error assigned are as follows:
“Specification of Errors.
“1. The trial court erred in construing the will and codicil.
“2. The trial court erred in not decreeing the deceased died intestate.
“3. The trial court erred in the determination of the interests of the parties in the estate of the deceased.
“4. The trial court erred in the allowance of attorney and trustee fees on November 10, 1927, and the thereafter approval of such allowances.
“5. The trial court erred in not granting a new trial. •
“6. The trial court erred in appointing a trustee for appellant and permitting him to qualifs7 and act.”
The reiteration in this case of the findings, orders and decrees made in the former cases does not make this case one involving the matters determined in the former cases. The only question decided in this case was the validity of the former judgments. But appellant designates that as one of the errors which he expects this court to correct, and if the trial court had held otherwise on that point the construction and validity of the will and codicil would have been the next step. The long petition referring to the former judgments was undoubtedly prepared on the same thteory. However extended the scope of the petition may be and the possibilities of reaching decisions of issues raised or proposed therein, the fact remains that the trial court did not in this case hear and determine any matters involving the validity or construction of the will and codicil. The petition might be likened to one to reform a mortgage and foreclose it. When the court refuses to reform it there may be nothing to foreclose. This court has said a petition to set aside a judgment rendered by default and render judgment for defendant on his meritorious defense consists of two parts, and a ruling on the first part refusing to set the judgment aside is not an adjudication of the second part. (Toner v. Conqueror Trust Co., 126 Kan. 554, 268 Pac. 810.) The general rule that the acceptance of substantial benefits of a judgment waives the right to appeal from that same judgment is well recognized (3 C. J. 679; 2 R. C. L. 61; Ralston v. Ralston, 125 Kan. 619, 264 Pac. 146) and practically conceded; but is this an exception along the line of the Singer case? We think not. There was no construction of the will made by the court in this case, and the fact that the court in effect refused to place a construction on it in this case will not bring the case under the principle announced in the Singer case. The authorities cited from other jurisdictions do not convince us that this case is or should be an exception to the general rule.
The motion to dismiss the appeal is sustained. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal by the plaintiff from an order of the court striking out a material paragraph of an amended petition, the motion to strike being tantamount to a demurrer. (Van Deren v. Heineke & Co., 122 Kan. 215, 217, 252 Pac. 459.)
Plaintiff’s original petition set forth a cause of action on a promissory note for $4,000 alleged to have been executed for value by defendant to plaintiff. Defendant in his answer admitted signing the note, but denied that he had received value therefor, and alleged that it was given in a purported renewal of two previous notes, one for $2,000, dated August 23,1921, which was in fact a forged note, which defendant never executed and for which he was not liable, and one for $2,000, dated December 9, 1921, which defendant had been induced to sign by William A. Stryker, president, manager and general agent of plaintiff, and to leave with Stryker to be paid out of moneys Stryker was handling for defendant. These defenses are more specifically set out in Security Nat’l Bank v. West, 120 Kan. 434, 243 Pac. 1014, which was a former appeal in this case. A trial resulted in judgment for defendant, from which plaintiff appealed, and this court held that there could be no recovery on the $4,000 note sued upon in so far as it had included in it the $2,000 forged note of August 23, 1921, but reversed the case for a new trial on the question of defendant’s liability on the note sued upon by reason of its being based upon the $2,000 note of December 9, 1921. The concluding paragraph of the opinion in the former appeal reads:
“The judgment is reversed and the cause remanded for a new trial upon the question whether the defendant is liable to the extent of the $2,000 note of December 9, 1921, his nonliability further than that to be regarded as finally adjudicated.” (p. 438.)
.After the mandate from this court was filed in the court below, •being uncertain whether it would be required to try the case on the $4,000 note which originally formed the basis of its action allowing it credit thereon of $2,000 for the forged note of August 23, 1921, or to try the case on the $2,000 note dated December 9, 1921, the plaintiff, on December 5, 1927, by leave of court, filed an amended petition in two causes of action. The first cause of action was founded on the $4,000 note, less $2,000 represented by the forged note of August 23,1921, and in it plaintiff claimed a balance due of $2,000 with interest since the date of the note. The second cause of action was founded on the $2,000 note dated December 9,1921. But, realizing that more than five years had elapsed since the maturity of that note, and not wanting to be defeated by the statute of limitations, which the face of the papers would indicate had run, plaintiff alleged, in substance, that at the former trial much evidence was offered and received by the court without objection with respect to defendant’s liability on the $2,000 note dated December 9, 1921; that this evidence enlarged the issues as outlined by the pleadings then before the court, and amounted to a trial, in part at least, on the $2,000 note of December 9, 1921, and would have authorized the amending of the pleadings so as to seek a recovery on that note. These are the allegations which the court struck out on motion of defendant.
The question before us is whether, on the cause of action pleaded by the plaintiff on the $2,000 note dated December 9, 1921, the plaintiff may allege facts, and on the trial prove them, to show that this note was really in litigation at the former trial and considered by this court on its appeal, for the purpose of avoiding the application of the statute of limitations, which the face of the instruments would indicate had run. The allegations of the petition stricken out are sufficient to show that in fact the $2,000 note of December 9, 1921, was in litigation in this action at the former trial, and that the opinion of this court on its former appeal recognizes that fact. Plaintiff can, of course, have only one recovery; that is, it may not recover more than the sum of $2,000 with interest, but whether it recovers it on the $4,000 note upon which nonliability to the extent of $2,000 had been established, or whether it recovers it on the $2,000 note of December 9, 1921, is not material. The real question to be determined is the indebtedness of defendant to plaintiff of the sum of $2,000, as evidenced, or tended to be evidenced, by the $2,000 note of December 9, 1921, and the $4,000 note which originally formed the basis of the action. We think there should be no restrictions by way of limited pleadings that would tend to prevent a full investigation of the rights of the parties.
The judgment of the court below is reversed with directions to set aside the order sustaining the motion to strike. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action primarily for the possession of real property. There is also a prayer for damages. The trial court sustained a demurrer to plaintiff’s evidence and rendered judgment for defendants. Plaintiff has appealed.
From the record before us the facts may be stated as follows: In November, 1919, defendants were in possession of certain, lots on Avenue A in the city of Hutchinson, having previously contracted to purchase them from the Hutchinson Lumber and Planing Mill Company. Plaintiff was the owner of four lots on Avenue D West in the city of Hutchinson. It appears that the parties agreed to exchange these properties, defendants to pay plaintiff $8,000 difference, but no written agreement setting out the terms of the exchange was executed by the parties. This is what was done; Defendants completed the payments provided for by their contract to purchase the lots on Avenue A from the lumber company and caused that company to convey them by a general warranty deed to plaintiff, who, for his convenience, took the title in the name of his son, but this point gives no rise to controversy here. With respect to the four lots on Avenue D West plaintiff executed to the defendants the following instrument:
“Lease.
“This is to certify that I, the undersigned, have this 22d day of November, 1919, let and rented to A. R. Stahly and C. E. Hutchins the following premises situated in Hutchinson, Reno county, Kansas, to wit:
“Lots numbered twenty-nine (29), thirty-one (31), thirty-three (33), and thirty-five (35), on Avenue D West, in the city of Hutchinson, according to the duly recorded plat, for a term of five years seven months at a monthly rental of one hundred dollars ($100) per month for the first twelve months and after one year to pay one hundred fifty dollars ($150) per month for fifty-five months, to be paid on the first day of each month in advance and in no case later than the 10th day of the month. The second parties further agree to keep all assessments of taxes paid promptly and keep $7,000 insurance on the building, and turn the policy over to first party, to be held until the lease expires; and second parties agree to keep the building in good repair.
“An option and right to purchase the above-described property at the.end of the five years is to be given to the second parties, the renter, and if he faithfully pays all rents and fully complies with the terms of this lease, the first party agrees to make second parties a good and sufficient deed and the title to the above-described property; and all rents received by first party shall become a payment on the. principal and interest. The consideration is to be eight thousand dollars ($8,000) and other property, with interest at six per cent from date of this lease.
“But if the second parties fail to pay the rent when due and to comply with the other terms of this lease then the first party is not obligated to this option, and a failure to comply to the terms of this lease disannuls and makes the option void and of no effect, and all money, paid on this lease shall be for rent of the property and shall belong to the first party, and shall not be a payment on the principal, and should second parties fail in their monthly payments they further agree to surrender possession at any time to first party, by first giving them notice as the law prescribes with any other renter. It is further agreed that second party may pay all or part of the lease out at any time and get the title. This lease is not to be put on record but held by each party for reference and credits.
“If at any time payments are made in advance, the interest is to be deducted.”
Defendants went in possession of the property on Avenue D West and have paid the monthly payments, except the last one or two— and these were tendered — -and have paid taxes and insurance. Early in 1920 plaintiff undertook to go in possession of the property on Avenue D and started to make extensive permanent improvements thereon, when an action was brought against him by the city of Hutchinson to enjoin his building upon or using the lots, claiming to have previously condemned a strip of land 150 feet wide through the lots for the purpose of straightening out a stream known as Cow creek through the city, and for drainage. White, the plaintiff in this case, defended that action, but judgment was rendered against him in the trial court. He appealed and the judgment of the court below was affirmed. (City of Hutchinson v. White, 117 Kan. 622, 233 Pac. 508.) By this action it was adjudged that the city was the owner of a strip 150 feet wide diagonally through these lots on Avenue A, leaving only two small three-cornered tracts of the lots not owned by the city. These plaintiff alleged to be of little or no value and has tendered a reconveyance of them to defendants.
It will be noted that the lease made by plaintiff to defendants, above set out, contains a provision by which defendants have an option to buy the property on the payment of the consideration of $8,000 “and other property,” with interest. The monthly payments provided for in the lease are substantially the $8,000 with the interest. It is conceded by counsel for defendants in the court below and in the brief in this court that the “other property” mentioned in the lease above set out was the lots on Avenue A previously mentioned.
Plaintiff’s principal contention is that under this lease he is entitled to .possession of the property on Avenue D West at the end of the term for which it is rented unless defendants exercise their option to buy, as provided therein, and further, if they exercise the option to buy, they must pay the consideration named therein, namely, the $8,000 with interest and the other properties which the parties had agreed upon, the identity of which is not in dispute. The instrument specifically provides that if defendants fail to pay the rent when due and to comply with the other terms of the lease, the plaintiff is not obligated to the option. We think this contention is sound. Defendants cannot buy this property and pay only a part of the consideration for it. They must pay all the consideration they agreed to pay. This they have not done. It is true they caused to be executed to plaintiff a deed for the property on Avenue A, but this deed, it developed, conveyed no title, except as to two small triangular tracts. The plaintiff is entitled to have that property, or its reasonable or agreed value, before he is required to convey to defendants title to the property on Avenue D West. The trial court took the view that plaintiff could not recover unless he set aside this written lease. This view is erroneous. The lease expires by its terms unless defendants exercise their option to purchase the property, and they can do that only by paying the consideration named therein. Appellees contend that they are not bound by any alleged oral agreement to furnish good- title to the lots on Avenue A, since there was no writing to that effect, and that any oral agreement between the parties was merged in the deed from the lumber company to plaintiff. We need not analyze this argument closely. It is quite clear the parties did not reduce to writing all the elements of their agreement, but if oral provisions were in some respects embodied in the deed mentioned it is equally true that the prior oral agreements were merged in this written instrument called “the lease.” Defendants are not in position now to say that because they had some oral agreement by which they were to cause to be conveyed to plaintiff the lots on Avenue A, the provisions of which were not reduced to writing, they can avoid that part of the agreement which was reduced to writing, namely, that if they exercised their option to buy the property on Avenue D West they should pay the consideration named in the instrument therefor, namely, |8,000 with interest and the “other property,” the identity of which is not in controversy.
The judgment of the court below is reversed for-a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages on behalf of a child who was severely burned by falling into a pile of hot ashes on the municipal dump of Kansas City.
The pertinent facts were these: Along the right bank of the Missouri river at some distance northwest of its junction with the Kaw there is a tract of land belonging to the city which was dedicated by the founders of the town as a public levee for river traffic. (Kansas City v. Wyandotte County, 117 Kan. 141, 230 Pac. 67.) In an out-of-the-way place near the river on this unused levee, across some intervening railway tracks which skirt the edge of town, where its presence cannot annoy or offend the townspeople, the city .maintains a municipal dumping ground of some four or five acres, ■the use of which is regulated by city ordinances. The public is given 'the right free of charge to deposit on this dump any sort of rubbish, ■waste and discarded materials except garbage and stuff likely to 'become noxious to public health. The city keeps an employee at the dump on week days, whose business it is to show people where to unload their rubbish, and it is his duty to burn whatever is combustible and to keep the premises as sightly as its nature will permit. Among the many users of the dump to get rid of waste materials were certain milling companies, and two days before the accident giving rise to this lawsuit one of these companies brought four loads of grain dust to the dump. The city’s employee, known as the dump master, set fire to the dust on a Friday afternoon and it burned that ■day and Saturday. The dump master was on the premises until nbout 2:30 o’clock on Sunday afternoon. While such stuff had Teen known to smolder for several days, in this instance there was no smoke after the first day and the fire had transformed the pile of ■grain dust into whitened embers resembling “sand” according to •plaintiff’s petition, “a pile of brown stuff the color of the dust in the road” according to one witness, “a pile of gray, dusty brown-white .ashes” according to another.
In a distant part of the city there resided one Albert Bruce with 'his wife and three small sons, the youngest of whom was this plaintiff, a child of five years. The father, Albert, was desirous of procuring a top for his automobile, and a friend told him he had gotten ■such a top at the city dump, so on the Sunday afternoon following the burning of the grain dust Albert and his family drove to the vicinity of the dump, parked their car and strolled along the edge of the dump. As Albert, the father, and his wife, who was leading this plaintiff by the hand, walked along by the edge of the dump the two older boys dropped behind to play in this pile of ashes. Their little brother, plaintiff herein, desired his mother to release Tim, which she did, and he stumbled and fell into the hot ashes. The mother testified:
“I was about eight or ten feet from the boys when I heard the scream; I had been leading the little boy and he wanted loose so I decided to let him go.”
The plaintiff’s brother testified:
“Saw the place where my brother got into and got burned; it was like a pile of dust; we boys stopped near the place; we were going to play in it; my little brother stumbled and fell into the fire, there was no smoke coming <out of the fire. . . .
“I think my -brother stumbled over a rock or a wire and when he went down he got up and got out and screamed and my father ran after him. He got out of the fire before my father came.”
The father testified:
“I drove down Minnesota avenue to Third street, on east and across the railroad track and then I followed a road in northeasterly direction; the road was plain enough, although it was not what you would call a right smooth ■road; it was just a general road that the wagons would go in to the dump. The country down there is what you might say rough; when I got to the dump I stopped and I and my family got out; my three little boys were along. 'The boys were right along with us for a little ways, then they dropped behind; my wife and I went ahead. My attention was first' attracted when I heard one of them scream; I turned around and saw this boy was in a piie of what proved to be fire; it just appeared to be a pile of brown stuff that looks as much like the dust in the road, the color of the dust in the road; I had just glanced at it in passing, I noticed a pile ol stuff there; I did not notice anything there that indicated that it had fire in it; there was no guard or railing or anything around it to keep people from going around that or up to it, and there was nobody around there that said anything to me about .going near that or keeping away from it or giving me any warning of any kind; there was no one came up there after the boy got into it; I did not .see a soul around there in that particular neighborhood. I observed it more ■closely when I went back to the boy. I should judge that it was at least four .and a half or five feet across it at the ground level, and appeared to be .about two and a half feet in the center; it seemed to be dumped in a hole •on one side; on the side where the road was it was only just a very little •below the level of the road and on the other side there was quite a hole there; when I got back where the boy was he was standing in this brown substance that looked like road dust. The ashes, I suppose you would call them, were ■up something about half way between his feet and his knees; he was on his feet when I got back to him; his face and his hands were covered with what .1 supposed to be ashes. The weather was warm and he was barefooted. I don’t know how the boy got in there or why he got in or anything of that kind; when I got to him I took him up in my arms; when I heard him .scream I was possibly ten feet ahead of him; he was burned on the feet and legs, arms and hands. . . .
“Cross-examination:
“We got down to the city public dump something between four and five o’clock; I had never been there before. It' is quite a little ways from Third :and Minnesota over to where the dump was at that time. I would judge something like two blocks to the edge of the dump. ... I left the car on the west side of the dump and I and my family went along the road across the dump. I noticed the hole there that the boy got into as I walked by; it was the only pile of stuff that' looked like that; there were other piles of stuff there but not the same color; a pile about two and a half feet high and four .and a half or something like that through.”
Plaintiff’s petition narrated the facts of the injury and alleged:
“That said place where said plaintiff fell into said burning refuse was apparently cold, chaired and whitened embers only remained therein. That it was attractive to children and a place to play and naturally attracted the plaintiff to the place where the same was burned. . . .
“That said defendants carelessly and negligently failed and neglected to keep a watchman at said point where said refuse was burned close enough to warn plaintiff and other persons of his age from the dangers incident thereto, and from being around or about such places, and carelessly and negligently failed and neglected to in any manner guard said burning refuse at the place where plaintiff was burned . . . and carelessly and negligently failed and neglected to in any manner warn plaintiff of any danger . ,. . and carelessly and negligently failed and neglected to burn said grain dust and refuse in a reasonably safe place and in a reasonably safe manner and away from the likelihood of children of the age of plaintiff to come or to pass or to play.”
Defendant joined issues on these allegations and the cause was tried before a jury which returned a verdict of $5,000 against the city, and judgment was entered accordingly.
The city assigns error in overruling defendant’s motion for judgment on plaintiff’s petition and opening statement, and on overruling its demurrer to the evidence and on the general tenor of the court’s instructions, but centers its principal argument on the broad proposition that a municipal corporation is not liable in damages for injuries sustained by children on a free public dump maintained by it for the convenience of its inhabitants.
Counsel for the appellee do not contend that the maintenance of the dump was not an exercise of the city’s governmental functions (although there are respectable authorities to that effect), nor do they seriously challenge the settled rule' of law in this jurisdiction that for negligence in the discharge of its governmental functions a municipality cannot be subjected to damages except where some pertinent statute so declares. The familiar instance of the statutory liability of cities for negligence in the exercise of their governmental duties is the mob statute (R. S. 12-201, 12-202), and the typical exception to such general rule of nonliability in the absence of statute is that of injury to person or property caused by defective streets or sidewalks. (Rogers v. City of Coffeyville, 95 Kan. 171, 147 Pac. 816; King v. City of Parsons, 95 Kan. 654, 149 Pac. 699; Clark v. City of Hutchinson, 114 Kan. 172, 217 Pac. 305; Dalke v. City of Inman, 122 Kan. 728, 253 Pac. 240.) See, also, citations and instances of both liability and nonliability of cities for negligence in Rose v. City of Gypsum, 104 Kan. 412, 419, 420, 179 Pac. 348. Later instructive cases touching the nonliability of cities for negligence in the exercise of their governmental functions are Gilliland v. City of Topeka, 124 Kan. 726, 262 Pac. 493; Warren v. City of Topeka, 125 Kan. 524, 265 Pac. 78; and Foster v. Capital Gas & Electric Co., 125 Kan. 574, 265 Pac. 81. In the Foster case just cited the trial court held the city liable for negligence in various respects, but particularly in the careless manner in which it had left the soil around a sewer which it had constructed. The soil was left loose and untamped. A gas main was laid above the sewer. When the rains came the loose soil about the sewer washed away, leaving the gas main without support. In consequence it broke; the gas escaped into a house and blew it up and wrought terrific damage to persons and property near .by. On appeal the city invoked the rule of nonliability for negligence in the discharge of its governmental functions and that the construction and maintenance of a sewer was of that character. This court held:
“The construction and maintenance of a sewer ordinarily is a governmental function as distinguished from ministerial or proprietary.” (Foster v. Capital Gas and Electric Co., supra, syl. ¶ 4.)
In the opinion it was said:
“What is here said with reference to liability of the gas company does not apply to the defendant city. In our opinion the city is not liable because the injury was too remote and because the city was engaged in a governmental function. The general rule is that municipal corporations are not liable in damages for negligence of their officers in the discharge of their duties when engaged in governmental functions, unless the liability is expressly imposed by law. (Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018.) There have been cases before this court in which the municipality was held liable for negligence in carrying out, constructing, or maintaining municipal improvements. (Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; King v. City of Kansas City, 58 Kan. 334, 49 Pac. 88; Wholesale Grocery Co. v. Kansas City et al., 115 Kan. 589, 224 Pac. 47.) In the King case it was said:
“ ‘In such cases, however, if through any negligence in carrying out the plan or in constructing or maintaining the sewers, the property of a private owner is injured, a liability will arise.’ (Syl. f 2.)
“It will be noted, however, that the cortrt in deciding those cases, did not consider or pass upon the question as to whether or not the city was engaged in a governmental function. ... In the instant case it is argued that the construction of a sewer is a ministerial and not a governmental function, and that the city is liable for any tort committed in the performance of a minis terial function. We think not. The construction and maintenance of a sewer, in our opinion, is governmental as distinguished from ministerial or proprietary. . . . We are not unmindful of a contrary view held in Lockwood, v. Dover, 73 N. H. 209, where the question is well discussed, but think the rule above announced, that the construction of a sewer is a governmental function, is the better rule, and therefore the city is not liable.” (pp. 578, 580.)
A critical examination of some of our cases where cities have been held liable for negligence will show that however stoutly the city’s liability was resisted on miscellaneous'grounds no defense whatever was made on the broad ground of its nonliability for negligence in the discharge of its governmental functions. This fact was remarked in Gorman v. City of Rosedale, 118 Kan. 20, 234 Pac. 53, where damages were demanded based on the city’s negligence causing the death of a boy in an artificial channel and tunnel for a turbulent and noxious stream. It was there said:
“The case of Roman v. City of Leavenworth, 90 Kan. 379, 133 Pac. 551; Id., 95 Kan. 513, 148 Pac. 746, is urged on our attention as supporting the contention of plaintiff. Measurably so it does. At the first presentation of that case in this court the law of the case, rightly or wrongly, was settled (Gratney v. Wyandotte County, post, p. 101) and an affirmance of the judgment at the second hearing, after a jury had settled the facts, followed as a matter of course. In that case a boy was burned by going into a smoldering city dump and the city was held liable; but the question whether the dump was maintained by the municipality in its governmental capacity or in its quasi-private proprietary capacity was not raised and was not decided.” (p. 26.)
In support of the judgment in this case, however, appellee urges the point that although a city may not be liable in damages occasioned by the negligent manner in which its governmental functions are performed that immunity does not extend so far as to relieve the city where the damage or injury is caused by a nuisance created and maintained by the municipality. There is good authority to that effect. Perhaps the defective street and defective sidewalk cases cited above belong, in principle, in that category. Another example is that of Malchow v. City of Leoti, 95 Kan. 787, 149 Pac. 687, L. R. A. 1915F, 568, where a recovery was allowed against a city for injuries sustained by a plaintiff by the bursting of the oil glass of an engine which was furnishing the motive power for a merry-go-round which the city authorities had permitted to be set up and operated in a public street. One can hardly quarrel with the court’s pronouncement in that case that a merry-go-round in a city street with its attendant guy ropes, cable, engine, tank and fuel is a nuisance, and liability could be based on the city’s breach of duty to keep its streets safe for public travel — although the decision may be open to criticism that the causal connection between such delinquency on the part of the city and the plaintiff’s injuries was too remote. Another familiar case where the city was penalized on the nuisance theory of municipal liability was that, of Kansas City v. Siese, 71 Kan. 283, 80 Pac. 626, where a boy was drowned in a pond casually created by the construction of a fill across a ravine to bring a street to the proper grade. The fill or embankment formed a dam where water accumulated and a sewer flume was laid on piles over the surface of the pond. Boys were wont to frequent the pond to fish and swim. The sewer pipe served as a footway from which to spring or dive into the pond; and one lad who couldn’t swim walked out along the sewer pipe, jumped in and was drowned. This court held that the city was liable under the rule of the “turntable cases.” In Harper v. City of Topeka, 92 Kan. 11, 14, 139 Pac. 1014, the Siese case was noted as an exception to the rule of nonliability of cities, but an extra and belated prop was put under its dubious soundness by an intimation that it might have been partly justified on the ground that this particular nuisance was “in or adjacent to a street in a thickly settled district of the city.” In the Harper case itself the pond was in a city park adjacent to streets in a thickly settled district of the city, and the pond itself had intentionally been made as “attractive” to children as practicable, and vastly more “attractive” than the pond in the Siese case in Kansas City; but the real ground for the decision in the Harper case, as in the later Gilliland and Warren cases, supra, was that the bench and bar of this and other states were gradually coming out from under the spell of the early “turntable cases.” (Railroad Company v. Stout, 84 U. S. 657, 21 L. Ed. 745; K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 686; and note in 14 L. R. A. 781 et seq.) Bench and bar have gradually come to realize that the “attractive nuisance” doctrine founded on the “turntable cases” had been carried altogether too far in succeeding decisions. Moreover, in the Siese case, too, no point was made touching the rule of the city’s nonliability for negligence in the discharge of its governmental duties — a rule of law which probably was not so familiar to the bench and bar as it is now. Although the pertinence of this rule in the Siese case is obvious, it was apparently not urged nor considered, so the decision quite naturally went off on the point that no essential difference could be discerned between it and Price v. Water Co., 58 Kan. 551, 50 Pac. 450, where the defend ant was a private corporation having no immunity for negligence on the part of its officers or employees. So, too, in Wholesale Grocery Co. v. Kansas City et al., 115 Kan. 589, 224 Pac. 47, no claim of immunity as a governmental agency was entered by the city, and that point was neither decided nor considered.
So far we have been examining the soundness of the rule urged by appellee that the city is liable in damages for the maintenance of an “attractive nuisance” as an exception to its general nonliability for negligence in the performance of its governmental functions. This court candidly recognizes the fact that all the cases where liability of the city has been sanctioned and where it has been denied cannot be harmonized; but it is our constant purpose to preserve their consistency as far as possible; and where not possible to search anew for a logical principle which should control in their determination. It is this latter alternative which must be applied to the present case. We are not satisfied to say that the municipal dump in Kansas City is an attractive nuisance because the pond in the Siese case, or the city dump in the Roman case, was so declared; and we are not now prepared to admit that the Kansas City municipal dump was a nuisance of any sort. Its maintenance was both a convenience and a necessity — as much so as a pesthouse (Butler v. Kansas City, 97 Kan. 239, 155 Pac. 12), and it was kept in as shipshape fashion as a public dump could be. Its location was off the path of street traffic, and it was not shown that it could be fenced or barricaded so that small boys would not come on to it. Touching the failure of the city to have a caretaker constantly on guard to keep little boys from playing on the dump, it is difficult to see what a city caretaker could have done that the parents themselves could not do equally well or better. Be that as it may, and notwithstanding many authorities to the contrary, we find ourselves in good company when we‘hold squarely, as we feel compelled to do, that in the maintenance of a free municipal dump where the public were privileged to dispose of waste materials and miscellaneous rubbish and in the burning of such rubbish as was combustible the city was exercising a governmental function, and that the dump was not a nuisance per se, nor was the city liable in damages to plaintiff who was permitted by his parents to go on the dump to play and who tripped and fell upon a pile of hot ashes and was injured thereby. To this effect are: Savannah v. Waters, 33 Ga. App. 234, L. R. A. 1915C, 741; Montain v. Fargo, 38 N. D. 432, L. R. A. 1918C, 600; Moulton v. Fargo, 39 N. D. 502; Haley v. Boston, 191 Mass. 291, 5 L. R. A., n. s., 1005 and note; Scibilia v. Philadelphia, 279 Pa. St. 549, 32 A. L. R. 981 and note; 19 R. C. L. 1128. Among many cases to the contrary, which we have patiently perused and found worthy of note are: City of Denver v. Davis, 37 Colo. 370, 6 L. R. A., n. s., 1013, 119 A. S. R. 293; Pass Christian v. Fernandez, 100 Miss. 76, 39 L. R. A., n. s., 649; City of Nashville v. Mason, 137 Tenn. 169, L. R. A. 1917D, 914. We get still another slant on this general subject in City of Selma v. Jones, 202 Ala. 82, L. R. A. 1918F, 1020, where it was held that a municipal dump may be abated as a private nuisance to an individual owner of adjoining property if the owner is peculiarly annoyed thereby. The case of City of Denver v. Porter, 126 Fed. 288, is also to the contrary, but it was governed by a rule of Colorado law which the federal court was bound to follow and which made the control of a public dump a matter of local corporate concern rather than a detail of the governmental function of caring for the public health, sanitation and general welfare.
In 6 McQuillin Municipal Corporations (2-d ed.) 806 it is said:
“In. the cleaning of streets, the collection of garbage, and the establishment and maintenance of dumping grounds and incinerators, while diversity of judicial views still prevails, late cases generally hold, with some exceptions, that such functions are governmental, rather than proprietary, exercised by the municipality as an administrative agency of the state or for the public in the interest of the public health and general welfare, and hence, negligence relating thereto creates no municipal liability, unless in the exercise of such power a nuisance in fact is thereby created and maintained by the municipality.”
See, also, White’s Negligence of Municipal Corporations, § 24.
The other objections to the judgment need no consideration. The judgment is reversed and the cause remanded with instructions to enter judgment in favor of defendant.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by a cooperative marketing association organized under R. S. 17-1601 et seq. against one of its members for damages, at 25 cents per bushel, as stipulated in the membership agreement, for wheat alleged to have been grown or produced by him in the years 1922 to 1925, inclusive, and not delivered to the association. The jury found for plaintiff as to wheat produced in 1922, and as to this no question is now raised. It was defendant’s contention that he quit farming wheat after the harvest of 1922 and leased his farm to his son, nineteen years of age, for a cash rent of $1,500 per year. Issues were joined on this contention as to whether it was in good faith, or was it subterfuge by which defendant sought to evade carrying out his contract with plaintiff. The jury, in answer to special questions, found that the lease was made in good faith and that defendant produced no wheat in the years 1923, 1924 and 1925. These findings were approved by the trial court and judgment rendered accordingly, and the plaintiff has appealed.
Appellant argues that the defendant could control the wheat produced on his land in the year's 1923, 1924 and 1925, and in support of that cites the case of Burley Tob. Growers’ Coöp. Assn. v. Devine, 217 Ky. 320. In that case a member of the association, who had become dissatisfied with his contract, was a tenant growing tobacco on land owned by another. He had the lease for the year in question made to his daughter, who in fact was working away from home. She did nothing in" the way of growing or harvesting the crop nor employing persons for that purpose. The court very properly held that the lease made in her name was only a device by which defendant sought to avoid carrying out the marketing agreement. Appellant also cites Oregon Growers, etc., Assn. v. Lentz, 107 Ore. 561, in which the member had contracted to deliver loganberries grown by him to the association. He became dissatisfied with the association and one year declined to deliver berries grown on his land. When sued he pleaded that, being in poor health, he had leased his premises to his eighteen-year-old son under an agreement that the son should cultivate the place, sell the products, pay all expenses, and divide the profits equally with the father. Under the facts disclosed by the evidence in that case the trial court held that the transaction did not relieve defendant from his obligation to deliver berries to the plaintiff in accordance with his contract. Appellant also cites Main v. Texas Farm Bureau Cotton Ass’n, 271 S. W. 178 (Tex. Civ. App.). There the member of the association was the landowner. He made a contract with a tenant to grow cotton on his land and to pay as rent one-fourth of the cotton raised, but that the tenant should sell the cotton and pay him the money received for it. The court held that this did not relieve the landlord from his obligation to sell the one-fourth of the crop to the association. In the opinion it was said:
“The contract by defendant with his tenants was not what is known as a money-rent contract — a contract stipulating certain money rent, regardless ■of the crop raised — but is a part-crop contract in which the rent received is to be measured by one-fourth of the crop produced. The landlord’s interest was in the crop, and the fact that he authorized his tenant to sell his part and give him the money does not change the status of that interest.” (p. 179.)
Appellant also recites Feagain v. Dark Tobacco Growers’ C. A., 202 Ky. 801 (followed in Dark Tob. Growers’ Coöp. Assoc'n v. Daniels, 215 Ky. 67), where it was held that the landlord had power to control delivery of agricultural products raised by his tenants. But the ruling in this case was based on the Kentucky statute (Acts 1922, ch. 1, §18 [c]), which provides in substance that a landlord is conclusively presumed to have the power to control delivery of crops grown on his land; and in the opinion it was said:
“It was within the power of the legislature to provide a rule of conclusive presumption on the question of the landlord’s power to control the delivery of the products (Young v. Duncan, 218 Mass. 346, 106 N. E. 1), and, as a conclusive presumption cannot be overcome by contrary proof, the effect of the provision is to put it out of the power of either the landlord or the tenant to plead or prove any fact tending to show that the landlord did not have .such control.” (p. 803.)
We have no such provision in our statute, hence the citation is not in point. We note, however, in that case the member had leased his land for a share of the crop. The tenant was willing to ■deliver his share to the association. It was the landlord who was refusing to deliver his share.
In this case the defendant was required to deliver to the association the wheat grown by him within the term of his contract. But he was not required to continue growing wheat. He could quit growing wheat if he wished to do so and raise other crops, and there is nothing in his contract to prevent him from leasing his land for cash rent. The question whether such lease was a device or subterfuge to avoid his carrying out his agreement with the association is largely a question of fact. (Kansas Wheat Growers Ass’n v. Lucas, 124 Kan. 773, 775, 262 Pac. 551.) If the pretended leasing was such a device or subterfuge, the member would be liable to the association to the same extent as though he had grown the wheat himself, but if it were in fact a leasing in good faith for a cash rent, he would not be so liable.
It is argued that the finding of the jury that the lease was made in good faith is not supported by the evidence. The points urged on that might well have been, and no doubt were, urged before the jury in the trial court. It was a situation to be scrutinized with care, and the court so instructed the jury. We examine the question only so far as to see whether there was evidence sufficient to support the finding and judgment. The evidence disclosed that the defendant was a man advanced in years. His wife was not living. He had suffered a heat stroke which to a large extent incapacitated him from conducting the farm. He had a son, almost grown, who was willing to work and to take over the farming operations, and apparently ambitious to be an intelligent, successful 'farmer. The son leased the land, procured machinery and put out the crop, attended the Agricultural College at Manhattan two short terms, was home, and harvested and cared for the crop. It is true the father did do a little work in connection with this crop, and the son used some of the father’s machinery. It is also true that one year when the crop was rather poor he paid only $1,200 instead of $1,500 as rent, and one year when the crop was better than usual he paid $1,600. But these are all questions that go to the good faith of the transaction. Had the jury found the other way there would have been evidence to support the findings. But it did not so find. It is the function of the jury and the trial court, who saw and heard the witnesses, to weigh their evidence.
Appellant suggests that defendant could not make this contract with his son because the son was a minor. But this suggestion has no substantial merit. Perhaps the minor could have avoided the contract because of his minority, but there is no intimation in the evidence that he attempted to do so, and it is not for that reason invalid as a matter of law.
Finding no error in the record, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy chiefly presents the question whether an administrator may maintain an action in the district court to determine who are the heirs of a decedent when administration of the estate is pending in the probate court. A demurrer to the-administrator’s petition was sustained, and he appeals.
The facts were substantially as follows: Thomas Conway died intestate in April, 1928. He had never been married and, so far as was known at the time of his death, had no heirs. He left an estate valued at approximately $70,000, consisting largely of personal property, although a small portion consisted of an interest in real property, which was and is producing oil. The plaintiff was appointed administrator of Conway’s estate; qualified, took possession of the personal property belonging to the estate, received from the •oil company operating the oil wells all royalties therefrom, and had at the time of the filing of this action between $50,000 and $60,000 acquired from the personal property and royalties for oil. Thirty-three persons appeared, claiming to be heirs of Conway and entitled to participate in the property now in the hands of the administrator. The administrator in his petition sought a finding and judgment determining the heirs at law of Conway and the extent to which each was entitled to share in the distribution of funds in his hands after payment of the debts of the deceased and the charges of administration.
The first cause of action deals with personal property properly constituting the estate of the deceased, in control of the administrator; the second, with funds belonging to the heirs which have been paid to the administrator, although as administrator he had no-legal right to receive them. While the principal controversy indicated by plaintiff’s petition is one as to who are in fact the legal heirs of Thomas Conway, the question is presented and argued at •some length as to whether the probate court has jurisdiction to •determine the ownership of the fund derived from the sale of the oil now in the hands of the administrator. We are of the opinion that so far as the issues are concerned they are controlled by the question as to who are the heirs of Thomas Conway. No' claim of ownership to any of the property or funds is made adverse to the heirs or to the estate. The second cause of action refers to the first and makes the same a part so far as applicable. It then states, among other things:
“That this plaintiff holds the funds so paid him for such royalty in trust for the heirs at law of the said Thomas Conway, deceased, but that- the plaintiff does not know, and with diligence is unable to ascertain, the names or whereabouts of the heirs at law of the said Thomas Conway, deceased, and that the defendants named in the caption of this petition are claiming to be his heirs at law, and are each claiming to own all or an interest in the money in the hands of this plaintiff and derived from said royalty as aforesaid, and some of said defendants are claiming title thereto adversely to each other, and this plaintiff cannot safely pay said funds so held by him in trust to any of said defendants until their right, title and interest thereto are determined, and by reason thereof this plaintiff is entitled to an adjudication as to who are the heirs of the said Thomas Conway, deceased, and adjudication as to the right, title and interest of the several defendants in and to said funds in this plaintiff’s hands and.derived from the royalty received from the sale of oil and gas from said lands.”
From the allegations of the petition we conclude that a determination as to who are the lawful heirs will in itself solve the problem which the plaintiff presents. The authorities cited by him favorable to jurisdiction of the district court, appear to deal almost exclusively with claims arising outside the administration of estates and are not authority on the question of the probate court’s jurisdiction to determine who are the heirs of the deceased.
Probate courts have jurisdiction of all matters connected with the settlement of the estates of deceased persons. Specific authority is conferred upon them to settle the accounts of administrators and to order and make distribution of estates. They therefore have jurisdiction to determine who is entitled thereto. Their judgments are ordinarily conclusive and final unless vacated by appeal, impeached for fraud or set aside by direct proceeding brought for that purpose. Ordinarily where two courts have concurrent jurisdiction the court which first takes cognizance of the cause retains it to the exclusion of the other, and while the district court has jurisdiction of some matters relating to the estates of deceased persons it is an equitable jurisdiction not to be exercised where the plaintiff has a plain and adequate remedy in the probate court. (See Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86.)
In Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435, it was said:
“The probate court is a court of exclusive jurisdiction over the distribution of the estates of deceased persons, subject to the appeal to the district court. Its orders made in the exercise of its jurisdiction cannot be collaterally attacked and their effect frustrated by proceedings in other courts. . . . Where two courts have .equal jurisdiction over a subject matter of dispute and the parties to it, the one which first obtains jurisdiction is entitled to continue in its exercise to the end. While probate courts are in a sense courts of inferior jurisdiction, they are not inferior in the sense that the superior courts will ignore their judgments and orders, or undertake their correction otherwise than upon appeal or by other modes provided by statute.”
In the recent case of Correll v. Vance, 127 Kan. 840, 275 Pac. 174, it was said:
“Where a party has a plain and adequate remedy by an ordinary legal proceeding in a probate court, touching a matter over which the probate court is already exercising jurisdiction with ample power to grant the relief prayed, he may not invoke the jurisdiction of the district court to accomplish the same purpose.” (Syl.)
See, also, Carter v. Christie, 57 Kan. 492, 46 Pac. 964; Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737; Scruggs v. Scruggs, 69 Kan. 487, 77 Pac. 269; Blackwood v. Blackwood, 120 Kan. 72, 242 Pac. 451; Parsons v. McCabe, 127 Kan. 847, 275 Pac. 173.
Of course, there may be circumstances where findings of the probate court with respect to who are entitled to the distributive shares of the estate are not conclusive. (See Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, and cases cited therein.) Situations may exist in which persons claiming such shares might bring and maintain actions in the district court. This, however, would not concern the administrator. He is appointed by the probate court; and when he makes distribution in accordance with the orders of the court he has no further responsibility in the matter. If there are conflicting claims between persons with respect to their rights, or shares of the estate, they may present such claims either to the probate court or they may bring independent actions in the district court. In the instant case, when the heirs have been ascertained in 'the probate court and their respective rights determined, we think the plaintiff who is acting as a trustee in so far as the oil royalties are concerned, will find little difficulty in distributing them to their rightful owners.
The judgment is affirmed.
Harvey, J., concurs in the order of affirmance. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by the defendant life insurance company from a judgment against it and in favor of the plaintiff, who is the widow of the deceased, under a policy insuring the lives of both husband and wife for the benefit of the survivor of them. The defense was that the policy had been canceled and forfeited for failure to pay premiums after due and legal notice thereof was given, and that the automatic extension of the policy had been exhausted before the death of the insured because of the making of a loan on the policy. The reply alleged under oath that the signature of the plaintiff to the loan certificate, assignment and agreement was a forgery; that she never authorized the making of the loan or assignment of the policy, never consented thereto, received any benefit therefrom, nor knew of it prior to the death of deceased.
Appellant alleges error in the failure of the court to sustain its demurrer to the evidence of the plaintiff and also in the failure to give the jury a peremptory instruction to find in favor of defendant company.
The reply having been verified, we will for the purposes of the demurrer have to place the burden of proof as to the execution of the loan papers by the plaintiff upon the defendant, which is equivalent to an admission that they were not signed by her nor by her authority. Appellant contends that the demurrer to the evidence should have been sustained irrespective of her signature to the loan papers. The record of the order of the introduction of the evidence is not entirely clear and definite, and for that reason we cannot conclude there was error in the overruling of the demurrer to the evidence.
The theory upon which the court overruled the demurrer and. later instructed the jury was that the action was upon a joint policy of insurance. Separate applications were made for the insurance and the husband and wife each named the other as beneficiary. The company apparently used the general form of policy, but inserted both names together, designating them as insured and the survivor of them as the beneficiary, using the following language:
. . Hereby promises to pay one thousand dollars upon receipt of due proofs of the death of Charles H. Antrim or Phcebe Antrim (husband and -wife) the insured, to the survivor hereof (Charles H. or Phoebe Antrim) or to such other beneficiaries as may have been duly designated by the insured.”
The following is the provision in the policy as to change of-beneficiary:
“The insured may change any designated beneficiary at any time during the continuance of this policy, provided it is not then assigned, by filing with the company a written request accompanied by this policy, such change to take effect upon the indorsement of the same on the policy by the company, whereupon all interest of the former beneficiary shall cease. If no beneficiary shall survive the insured, the policy shall be payable to the insured’s executors, administrators or assigns.”
The following is part of the provision as to the right to secure a loan on the policy:
“The insured is entitled to cash loans on the sole security of this policy at any time after the payment of three full years’ premiums. ... A proper loan agreement [and assignment] of the policy must be executed by the insured.”
Is this a joint policy? In some of the correspondence it is so designated by the officers of the company, but that will not make it such if it is not such.' Are both parties insured? Yes, in one way, depending upon a contingency. It was never intended but for one of them to be insured and for the other to be the .beneficiary. All parts of the policy should be made effective, and if so and it is joint, how is the privilege of changing beneficiaries to be exercised? Must both parties agree upon another beneficiary? They have acted separately in their applications in the matter of choice of each other. Why can they not under this privilege continue to exercise the privilege separately? It is ultimately only for one such beneficiary. Upon the death of the husband the whole matter is terminated and the choice of beneficiary for the insurance on plaintiff’s life is of no more concern.
“Where a policy is on the lives of two persons, the proceeds being payable to the survivor, each of the two persons is an express party to the contract, .and, by the terms of the policy, each may be bound by the conduct of the other and obligated to perform the whole undertaking, but they are not joint tenants, as their respective expectancies depend on different contingencies and cannot vest at the same time.” (37 C. J. 410.)
“The general rule that insured cannot assign or transfer the policy without the consent of the beneficiary has no application where the policy by its terms gives insured the right to change the beneficiary, or assign the policy, provided this is done in the form expressed in the contract. In such case, the right of the beneficiary vests conditionally only, and he acquires no vested right or interest in the policy.” (37 C. J. 434.)
“Although the interest of the beneficiary in a life policy is a vested one, nevertheless the insured may enter into such arrangements with the insurer as may be agreed on, either as to the persons who are to receive the benefit of the policy, or as to what control over it the insured is to exercise. In this respect an insurance policy does not differ from any other contract, and is subject to the same general rules of interpretation, and the insured may reserve his right to change the designation of the beneficiary in whole or in part. In such case no indefeasible interest is vested in the named beneficiary nor settlement made upon him which cannot be revoked, and such reservation may be expressed in the policy itself or some instrument properly made a part thereof.” (2 Joyce on the Law of Insurance, 2d ed., § 731.)
“Provisions of a life insurance policy upon the lives of two persons, providing for the payment of the insurance fund to the survivor of the first decedent, examined, and held, that the policy in question, so far as the insurance futíd payable on such contingency is involved, is a several policy upon the life of each of the assured, and that the interest of the assured persons in such expectancy is not a joint tenancy, by reason of which one takes by the right of survivorship upon the death of the other, but that the survivor takes, if at all, under the contract.” (Equitable Life Assur. Soc. of the U.S. v. Weightman, 61 Okla. 106, syl. ¶ 3.)
The reasoning in the case last cited applies well to the instant case to the effect that while the policy insures both lives and for the purpose of convenience adopts a joint expression designating both as insured and joint enjoyment of intermediate benefits and privileges, the real gist of the contract was that it was a separate policy upon the life of each of the insured for the separate benefit of each of the insured. It does not have in itself the usual four essential unities for joint tenancy, viz., unity of interest, title, time and possession.
If the policy is not a joint contract as to the plaintiff and her husband, now deceased, there can be no question as to his right to effect a loan on it without her joint action thereon or her consent thereto or approval thereof. Appellee has cited a number of cases where loans on policies quite like this were held invalid because made without the signature or consent of the wife, but upon careful examination of these cases it is found that no provision was contained in those policies as to the right to change beneficiaries.
A very strong case cited is that of Life Insurance Co. v. Willoughby, 99 Miss. 98, holding that the wife was not estopped or in any way bound by her husband’s action in making a loan on the policy without her approval. The same court ten years later in the case of Lamar Life Ins. Co. v. Moody, 122 Miss. 99, referred to the former decision as being on a policy where the insured had not reserved the right to change the beneficiary, and concluded as follows:
“The insured may pledge policy to the company for loan without the consent of the beneficiary, where it appears that insured reserved the right to change the beneficiary. Beneficiary has no vested right in the proceeds of such policies.” (Syl.)
The contingency at the time the policy in the case at bar was issued no longer exists. We are now able, since the happening of the contingency, to designate the particular parties then referred to by indefinite terms. The insured is the husband; the beneficiary is the plaintiff. The plaintiff is not now and never can be the insured under this policy. The insured had the full right to make a loan on the policy without consulting the beneficiary by the terms of the loan provision, and although the company required her signature and approval, and the husband may have resorted to improper means to meet that requirement, it was unnecessary, for his own signature was sufficient under the terms of the policy.
“So an assignment executed by a person whose life is insured, but not by the beneficiary, is inoperative. If, however, the policy so- stipulates, or, the right to assign is reserved, the consent of the beneficiary is not necessary.” (4 Joyce on the Law of Insurance, 2d ed., § 2327.)
In addition to the loan provision on the subject the assignment of the policy for loan purposes is a temporary and limited change of beneficiary which the husband could make without the wife’s signature or consent.
There is another reason in this particular case why the husband could make this loan and make the assignment of the policy as security therefor, and that is as the authorized agent of the plaintiff. In her separate application for the insurance she gave his name and address in answer to the following question: “To whom shall any notice be sent? Give name, residence and street number.” She testified that he always kept possession of the policy himself, and that he sent the premiums to the company and transacted all the business with the company; that she intrusted all that to him. This would constitute him as her agent for all usual and ordinary transactions concerning such business matters, but of course not to the extent of signing and acknowledging her name and signature to written instruments.
There is a third reason why the plaintiff cannot recover in. this action. Plaintiff knew of the notice having been sent to her and her husband on September 1, 1925, stating the premium due July 31, 1925, had not been paid, and that unless paid within thirty days the policy would be forfeited, canceled and of no effect except as provided therein. The policy provided for automatic extended insurance and for deduction of indebtedness in connection therewith. There is no evidence of any investigation as to amount of indebtedness or period of such extension. This very notice contained a statement of the delinquency — premium less reduction, $27.90, and P. L. Int. (policy loan interest), $6.66; total, $34.56. Can the plaintiff with this notice before her say she never heard of a loan having been made on the policy? The evidence shows the loan was for $111. Interest for one year at the usual rate is $6.66. The policy states that “interest shall be at the rate of not to exceed six per cent per annum.” On October 12, 1925, they were both notified by letter from the company that the policy had lapsed for failure to make payment of premium, and the letter contained a suggestion of reinstatement if done within a limited time. It also contained two references to interest being due, and gave the amount necessary for reinstatement as $34.84 instead of the usual semiannual premium of six or seven dollars less. On January 9, 1926, they each made an application for reinstatement, inclosing two checks totaling $35.34, to pay delinquency in premium and also interest on the policy loan as per statements received from the company. The applications for reinstatement were not granted because of medical examination, of which they were duly notified on January 27, 1926, and the two checks were returned to them. By deducting the amount of the loan, the automatic extension ended about two months before the death of the husband, which was nearly eighteen months after the payment of premiums became delinquent, about sixteen months after she had been notified of interest being due on the policy loan, and nearly a year after she and her husband had sent the interest and premium required for reinstatement. These facts shown by letters and documents introduced in evidence preclude or estop the plaintiff from asserting an attitude inconsistent therewith.
We therefore conclude that for these three reasons, viz., that the policy not being a joint policy the husband could under its provisions make a loan without the consent of his wife; second, that the wife had in her application and by her subsequent conduct constituted him as her agent to transact all usual business matters in connection with such policy, and-his knowledge was therefore her knowledge of such transactions; and third, because she is estopped from maintaining an attitude with reference to a knowledge of the loan that is inconsistent with her previous acts and business connection therewith as shown by documents and letters — the trial court should have given the peremptory instruction requested by the defendant and rendered judgment for defendant for costs.
The judgment is reversed and cause remanded with instructions to set aside the judgment heretofore rendered, and enter judgment for the defendant for costs. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to foreclose a mortgage. The sole question here presented is whether the mortgage is a lien on the real property in controversy, and if so, the extent of such lien. The trial court held it to be a first lien, and from this the defendant, William Brooks, has appealed.
The facts, except as to one or two details, are not seriously controverted and may be stated as follows: William Brooks was, and had been for many years, the owner of a certain 440 acres of land in Norton county. On May 26, 1920, he and his wife contracted to sell this land to Frank Kemper for $20,240. Kemper paid $2,000 at the time the contract was made and $440 about thirty days later. By the terms of the contract he was to pay the entire balance of the purchase price March 1, 3921. Brooks and wife executed to Kemper a general warranty deed for the property, had abstracts brought to date, and by agreement of the parties deposited the deed and abstract and the contract in escrow in the First National Bank of Logan, Kan., the deed and abstract to be delivered to Kemper on the payment of the balance of the purchase price. Kemper went into possession of the real property, as by the contract he was authorized to do. On March 1 or 2, 1921, Kemper borrowed $5,000 from Henry Kelling, which money he paid to Brooks on.his contract. He had previously borrowed $600 of Kelling, hence the note was made for $5,600. To secure this note he gave a mortgage on 160 acres of the 440 acres which he had contracted to buy from Brooks. This mortgage was recorded sometime in May, 1922. This is the mortgage foreclosed in this action. Kemper thought he could get the balance of the money from other sources to pay Brooks, but was unable to do so, and a few months later, although dated March 1, 1921, Kemper and Brooks executed an agreement extending the time for the payment of the balance of $12,800, with interest under the original contract, to May, 1922. Kemper was unable to pay the balance within that time, and Brooks brought an action against Kemper to foreclose his contract as an equitable mortgage for the balance due thereon, $12,800, with interest, and procured a decree of foreclosure, and the property was sold and purchased by Brooks for the total amount due thereon. Thereafter, and in May, 1925, Henry Kelling brought this action for a personal judgment against Frank Kemper and his wife on the note for $5,600 and interest, and to foreclose his mortgage on the 160 acres of land given him by Kemper and wife as against Kemper and wife and William Brooks and wife.
The mortgage in question was executed at the First National Bank of Logan, March 2, 1921. Kemper had previously arranged with Kelling to borrow $5,000 from him, and they were to meet at the bank. Kemper met Brooks outside of the bank before the mortgage was executed and told Brooks he was getting $5,000 from Kelling. There is a controversy as to this conversation. Kemper testified that he told Brooks that to get the money from Kelling he would have‘to give a mortgage on 160 acres of the land, and Brooks said that would be all right. Brooks testified that Kemper spoke to him about giving a mortgage on the land, and he told Kemper that he did not want it mortgaged. The court’s finding was in accordance with Kemper’s testimony, and this settles the controverted facts so far as this court is concerned. Brooks was not present in the room in the bank when the mortgage was drawn, or if there at all, took no part in any conversation or transaction, although he knew that some papers were being drawn and probably suspected a mortgage was being drawn. He told D. L. Noone, the active managing officer of the bank, who drew the papers that day prepared, to look after his interests and not to let the deed and abstracts be delivered unless the full balance of the purchase price was paid. Brooks and Kelling had no conversation on that day about anything. After the note and mortgage had been executed by Kemper and wife, Kelling made two checks of $2,500 each to Kemper, which he deposited to his account, which Kemper then paid, or caused to be paid or credited, to the account of William Brooks. Kelling then asked Mr. Noone to send his mortgage to the register of deeds for record. Noone told him that it would do no good to send it; that Kemper had no title to the land — all he had was a contract of purchase — and that he would not have title until he completed his payments to Brooks. Kelling thought maybe he had not been treated right, talked of bringing a replevin suit for his checks or the money he had paid to Kemper, but in fact did nothing. A few weeks thereafter Kelling went to Kemper and insisted on- having some other security for the money he had loaned Kemper. Kemper told him he would give him another note with other persons signing it with him as surety. He did this, getting other persons to sign the note with him. He represented to Kelling that he would get a certain uncle of his to sign the note with him, but he did not succeed in doing that. He later took the note to Kelling’s house and left it there when Kelling was in the field. Kelling did not accept this note, other than as additional security. At the time his deposition was taken he had possession of the note and stated he would not give it up until he was paid. There was evidence to the effect that Brooks, prior to March 1, 1921, had purchased some other land from a man by the name of Biglowe and had agreed to pay him $6,000 on March 1, 1921, and there was a little evidence, other than above stated, tending to show that Brooks encouraged Kemper to make the loan from Kelling in order that Brooks might have the money to pay Biglowe. The trial court found that was true on the controverted evidence, and, so far as it has any real bearing on this case, it must be regarded as settled.
Jn support of the judgment of the court below it is urged here, and was urged in the court below, that by orally authorizing Kemper to give a mortgage to Kelling, in order to get from him $5,000 to pay Brooks on his contract, Brooks is estopped from denying that the mortgage is good as against him; and, further, that Brooks, having received as a payment on his contract with Kemper, the $5,000 which Kemper borrowed from Kelling, it would be unjust to permit him to retain it and contest the validity of the mortgage. The trial court’s judgment was in accordance with these views.
The judgment of the court below rests upon the equitable doctrine of estoppel by failure to disclose title. This principle has been stated in different wording in various cases, most of which are collected in the annotation in 50 A. L. R. 668-973, which annotation is an exhaustive treatise of the subject. The principle is there stated in its most general and comprehensive form as follows:
“The holder of an estate or interest in real property who stands by and remains silent with regard to his rights, when he knows that another party is undertaking to sell or mortgage the property to a third person, is estopped from thereafter asserting his estate or interest to the prejudice of that person, unless it appears that the latter had notice, either actual or constructive, of the real condition of the title.” (50 A. L. R. 671.)
Defendant contended that the principle could not be relied upon because of the statute of frauds (R. S. 33-106), which was sufficiently pleaded by his general denial in this case. (Wiswell v. Tefft, 5 Kan. 263; Jamison v. Christman, 95 Kan. 131, 148 Pac. 247.) But the statute of frauds is not an obstacle to the exercise of the equitable principle above mentioned, for the reason that a court of equity will not permit a statute designed for the prevention of fraud to be used as an instrument of fraud. (Thompson et al. v. Simpson et al., 128 N. Y. 270.) The equitable doctrine relied upon is predicated upon the theory that one who, by active conduct or by remaining silent when in fairness he ought to have spoken, shall be debarred or estopped from taking a different position at a later time, for to do so would be to permit him to perpetrate a fraud, (Harris v. American Building & Loan Association, 122 Ala. 545; Gray v. Crockett, 35 Kan. 66, 12 Pac. 129; Osborn v. Elder, 65 Ga. 360.)
But it is essential for the application of this doctrine that the party claiming to have been influenced to his injury by the conduct or declaration of another was himself not only destitute of knowledge of the true situation of the title, but also of any convenient or available means of acquiring such knowledge. (Brant v. Virginia Coal & Iron Co. et al., 93 U. S. 326, 337.) Our registry statutes are designed to enable persons dealing with real property to know something of the condition of the title. They were available to Kelling, and under the authority of many of the cases noted in 50 A. L. R., 734 et seq., he was bound, from that record, to know that the title of this land was in Brooks and was not in Kemper. But aside from such constructive notice the record in the case before us discloses that Kelling knew that Brooks had owned this land and had sold it to Kemper on a contract; that Kemper had not fully paid for it, and was borrowing this money to pay on this contract. Kelling met Kemper at the bank where this contract was held in escrow. Anything he did not know about it he could readily have learned either of Kemper or of D. L. Noone in charge of the bank. He did in fact know before he left the bank on that day, and perhaps before the mortgage was signed and he had paid any money on it, that Kemper did not have title to the land, for which reason the mortgage itself should not be recorded, and that it was useless to send it to the county seat. But he completed the loan, or let it stand, notwithstanding such knowledge. In Kelling’s deposition used on the trial of this case he was very positive in his statement that he made the loan and paid over the money in the belief that Kemper had good title to the land. Under the facts he was not entitled to entertain that belief, either from the public records, or from the information which had been conveyed to him with respect to it by Kemper and by the banker Noone. Perhaps what he did rely upon, to the extent he relied upon any representations other than the record as it actually existed, was the expressed hope of Kemper that he would be able to get from other sources the balance of the money to pay Brooks, which would enable him to get his deed and would make the mortgage to Kelling good; but this suggestion is somewhat speculative, and it is not material. The unquestioned facts are that Kelling had constructive knowledge from the public record that this land was owned by Brooks, and that Kemper had no title to it; and he had actual knowledge, conveyed to him both by Kemper and by Noone, that the land had been purchased from Brooks under a contract that Kemper could not get title to it until the contract price was fully paid. Brooks was in Logan on March 2, 1921. Kelling saw him there, but made no inquiry of him concerning the matter. He did not have the mortgage given him by Kemper recorded until May, 1922. In the meantime, and within a few weeks after the mortgage was given, he had gone to Kemper and had insisted on having additional security for the money he had loaned Kemper, and a new note with sureties was given him by Kemper, which was retained as additional security, but not as a substitute for the mortgage. Kelling made no claim against Brooks under this mortgage for interest, or in any respect, until he brought this action in August, 1925.
Under the situation disclosed by the record in this case the equitable principle relied upon by plaintiff is not applicable. To apply it here would permit Kelling, in the face of the condition of the record known to him, or at least readily available to him, and simply because of the silence of Brooks on the subject, to gain an advantage over Brooks in the transaction.
The result is that Kelling got a mortgage on Kemper’s interest in the property, but not upon the interest of Brooks. Before this action was brought Brooks had foreclosed, as against Kemper and his wife, the contract between them as an equitable mortgage. We take it from the record before us that Kelling was not made -a party to that action; therefore his rights as against Kemper were not barred by that action. All the parties are before the court in this case, hence the court can make a proper order applicable to all of them.
From what has been said it necessarily follows that Henry Kelling obtained by the mortgage in suit in this action no lien upon the interest of Brooks in the property described in the mortgage, and his executor, the plaintiff here, cannot enforce any lien by reason thereof as against Brooks.
The fact that Brooks received the money which Kemper borrowed from Kelling would not prevent Brooks from claiming title to the land. Brooks was entitled to receive from Kemper on that day not only $5,000, but $17,800, and he was not necessarily concerned with the arrangement Kemper made for obtaining that money. He did credit Kemper with the amount then paid. Kemper in fact had an equitable interest in the land by reason of his contract to purchase and the payments previously made. This was such an interest in the land that he might have sold it or mortgaged it. This equitable interest in the land was increased by the $5,000 which he then paid on his contract. The fact that he could sell or mortgage his interest in this property did not, of course, authorize him to sell or mortgage Brooks’ interest in it.
The judgment of the court below should be reversed as to the lien of the mortgage on the interest of Brooks in the property, and the decree of the court should be modified accordingly.
It is so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
An opinion in this case was filed December 8, 1928. (Citizens State Bank v. Warrenburg, 127 Kan. 43, 272 Pac. 115.) A rehearing was granted and the cause has been reargued. The opinion is entirely rewritten.
This action is one to recover on a promissory note dated February 28, 1925, payable ninety days after its date. The defendants answered that the note had been deposited by them with the Pacific-Southwest Trust and Savings Bank, of Long Beach, Cal., in escrow, to be delivered to I. S. Freeman on the completion of a real-estate trade between him and the defendant, S. K. Warrenburg. The answer contained the following:
“Defendants admit the execution of the note sued on in this action, but allege and say that the same never was delivered to the said payee named in said note, but on the contrary, was deposited in escrow in the Pacific-Southwest Trust and Savings Bank, at Long Beach, Cal., with the specific and expressed understanding and agreement that certain things should be performed by and on the part of the said I. S. Freeman, payee named in said note, before said note should be delivered, which said things to be performed and conditions to be completed were never performed by the said I. S. Freeman, nor was their performance waived in any manner by these defendants or either of them. . . .”
The answer also alleged that the plaintiff was not the owner of the note. The defendants asked for the recovery of $1,000 paid by them under the real-estate transaction, $117 taxes paid by them, and $430 interest paid on mortgages on the land conveyed to them. A jury was impaneled, evidence was introduced, and each side rested. The cause was then taken from the jury, and judgment was rendered in favor of the plaintiff for $500, the principal named in the note, and $110 interest thereon. The defendants were denied recovery on their claim against the plaintiff. The defendants appeal.
The complaint of the defendants is that the court committed error in taking the cause from the jury, in rendering judgment in favor of the plaintiff on the evidence, and in denying to the defendants any recovery on their cause of action against the plaintiff.
I. S. Freeman was exchanging real property in Woodson county, Kansas, for real property owned by S. K. Warrenburg in Long Beach, Cal. Freeman deposited with the Pacific-Southwest Trust and Savings Bank escrow instructions signed by him on October 4, 1924, containing the following provisions:
"I will hand you a contract for sale executed by I. S. Freeman, a widower, to S. K. Warrenburg, a married man, covering the following-described property: . . . Said contract is to be dated October 4, 1924, for the sum of $3,000, payable on or before December 4, 1924. Subject to: Oil lease on 80 acres of the above-described land, and a mortgage of record for $4,500 and a lease to farming tenant now on the land.
“I also hand you the following documents: . . .
“You are authorized to deliver all of the above to the order of S. K. Warrenburg when you hold for I. S. Freeman (1st) recorded deed of the following-described property, situated in the city of Long Beach, county of Los Angeles, state of California. . . .
“And the sum of $1,000 on or before ten days from date hereof. . . .
“In the event that the conditions of this escrow have not been complied with on or before November 4, 1924, you are instructed to complete the same at the earliest date possible thereafter, unless subsequent to said date I have made written demand upon you for the return of the money and instruments deposited by me. . . .
“As an additional consideration and as an inducement for the escrow holder to so act, it is understood that in the event of any disagreement between the parties to this escrow resulting in adverse claims and demands being made by them or any of them in connection with or for any papers, money or property involved herein or affected thereby, the Pacific-Southwest Trust and Savings Bank, escrow holder hereunder, shall be entitled at its option to refuse to comply with the demands of the parties hereto or any of them so long as such disagreement shall continue, and in so refusing such escrow holder may make no delivery or other disposition of any money, papers or property involved in or affected by this escrow, and in so doing the escrow holder shall not be or become liable to the parties to this escrow or any of them for its failure and/or refusal to comply with the conflicting or adverse demands of the parties or any of them; and further, that the escrow holder shall be entitled to continue to so refrain and refuse to so act until—
“1. The rights of the parties have been duly adjudicated in a court assuming and having jurisdiction of the parties and the moneys, papers and property involved in or affected by this escrow, and/or
“2. Until the parties hereto have reached an agreement in their differences and shall have notified the escrow holder in writing of such -agreement. . . .
“It is understood that whenever the phrase, ‘close of escrow’ appears in these instructions, that the same shall mean the date upon which the papers transferring the property involved are recorded. . . .
“I understood that the Pacific-Southwest Trust and Savings Bank, in the administration of this escrow, is to be bound only and solely by the foregoing written instructions, and such further written and signed instructions as I may, under the conditions herein imposed, from time to time; deliver to said bank; and said bank shall not be responsible or liable for any promise, representation, agreement, condition or stipulation not set forth therein. ...
“I have read the foregoing instructions, consisting of four pages, and understand the contents thereof, and should I desire to make any change in said instructions, which will affect any other party hereto, I agree to secure the assent .in writing of such other party before requiring the Pacific-Southwest Trust and Savings Bank to proceed with this escrow.”
S. K. Warrenburg deposited with the Pacific-Southwest Trust and Savings Bank escrow instructions dated October 4, 1924, which contained the following provisions:
“I will hand you deed executed by S. K. Warrenburg and A. A. Warrenburg, husband and wife, to I. S. Freeman, a widower, covering the following-described property; property situated at 936-942 Elm avenue, in the city of Long Beach. . . .
“I will also hand you the sum of $4,000, ... as follows: $1,000 cash on October 14, 1924; and $3,000 on or before December 4, 1924, by a contract to S. K. Warrenburg, executed by I. S. Freeman, a widower, covering certain lands located in Woodson county. . . .
“You are authorized to deliver all of the above to the order of I. S. Freeman, a widower, when you hold for S. K. Warrenburg, and A. A. Warrenburg, husband and wife (1st) recorded contract of the following-described property situated in the county of Woodson, Kansas. . . .”
Other than as above stated the escrow instructions deposited by S. K. Warrenburg were substantially the same as the escrow instructions deposited by I. S. Freeman.
The evidence disclosed that a difference arose between I. S. Freeman and S. K. Warrenburg concerning the land trade. Afterward, under date of November 28, 1924, S. K. Warrenburg deposited additional escrow instructions signed by him, as follows:
“The previous instructions in this escrow are hereby added to and/or amended in the following particulars only:
“You are instructed not to proceed further with the within escrow until advised by me, holding all papers deposited by me subject to my order.”
On February 19, 1925, additional escrow instructions signed by S. K. Warrenburg and I. S. Freeman were deposited with the Pacific-Southwest Trust and Savings Bank, as follows:
“The previous instructions in this escrow are hereby added to and/or amended in the following particulars only:
“You are instructed to hold for I. S. Freeman the sum of $1,500 instead of the agreement for sale as provided in original instructions, said agreement for sale being hereby canceled. Interest, insurance and rents are to be prorated to close of escrow.
“It is understood and agreed that I. S. Freeman is to pay the first half of taxes for 1924 on land located in Woodson county, Kansas.
“All other conditions contained in the original instructions to remain the same, and you are instructed to proceed with the closing of the escrow, it being understood that all cancellation notices filed with you are hereby rescinded, and rents deposited in escrow by the tenants to be released to S. K. Warrenburg and Effie Warrenburg, who are the record owners of the property located in Long Beach.”
On February 28, 1925, additional escrow instructions signed by I. S. Freeman were deposited with the Pacific-Southwest Trust and Savings Bank, as follows:
“The previous. instructions in this escrow are hereby added to and/or amended in the following particulars only:
“You are instructed to hold for me the cash sum of $1,000 and a note for $500 dated February 28, 1925, for a term of ninety days from date, with interest at 8 per cent payable at maturity. Privilege of payment prior to maturity. Note to be executed by S. K. Warrenburg, Effie Warrenburg, and D. W. Warrenburg.
“Instructions dated February 19, 1925, requiring a cash sum of $1,500 are hereby canceled, in so far as pertaining to this payment.”
The note sued on was dated February 28, 1925.
On March 23, 1925, additional escrow instructions signed by S. K. Warrenburg were deposited with the Pacific-Southwest Trust and Savings Bank, as follows:
“The previous instructions in this escrow are hereby added to and/or amended in the following particulars only:
“You are instructed to pay immediately to the Citizens State Bank the sum of $400 from the funds in the within escrow, which is to be used for the benefit of I. S. Freeman, for the purpose of completing refinancing of certain encumbrances between I. S. Freeman and J. E. Leonard and wife, in their escrow No. 127.”
On April 10, 1925, an additional escrow instruction signed by I. S. Freeman was deposited with the Pacific-Southwest Trust and Savings Bank, as follows:
“This is your authority to deliver to the Citizens State Bank of Long Beach that certain note which you hold in Warrenburg-Freeman escrow, in the amount of $500, as soon as escrow can be closed.”
The escrow instructions of each party authorized the savings bank to deliver the papers described thérein when the conditions named in the instructions had been complied with. There was evidence which tended to prove that those instructions had been carried into effect by the bank; that the deeds conveying the properties had been recorded by the bank; that there was ample consideration for the note when it was given; that it was deposited in escrow in the .savings bank under the instructions given to the bank; that it was delivered to the plaintiff bank April 14, 1925, before maturity; that there was ample consideration given by the plaintiff for the transfer •of the note to it; and that the note when it was delivered to the plaintiff had been indorsed by the payee named in it. The execution of the note was admitted.
The defendant S. K. Warrenburg testified in part as follows:
“From October to February Freeman had allowed interest to accumulate :and taxes to accumulate on this apartment property, and he agreed to pay .all this interest, expenses and taxes. About February 28, 1925, I put up another $1,000 in money and told him concerning the other $500 that would be due on the deal: ‘Now, Freeman, I’ll tell you what I’ll do. I will put up .a note for $500. You have agreed to pay all this interest, expenses and taxes, and I will put up a note for $500, and when those things are paid, you are to have this note, but if I have to pay them, I am to have the note back.’ ”
There was other evidence by S. K. Warrenburg and B. L. Warrenburg which tended to prove that, when the note was delivered by Warrenburg to the Pacific-Southwest Trust and Savings Bank, he instructed the bank not to deliver the note to I. S. Freeman until Freeman had paid the taxes on the Long Beach property, .amounting to $60, had paid paving taxes on that property amounting to $57, and had paid interest on mortgages thereon amounting to $430; that neither the taxes nor the interest was paid by Freeman; that before the note was transferred to the plaintiff bank it was notified of the terms and conditions under which the note had been placed in the hands of the Pacific-Southwest-Trust and Savings Bank; that the plaintiff bank.acquired the note as collateral .security for obligations owing to it by I. S. Freeman; that the note had been placed by I. S. Freeman in the plaintiff bank for collection; that when collected the proceeds of the note were first to be .applied on the obligations owing by Freeman to the plaintiff bank and the remainder was to be paid to I. S. Freeman.
There was nothing in the note sued on, nor in any of the escrow instructions, concerning the matters referred to in the testimony .of the Warrenburgs.
The judgment recites that—
“The court, after considering all of the pleadings and after hearing all of the evidence, and being fully advised in the premises, finds that the defendants were trying to change the terms of a written contract by parol testimony without alleging or proving any fraud or mistake, and for this reason finds that the cause should not be submitted to the jury, and therefore takes the case from the jury and discharges the jury from any further consideration in the cause, and finds the issues in favor of the plaintiff and against the defendants.”
In addition to the instructions to the savings bank to carry the escrow into effect by delivering the deeds that had been signed, the escrow instructions signed on February 19, 1925, by S. K. Warrenburg and I. S. Freeman, again instructed the savings bank to proceed with the closing of the escrow. The escrow instruction signed by I. S. Freeman February 28, 1925, said nothing about the note being delivered to Freeman after the payment of taxes and interest. That instruction and the note were dated the same day. By that instruction the $500 note was accepted in place of that much money. That instruction must have been given after Freeman had agreed to accept the $500 note in place of $500 in cash. The original escrow instructions provided that if any change should be made in them which would affect the other party, the person signing the change should procure the written assent of the other person before requiring the savings bank to proceed with the completion of the escrow. The change in the instructions by which Freeman agreed to accept- the $500 note in place of $500 in money was in writing signed by him, but the conditions Warrenburg placed upon the delivery of the $500 note to Freeman were not in writing. When the note was placed in the savings bank to complete the transaction between Freeman and Warrenburg, the note became subject to the conditions and terms of the original escrow instructions as modified by the subsequent amendments thereto. There was nothing in those instructions or amendments which provided that the note should not be delivered to Freeman when the transaction was completed. The giving of the note and the escrow instructions by which Freeman agreed to accept it apparently constituted one transaction. There was nothing said therein about the conditions claimed by Warrenburg. Those conditions did alter, change, vary and contradict the terms of the note and of the escrow instructions that were given by Freeman to the bank when the note was deposited therein. The plaintiff was entitled to recover on the note. The trial court was justified in taking the case from the jury and in rendering judgment in favor of the plaintiff.
The court was right in denying to the defendants any right of recovery from the plaintiff which was not a party to the transaction between Freeman and Warrenburg.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action in quo warranto brought by the state on the relation of the county attorney of Ford county, in the district court of Ford county, to test the validity of the organization of joint rural high-school district No. 2, Clark county, comprising land lying in Clark and Ford counties, and to enjoin the county clerk of Ford county from extending the tax levy, certified by the joint district, to the land in Ford county claimed to be included in the joint district. The case was tried by a judge pro tem., who made extended findings of fact and conclusions of law, rendering judgment in favor of the validity of the organization of the district, and the state appeals from that judgment.
The petitioners for the organization of the joint district were proceeding under the provisions of R. S. 72-3501, which directed that the boundaries of the proposed joint district may be approved “by the state superintendent of public instruction in case the county superintendents and boards of county commissioners of two or more counties shall fail to agree on the approval of the boundaries of the proposed district, and to establish, locate and maintain therein a rural high school as hereinafter provided.” The serious contention in the case is whether or not the board of county commissioners of Clark county approved the boundaries. It is conceded that the county superintendent of Clark county gave her approval thereto. It is not contended by the defendants that the approval of the county superintendent of Clark county alone would be sufficient as a basis of disagreement under the statute just quoted to take the case to the state superintendent of public instruction without the concurring approval of the board of county commissioners of Clark county. The record of the action of the board of county commissioners of Clark county is contingent and conditional to such an extent that taken alone it could scarcely be called an approval. It is as follows:
“The board agreed to approve the boundaries of the proposed rural high-school district, provided that the Ford county commissioners would also approve the same.”
This action was taken before the matter was formally presented to the Ford county board, which never did give its approval. If this were the sum total of the showing on this question it would, under the theory of both sides, lack a vital essential in making it a case that could be referred under the statute to the state superintendent. Thé statute plainly makes a disagreement between the officers of the different counties a prerequisite to the conferral of authority upon the state superintendent to determine the matter of district boundaries.
The trial court in the third finding of fact immediately following the quotation above given from the record of the county board of Clark county further found that: “Complete boundaries of the district as now petitioned for were before the board at this meeting and understood by them.” And in the opinion following the findings of fact the trial court referred to this particular point in the following language: “the.county commissioners of Clark county wavered by not making a specific and unconditional finding one way or the other, but from the record they made and the testimony of "the chairman of the board it would appear that they had all of'the facts before them and that they were favorable to the boundary as proposed.” Although the testimony of the chairman of the board does not strengthen the showing of approval by the board it does show that the board had all the facts before it, and other testimony shows that the board was in fact favorable to the boundaries proposed and did in fact approve them. The record to which the trial court referred is the strongest kind of proof of the attitude of the board on the question of approval or disapproval of the proposed boundaries at the time the petition was presented. The order re ferred to is the one subsequently made by the board and signed by all three members thereof, calling the election for the purpose of voting on the question of the boundaries of the proposed district. It enumerates the papers and record it had examined in connection therewith; the last three were described as follows: “the order of approval of the state superintendent of public instruction of the state of Kansas made in said matter as shown by the files in the office of the county clerk of Clark county, Kansas, and the superintendent of schools of Clark county, Kansas, and the former order of approval of this board, all approving the boundaries of said proposed rural high-school district.” We are not unmindful of the fact that a subsequent statement calling a former action an approval will not make it such if it were not, and that it must have been an approval at the time it was presented and considered in order to make the case a proper one to be carried up to the state superintendent.
In addition to the two orders of record, one a conditional approval and the other a subsequent one referring to it as a complete approval, we have in the record the evidence of the county clerk who made the entry. He testifies that the board did approve the boundaries at the time the first or conditional order was entered by him. There is also the testimony of the witness Murphy, who was present at the board meeting and states that the boundaries were approved at that time by the board. Such evidence is competent and admissible where the record is indefinite or incomplete.
“Held, That it was competent to prove, by parol evidence, that the county clerk was directed by the board of county commissioners to subscribe the stock; and also held, that the evidence in said action from one of the commissioners that he did not hear the order or direction given to the clerk, did not render the order invalid. Held, further, That upon the facts testified to in this case, the subscription made in the name of the county is valid.” (C. K. & W. Rld. Co. v. Comm’rs of Stafford Co., 36 Kan. 121, syl. ¶ 1, 12 Pac. 593.)
The failure of the county clerk to enter on the record fully the action of the board does not invalidate the order.
“Held, that the failure of the county clerk to enter the order of the county board calling the election, upon the records of the county, will not invalidate the election.” (State, ex rel., v. Comm’rs of Pratt Co., 42 Kan. 641, syl. ¶ 1, 22 Pac. 722.)
A belated record is proper to supplement and clarify an earlier incomplete or indefinite one.
“All that the state did show was that Miss Wyrill, the county superintendent of Norton county, who retired from office on May 9, 1921, had failed to make a record of her approval. But in the state’s examination of Mrs. New-bold, the superintendent who succeeded Miss Wyrill, it became perfectly clear that'the boundaries had been approved by Miss Wyrill; and if Miss Wyrill had not approved of them it could and should be held that the ready acquiescence of Mrs. Newbold in making a belated record of the matter at the suggestion of the chairman of the board of county commissioners of Norton county, and her unstinted official recognition of the district’s legal status, were the equivalent of her own approval. . . .
“We note that the trial court excluded some proffered oral testimony that Miss Wyrill had in fact approved the boundaries. The state’s objection was that such was not the best evidence. The objection was not good. The not-the-best-evidence rule only applies where better evidence than that offered does exist and is available. Here there was none. The oral evidence was perfectly proper.” (State, ex rel., v. Dowling et al., 117 Kan. 493, 498, 232 Pac. 615.)
“Under the statute providing that a petition for the calling of an election to vote on a proposal to organize a rural high-school district shall recite that the boundaries have been approved by the county superintendent and commissioners, the omission of such recital and the fact that the boundaries were not approved by such officers until after the petition was signed (but were so approved before it was acted upon) are mere irregularities, insufficient to require a court to set aside the attempted organization of the district in an action brought in the name of the state.” (State, ex rel., v. School District, 113 Kan. 441, syl. ¶ 2, 215 Pac. 453.)
We concur with the trial court in the finding that the boundaries of the proposed district were approved not only by the county superintendent of Clark county but also by the board of county commissioners at the regular meeting in February, 1927.
Another question in connection with the approval by the Clark county board and the disapproval by the Ford county board is the matter of the description of the land in Ford county in the proposed district. The court in its findings speaks of a confusion existing at first in the conferences in Ford county, but finds the petition embraced one certain township, or six miles square, in Ford county when considered by the officers of Ford county at the March meeting. It is argued from this that certainly a different description was used at the time the matter was presented to the county board of Clark county. But the court’s findings are strongly supported on this point by the positive testimony of Mr. Carson, chairman of the board, Mr. Pike, the county clerk, and Mr. Murphy, that the Ford county land embraced in the proposition considered by the Clark county board was six miles square, describing it. The evidence of two of the county commissioners and the county superintendent of Ford county is set out at great length in the supplemental abstract to show an earlier plan to include 72 sections and later 60 sections, instead of 36, as claimed by the defendants, but it must be remembered that on this question there was a conflict of testimony; other witnesses testified that at both February and March meetings in Ford county the proposition was limited to the tract six miles square in Ford county. There was sufficient evidence to that effect, if believed by the trial court, to sustain the finding and that is the extent of the duty of a court of review in a matter of conflict of testimony.
Appellant in the supplemental brief complains that there was no proof of the facts alleged in the answer as to an appeal having been taken to the state superintendent of public instruction. In the first place the statute does not prescribe any rules or requirements to be followed in submitting to that state officer a matter of this kind when there is a disagreement. So it would appear that any procedure which would ordinarily afford both parties to the disagreement a reasonable and fair opportunity to present their views would be proper. In respect to the appeal the defendant alleged the following:
“That upon the failure of the named officials of Clark and Ford counties to agree on said approval an appeal was at once carried to the state superintendent of public instruction; that the state superintendent took jurisdiction and had correspondence with the Ford county officials' relative to the question on appeal; that thereafter the state superintendent fixed a definite day for a hearing of the appeal; that both parties to the appeal were notified by registered mail of the date, time and place of said hearing; that at the date, time and place the officials of Clark county appeared by Mr. Wallace, a member of the school board at Minneola, Mr. Maxfield, the superintendent of schools, and their attorney and the officials of Ford county failed to appear in person or by representative, but did appear by letter; that thereupon the state superintendent of public instruction heard the representative of the defendant district and, after being fully informed in the premises, approved the boundary lines of this defendant district on May 15, 1928.”
The following is some of the evidence the record shows- as to the appeal. Witness Murphy testified that he and Bolinger took the petition and other papers, including maps, to Topeka and presented them to the state superintendent on March 14, 1927; that the state superintendent afterwards, in October, wrote him for further information as to description, and the information was sent. Mr. Red-field, one of the commissioners of Ford county, testified he had heard that the Clark county delegation had taken the matter up with the state superintendent and that he knew the appeal was pending with the state superintendent when the board granted the petition for the second Ford county district January 14, 1928. Mrs. Cobb, the county superintendent of Ford county, had notice of the appeal directly from State Superintendent Allen by telephone in April, 1927. The only other communication she had with the state superintendent was when he notified her there was to be a hearing in the case and in response she sent the superintendent the material in regard to the Ford county district. The notice from him was dated May 10, stating the hearing would be May 15, 1928. The findings show the order of the state superintendent was made on May 15, 1928.
We think the evidence develops facts connected with the attempted appeal sufficient to show the state superintendent was duly authorized to assume control of the case and recognize a disagreement which it was his duty under the statute to solve, and that officers of Ford county were sufficiently informed and notified of the appeal to give the state superintendent full authority to proceed with the hearing upon the disputed question. The material sent by the county superintendent was, from her description, in the nature of a defense. There is no purpose or occasion for the use of cumbersome and technical requirements in taking such a disagreement to a higher tribunal or arbitrator than there is in the first instance with the county superintendent and county board, when, as stated above, there are no statutory requirements for such details. The procedure ought to be more or less informal so long as the rights of all parties are protected and they are afforded an opportunity to be heard.
“The preliminary steps to secure the approval of the boundaries of a proposed rural high-school district by the county superintendent and the board of county commissioners under section 72-3501 of the Revised Statutes are informal, and a petition or application signed by residents or voters of the proposed district asking for such approval is not necessary.” (State, ex rel., v. Miley, 120 Kan. 321, syl. ¶ 1, 243 Pac. 262.)
The appellant insists that the statute authorizing the organization of such districts contemplates that the enumeration required to be taken of the legal electors residing in the proposed district should be taken very shortly before such election, and complains that the enumeration in this case as shown by the evidence was taken many months before the calling of the election, and that the number of legal electors might have materially changed in the meantime, so that the two-fifths provision might be very unjust under such changed circumstances. To make this criticism effective there should have been a showing of some such change and consequent injustice. However possible such change and injustice may be, it will not be presumed, and the staleness of the enumeration will not affect the proceedings without a showing of a change or prejudicial result. This question was considered in the case of State, ex rel., v. Dowling et al., supra, and it was there held that no technical or specially exacting compliance was required.
We conclude that the findings of the court are sustained by the evidence, and we concur in the conclusion reached by the trial court that the organization of the joint district was valid.
The petition, the answer and the briefs on both sides refer to the proceedings for the organization of another rural high-school district consisting of land lying wholly within Ford county and including the six miles square that was embraced in the joint district under consideration. The initial step in the organization of this district was taken January 14, 1928, which was eleven months after the similar beginning of the proceedings for organization of the joint district.
The new district and those representing it were not made parties to this action. We are here upholding the validity of the joint district and are not passing upon the regularity or irregularity of any of the proceedings in connection with the organization of the new district except to conclude that we find nothing in the record occurring subsequent to the inception of the joint-district organization to disturb or affect its validity.
The judgment is affirmed.
Harvey, J., not sitting. | [
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The question involved is whether chapter 152 of the Laws of 1929 violates section 17 of article 2 of the constitution.
The act was prompted by destruction of the Bourbon county courthouse at Fort Scott, which burned on the night of January 12, 1929. The act took effect on February 5, 1929. It is not necessary to decide whether, under the circumstances, a special act would have been unconstitutional, since the act is general.
The reference to means of destruction is scarcely a limitation. The agencies mentioned were the common, natural agencies likely to destroy.
The classification, on the basis of population and. existence of a -city of the first class, was reasonable. The purpose of the statute was to provide for prompt building of a courthouse to replace one which had been destroyed, financed by a bond issue and not a tax levy, and without holding a bond election. The legislature might well desire to make the act general for the class of counties mentioned, without either granting or denying general privilege to proceed in the emergency manner.
The statute is valid.
The judgment of the district court is reversed, and the cause is remanded with direction to deny the injunction. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one on a redelivery bond given in a replevin action. Plaintiff recovered, and defendants appeal.
Plaintiff commenced an action of replevin in the city court of Wichita against Quackenbush to obtain possession of personal property valued at $440 in the affidavit and order of delivery. Quackenbush gave a redelivery bond signed by himself and Hoff, and kept possession of the property. Judgment was rendered in favor of the manufacturing company for possession of the property or its value with interest. Quackenbush appealed to the district court. He subsequently dismissed the appeal, and the property was turned over to plaintiff. Plaintiff then sued on the bond for depreciation in value of the property while detained by virtue of the bond. The petition alleged the property was worth $440 when plaintiff became entitled to possession. When plaintiff obtained possession the property was sold at public sale pursuant to statutory notices, for $210. The condition of the bond read as follows:
“Now, we, the undersigned residents of said county, bind ourselves to said plaintiff in the sum of $880.02 that said defendant shall deliver to said plaintiff the property herein returned to him, if such delivery be adjudged, and pay all costs and damages awarded against him in said action.”
It is plain from the record the defense was that the bond did not cover depreciation in value. That defense is abandoned here, and it is now contended there was no evidence of depreciation. While there is nothing in the record to show the contention was made in the district court, it is not well founded.
The journal entry of judgment contains the following:
“And thereupon in open court a stipulation as to the facts is dictated to the stenographer, and certain admissions made by the attorneys for the plaintiff and the defendant.”
The court construed the stipulation as follows:
“Now, as I understand your stipulation in this case, the plaintiff in'.the present action brought a suit in replevin against the defendant, J. C. Quackenbush, setting up a value on the property replevined of $440.01. The defendant, J. C. Quackenbush, gave a redelivery bond in the sum of $880.02, signed by the defendant Hoff as surety. Then the trial proceeded in the city court, and judgment was rendered against the defendant Quackenbush for the possession of the property or, in the alternative, for $440.01 and costs. .The case was appealed, but I don’t see as that makes any difference in this case. Later, the property was repossessed by the plaintiff in this case, and sold at public sale at the amount stated in your bill of particulars, and you are suing for the difference between that and the alleged value of the property at the time the replevin action was instituted, . . .”
The replevin affidavit was not conclusive with respect to value of the property at the time the manufacturing company became entitled to possession; but the judgment of the city court for the value stated in the affidavit was pretty good evidence the affidavit was correct, and the price the property brought at public sale after legal notice was some evidence of its value when returned.
Defendants contend the condition of the property when plaintiff became entitled to possession and when it obtained possession was not shown. Condition was material only as it affected value, and as indicated there was evidence of depreciation in value.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal from a conviction of murder in the first degree, where the proof consisted entirely of circumstantial evidence. ' The defendant is a physician, fifty-nine years of age, who had acquired prominence in the vicinity where he had resided for many years and was connected with a number of organizations. He was charged with having killed his wife, who was much younger than he and possessed of quite an inheritance from her mother, lately deceased. He reported to the sheriff about noon on February 24, 1928, that he had found his wife dead in the basement or cellar of their home. The sheriff and others came and found her there with two bullet wounds in her head from a twenty-five caliber automatic revolver. Bloodhounds were used in the case, and testimony was introduced in the trial concerning them, their actions and movements. There was evidence as to the length of time the deceased must have been dead before the sheriff and others saw her; also concerning there being ugly tramps in the neighborhood about that time and one at the house, and as to burglary and disarrangement of the contents of bureau drawers and of other things in the house. The motive ascribed was to become possessed of part of her estate in his own right.
After the funeral he was taken by the sheriff and county at torney to Kansas City, Kan., and there interrogated at great length, at the conclusion of which he dictated and signed a statement covering all the things about which he was interrogated. Such statement was not used in evidence.
The trial was had in the county of his own residence, and lasted nearly a week. On the motion for new trial many questions were raised and evidence, by affidavit and otherwise, was introduced along many lines' for the purpose of showing error and obtaining a new trial. The state also produced many affidavits and other evidence to confute the evidence of the defendant. The motion for new trial was overruled and the defendant sentenced, from all of which this appeal is taken.
The appellant urges that it was-error to refuse the admission of the statement made by defendant, as a part of the cross-examination of Sheriff Carroll, who related parts of the conversation leading up to the making of the statement. If the statement was a separate and distinct matter and no part of the conversation related by the sheriff, the ruling was right; and the state in its brief so treats and considers it.
The sheriff in his testimony relates the taking of the defendant with him in his automobile to Kansas City, Kan., about four o’clock Sunday afternoon after the funeral of the wife that day. He further stated that he took him first to the police station and he and others conversed with him there that night until ten or eleven o’clock; that these conversations continued daily until Wednesday or Thursday following, either in the police station or in the office of the county attorney of Wyandotte county, during all of which time he kept the defendant confined in the jail. The sheriff named the persons who were present at these different conversations during these four or five days. They were the county attorney and court reporter of Johnson county, the county attorney of Wyandotte county and one of his assistants, the city detective of Kansas City, Kan., and the chief of police of Kansas City, Kan.; also the coroner of Johnson county part of the time. They all talked with the defendant about the tragedy. He, the sheriff, talked with him “pretty much.” On the evening of the last day of this extended interview, the sheriff said, there were six present, including himself, in the county attorney’s office. Defendant did most of the talking. He answered all questions asked him. They were all present when he made the written statement. The sheriff wasn’t in the room where the defendant was when he made the statement — was in the other room — but the door was open and he heard the defendant dictate certain parts of it. The statement contained three or four solid typewritten pages. The defendant signed the statement in the presence of the sheriff and others.
The sheriff was the first witness called by the state, and the above is part of what he said with reference to the conversation and the statement, as it is called. The statement in question begins as follows:
“Statement of S. O. Netherton, taken in the office of the county attorney of Wyandotte county, Kansas, at Kansas City, Kansas, February 28, 1928, at 7 o’clock p. m., and transcribed by Jas. G. Manning as dictated, and contemporaneous therewith. Present: Howard Payne, county attorney, Johnson county, Kansas; E. G. Carroll, sheriff, Johnson county, Kansas; Wm. McMullen, chief of police of Kansas City, Kansas; Joseph Downs, detective; and Arthur Mellott, county attorney of Wyandotte county, Kansas.”
This is followed by an admonition as follows:
“It is my duty to advise you that we are about to take your statement in connection with the murder February 24, 1928, of your wife, Edith Netherton. You don’t have to answer the questions that may be asked you nor make any statement whatever unless you desire to do so, and any statements that you do make may be used against you. However, you may, if you desire, tell us all that you know about the murder of your wife.”
The statement then contains the following three questions, which were answered: “State your name”; “Where do you live?” “Now you just tell him, Mr. Netherton, from the beginning whatever statement you want to tell.” The record does not disclose who gave the admonition or who asked these three questions. The next question contained in the statement was asked by Mr. Payne, county attorney of Johnson county. The next eleven questions were asked by Mr. Mellott, county attorney of Wyandotte county, and one other later on. County Attorney Payne asked one other question later on, and there are eleven other questions asked the defendant where the record is silent as to who propounded them. All the questions were answered, and no statement was made by the defendant except in response to a question. One of the questions asked was as follows:
“You expressed this afternoon a theory as to how and under what circumstances you think your wife met her death. I would like to have you give your theory again if you will.”
Another of the questions asked begins as follows:
“I believe you stated earlier in your statement, and also orally to us, that . . .”
Another:
“Well, this may be repetition, but let me ask you. . .
This constitutes the statement in question. Was it a statement of the defendant separate and apart from the conversation that had been in progress for four or five days, or was it the concluding and culminating part of that conversation described by the sheriff — a sort of summary of such extended conversation? If it was a part of the conversation it should have been admitted upon the request of the defendant as a part of the cross-examination of the sheriff. It was most certainly a part of the conversation which continued for four or five days along the same line, as shown by reference to what was said shortly prior, and by indicating that a question was a repetition of a former question. This last part was no different from what had been going on at the same place and between the same parties for many days. The only difference is that the court reporter took down or typed this concluding part of a long, drawn-out conversation. A comparison of the questions and answers contained in the statement shows most of it to be along the same line and substantially the same as the conversation related by the sheriff, and none of it to be on different or irrelevant subjects. Under these circumstances the statement must be held to be a part of the same conversation which the sheriff related, and it was error for the court to refuse to admit it upon request of the defendant as part of the cross-examination of the sheriff.
"The general phrasing of the principle, then, is that when any part of an oral statement has been put in evidence by one party, the opponent may after-wards (on cross-examination or reexamination) put in the remainder of what was said on-the same subject at the same time.”. (4 Wigmore on Evidence, 2d ed, § 2115.)
“Where the prosecution in a criminal case introduces evidence showing a portion of a certain conversation had between the defendant and a third person, the defendant may introduce evidence showing the rest of such conversation.” (State v. Brown, 21 Kan. 38, syl. ¶ 5.)
“It is true that part of the remark was self-serving, but it was a part of one statement, offered we must presume as an admission tending to prove guilt, and must be considered as a whole and its effect left to the jury.” (State v. Truskett, 85 Kan. 804, 816, 118 Pac. 1047. See, also, Davis v. McCrocklin, 34 Kan. 218, 222, 8 Pac. 196.)
Another specification of error is in refusing the request of the defendant to keep the jury together in charge of a bailiff during the progress of the trial to prevent the members thereof from mingling with the crowd. The record does not show any request for such an order at the commencement of the trial, but on the third or fourth day of the trial the defendant requested the discharge of the jury because of a newspaper article appearing in a paper of general circulation in the county, commenting on the evidence of the previous day to the undoubted prejudice of the defendant, and in connection with such request stated that a request had been made early in the trial for the jury to be kept together, which had been denied. Whether this statement was literally correct or not, the matter was unmistakably brought to the attention of the court by such statement, and the failure of the court to grant or consider the matter at that time after such statement is equivalent to a refusal to grant it at that time.
It is urged by the appellant that the prejudice and bitter feeling against the defendant had become quite pronounced and manifest in and around the courthouse and in the town and county. On the motion for new trial nearly sixty affidavits of prominent citizens of the county were filed, showing the existence of a very high state of prejudice and feeling against the defendant.. On the other hand, about seventy of probably the same class of citizens furnished affidavits denying any feeling of prejudice or bitterness against the defendant in the county, but stating that a number of the people of the county expressed the opinion that defendant was guilty, but they “did not pretend to know the facts except from newspaper reports, street talk and neighborhood gossip.”
Three questions asked the defendant by the county attorney in cross-examination indicate that the county attorney and sheriff, on the day of the funeral, when they took defendant to Kansas City, must have thought there was a high and dangerous state of feeling against the defendant. They were as follows: “Do you know why we took you to Kansas City?” “Don’t you know, as a matter of fact, it was to protect your own life?” “We took you down there for your own personal protection.”
The court admonished the crowd in the court room a number of times during the trial because of their disturbing the proceedings. In his closing argument to the jury the county attorney said:
“Then you will be able to understand why the public in Johnson county became so inflamed that we had to take him to Kansas City to save his life. And I want you to understand, gentlemen of the jury, that the public knows Doctor Netherton is guilty, and they don’t base their assumption upon the testimony of bloodhounds. It is just some more of the circumstances I am going to tell you about before I have finished that will explain why the public of Johnson county became inflamed against this doctor. . . .
“Let’s take his story and see if this public that believes Doctor Netherton was guilty of committing this crime were very far off this guess when they thought that. . . .
“What did he do? Take his own version of it, and let’s see if the public of Johnson county weren’t righteously inflamed at this man. . . .
“Then I ask you, did Mr. Carroll and myself, in spite of all these facts, have to start on a campaign to inflame the public against this man?”
Three affidavits filed in the case show that after the verdict and the. giving of a bond the trial judge and other court officials in the sheriff’s office “advised the defendant it was not safe to remain at home for fear of mob violence, and asked that he arrange things so that he could be absent until the ill feeling had time to abate.”
In Kansas the matter of permitting or refusing the jury in a criminal case to separate after being impaneled is largely in the discretion of the court, and a reviewing court would hesitate to make what might appear to be an abuse of that discretion the sole reason for a reversal. And while the court would be reluctant to set aside a verdict where the discretion of the court is usually intended to control, yet we cannot well sanction a verdict in a murder case surrounded with so many opportunities for improper influences and where the jury is for so long a time before it retires for deliberation exposed to an atmosphere charged with what the trial judge, county attorney and so many others, perhaps through a superabundance of caution, deem to be a dangerously prejudicial and bitter feeling.
“We cannot be too strict in guarding trials by jury from improper influences, and in compelling a rigid and vigilant observance of all the provisions of the statutes tending to preserve the purity of such trials. The verdict, when returned into court, must command entire confidence. It must be secure from all improper bias, and even from the suspicion of improper bias.” (State v. Snyder, 20 Kan. 306, 310.)
“In our state the law allows a separation of the juiy, with the permission and under proper admonition of the court, until a final submission of the case. There are cases where the court in its discretion may well order the jury to be kept together, and away from the excitement and prejudices of the community, from the beginning of the trial. If there is danger that the enemies or friends of the accused will endeavor to reach and influence the jury, or that the jurors, in commingling with the public during the trial, will be exposed to improper extraneous influences or be affected by the passions and prejudices existing outside the court room, it is the duty of the court to keep the jury together under the restraining supervision of an officer and beyond the reach of the outside parties and influences. ... It is the aim of the law to surround a trial by such safeguards as will exclude all external and improper influences from the jury, and thus protect the rights of the defendant.” (State v. Burton, 65 Kan. 704, 706, 708, 70 Pac. 640.)
The inquiry is pertinently made why a request for a change of venue was not made on account of this claimed state of feeling and prejudice. The answer made by the defendant and his local counsel is reasonable when they say - they did not observe or even suspect such a condition until along in the progress of the trial. Of course, they would naturally be the last to see, hear or learn of it. We are all slow to realize or believe our friends and neighbors have turned against us. Our question now is whether or not the court on the third or fourth day of the trial, when his attention was called to this request to keep the jury together, should have ordered them kept together as a wise and prudent matter of precaution. The court may not have known at that time all the county attorney did about the highly inflamed public mind of Johnson county, but he knew from what the record shows had already transpired in the proceedings that the case was quite an unusual' one, and the newspaper incident that had just occurred was in itself quite sufficient to justify the exercise of his discretion as a wise precaution to prevent the jury from being influenced by such adverse and detrimental comment upon the testimony of the defendant. This is not like a request for a change of venue, which should be granted only upon a showing, but this should be granted unhesitatingly as a precautionary measure, even if the apparent reason for it is very slight, in order to preserve and maintain universal respect for the results of criminal trials and prevent as far as humanly possible local prejudice and extraneous influence from reaching the jury. We think, under all the circumstances of this case, the request to keep the jury together should have, been granted when the attention of the court was directed to the matter on the third or fourth day of the trial, and the failure to do so when requested amounts to an abuse of discretion.
Appellant urges there was misconduct of the county attorney in the closing argument to the jury with reference to a number of statements made by him in addition to those above mentioned. Our attention has been directed especially to the following:
“There is one question that is involved in this matter to-day. That question, gentlemen of the jury, is, Can a Johnson county jury convict a man accused of murder when that man is worth one hundred thousand dollars?” (This statement was repeated.)
“The state hasn’t been able to refute this because witnesses are afraid to come here and testify. . . . There are witnesses that would have been a benefit to the state of Kansas, but I couldn’t get them to come here.” (Also much more on the same subject.)
“Who else? Who else, gentlemen, who else? Who else could have committed this act but this doctor?” (A similar statement was made six other times.)
“Don’t you suppose this $5,000 defense would have had these witnesses here to testify that there was somebody on that premises that morning besides the doctor himself?”
“But I knew he was guilty, and I know it to-day, but I ask you, just like I asked myself at that time and just like Mr. Carroll asked himself at that time, If not, who? If not, who? Then, who else? Gentlemen of the jury, take this case by the process of exclusion. . . .
“As God is my witness, as God is Mr. Carroll’s witness, this doctor here didn’t tell us a thing about handling any drawer in that house until after the finger print experts came here.”
Three of these remarks might be grouped with those heretofore quoted from this argument in connection with the prejudice and feeling of the people of the county, and no further comment is necessary concerning them. The comment as to the inability to get the witnesses to testify and tell what they knew, would naturally leave the impression that there was good testimony on the questions involved which the state failed to produce because of the indisposition of the people of the county to help with the case. An affidavit showing diligence and asking a continuance with prospect of getting the witness later, and setting up the facts such witness will state when procured as a witness, is proper under certain circumstances, but these things cannot be shown in the argument of counsel to the jury. More than one place the county attorney gives positive testimony without being sworn. The “who else” or exclusion argument is certainly calling for the defendant to clear himself by pointing out another on whom the guilt can be placed. The defendant has no such obligation. He stands as perfectly innocent in the sight of the law until his guilt is established, and the fact that he fails, declines, or even refuses, to suggest the party, or a party, who might reasonably be considered guilty does not by the process of exclusion or any other process point to his guilt, and if that meaning could be taken from such repeated remarks it was error.
The appellee insists that no proper or timely objection was made to these remarks so the court could have cared for any objectional feature therein. There is a confusion as to this part of the procedure, but if we accept the alternative as stated in the counter abstract of the state we think the court still had a real duty to perform in connection with the objection and should have warned the jury against any improper statements. The counter abstract shows that at the close of the argument in question the court directed the jury to retire to their jury room, and after the jury had retired the attorneys for defendant presented the following to the court:
“We want to object and except to the conduct of the county attorney in the closing argument of this case as misconduct on his part by referring to matters not in evidence, and to the statement made to him and other parties. His reference to the fact the defendant is a wealthy man and his reference to public sentiment being against him, and that the public knew he was guilty; all of this as misconduct on the part of the state, and we ask that the jury be instructed to disregard it.”
That objection was overruled.
It appears that no interruption was made by objecting during the argument. Some courts hold such interruption to be necessary to reserve the question. Our court has not so held. Appellant claims that under the decision in State v. Powell, 120 Kan. 772, 245 Pac. 128, no objection is necessary. The court did say no objection was necessary, in that case, because the court by an adverse ruling on the admission of testimony made a further objection unnecessary and useless. The comment was upon evidence the court had. over objection admitted. But the court did in that case quote approvingly from the opinion in the case of State v. Gutekunst, 24 Kan. 252, as follows:
“ ‘We take this opportunity, however, of calling attention to the duty of the district courts in jury trials, to interfere in all cases of their own motion, where counsel forget themselves so far as to exceed the limits of professional freedom of discussion. Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel. The dignity of the court, the decorum of the trial, the interest of truth and justice forbid license of speech in argument to jurors outside of the proper scope of professional discussion.’ (p. 254.)” (p. 800.)
After this reference the opinion in the Powell case states:
“In this instance the defendant had no ground upon which to base an objection, for the court had opened the way for the proceeding to become non judicial. The argument was based upon evidence the court had admitted over defendant’s protest, and was consonant with the stated theory upon which the evidence was offered. It would impugn the talent of the distinguished attorney who represented the state to say he did not correctly measure his jury, or failed to arouse the passionate resentment against defendant which his philippic was intended to excite. Indeed, the distress caused by a bank failure is so poignant it needs no adventitious aid to create a thirst for vengeance. It was the duty of the prosecuting officer and of the court to see to it the mob spirit was not fomented.” (p. 800.)
In the case of State v. Vandruff, 125 Kan. 496, 264 Pac. 1060, the rule announced in the Powell case was said not to apply for very good and pertinent reasons.
“This cannot be said here, and the x’eason given in State v. Powell, supra, for the lack of necessity of calling the attention of the coui’t to what was claimed to be an improper argument, does not apply. Since the tx'ial court heai'd the argument and had his own x-ecollection and judgment as to what had been said, and the language complained of was not taken by the reporter so we might know what was said, and the interpretation placed upon it by defendant in his affidavit was controverted in a general way by several affidavits, it may well be that the court did not find it to be true that counsel in his ai'gument made all of the statements ehai'ged to him by defendant in his affidavit, or make any statements that were seriously out of the way, or as amounting to misconduct.” (p. 505.)
Appellee cites a number of recent cases as to the necessity of making an objection promptly in order that the point may be reviewed. In State v. Messmer, 123 Kan. 201, 254 Pac; 378, it appears that no objection or request was made on this subject at any time. In State v. Ragan, 123 Kan. 399, 256 Pac. 169, the court said in the opinion:
“The state contends that if the statements could have been considei'ed prejudicial, the same wei'e removable by a proper inslmction of the court if requested by the defendant, from which we understand no objection was made to the alleged pi’ejudicial statements.” (p. 402.)
In the case of State v. Fadler, 126 Kan. 664, 271 Pac. 283, this court declined to review the matter because the defendant took no exception to the remarks at the time they were made and did not call the attention of the court thereto until the filing of a motion for a new trial. In a very recent case, State v. Woodman, 127 Kan. 166, 272 Pac. 132, the court declined to review the alleged error of misconduct because no objection or request of any kind was made at any time in respect thereto, not even upon the motion for new trial. The argument in this case was taken down by the court re porter and is certified in the abstract here. The request was made as the jury retired — not then too late to correct the mistakes. If these remarks were improper — and at least some of them were — the trial court'could very easily have endeavored to remedy the error by a special admonition to the jury to disregard such remarks as in his judgment should not have been made, even if the jurors had gone outside of the court room when the request was made. He was not powerless to have them returned for an appropriate admonition. The fact that in the general instructions to the jury there was included one limiting their consideration of evidence to that which they had heard from witnesses on the stand will not cure the omission. There should have been something definitely directed to the questionable remarks.
Appellee pleads justification on the ground of provocation by the remarks of the attorneys for the defendant. This has sometimes been recognized as a legitimate excuse, even in a criminal case, for some rash, extravagant, inflammatory, or prejudicial remarks in a sudden outburst of retaliation, but hardly for an extended repetition or a series of objectionable statements along several different lines. We think the failure of the court to admonish the jury to disregard these remarks was error, even if the jury had retired from the room before the request was made.
The motion of the defendant for a new trial should have been granted on account of the three errors herein discussed at length.
The judgment is reversed and the cause is remanded with instructions to grant the defendant a new trial. | [
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On October 27, 1989, in case No. 63,888, respondent was placed on probation with specific conditions of supervision for a period of one year. In re Linn, 245 Kan. 570, 781 P.2d 738 (1989).
Thereafter, an order was entered on May 8, 1990, wherein the parties agreed: (1) to a one-year probation under the supervision of Mel L. Gregory, attorney at law; (2) that such supervised probation would be in effect from April 16, 1990, through April 16, 1991; (3) that one year of unsupervised probation would be in effect from April 16, 1991, through April 16, 1992; (4) that respondent pay restitution in the amount of $810 to complainant; and (5) that respondent pay court costs in the amount of $1,684.87 by April 15, 1992.
On January 18, 1991, in case No. 65,435, pursuant to a separate complaint, this court extended respondent’s probation for a period of one year under the conditions previously imposed in 245 Kan. 570. In re Linn, 248 Kan. 189, 804 P.2d 350 (1991). The court costs assessed to respondent therein totaled $858.41.
On October 8, 1992, this court relieved respondent’s supervising attorney of his responsibility and extended respondent’s probation on an unsupervised basis for a period of one year under the condition that respondent pay court costs totaling $2,443.28. In re Linn, 251 Kan. 613, 840 P.2d 412 (1992).
This court finds that the Disciplinary Administrator has filed a second report verifying that respondent has failed to comply with the condition imposed upon him by this court in that he has not paid any portion of the court costs of $2,443.28. The report indicates that respondent is financially unable to pay the court costs at this time.
It is ordered that respondent James Larry Linn be continued on unsupervised probation for a period of one year from the date of this order, conditioned upon his paying court costs of $2,443.28.
Dated this 8th day of October, 1993.
It is further ordered that the Disciplinary Administrator submit a report to this court at the end of one year and, upon receipt of the report, the court will make such further order as justice may require.
It is further ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent. | [
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Per Curiami
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Charles S. Scott, Jr., an attorney admitted to the practice of law in Kansas.
The complaint filed against respondent alleged violations of MRPC 1.1 (1992 Kan. Ct. R. Annot. 244) (competence), 1.3 (1992 Kan. Ct. R. Annot. 248) (diligence), and 1.15 (1992 Kan. Ct. R. Annot. 281) (safekeeping property).
Respondent and the Disciplinary Administrator stipulated to the facts and that respondent’s conduct in handling his mother’s estate and in responding to court directives constitutes a violation of MRPC 1.1, 1.3, and 1.15.
The matter was submitted to a panel of the Kansas Board for Discipline of Attorneys. The panel found that “[t]he nature of complaints against the Respondent are those as set out in the formal complaint on file herein and as stipulated to by the Respondent, and the same are adopted for this formal hearing report as if fully set out herein.” The facts as set out in the complaint and stipulated to by respondent are as follows:
"2. On December 15, 1989, Mr. Scott’s mother, Louise Scott, died. Mr. Scott filed a Petition for Issuance of Letters of Administration on December 20, 1989, requesting that he and his sister, Debra Scott, be appointed co-administrators of the estate. They were appointed by Order dated December 20, 1989.
"3. A Notice to Creditors was published for three (3) consecutive weeks beginning December 22, 1989, advising creditors that they had six (6) months to filed their claims against the estate.
“4. The following .claims [totaling $4,517.91] were filed against the estate ....
“5. On December 20, 1990, Judge Frank Yeoman mailed a Notice and Order for Settlement to Mr. Scott directing that the estate be closed in thirty (30) days or that an Extension of Time in Filing an Accounting be obtained.
“6. No action was taken by Mr. Scott and on March 20, 1991, Judge Yeoman issued an Order to Show Cause directing Mr. Scott to appear on April 17, 1991. Mr. Scott appeared and the matter was continued to May 15, 1991.
“7. On May 15, 1991, Mr. Scott failed to appear. Judge Yeoman continued the case to June 19, 1991. On June 19, 1991, Mr. Scott again failed to appear.
“8. Judge Yeoman issued an Order to Show Cause directing Mr. Scott to appear on July 17, 1991. On July 17, 1991, Mr. Scott filed an Inventory and Valuation showing cash assets of $91,207.66 and real estate valued at $12,000.00. A Petition for Final Settlement was also filed which indicated the claims against the estate were unpaid. The Accounting attached to the Petition for Final Settlement as Exhibit A showed that all cash had been distributed to Mr. Scott and Debra Scott. The matter was set for hearing on August 22, 1991.
“9. At Mr. Scott’s request the hearing on the Petition for Final. Settlement was continued to September 19, 1991, on which date he failed to appear.
“10. Judge Yeoman wrote to Mr. Scott on July 23, 1991, directing him to contact the court immediately to set a new hearing date and to give the required notice. On September 20, 1991, having received no response from Mr. Scott, Judge Yeoman issued a Notice of Final Settlement Due. No action was taken by Mr. Scott.
“11. On January 21, 1992, Judge Yeoman issued a Notice of Hearing setting the matter for February 10, 1992, and requiring the co-administrators to appear and produce all records pertaining to the estate.
“12. On February 10, 1992, Mr. Scott and Ms. Scott' appeared. Each stated that all cash assets of the estate had been distributed [w]ithout court authority and without satisfying the claims of the creditors. Mr. Scott offered to resign and the Letters issued to him were revoked.
“13. The balance in the estate checking account at Merchants National Bank was insufficient to cover the claims of the creditors beginning November 2, 1990.
“14. The claim of Ed Marling’s Store was satisfied and a receipt [was] signed on April 15, 1992. The remaining creditors were paid in November of 1992. The estate remains open under the administration of Debra Scott who is represented by the law office of Joseph D. Johnson, Chartered.”
The panel concluded by clear and convincing evidence that respondent violated
“1. MRPC 1.1—in that Respondent has failed to provide competent representation to a client and has failed in the skill, thoroughness and preparation reasonably necessary for the representation to the client.
“2. MRPC 1.3—that Respondent has failed to act with reasonable diligence and promptness in representing a client.
“3. MRPC 1.15—in that the Respondent failed to hold property of a client in a separate account separated from the lawyer’s own property.”
The Office of the Disciplinary Administrator recommended public censure as appropriate punishment. The respondent has had no prior discipline from the Disciplinary Administrator and “has been fully and very cooperative with the Board in the investigation of the complaints against the Respondent.”
Respondent filed no exceptions to the report of the panel. Respondent agreed with and stipulated to the recommendation that he be publicly censured.
The court, having considered the record herein and the report of the panel, accepts and concurs in the findings, conclusions, and recommendations of the hearing panel.
It Is Therefore Ordered that Charles S. Scott, Jr., be and he is hereby disciplined by public censure in accordance with Supreme Court Rule 203(a)(3) (1992 Kan. Ct. R. Annot. 153) for his violations of the Model Rules of Professional Conduct.
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiffs, The Kansas Baptist Convention (Baptists) and Hugoton Energy Corporation (Hugoton Energy), brought this action against the defendant, Mesa Operating Limited Partnership (Mesa), to avoid or reform a 1952 contract for the unitization and operation of a 640-acre gas unit in Grant County. On a stipulated record, the district court terminated the contract as of May 25, 1988, and entered a judgment against Mesa for $185,220.86, representing plaintiffs’ interest in gas sale proceeds from the termination date, minus operating costs and plus prejudgment interest. Mesa appealed. The Baptists and Hugoton Energy cross-appealed from the district court’s determination of the amount of their recovery. The case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The section of Grant County land at issue was devised to the Baptists by Otto Fischer upon his death in 1951. Fischer’s heirs contested the will. An agreement was reached, and the Baptists conveyed one-half of the property to Fischer’s heirs. Magnolia Petroleum Company (Magnolia) owned a portion of the minerals in several of the quarter sections. Magnolia leased its minerals to Panhandle Eastern Pipeline Company, which assigned the leases to Hugoton Production Company (Hugoton Production). According to Mesa, in 1969 it succeeded to all rights of Hugoton Production by virtue of a merger.
In 1952, the Baptists, Fischer’s heirs, and Hugoton Production negotiated an agreement for development of the property. The Baptists were represented by an attorney, Robert S. Johnson, in the negotiations. On July 18, 1952, Hugoton Production sent Johnson a proposed contract. It was modified according to Johnson’s suggestions, and, on July 21, 1952, the Baptists, Fisher’s heirs, and Hugoton Production entered into the agreement which is the subject of this action.
The contract provided for creation of a 640-acre unit for natural gas production. It provided that Hugoton Production would obtain Magnolia’s consent to the unitization. It provided that the “agreement shall extend for a term commencing on the date hereof and extending for such period of time as natural gas is or can be produced from the Unitized Area or operations for the development and production of natural gas are being conducted thereon.”
The contract made Hugoton Production the sole operator of the unit. It required Hugoton Production “to produce the unitized area with reasonable diligence for the life of this agreement.” It provided that Hugoton Production would “drill such additional well or wells on the Unitized Area as it should deem necessary” and would charge the other parties their proportionate shares of the costs and expenses incurred on the basis of the accounting procedure which was attached to the contract as Exhibit B and incorporated into it.
Ownership of the land and the minerals is described in the contract as follows:
Baptists surface and V2 minerals in two quarter sections, V4 minerals in a third quarter section;
Fischer’s heirs surface and minerals in one quarter section, surface and lk minerals in a second quarter section;
Magnolia lk minerals in three quarter sections.
The agreement provided that the parties owned the benefits of gas production in the following proportions, which differ from land and mineral ownership proportions:
Baptists 5/k¡;
Fischer’s heirs 5/i6; and
Hugoton Production 6/i6.
It also provided that the Baptists and Fischer’s heirs would sell and Hugoton Production would buy any natural gas produced. The price was fixed at “100 per MCF [thousand cubic feet], measured. at a pressure base of 16.4 pounds per square inch absolute [p.s.i.a.], with an assumed flowing temperature of sixty degrees (60°) Fahrenheit.”
It provided that costs and expenses were to be borne by the parties in proportions equal to their proportions of gas ownership. Alternative methods were provided for satisfying the obligations for costs and expenses. The Baptists and Fischer’s heirs could pay their proportionate shares of costs and expenses, or Hugoton could withhold gas purchase payments until reimbursed for costs plus interest.
Production from the first well on the unit (Baptist-Fischer 1-14) began in October 1953. Thé cost of the first well was $24,500. This is a district court finding which is cited On appeal by Mesa and is not disputed by the other parties.
In 1971, Mesa acquired the mineral interests of the Fischer heirs. Since then, Mesa has received u/i6 of the revenue from the unit.
■ A second well (Baptist-Fischer 2-14) was drilled in 1972 at a cost of $43,000. At that time Mesa anticipated that the Baptists’ share of the costs would have been recovered from their share of the income within a year.
In 1986, the Kansas Corporation Commission (KCC) issued orders which permitted the drilling of an additional well (sometimes referred to as an infill well) on each unit in the Hugoton gas field. This court upheld the KCC decision in Southwest Kan. Royalty Owners Ass'n v. Kansas Corporation Comm’n, 244 Kan. 157, 769 P.2d 1 (1989). In 1988, a third well was drilled at a cost of $174,100.
Like the drilling costs, operating costs have increased. In March 1987, before the third well was drilled, Mesa informed the Baptists that the overhead rates had changed from $30 to $340 per well per month. During the first three months- of 1990, the average monthly charge to the Baptists was $982.75.
The market price of natural gas also has increased. “In October 1948 . . . the prevailing price for the gas in the [Hugoton] field was approximately five and one-half cents per M.c.f. based on 16.4 pounds p.s.i.a.” Matzen v. Hugoton Production Co., 182 Kan. 456, 458, 321 P.2d 576 (1958). Pan American Petroleum Corporation v. Cities Service Gas Co., 191 Kan. 511, 512, 382 P.2d 645 (1963), involved a gas purchase contract in which the price was set at 8.40/Mcf until June 1961, when the price would increase to not less than 120/Mcf. The plaintiff contended that the fair and reasonable price as of June 1961 was 190/Mcf at 14.65 p.s.i.a.; the defendant contended it was 120/Mcf at 16.4 p.s.i.a. 191 Kan. at 512-13. This court, affirmed the district court’s decision that 14.50/Mcf at 14.65 p.s.i.a. was a reasonable price for the five-year period beginning in June 1961. 191 Kan. at 513, 522. The parties have stipulated that, “[i]n 1990, the average weighted market price of natural gas produced from the unitized area including the Baptist-Fischer wells and received by Mesa was $1.52/Mcf.”
The current operating expenses plus the drilling costs and interest of the third well will never be recovered by the 100/Mcf gas purchase price provided in the 1952 agreement.
In March 1987, Mesa sent to the Baptists an Authorization for Expenditure in the amount of $169,800 for the drilling of the third well (Baptist-Fischer 3-14). In May 1988, Mesa revised the Authorization for Expenditure to $174,100. The first gas was sold from the third well on Aügust 19, 1988.
In 1986, a Mesa internal memorandum concluded that the combination of lower well production, contemplated adjustment in operating expenses charges, and contemplated third well costs would make the Baptists’, ownership worthless. In 1987, before the third well was drilled, a Mesa representative wrote to the Baptists about the loss which the Baptists could anticipate “[b]ecause .of the economics of the existing contracts” and offered $5,000 for their interest. In March 1988, Mesa, offered $10,000 for the Baptists’ interest.
On May 20, 1988, the Baptists sold their entire interest to Hugoton Energy for $15,000. On August 3, 1988, Hugoton Energy sent a demand letter to Mesa in which it took the position that the 1952 agreement had terminated due to commercial impracticability. In September 1988, a “Corrected Mineral Deed” was signed by the Baptists and Hugoton Energy which reduced from 100 to 90 the percentage of the Baptists’ interest which was transferred. Immediately after the 10% interest had been restored to the Baptists, this 'action was filed by the Baptists and Hugoton Energy as coplaintiffs.
The district court granted the motion for partial summary judgment of the Baptists and Hugoton Energy and terminated the contract. The pertinent part of the district court’s decision states:
“This court concludes that, as a matter of law, all parties to a contract are obligated to act in good faith. The court further finds, as a matter of law, that the operator of a gas operating unit involved in this instance is obligated to proceed with consideration not only for its interest but for that of any participating owner in the unit.
“Based upon the history of production and prior costs, it must be noted that prior production from the Chase and Council Grove formations resulted in an operating margin for the plaintiffs’ interest after considering their revenues for the production and operating costs. Where the agreement is predicated as operating ‘for the joint benefit of the parties hereto,’ the operator is restricted in its operation of the unit to operating the wells under such circumstances as will allow for maximum return of all the parties and not just that of the operator. Pursuant to the stipulations, the defendant had knowledge that drilling the infill well at the current cost would extinguish the plaintiffs’ economic benefits under the agreement and permit the defendants to withdraw the mineral interest of the plaintiffs without any compensation. Although the agreement required cost of operation and production to be taken from proceeds so that plaintiffs would not incur a net liability, the operation, as anticipated by the defendant, would effectively transfer all natural gas owned by the plaintiffs to the defendant. Such could not have been anticipated by the parties at the time of entering this agreement and renders plaintiffs incapable of performing their obligations because their reserves are insufficient to pay their share of costs. A view of the communications leading up to the agreement which allows for the monthly operating charge must be read in the context of the prices of that time. There could have been no meeting of the minds in anticipation of an operating cost which would increase more than thirty times the original assessment and for production costs which would exceed seven times that of the initial production cost.
“The court finds, therefore, that this contract was. breached by the defendant in drilling the infill well and extinguishing the plaintiffs’ interest in the gas unit. The court finds that there was no meeting of minds on these vastly increased costs, and that there is no mutuality in contract obligations if an operator has an unfettered right to increase costs and eliminate the plaintiffs’ participating interest in the unit.
“The stipulations entered by the parties are adopted as the facts. And in addition to the above, the plaintiffs’ brief in support of [their] motion for partial summary judgment is adopted as further conclusions of this court.”
The district court specified May 25, 1988, the date on which drilling of the third well began, as the date when Mesa breached the contract. The contract became void as of that day. The Baptists and Hugoton Energy were awarded $185,220.86. With respect to the money judgment, the district court stated:
“This amount includes payments due for production through the month of April 1992 (except for the proceeds from the sale of helium for the month of April 1992) and interest through April 30, 1992. Plaintiffs are entitled to further judgment in the amount of Vinths of the proceeds from the sale of the products of the wells, less reasonable operating and production expenses, for the period from May 1, 1992, to the date of this Journal Entry, with additional prejudgment interest.
“B. The defendant is ordered to pay to the plaintiffs Vioths of proceeds of future production from the Baptist-Fischer wells, within 30 days of the date upon which Mesa receives those proceeds, after deduction of plaintiffs’ 5/i»th of the reasonable and customary costs and expenses of operation.”
Mesa raises three issues on appeal: (1) Did the district court err in terminating the contract? (2) Do the Baptists have standing to seek avoidance or reformation of the contract? and (3) Do equitable principles of waiver and estoppel bar the relief sought by the Baptists and/or Hugoton?
The issue raised by plaintiffs on cross-appeal is whether they are entitled to lk of the gas production rather than the 5/i6 granted by the district court.
To summarize, Mesa contends that the contract should not have been avoided by the district court. In its first issue, Mesa argues that two of the grounds stated by the district court, Mesa’s breach of good faith and no meeting of the minds on increased costs, do not support termination of the contract. In addition, Mesa argues that a ground which had been advocated by the Baptists and Hugoton Energy in the district court, commercial impracticability under K.S.A. 84-2-615, does not support termination of the contract.
The Baptists and Hugoton Energy respond that there are eight theories which justify termination of the contract: (1) failure of essential purpose, (2) failure of consideration, (3) lack of mutuality, (4) commercial impracticability, (5) breach of obligations by Mesa, (6) no meeting of minds on changed circumstances, (7) termination by the contract’s own terms, and (8) equitable principles.
As to the second issue, the Baptists contend that they not only have standing but, as the owners of mineral interests, they are a necessary party. As to the third issue, the Baptists and Hugoton Energy argue that Mesa cannot invoke equitable principles because it is trying to promote rather than prevent injustice.
The Baptists and Hugoton Energy cross-appeal, seeking V2 rather than 5/io of the gas produced from the unit. They argue that the provisions of the 1952 contract are not severable and that property law, which controls if the contract is terminated, requires division of the gas by half. Mesa responds that the issue is moot unless the court affirms termination of the contract. In that case, Mesa argues, the Baptists and Hugoton Energy are estopped from seeking termination of the contract and then reaping a windfall. Moreover, the various provisions of the contract, unitization and operation and gas purchase, are severable. •
We first consider if the district court erred in terminating the contract. The construction of a written instrument is a question of law. Akandas, Inc. v. Klippel, 250 Kan. 458, 464, 827 P.2d 37 (1992). Thus, irrespective of the district court’s construction, “on appeal a contract may be construed and its legal effect determined by the appellate court.” Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 704, 810 P.2d 1154 (1991).
The district court decided this case on motions, stipulations, written documents, and deposition transcripts. In these circumstances, the appellate court has “the same opportunity to weigh the evidence as did the district court.” Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, 762, 829 P.2d 907 (1992). Thus, our review is de novo. 250 Kan. at 762.
Mesa contends that this court will not impose an obligation of good faith which would override express contract terms. It relies principally on Morriss v. Coleman Co., 241 Kan. 501, 514-15, 518, 738 P.2d 841 (1987), and General Aviation, Inc. v. Cessna Aircraft Co., 703 F. Supp. 637, 644 (W.D. Mich. 1988), aff’d in part and remanded 915 F.2d 1038 (6th Cir. 1990). Mesa cites Davis v. TXO Production Corp., 929 F.2d 1515 (10th Cir. 1991), as an oil and gas case in which the court decided that there can be no breach of an implied duty of good faith to perform under a joint operating agreement absent a breach of a specific contractual provision. Mesa’s point is that the contract expressly provided for the drilling of additional wells and the allocation of costs, as well as the fixed price for gas. Thus, according to Mesa, any implied duty cannot override the expressed obligations.
Morriss is a wrongful discharge action. Morriss provided the occasion for this court to consider whether it should recognize the implied covenant of good faith and fair dealing in the area of termination of employment contracts. 241 Kan. at 514. A majority of the court, with Chief Justice Prager writing the opinion, “concluded that the principle of law stated in Restatement (Second) of Contracts § 205 [1979], that every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement, is overly broad and should not be applicable to employment-at-will contracts.” 241 Kan. at 518.
Six months later, in Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987), Chief Justice Prager wrote that “the modem trend is to apply the duty of good faith and fair dealing in every contract.” He quoted the following discussion of the duty from what is now 17A Am. Jur. 2d, Contracts § 380:
“ ‘Every contract implies good faith and fair dealing between the parties to it, and a duty of co-operation on the part of both parties. Accordingly, whenever the co-operation of the promisee is necessary for the performance of the promise, there is a condition implied that the co-operation will be given. Indeed, it may be said that contracts impose on the parties thereto a duty to do everything necessary to carry them out. When one undertakes to accomplish a certain result he agrees by implication to do everything to accomplish the result intended by the parties. If the giving of notice is requisite to the proper execution of a contract, a promise to give such notice will be inferred. Moreover, there is an implied undertaking in every contract on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out his part of the agreement, or do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Ordinarily if one exacts a promise from another to perform an act, the law implies a counterpromise against arbitrary or unreasonable conduct on the part of the promisee. However, essential terms of a contract on which the minds of the parties have not met cannot be supplied by the implication of good faith and fair dealing.’ ” 242 Kan. at 222.
The court concluded that the lessor was obligated to take the steps necessary to further the commercial development which was contemplated in the lease, and, in addition, she was obligated to avoid preventing that use. 242 Kan. at 222. McLean’s refusal to certify that the lease was in full force and effect, which effectively blocked Bonanza’s effort to obtain financing for its commercial development, was held to be a violation of her contractual obligation. The obligation which was breached was her duty of good faith and fair dealing. 242 Kan. at 222.
In Daniels v. Army National Bank, 249 Kan. 654, 658, 822 P.2d 39 (1991), a lender liability action, the court stated:
“Kansas courts imply a duty of good faith and fair dealing in every contract. Parties shall not ‘intentionally and purposely do anything to prevent the other party from carrying out his part of the agreement, or do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.’ Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987).”
Of these cases, only Morriss might be construed to stand for the proposition that the court will not impose an obligation of good faith which would override express contract terms. This court’s rejection of the principle of a good faith obligation is restricted to the area of employment-at-will.
In 5 Williams & Meyers, Oil & Gas Law (1992), Williams and Meyers devote an entire volume of their treatise to implied covenants. They trace the debut of the concept in oil and gas law to an 1889 Pennsylvania opinion, Stoddard v. Emery, 128 Pa. 436, 18 A. 339 (1889), and report that it “reached full cruising speed” in Brewster v. Lanyon Zinc Co., 140 Fed. 801 (8th Cir. 1905). 5 Williams & Meyers, § 802, p. 4. Brewster was filed in the district court in Allen County, Kansas, and removed to federal court; the opinion reported at 140 Fed. 801 is an appeal from the Circuit Court of the United States for the District of Kansas. 140 Fed. at 803. According to the commentators, “[t]he continued vitality” of Brewster warrants full discussion of the case. 5 Williams & Meyers, § 802, p. 5.
Brewster leased her land for oil and gas exploration for a five-year primary term, receiving a royalty for each well from which gas was sold. Lanyon Zinc had drilled one well immediately before the end of the primary term. Brewster sued to cancel the lease. She alleged breach of duty to protect against drainage and to develop. The Court of Appeals dealt with “[t]wo issues of present significance . . . : (1) the basis for imposing a duty . . . when the lease is silent on the subject, and (2) the test for determining whether the duty has been breached.” 5 Williams & Meyers, § 802, p. 5.
The basis for the duty was set out as follows:
“The implication necessarily arising from these [lease] provisions—the intention which they obviously reflect—is that if, at the end of the five-year period prescribed for original exploration and development, oil and gas, one or both, had been found to exist in the demised premises in paying quantities, the work of exploration, development, and production should proceed with reasonable diligence for the common benefit of the parties, or the premises be surrendered to the lessor. That this was of the very essence of the contract is shown by the extensive character of the grant, which was without limit as to time and included all the oil and gas in or obtainable through, the demised premises; by the provisions for the payment of substantial royalties in kind and in money on the oil produced and saved and the gas used off the premises, which, as contrasted with the consideration paid when the lease was executed, shows that the promise of these royalties was the controlling inducement to the grant; and by the provisions contem plating the drilling and operation of wells; the production and transportation of oil and gas, and the prosecution of that business subject to the restrictions prescribed.
“Considering the migratory nature of oil and gas, and the danger of their being drawn off through wells on other lands if the field should become fiilly developed, all of which • must have been in the minds of the parties, it is manifest that the terms of the lease contemplated action and diligence on the part of the lessee. There coujd not well have been an express stipulation as to the number of wells to be drilled, as to when the wells, other’than the first, should be drilled,' or as to the rate at which the production therefrom should proceed, because these mattérs would depend in large measure upon future conditions, which could not be anticipated with certainty, such as the extent to which oil and gas, one or both, ¡could be produced from the premises, as indicated by the first well and any others in the vicinity, the existence of a local market or demand therefor or the means of transporting them to a market, and the presence of wells on adjacent lands capable of diminishing or exhausting the supply in the natural reservoir. The subject was, therefore, rationally left to the implication, necessarily arising in the absence of express stipulation, that the further prosecution of the work should be along such lines as would be reasonably calculated to effectuate the controlling intention of the parties as manifested in the lease, which was to make the extraction of oil and gas from the premises of mutual advantage and profit. Even in’ respect of the. first well, if oil or gas was found in paying quantity, there was no express engagement to operate it; but that it was intended to be operated was plainly ’ implied in the engagement to pay royalties to be gauged according to the production of oil and the use of gas. Whatever is necessary to the accomplishment of that which is expressly contracted to be done is part and parcel of the contract, though not specified.” 140 Fed. at 810-111
The test formulated for determining whether the duty was breached by Lanyon Zinc is known as the prudent operator standard. The United States Supreme Court quoted it with approval and stated that it “has been generally adopted in decision? of federal and state courts.” Sander v. Mid-Continent Corp., 292 U.S. 272, 280, 78 L. Ed. 1255, 54 S. Ct. 671 (1934): In Brewster, the Court of Appeals stated:
“The object of the operations being to obtain a benefit or profit for both lessor and lessee, it seems obvious, in the absence of some stipulation to that effect, that neither is made the arbiter of the extent to which or the diligence with which the operations shall proceed, and that both are bound by the standard of what is reasonable. This is the rule in respect of all other contracts. where the time, mode, or quality of performance is not specified, and no reason is perceived why it should not be equally applicable to oil and gas leases. ....
“. . . No obligation rests on him to carry the operations beyond the point where they will be profitable to him, even if some benefit to the lessor will result from them. It is only to the end that the oil and gas shall be extracted with benefit or profit to both that reasonable diligence is required. [Emphasis added.] . . . Whatever, in the circumstances, would be reasonably expected of operators of ordinary prudence, having regard to the interests of both lessor and lessee, is what is required. A plain and substantial disregard of this requirement constitutes a breach of the covenant for the exercise of reasonable diligence, which, as before shown, is also made a condition of the lease under consideration. [Emphasis added.]” 140 Fed. at 814-15.
The commentators conclude their discussion of its meaning and effect by stating: “[T]he prudent-operator standard has the same function in oil and gas litigation as the reasonable man standard has in negligence litigation.” 5 Williams & Meyers, § 806.3, p. 42. They list the following Kansas cases as adopting and applying the prudent operator standard: Temple v. Continental Oil Co., 182 Kan. 213, 320 P.2d 1039, reh. denied 183 Kan. 471, 328 P.2d 358 (1958); Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P.2d 95, aff’d 156 Kan. 722, 137 P.2d 139 (1943); and Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P.2d 810 (1941).
Brewster and the later Kansas cases applying its standard involved underachieving lessees. The present case involves an overreaching lessee. Mesa is alleged to have exceeded the bounds of reasonable operation by drilling an additional well and by spending more to drill and operate it than the lessors ever could recover from their contractually fixed gas sale price.
Mesa’s position is that the drilling of the third well and the resulting costs occasioned the complaints of the Baptists/Hugoton Energy; the drilling and the allocation of costs were expressly authorized by the contract; hence, no duty needs to be implied to accomplish that for which the parties contracted. Moreover, no duty may be implied which would displace the parties’ express stipulation.
The pertinent provisions of the contract lie in Article III:
“Hugoton [Production, now Mesa,] shall have full and complete control and shall conduct and manage the development and operations of the Unitized Area for the production of natural gas for the joint account of the parties hereto. It shall drill such additional well or wells on the Unitized Area as it should deem necessary from time to time and shall pay and discharge all costs and expenses incurred and shall charge the other parties hereto their proportionate share upon the cost and expense basis provided for in the schedule of accounting procedure attached hereto as ‘Exhibit B’, which is, by reference, made a part of this agreement to the same extent as if copied herein in full. [Mesa] shall at all times keep the joint interests of the parties hereto in and to said minerals and equipment thereon free of all labor and mechanics’ liens and encumbrances. The judgment and discretion of [Mesa] exercised in good faith and without negligence shall be the limit of its liability to the other parties hereto for any act done or omitted to be done in good faith in the performance of any of the provisions of this agreement.”
The obvious response to Mesa’s argument is that the contractual authority for Mesa’s drilling additional wells is conditioned on its deeming them necessary in the good faith exercise of its judgment. Article III places complete control of development and management of the gas unit in Mesa, and it limits Mesa’s liability to the other parties to the contract for “any act done ... in good faith” to its “judgment and discretion . . . exercised in good faith and without negligence.” Based on Brewster and the line of Kansas cases which includes Temple, Fischer, and Myers, a duty of good faith could be implied in Mesa’s assumption of “complete control.” We find it unnecessary to imply a duty of good faith, however, where the parties have expressly stipulated that the gauge of Mesa’s liability will be its good faith. The parties contemplated that Mesa would exercise its judgment and discretion in good faith and that Mesa would act “in good faith in the performance of any of the provisions of th[e] agreement.” ■
In the present case, both the Baptists/Hugoton Energy and Mesa quote from Kham & Nate’s Stores No. 2 v. First Bank, 908 F.2d 1351 (7th Cir. 1990). The Baptists and Hugoton Energy selected the following statement: “ ‘Good faith’ is a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties.” 908 F.2d at 1357. Mesa quoted the sentence which preceded it: “Although courts often refer to the obligation of good faith that exists in every contractual relation [citations omitted], this is not an invitation to the court to decide whether one party ought to have exercised privileges expressly reserved in the document.” 908 F.2d at 1357.
Mesa argues that its drilling of the third well was not simply an exercise of sound judgment, but was necessary pursuant to the Í986 orders of the KCC. We do not agree. Mesa asserts that “the KCC has specifically found that an infill well is necessary to effectively and efficiently drain a Hugoton gas unit, to prevent waste and to protect correlative rights.” Mesa did not provide a copy of the KCC order, but rather refers to this court’s decision affirming it, Southwest Kan. Royalty Owners Ass'n v. Kansas Corporation Comm'n, 244 Kan. 157, 769 P.2d 1 (1989). Mesa cites the following passage: “The Commission found an additional well on each B.P.U. [basic proration unit] necessary for effective and efficient drainage to prevent waste and protect correlative rights pursuant to K.S.A. 1987 Supp. 55-703(a).” 244 Kan. at 164. This court concluded that there was substantial competent evidence to support the KCC’s finding on waste but not to support its finding that infill drilling is required to protect correlative rights. 244 Kan. at 184, 186. K.A.R. 82-3-101(a)(17) (1992 Supp.) defines correlative rights to mean
“the privilege of each owner or producer in a common source of supply to produce from that supply only in a manner or amount that will not:
(A) Injure the reservoir to the detriment of others;
(B) take an undue proportion of the obtainable oil or gas; or
(C) cause undue drainage between developed leases.”
The Baptists/Hugoton Energy cite other language from the same opinion: “[T]he Commission’s order does not effect an involuntary change in existing property rights, but merely authorizes the optional drilling of a second well on each production unit after a justification hearing of which adjoining landowners are given personal notice.” (Emphasis added.) 244 Kan. at 173.
The KCC’s order of April 1986 amended the standing Basic Proration Order to allow the drilling of additional wells. A portion of the April order, which links geological evidence with the KCC’s conclusion, was reprinted in Southwest Kan. Royalty Owners. It describes the Hugoton gas field as a discontinuous reservoir with isolated productive zones, even within proration units. The Order continues:
“ ‘[A] significant portion of the productive intervals within each proration unit, although in pressure communication with the existing well, consists of pool-, low permeability reservoir rock which prevents one well from effec tively or efficiently draining the proration unit. To the end of preventing waste, an infill well on each basic proration unit of 480 acres or more within the field is necessary to effectively and efficiently drain portions of the reservoir on each proration unit in the field which cannot be effectively and efficiently drained by the existing well on said proration unit.’ ” 244 Kan. at. 162-63.
The last sentence quoted is not a model of clarity, but the reasonable interpretation is that on units' which cannot be effectively drained by the existing well, an additional well is necessary for effective drainage. It does not mean that an additional well is necessary for effective drainage on each unit of the field.
In July 1986, the KCC modified its April order “affirming its amendment to the" B.P.O. with regard to the drilling of an optional infill well on each B.P.U. of 480 acres or more, but modifying the April order in some respects.” (Emphasis added.) 244 Kan. at 163. In the July order, the KCC determined that “studies of approximately 100 wells were sufficient to make a projection from which it issued a field-wide order” rather than conduct an individual hearing on each unit. 244 Kan. at 163.,
Mesa argues that, in light of the KCC order, its decision to drill an additional well cannot,, as a matter..of law, constitute a breach of any . implied obligation of good faith. As previously indicated, the obligation to exercise good faith is not implied but, rather, expressly required by the contract. Further, unless the KCC order required the drilling of infill wells on each unit, and it clearly does not, Mesa’s argument would not be sound. The determination whether its discretion was exercised in good faith is dependent upon consideration of factors specific to the unit and not just on the KCC’s field-wide projection.
Mesa postulates that its failure to drill the additional well might have caused Magnolia to cancel its leases on the ground that Mesa was not operating the unit with due diligence. We find no merit in this argument. It is nothing more than speculation what Magnolia might have done, and a reasonable exercise of discretion in the unit’s operation should have balanced the benefit and detriment to all interested parties.
It is evident that Mesa does not quarrel with Kansas courts’ imposition of an obligation of good faith operation of a gas lease.. Mesa speculates that a ground upon which Magnolia might at tempt to cancel the leases is breach of Mesa’s “implied obligation to prudently develop the unit. Parkin v. Kansas Corporation Comm’n, 234 Kan. 994, Syl. ¶ 6 and 7, 677 P.2d 991 (1984).” Those syllabus paragraphs state:
“ ‘Unit operation’ means not only the process of placing a number of oil and gas leases together, centralizing management, pumping the wells and dividing the royalty proceeds according to schedule, it also means the good faith operation and prudent development of the unit.” Syl. ¶ 6.
“On the hearing of an application to terminate its order unitizing oil and gas leases pursuant to K.S.A. 55-1301 et seq., the Kansas Corporation Commission must determine whether a unit was being operated in good faith, whether it was being prudently developed at the time the application was filed, and whether the purposes of the compulsory unitization act, K.S.A. 55-1301 et seq., continue to be served.” Syl. ¶ 7.
These principles enjoy long and enduring vitality, as can be seen in the court’s quoting Syl. ¶ 6 from Parkin in the recent case of Akandas, Inc. v. Klippel, 250 Kan. 458, 465, 827 P.2d 37 (1992), and in the following quote from a venerable case:
“The doctrine in this state is now well established that what is required of a lessee, under the implied covenant to develop an oil and gas lease, is reasonable diligence in doing what would be expected of an operator of ordinary prudence, in the furtherance of the interests of both lessor and lessee. {Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P.2d 95; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P.2d 810; and Berry v. Wondra, 173 Kan. 273, 246 P.2d 282.) Under this rule neither the lessor nor the lessee of an oil and gas lease is the sole judge of what constitutes prudent development of the tract.” Temple v. Continental Oil Co., 182 Kan. at 220.
Finally, Mesa argues that the district court’s termination of the agreement constitutes a forfeiture. According to Mesa, courts abhor forfeitures, particularly for breaches of implied obligations. Mesa relies on Christiansen v. Virginia Drilling Co., 170 Kan. 355, 361, 226 P.2d 263 (1951), where it was stated:
“Instances are rare where equity will enforce a forfeiture for breach of an implied covenant; it will never do so where less drastic redress will satisfy the demands of justice, and forfeitures of oil and gas leases for breach of implied covenants are seldom decreed, and never arbitrarily. {Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005; Greenwood v. Texas-Interstate P.L. Co., [143 Kan. 686, 56 P.2d 431], and cases therein cited.)”
Mesa suggests that some other, unspecified form of relief would be more equitable in the present case. The Baptists/Hugoton Energy respond that there is nothing inequitable or penal in the district court’s refusal to sanction Mesa’s extinguishing their interests in the unit and .effectively transferring them to itself.
In Temple, the landowners and other royalty owners sought to cancel an oil and gas lease. This court observed that “[w]hile equity abhors forfeitures it likewise abhors injustice.” 182 Kan. at 236. The court was receptive, therefore, to the suggestion that the following decree be entered: “[U]nless the defendants herein commence a well on the ten-acre tract here in controversy on the leased premises by the 25th day of May, 1958, and complete the same as soon as is reasonably possible, the lease as to such ten-acre tract shall be cancelled.” 182 Kan. at 236-37.
Mesa contends that there are detailed express provisions in the contract which anticipate increased costs. It singles out phrases from the accounting procedure, such as “current replacement cost [of the same kind of material],” as illustrating its position. Mesa cites Tenneco Oil Co. v. Bogert, 630 F. Supp. 961, 969 (W.D. Okla. 1986), for the proposition that, where a contract contains detailed provisions, a court will not assume that the parties were incapable of drafting a contract which reflected their desires. Mesa also contends that the reasonableness of its charges is not questioned by the Baptists/Hugoton Energy. Mesa points out that “no meeting of the minds” is a phrase more typically associated with the inquiry whether a contract ever came into existence.
In the present case, the district court stated that it “could not have been anticipated by the parties at the time of entering this agreement” that the operation “would effectively transfer all natural gas owned by the plaintiffs to the defendant.” The district court further stated that “[t]here could have been no meeting of the minds in anticipation of an operating cost which would increase more than thirty times the original assessment and for production costs which would exceed seven times that of the initial production cost.” The Baptists/Hugoton Energy contend that the district court found that the parties had mutually and mistakenly assumed that costs would not overwhelm the royalty owners’ income.
In Estate of Link v. Wirtz, 7 Kan. App. 2d 186, 638 P.2d 985, rev. denied 231 Kan. 800 (1982), the district court reformed the rental rate provision in a lease; the Court of Appeals reversed.
Estate of Link involved a 20-year lease for a tract of land. The period began in 1958, and Wirtz, the lessee, had the option to extend the term for another 20 years. Wirtz entered into the lease agreement with Deutsch, who had given a power of attorney to a granddaughter, Gillen, when he suffered a stroke. Nevertheless, Gillen was not involved in or consulted about the making of the lease. Annual rent was set at $200. Deutsch died, the land went to Link, Wirtz notified Link that he wanted to extend the term, Link refused, Link died, and the executrix of Link’s estate filed an action to avoid or reform the lease. 7 Kan. App. 2d at 186-87. A court-appointed panel of appraisers set the fair market rental at $720, per year. 7 Kan. App. 2d at 188. The parties stipulated that the rent was conscionable in 1958. According to the Court of Appeals, “[t]he mere passage of time made the rental term appear to be unfair. Apparently time had turned this lease into a bad bargain.” 7 Kan. App. 2d at 189. Although the executrix sued to avoid or reform the lease, the Court of Appeals quoted C.J.S. at length on the principles of specific performance. 7 Kan. App. 2d at 189-90. The Court of Appeals distinguished Jensen v. Southwestern States Management Co., 6 Kan. App. 2d 437, 629 P.2d 752, rev. denied 230 Kan. 818 (1981), on the ground that the parties to the lease should have anticipated increased value of property by extrapolating from the economic climate in 1958. 7 Kan. App. 2d at 190. Moreover, the Court of Appeals reasoned, “[t]he record further reveals that no real hardship or injustice would result from the enforcement of the lease.” 7 Kan. App. 2d at 190.
The Court of Appeals noted that the doctrine of unconscionability in private contracts exists in Kansas through the adoption of K.S.A. 16a-5-108 of the Uniform Consumer Credit Code, K.S.A. 1992 Supp. 50-627 of the Consumer Protection Act, K.S.A. 58-2544 of the Residential Landlord and Tenant Act, and, most importantly, K.S.A. 84-2-302 of the Uniform Commercial Code. The court quoted from Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757-58, 549 P.2d 903 (1976):
‘Although the UCC’s application is primarily limited to contracts for the present or future sale of goods (K.S.A. 84-2-102; 84-2-105), many courts have extended the statute by analogy into other areas of the law or have used the doctrine as an alternative basis for their holdings.’ The court then proceeded to use 84-2-302, the UCC unconscionability section, as a guide in a non-UCC case. We likewise use statutory unconscionability provisions as a guideline.” 7 Kan. App. 2d at 188.
Although further noting that the cited statute provides that the court look to the time the contract is made in determining if a contract is unconscionable, the court said:
“Despite the general rule that the trial court will look to the circumstances as they existed at the inception of the contract rather than in the light of subsequent events to determine whether the agreement is conscionable, a court is not powerless in equity to remedy that which it perceives as present unconscionability.
“Although this case deals with a party seeking to have the court reform a contract, the rules concerning specific performance of contracts are applicable. In its discussion concerning specific performance of contracts, C.J.S. states:
‘Specific performance of a contract is never decreed when its enforcement would be inequitable or unconscionable, or produce injustice or hardship, or where the specific performance of the contract would operate oppressively as to either party, even though there is no sufficient ground for rescission or cancellation. . . . Equity will not assist a party seeking to enforce a hard bargain. The fact that the inequity arises from provisions of the contract or the performance thereof, or from external facts or circumstances is immaterial. The harshness or oppression which would entail sufficient ground to deny specific performance need not arise from fraud, mistake, or accident in the making of the contract.
‘The foregoing rules are nevertheless subject in their application to some limitations that arise out of the facts of particular cases. The rule against specific performance has been said to apply only where the consequences of enforcement cannot be deemed to have been contemplated by the parties when the contract was made. Hence, hardship, fairly and voluntarily assumed as a part of the contract sought to be enforced, cannot prevail to stay a specific performance thereof, and a bad bargain, in the absence of fraud, will not relieve a party from specific performance.’ 81 C.J.S., Specific Performance § 20, pp. 737-740.” 7 Kan. App. 2d at 189-90.
In Jensen, 6 Kan. App. 2d 437, plaintiffs owned certain land and the Management Co. owned the mineral rights. The more than 55-vear-old mineral deeds permitted the company to use the surface as well as the minerals upon the payment of $70-75/ acre. The court concluded that the price had become inequitable and that the company would be required to pay the current market value if it ever decided to use the surface. The court reasoned as follows:
“To condition a grant of specific performance upon paying an adequate price rather than a price set before the value of money has eroded by inflation is common. 71 Am. Jur. 2d, Specific Performance § 88, p. 120. Of many circumstances calling for a price adjustment in cases, the following are noted: The contract price would work a hardship not within contemplation of the parties at the time of making the contract. [Citation omitted.] When specific performance is denied, the court is allowed considerable latitude in making orders to obtain equity between the parties. [Citation omitted.] Specific performance is properly denied when land is worth about $1,000 or $1,500 per acre and the contract price is only $361.72. [Citation omitted.] A contract will not be specifically enforced if it ‘drives too hard a bargain for a court of conscience to assist.’ [Citation omitted.]” 6 Kan. App. 2d at 443.
Here, the district court correctly found that the contract was breached when Mesa commenced to drill the third well on May 25, 1988. Although the parties could have anticipated some change in the drilling and operating costs and the 'market price for natural gas, we agree with the district court that the parties could not have reasonably foreseen at the time of entering the contract the tremendous increase that has occurred. However, we do not find that termination of the contract is the proper remedy based upon the facts in this case.
We agree with the district court that this is a unique case. An equitable remedy is difficult to find and harder to apply to the facts in the present case. We acknowledge that courts should not make a contract for the parties. Unquestionably, the parties through direct negotiations could have come up with a better solution than the court. However, they did not do so. We are not making a contract for the parties. The parties made this contract in 1952, and we are only providing a remedy where subsequent changes not reasonably foreseeable by the parties have rendered the contract unconscionable under present circumstances. As pointed out in Estate of Link, the rules concerning specific performance are applicable to reformation of a contract, as are the remedies available under the Uniform Commercial Code as a guide to fashion an equitable remedy.
We do not agree with the district court’s finding that there was “no meeting of the minds” in anticipation of these increases in costs and market price; rather, we find such increases were not anticipated or reasonably foreseeable and thus render the contract unconscionable. To enforce the original contract would work a substantial hardship on the plaintiffs and would be unjust. On the other hand, termination of the contract merely shifts the inequities from the plaintiffs to the defendant. The parties entered into a long-term executory contract in which Mesa obtained a long-term supply of natural gas and the plaintiffs initially received an acceptable price for their interest in the gas produced and sold under the contract. The remedy, therefore, should preserve the mutual benefits of this long-term contract under the changed circumstances. The least drastic remedy should be applied which will provide equity and justice to the parties. We note that plaintiffs’ cause of action includes, as an alternative to avoiding the contract, a prayer for reformation of the contract to require the defendant to pay market price for the natural gas. We conclude that reformation of the contract, and not termination, is the appropriate remedy which will best preserve to each party the benefits they initially intended and contemplated receiving from the contract.
Mesa also contends that the Baptists do not have standing to seek avoidance or reformation of the contract. Mesa states its issue in terms of standing, but argues it in terms of the real party in interest. Mesa cites to K.S.A. 1992 Supp. 60-217(a), which provides that “[e]very action shall be prosecuted in the name of the real party in interest.” The statute also provides:
“No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”
The present action was jointly initiated by the Kansas Baptist Convention, a party to the 1952 agreement, and the Hugoton Energy Corporation, which purchased the Baptists’ mineral rights in 1988.
Mesa argues that the Baptists have no rights to be enforced. In May 1988, they executed a Mineral Deed transferring their mineral estate in the land at issue to Hugoton Energy Corporation. In September 1988, the Baptists executed a Corrected Mineral Deed which changed the transfer from the entire mineral estate to 90% of the mineral estate of the Baptists. Mesa contends that, even though the Baptists retained 10% mineral ownership, they transferred any and all claims, demands, rights, and causes of action arising out of the 1952 agreement. We find no merit in this argument. In each of the deeds, the Baptists transferred “all claims, demands, rights and causes of action which may have heretofore accrued to grantor as the owner of said mineral estate.” A reasonable construction of the Corrected Mineral Deed would be that the “mineral estate” is 90% of the mineral rights which the Baptists held at the time of the 1952 agreement. Thus, the Baptists transferred all causes of action arising out of the 90% portion of the mineral estate, but retained all causes of action arising out of the remaining 10% of the mineral estate.
The district court concluded that Mesa’s real party in interest argument became moot “by virtue of a subsequent conveyance from Hugoton Energy Corporation to the Kansas Baptist Convention, a copy of which conveyance is attached to the stipulations filed on January 29, 1991, as Exhibit ‘F.’ ” The document referred to by the district court is neither the Mineral Deed nor the Corrected Mineral Deed. It is titled, “Stipulation and Cross-Conveyance,” and it was executed in July 1990, two years after the deeds. We find no error in the district court’s conclusion.
Finally, Mesa contends that equitable principles bar the relief sought by the Baptists and/or Hugoton Energy. Although Mesa pled the equitable principles of waiver and estoppel as affirmative defenses, the district court’s disposition of the case, according to Mesa, did not include their consideration. It should be noted that the district court made the following finding: “Because the record is void of any evidence reflecting the detriment to the defendant by the time or filing of this lawsuit, the motion [of Mesa] to amend to include laches as a defense is also denied.”
The Baptists’ lack of diligence is a pivotal point favoring Mesa’s argument. Mesa contends that the remedy of rescission is not available to the Baptists due to their lack of diligence, which fits hand-in-glove with their accepting benefits under the contract over a period of years while they delayed prosecuting this action. Mesa relies on Brown v. Wolberg, 181 Kan. 919, 317 P.2d 444 (1957). The first syllabus paragraph of that case states: “The equitable remedy of rescission is open only to the diligent, and one who seeks to rescind a contract on the ground of fraud and misrepresentation must do so with reasonable promptness after discovery of the fraud.”
The present action is not premised on fraud or misrepresentation. Nor has Mesa endeavored to show that or how the “diligence rule” of fraud or the statute of limitations for an action on the ground of fraud should be applied in the present case.
Other cases are cited by Mesa for this court’s imposing an equitable requirement of “consistency of conduct.” We need not discuss these cases in detail because the key is whether the principle for which they have been cited is applicable here. The question is whether the Baptists and/or Hugoton Energy are asserting rights which are inconsistent with their past conduct.
Mesa’s theory of inconsistent conduct is that the Baptists have contemplated “breaking the contract” since 1970, but in the meantime continued to accept the benefits of the contract. The parties stipulated that in 1970 the Baptists consulted with an attorney “to determine the feasibility of bringing an action against Mesa concerning the 1952 agreement.” They also stipulated that during 1971 and 1972 the Baptists gave periodic consideration to seeking release from the agreement through legal action or renegotiation. This action, however, was not filed until after the 1988 drilling of the additional well completely extinguished any possibility that they would continue to receive benefits.
The Baptists’ conduct seems to mark not a shortcoming of conscience so much as unusual forebearance. The contract at issue here is not one under which the parties perform sequentially, nor is it a contract under which performance of any party might be completed in the foreseeable future. It is not as if Mesa had performed, the Baptists accepted the benefit of Mesa’s performance, and then the Baptists refused to reciprocate. Mesa’s argument lacks merit, particularly when its own request that this court hold the Baptists’ feet to the contractual fire after Mesa has reaped enormous profits for years from the gas it has pumped and purchased at their expense is measured against the inconsistent conduct standard. We find no bar exists to preclude the relief sought by the plaintiffs.
In their cross-appeal, plaintiffs seek 1fe rather than 5/ig of the gas produced from the wells drilled on the unit. Plaintiffs argue that since the district court terminated the contract and the three wells are on the two quarter sections in which plaintiffs own a Vz interest, plaintiffs are entitled to Vz of the gas produced from the wells. In view of our decision that reformation of the contract and not termination is the proper remedy, the cross-appeal becomes moot.
We conclude that, although the district court correctly found the defendant breached the contract, it erred in terminating rather than reforming the contract. Thus, we hold that the decision of the district court must be reversed and the case remanded. Upon remand, the district court must determine to what extent the price and cost terms for drilling and operating of the natural gas wells and for sale of the natural gas should be modified. The district court should fashion a remedy modifying the contract in light of the changed circumstances that have rendered the contract unconscionable. To avoid injustice to the parties, the modification should attempt to preserve the original purpose and expectations of the parties in light of the changed circumstances. Since enforcement of the contract as modified is the appropriate remedy in the present case, it follows that the damages for defendant’s breach of the contract must be determined based upon the contract as it is modified by the district court.
The judgment of the district court is affirmed in part and reversed in part, and the case is remanded.
Abbott, J., not participating.
Terry L. Bullock, district judge, assigned. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an interlocutory appeal in an eminent domain proceeding. The two issues presented on appeal deal solely with statutory construction and are submitted on an agreed statement.
The primary issue is whether the district court acquires jurisdiction of an appeal from the appraisers’ award in an eminent domain proceeding in which the notice of appeal is timely filed and served on the condemner but copies of the notice of appeal are not served on all other interested parties. The second issue is who is required to cause service to be made on all other interested parties.
The condemnation proceeding was commenced properly by the City of Wichita (condemner). Subsequently, the appraisers issued an award from which 200 South Broadway, Limited Partnership (landowner) appealed. The landowner gave notice to the condemner, but the 15 tenants and 2 lienholders involved did not receive notice of the appeal until approximately three months after the notice of appeal was filed.
K.S.A. 26-508 provides:
“If the plaintiff, or any defendant, is dissatisfied with the award of the appraisers, he may, within thirty (30) days after the filing of the appraisers’ report, appeal from the award by filing a written notice of appeal with the clerk of the district court. In the event any parties shall perfect an appeal, copies of such notice of appeal shall be mailed to all parties affected by such appeal, within three (3) days after the date of the perfection thereof. An appeal by the plaintiff or any defendant shall bring the issue of damages to all interest[s] in the tract before the court for trial de novo. The appeal shall be docketed as a civil action and tried as any other civil action: Provided, however, The only issue to be determined therein shall be that of just compensation to be paid for the land or right therein taken at the time of the taking and for any other damages allowable by law.” (Emphasis added.)
The condemner argues that providing notice to all affected parties is jurisdictional to an appeal filed under K.S.A. 26-508. On the facts of this case, the condemner claims the trial court did not acquire jurisdiction or lost jurisdiction of an appeal from the appraisers’ award in an eminent domain proceeding in which notice was filed and served on the condemner, but was not provided to the lienholders of record and the parties in possession.
The condemner relies upon selected provisions from the Eminent Domain Procedure Act, K.S.A. 26-501 et seq., and upon public policy. The condemner contends the legislature has limited the procedure for eminent domain proceedings to the Eminent Domain Procedure Act. See K.S.A. 26-501(a) (“The procedure for exercising eminent domain as set forth in K.S.A. 26-501 to 26-516, inclusive, shall be followed in all proceedings.”). Citing City of Wellington v. Miller, 200 Kan. 651, 438 P.2d 53 (1968), the condemner argues that affected or necessary parties to the judgment cannot be joined later pursuant to the civil procedure statutes for joinder of parties because “the Code of Civil Procedure does not govern proceedings on appeal in a condemnation action.” According to the condemner, the notice requirement in K.S.A. 26-508 must be jurisdictional because otherwise affected parties may be deprived of the opportunity to participate in the appeal, which is being tried de novo before the trial court, and may not be bound by the court’s judgment. To shore up this claim, the condemner points out that K.S.A. 26-502 requires the condemner’s petition to name all affected parties—landowners, lienholders of record, and parties in possession.
We must analyze the language of the controlling statute, K.S.A. 26-508, in order to resolve this issue.
“Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.
“In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may 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. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act.” West v. Collins, 251 Kan. 657, Syl. ¶¶ 3, 4, 840 P.2d 435 (1992).
When the Eminent Domain Procedure Act was enacted in 1963, K.S.A. 26-508 did not require that copies of the notice of appeal be mailed to affected parties. To perfect an appeal, a party had to file a notice of appeal with the clerk of the district court within 30 days from the filing of the appraisers’ award. L. 1963, ch. 234, § 8; see Spring, Comments on Practice and Procedure in Eminent Domain, 35 J.K.B.A. 7, 9 (1966) (“Formerly an appeal bond was required in order to perfect the appeal. The bond has been dropped from the 1963 act, and the filing of the notice of appeal alone is the only present requirement.”). K.S.A. 26-508 was amended for the first and only time in 1968, adding the second sentence of the current version concerning the mailing of copies of the notice of'appeal. After the amendment, commentators did not interpret the statute differently with regard to perfecting the appeal. See Bennett, The 1968 Kansas Legislature—How Did It Affect the Lawyers Practice?, 37 J.K.B.A. 159, 209 (1968); Article, Survey of Kansas Law: Real and Personal Property, 18 Kan. L. Rev. 427, 436 (1970).
The landowner contends the perfection of an appeal is distinct from mailing copies of the appeal notice to affected parties. The first sentence of the statute sets forth what a party must do to appeal from the appraisers’ award. The second sentence requires mailing copies of the notice of appeal to all affected parties only if and after the appeal is perfected. The landowner maintains the language of the statute is unambiguous—mailing copies of the appeal notice is not jurisdictional.
Statutory requirements for an appeal are not always jurisdictional. See Legg v. Topeka Halfway House, Inc., 7 Kan. App. 2d 669, 670, 646 P.2d 1155, rev. denied 231 Kan. 800 (1982), and cases cited therein. We hold that, pursuant to the unambiguous language of K.S.A. 26-508, mailing copies of the notice of appeal is not needed to perfect an appeal from the appraisers’ award in an eminent domain case and therefore is not jurisdictional to such an appeal. See Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992) (“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.”).
The second issue raised concerns who is required to mail copies of the notice of appeal. K.S.A. 26-508 does not specify, stating: “In the event any parties shall perfect an appeal, copies of such notice of appeal shall be mailed to all parties affected by such appeal, within three (3) days after the date of the perfection thereof.”
The condemner maintains the statutory language implicitly requires the party who perfects the appeal to mail copies of the appeal notice. The landowner responds that the condemner is attempting to rewrite the statute because the statute does not “suggest” any particular party. The landowner claims it is reasonable for the nonappealing party to be responsible for mailing copies because the nonappealing party has an interest to protect. The landowner also contends K.S.A. 26-508 is consistent with requiring the clerk of the district court to send the copies because of the three-day lag time, which allows time for the clerk to make copies and send them to the affected parties. According to the landowner, if the statute required same-day mailing, it would be consistent with requiring the appealing party to mail the copies because it is customary to file an appeal and send copies of the appeal notice on the same day. In support of its argument that someone other than the parties should be responsible, the landowner points out that notice is to be sent to “all parties affected” and that it makes no sense to require a party to send a copy to itself. In response, the condemner argues that nothing in the language of K.S.A. 26-508 or the Eminent Domain Procedure Act suggests the nonappealing party or the clerk of the district court should be responsible for mailing copies.
Neither party cites any authority to support its arguments. The trial court found the appealing party was responsible for mailing copies of the notice, reasoning it would be an unfair burden upon the clerk of the district court, who is not required to be trained in the law, to ascertain the affected parties. The most reasonable construction is for the appealing party to be responsible for sending copies of the notice of appeal. The legislature generally has required the appealing party to serve the notice of appeal, and in those rare instances in which the legislature has not done so, it has been very specific. We conclude the legislature intended the appealing party to be responsible for mailing copies of the notice of appeal to all parties affected by the appeal.
Affirmed.
Holmes, C.J., not participating.
James M. Macnish, Jr., district judge assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Jacqueline Edgar-Austin, of Mission, Kansas, ah attorney admitted to the practice of law in Kansas.
A hearing panel of the Kansas Board for Discipline of Attorneys made the following findings of fact:
FINDINGS OF FACT
“1. Jacqueline Edgar-Aústin is an attorney at law,- Kansas Attorney Registration No. 11739. Her last registration address with the Clerk of the Appellate Courts of Kansas is 5700 Broadmoor, Suite 1008, Mission, Kansas 66202.
“2. Joseph and Patricia Gutierrez retained Ms. Edgar-Austin' on January 28, 1989, to file a Chapter 7 bankruptcy on their behalf. The agreedrupon fee was $500.00 and the filing fee was $90.00. Mr. and Mrs. Gutierrez paid $400.00 in January of 1989 and the remaining $190.00 in May of 1989.
“3. From January of 1989 until May of 1989 Mr. and Mrs. Gutierrez gathered the information that Ms. Edgar-Austin said would be needed in order to file the bankruptcy petition, including- documents pertaining to a previous business venture which involved a Small Business Administration loan: Ms. Edgar-Austin told Mr. and Mrs. Gutierrez in May and June that she had all the necessary information to file the case and that it would be filed in June. Ms. Edgar-Austin later told Mr. and Mrs. Gutierrez that she needed additional information before the petition could be filed.
“4. During July and August of 1989, Mr. and Mrs. Gutierrez. called to ask why their creditors had not been informed of the filing of the bankruptcy. Ms. Edgar-Austin told them that it took time for the court to notify the creditors.
“5. On September 28, 1989, after placing numerous telephone calls to Ms. Edgar-Austin which were not returned, Mrs. Gutierrez contacted the clerk of the bankruptcy court and learned that the case had not been filed. By letter dated September 28, 1989, Mr. and Mrs. Gutierrez informed Ms. Edgar-Austin that they had learned that the case had not been filed. They further informed her that, based on this misrepresentation and on her failure to take the requested action, they were terminating their relationship with her. They demanded a return of the $590.00 which they had paid.
“6. Ms. Edgar-Austin responded to Mr. and Mrs. Gutierrez by letter dated September 29, 1989. She indicated the delay was due to the need to gather additional information on their previous business venture and the unpaid sales taxes. She further wrote:
‘At this point, your paperwork is in completed form and it has been in completed form for some time, and I believed it could have been forwarded to the court along with several other petitions I filed at the same time. Apparently, it was not included among these . . . .’
“7. Mr. and Mrs. Gutierrez agreed to allow Ms. Edgar-Austin to continue their representation. On October 7, 1989, they met with Ms. Edgar-Austin and supplied some additional information. On October 20, 1989, Ms. Edgar-Austin informed Mr. and Mrs. Gutierrez that she had determined that the sales tax was not dischargeable so it would not be included in the petition. She stated she did not want to ‘arouse sleeping dogs.’ She indicated that the petition was ready for filing and Ms. Edgar-Austin said she would try to get it filed yet that afternoon.
“8. As a result of this conversation, Mr. and Mrs. Gutierrez believed Ms. Edgar-Austin had resolved the sales tax liability issue and had filed the bankruptcy petition. On Tuesday, October 24, 1989, Ms. Edgar-Austin told Mrs. Gutierrez she had not been able to get the case filed the previous Friday but a runner was en route to the courthouse to file the petition. She further told Mrs. Gutierrez she would not havp a case number until later that afternoon but would call Mrs. Gutierrez with that information. Mrs. Gutierrez did not hear from Ms. Edgar-Austin. She called Ms. Edgar-Austin several times a day for the rest of the week but her calls were not returned. On Friday, October 27, 1989, Mrs. Gutierrez again called the clerk of the bankruptcy court and was again told the case had not been filed.
“9. On Tuesday, October 31, 1989, Mr. Gutierrez went to Ms. Edgar-Austin’s office and demanded a bankruptcy case number or some similar evidence by which he could be assured that the case had actually been filed. In a letter to Mr. and Mrs. Gutierrez dated October 31, 1989, Ms. Edgar-Austin acknowledged she had not returned their telephone calls and indicated that although she had told Mrs. Gutierrez she was filing the bankruptcy petition she had decided there existed the need for additional research on the sales tax liability issue. She believed this could be accomplished ‘within the next few days.’
“10. After Mr. Gutierrez’s visit to the office of Ms. Edgar-Austin the petition was filed the following day. The sales tax was not listed as a liability. Mr. and Mrs. Gutierrez were granted a discharge on March 22, 1990.
“11. By letter dated September 17, 1991, Mr. and Mrs. Gutierrez requested a copy of their discharge papers and the return of all documents they had provided to Ms. Edgar-Austin for preparation of the bankruptcy petition.
“12. The letter of complaint was sent by Mr. and Mrs. Gutierrez on January 23, 1992, and received on February 6, 1992. This letter complains in part about the failure of Ms. Edgar-Austin to return their papers to them.
“13. Ms. Edgar-Austin was provided a copy of the letter of complaint by letter dated February 26, 1992. On February 28, 1992, she hand-delivered to Mr. and Mrs. Gutierrez the documents that they had requested along with a cover letter explaining she did not realize her secretary had failed to carry out her instructions.”
The panel then noted:
“The Disciplinary Administrator contends that Ms. Edgar-Austin’s conduct in this matter violated Model Rules of Professional Conduct 1.1 [1992 Kan. Ct. R. Annot. 244] [A lawyer shall provide competent representation to a client.], 1.2 [1992 Kan. Ct. R. Annot. 246] [A lawyer shall abide by client’s decisions concerning the lawful objectives of representation.], 1.3 [1992 Kan. Ct. R. Annot. 248] [A lawyer shall act with reasonable diligence and promptness in representing a client.], and 1.4 [1992 Kan. Ct. R. Annot. 251] [A lawyer shall keep a client reasonably informed, promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.]. The respondent stipulates that she did indeed violate those rules. The panel concurs.
“The Deputy Disciplinary Administrator advised the panel that the respondent previously received an informal admonition as a result of a 1988 complaint wherein respondent was found to have transgressed Supreme Court Rule 207 [1992 Kan. Ct. R. Annot. 160], MRPC 1.1 and 1.4 and the Disciplinary Rule counterparts of those model rules, the conduct in question having fallen on both sides of the March 1, 1988, effective date for the Model Rules of Professional Conduct.
“In mitigation, the respondent reminded the panel of the difficulties inherent in solo practice. She also noted that she had no selfish motive and no intent to cause harm to Mr. and Mrs. Gutierrez. She was indeed concerned about the proper treatment of one of her client’s debts, but she readily admitted she had failed to provide sufficient information to the Gutierrezes on that score. Respondent further noted the 1988 disciplinary problem arose at a time when she was confronted with the serious illness of a child. Finally, respondent offered Exhibits 1 and 2, letters from satisfied clients. Those exhibits were admitted without objection. The Deputy Disciplinary Administrator recommended the imposition of public censure.”
The panel concluded:
“The panel consulted and concluded unanimously that violations of MRPC 1.1, 1.2, 1.3, and 1.4 have been proved by clear and convincing evidence. The panel recommends that the Supreme Court publicly censure respondent for her conduct.”
The respondent argues to this court that, under the facts, informal admonition is the proper discipline. We disagree.
The courtroom is not the place where lawyers do most of their work. A majority of a lawyer’s time is spent in an office discussing legal matters with clients, obtaining factual background, determining the client’s needs, and giving advice, drafting documents, or taking other steps in response to the needs of the client.
Clients come to lawyers for help. To help the client, lawyers utilize their knowledge, training, and skills. The lawyer must engage in preparation necessary and adequate under the circumstances and not neglect a matter entrusted to him or her. A lawyer who is not diligent or prepared violates a duty to the client. A lawyer may compound a violation of a duty to a client by misleading or making false statements to the client. Such conduct not only violates the lawyer’s duty to the client—it exhibits a lack of moral character.
It is essential that members of the bar have .the ability, knowledge, and sound moral character necessary to interpret the laws and participate in the administration of justice. Because the respondent was neither diligent nor honest with her clients, the proper discipline is public censure.
It Is Therefore Ordered that Jacqueline Edgar-Austin be and she is hereby disciplined by this court by public censure for her previously enumerated violations of the model rules of professional conduct.
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant Clifford D.' Steadman appeals his convictio’ns of second-degree murder and robbery, claiming the district court (1) erred in allowing police officers who were not expert witnesses to testify that in their opinion the defendant was guilty and others investigated were not guilty of the crime; (2) admitted gruesome evidence that had no probative value and was highly prejudicial; (3) allowed the jury to be informed that the defendant had claimed, his Fifth Amendment right when questioned by law enforcement officers; and (4) erred in refusing to instruct on lesser included offenses.
Steadman was convicted of the second-degree murder and robbery of William Earle Haislip. Steadman was an acquaintance of Haislip. Haislip, who was 74 years of age, was beaten and strangled on or about September 18, 1990, the day his body was found in his trailer-home in Great Bend, Kansas.
. Steadman had been working as a confidential informant for the police after the police had found marijuana, drug paraphernalia, and some cocaine in his house. Steadman had been wired with a transmitter and made several buys for Detective Whistler from September 8 through September 17, 1990.
At approximately 9:15 p.m. on September 18, 1990, Steadman knocked on the door of Ambra Chism, a neighbor of Haislip, and asked if she had seen Haislip that day. Chism did not recall seeing Haislip. Steadman told her he had not seen Haislip all day and was worried about him, although at. trial, Steadman testified he had been in Haislip’s trailer earlier that day and found Haislip, became frightened, and left. Chism and her son, James Johnson, and Steadman went to Haislip’s trailer to check on him.
When no one answered her knock at the trailer, Chism stepped just inside the door. Chism thought she saw ■ something -in the living room, walked in, and saw Haislip lying on the floor with some kind of blue fabric covering the upper part of his body. There was blood on the fabric. Chism became frightened and exited the residence. Steadman and Johnson had remained outside. The three returned to Chism’s residence. Chism telephoned 911 for help. An ambulance and police arrived about 10 minutes later.
A pillow covered the head and part of Haislip’s upper body. A plastic-covered cable and stereo speaker wire were wrapped tightly around his neck several times. More stereo speaker wire lay underneath the body, along with a bloodstained matchbook. (A fingerprint in blood on the matchbook was later identified as matching Steadman’s left thumbprint.) There were lacerations on Haislip’s head. One of Haislip’s trouser pockets had been turned inside out and there was loose change on the floor.
Later, Steadman called Detective Whistler’s residence and left a message for Whistler to call him. When the officer returned his call, Steadman advised him that Haislip kept a blue bank bag on the table and carried a wallet. Neither the wallet nor the bank bag was ever found. He also said that Haislip had offered him a check for $300 on September 17. After he refused to accept the check, Haislip tore up the check. Whistler went to the trailer and looked for a check but did not find the check or the pieces, and Haislip’s check registry did not indicate a check was missing or unrecorded. Throughout the investigation, Steadman maintained his story about the check.
Police eventually found that Haislip had erred and recorded his checks as being one number higher than the number of the check he had actually written. One check was unaccounted for. Steadman suggested to Detective Whistler that he perform an indentation test. The KBI did an indentation test on the check register and undertook a handwriting analysis. The expert concluded that Haislip had written a check to Steadman for $300, and found no indication that Steadman had forged the check.
On September 19, 1990, stereo wire similar to that found in Haislip’s trailer was found in the street directly in front of Stead-man’s driveway. A search warrant was obtained, and Steadman’s residence was searched that evening. A similar stereo speaker wire was found. On October 1, 1990, Steadman’s residence was searched a second time. During that search, more speaker wire resembling the wire around Haislip’s neck was found.
On October 1, 1990, during an interview with Steadman, Detective Whistler told Steadman that one of his fingerprints had been found near the body and that the print was in blood. Shortly after that, Steadman said he wanted to call his attorney. Whistler ended the interview and placed Steadman under arrest for the murder of Haislip.
Steadman was charged with felony murder and premeditated murder in the alternative, and with aggravated robbery. He was convicted of second-degree murder and robbéry and now appeals his convictions.
Steadman claims first the trial court erred in permitting witnesses to state that in their opinion the defendant was guilty. Detective Whistler testified it was his opinion that Steadman killed Haislip and that only guilty suspects feel the enormous pressure Stéadman felt during interrogation. Detective Bailey testified he thought Steadman was guilty because other suspects were “honest” and that police lacked probable cause to arrest anyone other than Steadman and there was sufficient probable cause to obtain a search warrant.
With regard to defendant’s contention that the trial court erred in allowing Detective Whistler to state in his opinion that Stead-man killed Haislip, the trial transcript reflects:
“Q. (By [county attorney] Ms. Moore] Sir, who first requested the indentation test on the check?
A. Mr. Steadman.
Q. In your opinion, sir, is there any way the defendant could be as adamant as he was about the indentation showing that that was the last check written?
A. In my opinion he killed Mr. Haislip and he knew that that was the check that was written and that would be the only way that he would know that that was—
MS. KITTS [defense attorney]: Your Honor, I object to that.
A. —that that was there, the indentation was there.
THE COURT: What’s your objection? ,
MS. KITTS: Your Honor, he, it has not been proven that Mr. Stead-man has killed Mr. Haislip, we’re here to determine that.
THE COURT: That’s exactly true, and all he did was give his opinion as to why, and he’s entitled to do that. If you want to recross examine, you have that opportunity.
MS. KITTS: Thank you, Your Honor.
Q. (Ms. Moore) Could he have been certain any other way?
A. Not in my opinion, no.”
Whistler’s opinion testimony that only guilty suspects feel the enormous pressure Steadman felt occurred as follows:
“Q. [Ms. Moore] Detective Whistler, Ms. Kitts inquired of you whether people who are interviewed at the Police Department ever feel some pressure and, in this particular case could the defendant have possibly felt enormous pressure. In your experience do innocent people feel as much pressure as guilty ones?
A. Yes, they do, anytime people have contact with the Police Department most of the time it creates some anxiety with them.
Q. But can you compare the pressure level of an innocent person to a guilty person?
MS. KITTS: Objection, Your Honor, that’s obviously a speculation that we can’t expect of Detective Whistler.
THE COURT: Well, he can give his opinion. Overruled.
MS. KITTS: The level of, is that what you said, the level of pressure.
MS. MOORE: Yes, based on your question on cross.
A. I believe the level of pressure is higher on a guilty person than it would be on an innocent person.
Q. Enormous, possibly?
A. Enormous possibly.”
As to defendant’s guilt because the police had probable cause to obtain a search warrant for the defendant’s residence, but lacked probable cause to arrest other individuals interviewed in connection with the death. Detective Bailey testified as follows:
“Q. [By county attorney] Sir, have you received training and have experience in what is entailed in requesting search warrants?
A. Yes.
Q. And would you describe what level of proof is necessary to obtain a search warrant?
A. It would be the affidavit would contain facts showing, you know, the purpose of why, what leads you to believe certain items or fruits of a crime would be át a specific location.
Q. Is that described as probable cause?
A. Yes.
Q. Sir, at this point in the investigation obviously there was probable cause for a search warrant to issue for the defendant’s home, is that correct?
A. Yes, there was.
Q. At this point in the investigation, sir, was there any probable cause for a search warrant to issue of Doug Chism’s home?
A. No, there was not.
Q. At any time was there sufficient probable cause for a search warrant to be issued for the home of Doug Chism?
A. No.
Q. Sir, your interviews with Doug Chism took place over a series of time, is that correct?
A. Yes, they had.
Q. You had several interviews with Mr. Chism?
A. Yes.
Q. During that time, sir, did his statements change in any significant way? A. No.
Q. They were consistent over that period of time?
A. Yes.
Q. And that’s a period of at least several months, is that true?
A. Yes.
Q. Unlike the defendant’s statements?
A. True.
Q. Which changed significantly over time, is that correct?
A. Yes.
Q. Sir, did your investigation of Earle Haislip’s murder stop when the defendant was arrested and placed in jail?
A. No.
Q. It was a continuing one, was it not?
A. Yes, it was.
Q. Would it be safe to say that it still continues if evidence turned up at this point?
A. Yes, ma’am.
Q. And has any evidence ever turned up which would cause you to believe you have probable cause for a search warrant of Doug Chism’s home at this time?
A. None yet.
Q. Is there any evidence which would lead you to believe that Doug Chism was involved in the murder of Earle Haislip?
A. No.”
Errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining do not require reversal when substantial justice has been done. State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986). Did these errors prejudicially affect the defendant’s right to a fair trial?
Steadman cites a 9th Circuit case, U.S. v. Kinsey, 843 F.2d 383 (9th Cir. 1988), in which the court observed that “[a] witness, however, may not give a direct opinion on the defendant’s guilt or innocence” and then cited two earlier cases. 843 F.2d at 388. The court in Kinsey, though, did not decide that particular issue. The Kinsey court noted that United States v. Fleishman, 684 F.2d 1329 (9th Cir.), cert, denied 459 U.S. 1044 (1982), and United States v. Windfelder, 790 F.2d 576, 582 (7th Cir. 1986), distinguished testimony regarding defendant’s guilt or innocence from expert testimony regarding various roles which an individual may play in an illegal enterprise, i.e., acting as a lookout, attempting to avoid surveillance, or attempting to understate income tax. In considering the testimony of a detective to the effect that the defendant was involved in the distribution of cocaine, the court held that the probative value of the testimony “strongly outweighs any prejudice which the admission thereof would have as an opinion on an ultimate issue. An ultimate issue opinion by a properly qualified expert should not be excluded except in the extreme case where the expert’s opinion is inherently misleading or unfairly prejudicial.” 843 F.2d at 389.
K.S.A. 60-456 provides:
“(a) If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
The State, concedes that Detectives Whistler and Bailey had not qualified as expert witnesses when testifying that in their opinion the defendant was guilty of the crime and exhibited the pressure felt by a guilty person, other persons interviewed were not guilty of the crime, and there was sufficient probable cause for the issuance of a search warrant for the defendant’s residence.
In State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), the defendant was convicted- of rape and aggravated sodomy. At the trial, the court permitted the State’s medical expert, a physician who examined the alleged victim at Bethany Medical Center in Kansas City following the incident, to testify before the jury that in her opinion the victim had been raped. It was the position of defense counsel in Bressman that the trial court erred in admitting expert testimony because it was without sufficient foundation and invaded the province of the jury. The State argued that the testimony was admissible under K.S.A. 60-456. The court in Bressman rejected the State’s argument, relying on Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978), where it was held that, under K.S.A. 60-456, the opinion testimony of experts on the ultimate issue or issues is not admissible without limitations. Such testimony is- admissible only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence. The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. Where the normal experience and qualifications of lay jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible. State v. Lash, 237 Kan. 384, 699 P.2d 49 (1985).
In a criminal trial, the defendant has the right to have the jury determine from the evidence whether the defendant is guilty or not. The police witnesses can testify from their experience as to a role the defendant played in an illegal enterprise—they cannot testify that in their opinion the defendant was guilty of the crime. The admission of witnesses’ testimony that in their opinion the defendant was guilty of the crime and exhibited the pressure felt by a guilty person, other persons interviewed were not guilty of the crime, and there was sufficient probable cause for the issuance of a search warrant for the defendant’s residence deprived the defendant of his right to a fair trial. We therefore reverse defendant’s conviction and remand this case to the district court for a new trial.
Steadman next contends the trial court admitted gruesome evidence, the skullcap of the victim, that had no probative value and was highly prejudicial. The skullcap was the top portion of Haislip’s skull which the Barton County Coroner, Dr. Edward L. Jones, M.D., sawed off during the autopsy on September 19, 1990. The bone was cleaned and preserved. The coroner had detected an irregularity of the skull bone which had resulted from an attack of some kind, removed that portion of the skull, and requested some extra x-ray studies of the bone.
During an in camera hearing to determine whether to admit the skullcap into evidence, the prosecutor asked the coroner whether he thought the blow (the irregularity) to the skull was significant. Defense counsel objected, stating that the doctor was not a lawyer so “he cannot determine that for evidentiary purposes this is significant.” The trial court ruled that the doctor could express his opinion as a doctor whether it was significant. The coroner stated that it was significant because it was a uniquely shaped wound and the skull might assist the officers in matching a weapon to the wound.
The State requested that the skullcap be admitted to show the jury the force used to inflict that particulár wound. In addition, the coroner testified that the blow might have rendered Haislip somewhat “woozy” or perhaps unconscious for a few seconds to a minute.
Defendant argues that the skullcap should not have been admitted as it had no relevance because it was not used (1) by experts for identification, (2) to corroborate the testimony of other witnesses, or (3) to show the violent manner of death. Defendant is correct as to (1) and (2). However, defendant is incorrect as to (3). The skullcap could be used to show the violent nature of Haislip’s death because, although the blow to Haislip’s head was not fatal, the coroner testified it. may have left Haislip “woozy.” Defendant raises additional arguments that the skullcap was not visible at the crime scene and that the skullcap was cumulative to the photographs of the injury but more grisly. Defendant fails to explain either of these arguments or provide citations to the record in support of these claims.
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. State v. Nicholson, 225 Kan. 418, 419-20, 590 P.2d 1069 (1979). Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). 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. Nicholson, 225 Kan., at 420. State v. Ji, 251 Kan. 3, 832 P.2d 1176 (1992). Relevancy and materiality are matters within the sound discretion of the trial court. We will not disturb an evidentiary ruling unless there is a clear showing of abuse of discretion. State v. Abu-Isba, 235 Kan. 851, 857-58, 685 P.2d 856 (1984). See State v. Cooper, 252 Kan. 340, 349, 845 P.2d 631 (1993).
The trial court may exclude gruesome photographs and other evidence which are unduly prejudicial., and which are offered solely to prejudice the mind of the jury. Evidence need not. be excluded, however, merely because it portrays a gruesome crime. Such evidence offered to prove the elements of the- crime, the fact and manner of death, and the violent nature of the death and to corroborate the testimony of other witnesses, is- relevant and admissible. State v. Hollis, 240 Kan. 521, 731 P.2d 260 (1987).
The skullcap was relevant. It demonstrated the violent nature of Haislip’s death. The defendant has failed to show any abuse of discretion.
Defendant next contends that there was reversible trial error when Detective Whistler testified that the defendant, after receiving Miranda warnings, had consulted a lawyer, invoked his Fifth Amendment rights, and remained silent when confronted with the evidence of a fingerprint.
These errors were not objected to at trial. When constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Goss, 245 Kan. 189, 193, 777 P.2d 781 (1989). The defendant cannot raise these points on appeal because they were not presented ,to the trial court. State v. Crawford, 246 Kan. 231, 234, 787 P.2d 1180 (1990).
Finally, defendant contends error in the jury instructions. As we are remanding this case for a new trial, any instructions will be based on the charges and evidence presented at that trial. Further discussion in that regard is unnecessary. .
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The opinion of the court was delivered by
Six, J.:
This is a prisoner’s rights case. A pro se habeas corpus petition framed under K.S.A. 60-1501 challenged the decision of the El Dorado Correctional Facility (EDCF) to withhold certain incoming mail addressed to petitioner William Fletcher. Fletcher alleged that his First Amendment rights were violated by EDCF’s refusal to deliver religious and racially oriented material addressed to him.
Warden Michael L. Nelson, a defendant, filed a motion for summary judgment opposing Fletcher’s claims (the two other defendants are Ronald Dow, chaplain, and Don E. Thomas, deputy warden). The trial court granted the motion. Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on motion of this court).
We do not address the constitutional claims. We affirm on the basis of Fletcher’s failure to exhaust administrative remedies.
Facts
Fletcher asserts that prison officials withheld delivery of unidentified publications on the basis of security. His petition included attachments; however, he failed to specify the attachments upon which he relied to support his claims. Fletcher emphasized that he was “not in a movement to establish WHITE SUPREMACY in any kind of violent way, [the warden] has no proof or allegations to affirm such claims as PLAINTIFF is ‘threat to security’ . . . .” Fletcher concluded that the restraint of his religious freedom was “arbitrary and capricious and shows no rational basis.” He sought multiple forms of relief, including a preliminary injunction and a trial to determine whether the restraint of his mail was illegal.
The warden’s statement of uncontroverted material facts explained that prison officials may inspect and censor prisoner mail when there is a reasonable threat to institutional safety, order, or security under K.A.R. 44-12-601(i). The EDCF mail censorship procedure was described, and the regulations controlling the processing of inmate mail were attached to the summary judgment motion. EDCF policy specifies that when mail is withheld, an inmate has three days to appeal the decision to the warden. Paragraph 7 of the warden’s uncontroverted facts stated: “On several occasions, certain publications addressed to [Fletcher] in this case have been rejected and excluded from delivery because the Mail Review Officer and the Warden determined that the publication contained information which posed a threat to institutional safety, order and security in violation of K.A.R. 44-12-601(i). The excluded publications included issues of the National Vanguard, publications of ‘WAR’ (The White Aryan Resistance), The Oklahoma Satirist and Know your Enemies by Col. Jack Mohr.”
' Fletcher filed an “Objection to Respondents Motion to Dismiss.” We assume that this document is his response to the warden’s motion for summary judgment. Fletcher’s response fails to controvert the uncontroverted facts contained in the warden’s motion as required by Rule 141(b) (1992 Kan. Ct. R. Annot. 124). Fletcher’s response (1) advances an irrelevant argument concerning the United States Code; (2) argues that his petition cannot be dismissed without a hearing; and (3) renews his motion for appointment of counsel.
The order granting summary judgment describes the aspects of the publications which were found to be objectionable. The judge reasoned that the material was designed to foster racial and religious hatred. He concluded that Thomas v. U.S. Secretary of Defense, 730 F. Supp. 362 (D. Kan. 1990), which involved white supremacist literature identical to the publications in the case at bar, controlled. The trial judge held that (1) K.A.R. 44-12-601(i), which is similar to the regulation upheld in Thomas, does not violate Fletcher’s First Amendment rights; (2) the warden, his deputy, and the chaplain acted properly in censoring the subject literature because of security concerns; (3) the censored literature is not religious material within the meaning of the First Amendment; and (4) Fletcher had failed to exhaust his administrative remedies as required by Highman v. Marquez, 5 Kan. App. 2d 158, 613 P.2d 394 (1980).
Fletcher is represented by counsel on appeal.
Summary Judgment
As a prologue to the analysis of the dispositive issues in the case at bar, we acknowledge the applicable rules of summary judgment. The trial court was required to resolve all facts and inferences which might reasonably have been drawn from the evidence, in favor of Fletcher. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988). On appeal, we must read the record in the light most favorable to Fletcher. Bright v. Cargill, Inc., 251 Kan. 387, 392, 837 P.2d 348 (1992). Summary judgment is proper where the only question or questions presented are questions of law. Bank IV Wichita v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 498, 827 P.2d 758 (1992). Fletcher must come forward with something of evidentiary value to establish a material dispute of fact, although he is not required to prove his case. See Glenn v. Fleming, 247 Kan. 296, 305, 799 P.2d 79 (1990).
Fletcher contends that a number of factual issues were relevant to the warden’s motion for summary judgment. Fletcher asserts that the trial court only had a sample of one or two of the censored publications. He maintains that none of the warden’s seven state- merits of uncontroverted facts were dispositive of the case. According to Fletcher, the uncontroverted facts explained the procedure for censoring inmate mail and contained a statement in paragraph 7 that the warden had made a determination regarding the publications which contradicted the affidavit of the mail clerk, who had explained that the administrative appeals were still pending. He contends that the trial court’s , finding on administrative remedies was erroneous.
Although the trial court’s order does not specify that the uncontroverted facts were deemed admitted, the findings in the order are consistent with the uncontroverted facts set out in the warden’s motion and supporting memorandum. Consequently, the trial judge, under Rule 141, functionally deemed the facts admitted. See Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, Syl. ¶ 1, 809 P.2d 1216 (1991).
The Record On Appeal
The condition of the record on appeal prevents us from reaching Fletcher’s constitutional claims.
Fletcher’s initial petition failed to specify which censored publications provide the basis for his claims. The only censorship forms in the record deal with the Bible Law Course Program (material not at issue in the case at bar). One of his EDCF administrative appeals concerning the Bible Law material was granted by the warden. The warden’s motion for summary judgment does not address the religious publications. Only the Oklahoma Satirist, one of the four publications claimed by Fletcher to have been censored, is in the record on appeal. The record does not include the censorship appeal forms for the publications claimed to be at issue. Consequently, we are unable to determine what was censored, the basis for any censorship, and the warden’s disposition, if any, concerning any administrative appeals.
Fletcher carries the burden to include in the record on appeal any matter upon which he intends to base a claim of error. See Gladney v. Sheriff of Leavenworth County, 3 Kan. App. 2d 568, 598 P.2d 559 (1979). Without an adequate record on appeal to substantiate contentions, claims of alleged error must fail. Eisenhut v. Steadman, 13 Kan. App. 2d 220, 223, 767 P.2d 293 (1989).
Failure to Exhaust Administrative Remedies
The warden contends that the record indicates that Fletcher has not exhausted his administrative remedies (i. e., Fletcher failed to initiate an administrative appeal, as required by the EDCF regulations, to challenge the seizure of his mail). Fletcher did not counter the warden’s contention on exhaustion of administrative remedies at the trial court level. He has not furnished a record on appeal which would permit us to conclude that the trial court was in error.
Administrative remedies must be exhausted before turning to a court through a habeas corpus proceeding for review of institutional censorship of prisoner mail. See Highman v. Marquez, 5 Kan. App. 2d 158.
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The opinion of the court was delivered by
Lockett, J.:
David Wayne Elder, an employee covered by workers compensation, was fatally injured. On appeal only the calculation of the average weekly wage is at issue. The Administrative Law Judge (ALJ), the Director of Workers Compensation (Director), and the district court found that K.S.A. 1992 Supp. 44-511(b)(5) requires the weeks an employee could have worked but did not work or earn any wages be included when averaging the employee’s earnings over the 26-week period prior to the accident. Elder’s dependents (claimants) appeal, asserting (1) the statute excludes from the computation of Elder’s average wéekly wage the eight weeks when he did not work or was on "vacation” or “leave of absence”, and (2) the trial court erred in averaging Elder’s wages over the entire 26 weeks prior to his fatal injury.
Elder was fatally injured in a motor vehicle accident while delivering a mobile home for his employer. Claimants filed workers compensation claims against his immediate employer,- Norman Girard, d/b/a/ Arma Mobile Transit Company (Arma), and his statutory employer, Parkview Housing, Inc. (Parkview). The Kansas Workers Compensation Fund (Fund) was impled because Arma was uninsured and unable to pay workers compensation benefits.
After discovery was completed, claimants elected to proceed against Parkview and its insurer, AETNA Casualty and Surety Company (AETNA), rather than against Arma and the Fund. See K.S.A. 44-503. Parkview stipulated that Elder was a statutory employee whose fatal injury arose out of and in the course of his employment, leaving only the amount of the average weekly wage as an issue between claimants and Parkview. The evidence was undisputed that Elder earned a total of $5,140:86 in wages during 18 of the 26 weeks prior to the accident. Although Elder had not worked or earned any wages during the other 8 weeks, Park-view asserted those weeks should be included when determining the deceased’s average weekly wage. The claimants disagreed.
The ALJ found that the deceased worker was employed by Arma “on a cash basis and could work or not work as he saw fit.” Applying the findings of Osmundson v. Sedan Floral, Inc., 10 Kan. App. 2d 261, 697 P.2d 85 (1985), to the facts of this case, the ALJ determined that “the eight weeks that Claimant did not work but could have if he wanted” should be included in the computation of the deceased employee’s average weekly wage. The ALJ entered an award in favor of claimants under K.S.A. 1992 Supp. 44-510b by averaging Elder’s wages over the 26 weeks prior to his fatal injury. The ALJ determined Elder’s average weekly wage to be $197.73. The claimants appealed.
The .Director affirmed the award entered by the ALJ. The claimants and Arma both filed petitions for judicial review with the district court. The district court affirmed the ALJ as to Elder’s average weekly wage, finding that the testimony was clear that “[Elder] worked for Respondent, Arma Mobile Transit, on a cash basis and could work or not work as he saw fit.” The district court, applying the reasoning of Osmundson, found that “the eight weeks that the deceased worker did not work but could have if he wanted” should be included in the computation of the deceased’s average weekly wage. The court determined the amount of Elder’s average weekly wage under K.S.A. 1992 Supp. 44-511(b)(5) by averaging his earnings over the 26-week period prior to his accident.
If there is substantial evidence to support the district court’s factual findings, the appellate court has no power to weigh evidence or reverse the final order of the district court. Baxter v. L. T. Walls Constr. Co., 241 Kan. 588, 591, 738 P.2d 445 (1987). The question of whether a district court’s judgment is supported by .substantial evidence is one of law, and if there is substantial evidence to support those findings, this court is bound by such findings. Duncan v. City of Osage City, 13 Kan. App. 2d 364, 366, 770 P.2d 843, rev. denied 245 Kan. 783 (1989).
Findings in a workers compensation case which are supported by substantial competent evidence will be upheld by the court on appellate review even though there is evidence of record which, if given credence by the trial court, would have supported contrary findings. Monroe v. General Motors Corp., 13 Kan. App. 2d 460, Syl. ¶ 4, 773 P.2d 683, rev. denied 245 Kan. 785 (1989). Although there is conflicting evidence which would support a contrary finding, there is substantial competent evidence to support the findings of the ALJ and the district court.
Does K.S.A. 1992 Supp. 44-511(b)(5) require that the eight weeks when the deceased worker did not work be excluded from the computation of his average weekly wage? The scope of review in a workers compensation appeal is that applicable in other civil cases. K.S.A'. 1992 Süpp. 44-556(a); K.S.A. 77-623. Where the ALJ and the Director have made computations of the average weekly wage of a worker, which have been approved by the district court, such computations are binding upon an appellate court if supported by competent evidence. Myers v. Worth Oilfield Service, 185 Kan. 72, 340 P.2d 368 (1959). An appellate court may substitute its judgment on questions of law, but on disputed issues of fact, the appellate court must view the evidence in the light most favorable to the prevailing party and determine whether there is substantial competent evidence to support the findings of the trial court. Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 173, 777 P.2d 765 (1989).
The parties agree that the wages of the worker were based upon his output, rather than upon a set hourly or weekly rate of pay. Therefore, his average weekly wage was to be determined in accordance with K.S.A. 1992 Supp. 44-511(b)(5), which provides:
“(5) If at the time of the accident the money rate is fixed by the output of the employee, on a commission . . . basis, . . . and if the employee has been employed by the employer at least one calendar week immediately preceding the date of the accident, the average gross weekly wage shall be the gross amount of money earned during the number of calendar weeks so employed, up to a maximum of 26 calendar weeks immediately preceding the date of the accident, divided by the number of weeks employed, or by 26 as the case may be .... In making any computations under this paragraph (5), workweeks during which the employee was on vacation, leave of absence, sick leave or was absent the entire workweek because of illness or injury shall not be considered.”
Claimants contend the statute requires that the eight weeks when the deceased employee did not work be excluded from the computation of his average weekly wage. Claimants initially argue that 44-511(b)(5) requires that any week when the worker is absent the entire week and performs no work, regardless of the reason for his or her absence, shall not be considered in the computation of average weekly wage. This particular argument is without merit. The statute clearly states that for the exclusion to apply, the absence must be due to vacation, leave of absence, sick leave, illness, or injury.
Claimants then argue that the Osmundson case supports their position and that the ALJ and the district court misapplied that case in reaching their decision. In Osmundson, claimant’s work was of a seasonal nature. Claimant had worked 11 of the preceding 26 weeks. During the 26-week period, work was not available to claimant for 13 of 14 consecutive weeks. Claimant was eligible for and was paid unemployment compensation when he was not working for respondent. The ALJ divided the amount earned by 11 weeks to arrive at an average weekly wage. The employer appealed. The trial judge divided the amount the employee had earned by 26 weeks. The employee appealed. The Court of Appeals reversed the trial court and affirmed the ALJ.
In reaching its decision, the Court of Appeals in Osmundson noted that although 44-511(b)(5) does not define the term “employed,” the term had to be construed by courts, not in a strict sense, but in a manner that would accomplish the purpose of the Workers Compensation Act and be consistent with legislative intent. It pointed out that what is now K.S.A. 1992 Supp. 44-703(m) of the Employment Security Law statutes, defines “unemployment” by stating that “[a]n individual shall be deemed ‘unemployed’ with respect to any week during which such individual performs no services and with respect to which no wages are payable to such individual.” It observed that in Zeitner v. Floair, Inc., 211 Kan. 19, 24, 505 P.2d 661 (1973), we stated that “employed” means actually employed and on the job and that it is not the day of hiring that controls; we construed 44-511(b)(5) to reflect the legislative intent that the word “employed” means the time the worker is employed and on the job. 10 Kan. App. 2d at 264.
The Osmundson court concluded that the legislature when enacting 44-511(b)(5) did not intend for the average weekly wage computation to include time during which a worker is entitled to draw unemployment compensation and is free to seek and accept other employment until work is again available from the regular employer. The Osmundson court found that the trial court should not have included the weeks when no work was available to claimant. It reasoned that the determining factor is that the worker is not employed because there is no work available for him or her to perform. 10 Kan. App. 2d at 265.
In support of their argument, claimants point out the language of the syllabus of Osmundson, 10 Kan. App. 2d 261:
“A worker’s average weekly wage computed pursuant to K.S.A. 44-511(b)(5) includes weeks the worker is employed and on the job; it does not include any weeks that the worker is unemployed because the employer has no work available for the worker to perform.”
Claimants assert that because the ALJ and the district court focused on the negative implication of the final phrase in the paragraph, they erroneously concluded that only those weeks where the worker did not work because there was “no work available” are to be excluded in the computation of the worker’s average weekly wage. Claimants state that when interpreting 44-511(b)(5), the focus must be upon the affirmative statement in the initial part of the sentence that only those weeks when the worker is “employed and on the job” are to be used in the wage computations.
Claimants point out the language of 44-511(b)(5), adopted in 1974, is identical to the language of the previous statute, except for the use of the term “employed” instead of “actually employed.” The claimants note that the Court of Appeals held in Osmundson that the deletion of the word “actually” from K.S.A. 44-511(2) (Weeks) was merely because it was redundant and did not reflect a legislative intent to change the meaning of the statute. See 10 Kan. App. 2d at 264.
Claimant then observes that in deciding Osmundson the Court of Appeals cited Zeitner v. Floair, Inc., 211 Kan. 19, Syl. ¶ 1, which held that the term “actual employment” meant the time the worker was actually employed and on the job. Also, claimants note the Court of Appeals’ reference to 44-703(m), which defines “unemployment” by stating that “[a]n individual shall be deemed ‘unemployed’ with respect to any week during which such individual performs no services and with respect to which no wages are payable to such individual.” (Emphasis added.) Claimants conclude the legislature’s enactment of 44-703(m) shows the intent of the legislature when enacting 44-511(b)(5).
Parkview and AETNA assert that Osmundson holds that the only weeks which are to be excluded are those in which the employee did not work because the employer had no work for him. They point out this case can be distinguished from Osmundson, where there was no work available for the employee for some weeks, in contrast to the ALJ finding in the present case that the deceased employee did not work during the 8 weeks, but could have worked if he wanted because there was work available for him.
We agree that Osmundson can be distinguished from this case. Osmundson dealt with seasonal employment and whether the time claimant was paid unemployment compensation when he had no work available should be included in the number of weeks to be used as the divisor in determining average weekly wage. Here, the finding of the ALJ and the district court were that the worker was employed and there was work available. The deceased worker’s employment was not seasonal, nor was the worker entitled to unemployment compensation. Because of the factual difference of the two cases, the reasoning of Osmundson does not apply in the present case. .
Was the deceased worker on “vacation” or “leave of absence”? Claimants point out that neither the ALJ nor the district court addressed the final sentence of K.S.A. 1992 Supp. 44-511(b)(5), which provides: ■
“In making any computations under this paragraph (5), workweeks during which the employee was on vacation, leave of absence, sick leave or was absent the entire workweek because of illness or injury shall not be considered.”
Parkview and AETNA respond that the employee worked only when and if he wanted to; therefore, claimants’ assertion that the employee was on a leave of absence or vacation is utterly unsupported by the record or by common sense.
Claimants observe the Workers Compensation Act does not define “leave of absence” or “vacation.” They then argue that whenever a worker is temporarily absent from work, with the consent of his or her employer, for an entire week and earns no wages during that week, the worker must be considered to be either on a “vacation” or a “leave of absence” under 44-511(b)(5). Although claimants cite no authority in support of this conclusion, we agree.
In Goodyear Tire & Rubber Co. v. Employment Security Board of Review, 205 Kan. 279, 469 P.2d. 263 (1970), under the provisions of a collective bargaining agreement between the company and claimants’ union, Goodyear had effected a partial shutdown of its plant for vacation purposes for a two-week period. Under the terms of the collective bargaining agreement, employees were not required to take their vacations during the shutdown period but could take them at other times during the year or could defer them until the following year, at the employees’ option. The employees claimed they were entitled to unemployment benefits during the period the plant was shut down if they had elected to take their vacation during some other period of time.
On appeal, this court noted that the agreement was not one to waive rights to benefits which an employee otherwise would be entitled; rather, under the contract the employees agreed to a voluntary absence from work if they chose to exercise that right. This court found such an agreement could not be interpreted as an agreement to waive, release, or commute benefits as prohibited by the Employment Security Act. This court then defined two terms, “layoff” and “leave of absence”. 205 Kan. at 285.
“A ‘layoff’ is looked on as at least a suspension of employment, and in some instances as termination thereof, at the will of the employer without prejudice to the worker being reemployed. [Citation omitted.] Certainly it implies no element of voluntariness on the part of the employee. In those situations where an employee is considered on “layoff” under the terms of the bargaining agreement, he is involuntarily unemployed if no work is made available to him.
“ ‘Leave of absence’ is not a complete separation from employment, although it implies some voluntary act on the part of the employee. It denotes a continuity of the employment status—a temporary absence from duty, with intention to return—during which time performance of the duties of his work by the employee and remuneration by the employer are suspended. [Citations omitted.]” 205 Kan. at 285.
There is substantial competent evidence to support the findings that the deceased was employed and work was available, but that with the approval of his employer, he did not work—he was on a leave of absence. The determination by the ALJ and the district court that the eight weeks should be included is reversed. This matter is remanded for further proceedings.
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The opinion of the court was delivered by
Lockett, J.;
Mid States Port Authority (Mid States), operator of a short line railroad in northwest Kansas, and Jackson Trak Group, Inc., (Jackson Trak) which constructs and rehabilitates railroad track, entered into three separate contracts to rehabilitate portions of Mid States’ lines. All three contracts bound the parties to mandatory arbitration. After notifying Jackson Trak that its work was defective, Mid States filed an action in the Phillips County District Court for possession of Jackson Trak’s equipment. Prior to receiving judicial approval, Mid States seized Jackson Trak’s equipment. Jackson Trak then filed an application for mandatory injunction and replevin of property, but specifically reserved the right to determine the issue of defective work in an arbitration proceeding. The Phillips County District Court found that Mid States had followed the contractual procedure when seizing the property, but refused to determine issues subject to arbitration under the contracts. Jackson Trak then initiated a request for arbitration, seeking damages for work performed and for loss of use of its equipment due to Mid States’ wrongful seizure. After the selection of the arbitrators, Mid States objected to the arbitrators’ power to award damages for “conversion” of Jackson Trak’s equipment because that issue had already been decided by the Phillips County District Court. After denying the objection, the arbitrators found for Jackson Trak on all issues and awarded damages. Jackson Trak sought confirmation of the arbitration award in the Sedgwick County District Court. Mid States objected to Jackson Trak’s motion and moved to vacate the award for improper seizure of Jackson Trak’s equipment. The District Court of Sedgwick County affirmed the arbitration award. Mid States appeals the confirmation order, claiming principally that the arbitrators had no jurisdiction to award damages for the seizure of the equipment because (1) the issue had already been determined by the Phillips County District Court, (2) Jackson Trak’s claim was a tort action and not subject to arbitration under the Kansas Uniform Arbitration Act, and (3) venue for confirmation of the award was not proper in Sedgwick County. We affirm, finding that res judicata does not apply; that the claim for wrongful seizure of the equipment sounds in contract, not in tort; and that venue in Sedgwick County was proper.
Mid States Port Authority is a joint port authority created as a public body, organized under the provisions of K.S.A. 12-3401 et seq., with its principal offices in Phillipsburg, Kansas. Mid States was formed by fourteen Kansas counties to acquire, rehabilitate, and operate a short line railroad in northwest Kansas. Jackson Trak Group, Inc., was a Delaware corporation engaged in the business of railroad track construction and rehabilitation. On July 29, 1986, Jackson Trak merged with its parent company, Jackson Jordan, Inc.
In 1984, Mid States acquired over 400 miles of railroad track in northwest Kansas and eastern Colorado from the bankruptcy estate of the Chicago, Rock Island and Pacific Railroad. On July 18, 1984, Mid States contracted with Jackson Trak to perform track rehabilitation work. Additional contracts were executed on February 1, 1985, and February 19, 1985. All three contracts contained mandatory arbitration provisions stating:
“All claims, disputes and other matters in question between Owner [Mid States] and Contractor [Jackson Trak] arising out of, or relating to the Contract Documents or the breach thereof . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining subject to the limitations of this Article 00716.”
Article 00716, Section 16.5 continues:
“The award rendered by the arbitrators will be final, judgment may be entered upon it in any court having jurisdiction thereof, and will not be subject to modification or appeal except to the extent permitted by Section 10 and 11 of the Federal Arbitration Act (9 U.S.C. §§ 10, 11).”
After Jackson had worked nearly a year on the project, Mid States, claiming that Jackson had performed defective work, issued a stop work order. Ignoring the mandatory arbitration provision in the contract, Mid States filed a petition in Phillips County District Court on September 20,1985. Mid States alleged that Jackson Trak’s work was defective and, to mitigate its damages, requested possession of Jackson Trak’s tools and equipment pursuant to section 13.14 of the contract.
Without judicial approval, on September 26, 1985, Mid States seized eleven pieces of Jackson Trak’s equipment worth over $600,000, pursuant to section 13.14 of the original contract. Specifically, the section provided:
“13.14 OWNER MAY CORRECT DEFECTIVE WORK. If contractor fails within a reasonable time after written notice of ENGINEER to proceed to correct and to correct defective Work or to remove and replace rejected Work as required by ENGINEER in accordance with paragraph 00713.11, or if CONTRACTOR fails to perform the work in accordance with the Contract Documents (including any requirements of the Progress schedule), OWNER may, after seven days’ written notice to CONTRACTOR, correct and remedy any such deficiency. In exercising his rights under this paragraph OWNER shall proceed expeditiously. To the extent necessary to complete corrective and remedial action, OWNER may exclude CONTRACTOR from all or part of the site, take possession of all or part of the Work, and suspend CONTRACTOR’S SERVICES RELATED THERETO, TAKE POSSESSION OF CONTRACTOR’S tools, appliances, construction equipment stored at the site or for which owner has paid CONTRACTOR but which are stored elsewhere. CONTRACTOR shall allow OWNER, OWNER’S representatives, agents, and employees such access to the site as may be necessary to enable OWNER to exercise his rights under this paragraph. All direct and indirect costs of OWNER in exercising such rights shall be charged against CONTRACTOR in an amount verified by ENGINEER, and a Change Order shall be issued incorporating the necessary revisions in the Contract Documents and a reduction in the Contract Price. Such direct and indirect costs shall include additional professional services required and all costs of repair and replacement of work of others destroyed or damaged by correction, removal or replacement of CONTRACTOR’S defective work. CONTRACTOR shall not be allowed an extension of the Contract Time because of any delay in performance of the Work attributable to the exercise by OWNER of OWNER’S rights hereunder.”
On October 17, 1985, Jackson Trak filed an “Application for Mandatory Injunction and Replevin of Property,” stating:
“3. On September 26, 1985, plaintiff Mid States wrongfully, and without Jackson’s consent, took possession of this equipment and has prohibited its purposeful use by Jackson Trak Group. Mid States’ exercise of dominion and control over these machines constitutes conversion without just excuse at law or by contract.
“4. Mid States has wrongfully detained Jackson’s railroad equipment since September 26, 1985, and continues to wrongfully detain the equipment.
“5. Jackson Trak Group does not seek from this court an award of damages for Mid States’ wrongful conversion, but specifically reserves the right to assert such a claim in the arbitration pending before the American Arbitration Association.”
On October 24, 1985, Jackson Trak filed a “Motion to Compel Arbitration and Stay Proceeding” in the Phillips County proceeding.
On November 6, 1985, the district court heard Jackson Trak’s motion to regain possession of its equipment. The district judge limited the issue to whether Mid States complied with the notice provision of section 13.14 of the contract when seizing Jackson Trak’s equipment. On November 12, the district judge found that Mid States’ seizure of the equipment was in compliance with the contracts, and refused to hear the contract dispute because that issue was subject to arbitration.
Jackson Trak appealed. At oral argument, Mid States an nounced that the day prior to oral argument, it had returned nine of the pieces of Jackson Trak’s equipment subject to the appeal and was holding the other two pursuant to a different authority. In an unpublished opinion, Case No. 58,866, filed on May 22, 1986, the Court of Appeals dismissed the appeal as moot and this court denied Jackson Trak’s petition for review.
Meanwhile, on January 13, 1986, Jackson Trak, seeking damages arising from Mid States’ wrongful seizure of its equipment and for work performed under the contracts, initiated an arbitration proceeding with the American Arbitration Association. After selection of the three arbitrators, the parties were unable to agree in which county to hold the arbitration hearing. The arbitrators selected Wichita, Sedgwick County, Kansas, as the site for the hearings.
Mid States objected to the power of the arbitrators to consider the issue of the “conversion” of Jackson Trak’s equipment, claiming that the issue had already been determined in the district court proceeding. The arbitrators found that the District Court of Phillips County had not reached the substantive issue as to the quality of the work performed under the contract and overruled the objection. On January 13, 1987, after eleven days of hearings occurring between July 8 and December 3, 1986, in Sedgwick County, Kansas, the arbitrators awarded Jackson Trak:
“I. For work performed, a net amount of EIGHTY SEVEN THOUSAND FIVE HUNDRED SIXTY-NINE DOLLARS AND THIRTY CENTS ($87,569.30); plus 10% per annum simple interest from October 1, 1985 until paid; and
“II. For improper seizure of the track equipment, an amount of ONE HUNDRED SEVENTY ONE THOUSAND TWO HUNDRED FIFTY ONE DOLLARS AND NO CENTS ($171,251.00); plus ONE HUNDRED DOLLARS ($100.00) per day for the tie crane from October 20,1986 until it is returned to JACKSON TRAK GROUP, INC.; plus 10% per annum simple interest from January 23, 1987 until paid; and
“HI. For equipment repairs, an amount of ELEVEN THOUSAND NINE HUNDRED TWENTY SIX DOLLARS AND NO CENTS ($11,926.00); plus 10% per annum simple interest from January 23, 1987 until paid.”
Jackson Trak sought confirmation of the arbitration award in Sedgwick County District Court pursuant to K.S.A. 5-411 of the Kansas Uniform Arbitration Act. Mid States, claiming the arbitrators exceeded their powers, filed an objection to the confir mation and moved to vacate that portion awarded for the improper seizure of Jackson Trak’s equipment, pursuant to K.S.A. 5-412(a)(3). Mid States alleged (1) that venue was improper in Sedgwick County; (2) that the arbitrators’ award for the improper seizure of the equipment was barred by res judicata due to the prior Phillips County proceeding; (3) that Jackson Trak had waived arbitration by submitting part of an arbitrable matter to the Phillips County District Court; (4) that K.S.A. 1987 Supp. 5-401 specifically excludes tort claims from arbitration; (5) that Mid States, as a state body, could claim sovereign immunity and therefore, die Federal Arbitration Act, 9 U.S.C. § 1 et seq. (1982), which provides for arbitration of tort claims, could not be applied to Mid States; and (6) that Mid States was insulated from liability for the improper seizure award by the discretionary function exception to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. The Sedgwick County District Court judge ruled that Mid States had failed to carry the burden necessary to vacate the arbitration award and affirmed the arbitrators’ award. Mid States appeals. VENUE
Mid States contends Sedgwick County was not the proper venue for confirmation of the arbitration award. Mid States argues that venue is determined by K.S.A. 1987 Supp. 60-606,' which requires:
“[A]ny action brought against a public utility, common carrier or transportation system for any liability or penalty or forfeiture, may be brought in any county into or through which such public utility, common carrier or transportation system operates regularly.”
Mid States’ representation that Jackson Trak’s claims constitute a civil action filed against a public utility, common carrier, or transportation system is without merit. Further, even if Mid States is a state or other governmental agency, it may lawfully enter into valid contracts for compulsory arbitration of contractual disputes unless prohibited by statute. Evans Electrical Constr. Co. v. University of Kansas Med. Center, 230 Kan. 298, 634 P.2d 1079 (1981). There are no statutes which prohibit Mid States from entering into a contract that provides for compulsory arbitration.
Under Article 00716 of the original contract to arbitrate, Mid States agreed that it would abide by the Construction Industry Arbitration Rules of the American Arbitration Association (AAA) concerning all claims and disputes. Because the parties could not agree on the hearing locale, the AAA Construction Industry Rules apply.
AAA Construction Industry Rule 11 provides that, if the parties cannot agree upon a hearing locale, the AAA shall have the power to determine the locale and its decision shall be final and binding. Since the AAA arbitrators determined the hearings would be held in Wichita, Jackson Trak’s initial application for the order confirming the arbitration award had to be made in Sedgwick County. The district court did not err by determining that Sedgwick County was the proper venue for the confirmation hearing.
SCOPE OF REVIEW
Initially, we must determine the scope of appellate review of an arbitration award. Generally, where the parties have agreed to be bound to a submission to arbitration, errors of law and fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly made. Nothing in the award relating to the merits of the controversy, even though incorrectly decided, is grounds for setting aside the award in the absence of fraud, misconduct, or other valid objections. Further, where an arbitration award made under the Kansas Uniform Arbitration Act is attacked by one of the parties, it is not the function of the court to hear the case de novo and consider the evidence presented to the arbitrators. Foley Co. v. Grindsted Products, Inc., 233 Kan. 339, 350, 662 P.2d 1254 (1983) (quoting Evans Electrical Constr. Co. v. University of Kansas Med. Center, 230 Kan. 298). Ordinarily, an arbitrator’s award will not be subject to judicial revision unless such award is tainted or based on an irrational interpretation of the contract. O-S Corp. v. Samuel A. Kroll, Inc., 29 Md. App. 406, 348 A.2d 870 (1975), cert. denied 277 Md. 740 (1976), quoted in Foley Co. v. Grindsted Products, Inc., 233 Kan. at 348.
Kansas statutes provide: “Upon application of a party, the court shall confirm an award, unless . . . grounds are urged for vacating or modifying or correcting the award.” K.S.A. 5-411. Further, an arbitrator’s award is presumptively valid unless one of the specific grounds in K.S.A. 5-412 can be proved. Mid States argues that the district court erred in confirming the arbitration award and should have vacated it because the arbitrators exceeded their powers, K.S.A. 5-412(a)(3). Mid States claims the arbitrators exceeded their powers because (1) they denied res judicata effect to the Phillips County proceeding and (2) they awarded damages for a tort in violation of K.S.A. 1987 Supp. 5-401.
RES TUDICATA EFFECT OF THE PHILLIPS COUNTY DISTRICT COURT PROCEEDING
Mid States contends that the Phillips County court proceeding produced a decision on the merits in favor of Mid States which, under the doctrine of res judicata or issue preclusion, prohibited a later arbitration proceeding on the issue of damages for wrongful seizure of Jackson Trak’s equipment.
The doctrine of res judicata has two aspects: claim preclusion and issue preclusion. Claim preclusion prevents parties from relitigating a cause of action that has been finally adjudicated. It is founded on the principle that the party, or some other party in privity, has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction. In re Estate of Reed, 236 Kan. 514, 519, 693 P.2d 1156 (1985) (citing Penachio v. Walker, 207 Kan. 54, 57, 483 P.2d 1119 [1971]). Ah issue is res judicata when four conditions concur: (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made. In re Estate of Reed, 236 Kan. at 519 (citing Kumberg v. Kumberg, 232 Kan. 692, Syl. ¶ 6, 659 P.2d 823 (1983).
Res judicata also includes issue preclusion or collateral estoppel, which prevents relitigation in a different claim of issues conclusively determined in a prior action. Penachio v. Walker, 207 Kan. at 57. Under Kansas law, collateral estoppel may be invoked where the following is shown: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties must be the same or in privity, and (3) the issue litigated must have been determined and necessary to support the judgment. Rud Jennings Carpets &r Draperies, Inc. v. Greenhouse, 210 Kan. 92, 96, 499 P.2d 1096 (1972).
We note, however, that the doctrine of res judicata is held not to apply to issues raised in the previous case which were not decided by the court or jury. Hence, the doctrine of res judicata does not preclude relitigation of an issue raised by the pleadings in the prior action, but not considered either by stipulation of the parties or otherwise. More importantly, a judgment is not res judicata as to any matters which a court expressly refused to determine, and which it reserved for future consideration, or which it directed to be litigated in another forum or in another action. American Home Assur. v. Pacific Indem. Co., Inc., 672 F. Supp. 495 (D. Kan. 1987); 46 Am. Jur. 2d, Judgments § 419, p. 588-89.
Mid States’ claim that the Phillips County District Court proceeding necessarily or implicitly decided the issue of damages for wrongful seizure of the equipment and that that proceeding irreparably prejudiced Jackson Trak’s right to recover damages for wrongful seizure in the arbitration proceeding is without merit. First, Jackson Trak’s action in the Phillips County District Court was an action for a mandatory injunction. The application specifically stated:
“Jackson Trak Group does not seek from this court an award of damages for Mid States’ wrongful conversion, but specifically reserves the right to assert such a claim in the arbitration pending before the American Arbitration Association.”
Therefore, the Phillips County proceeding was limited to a decision on whether an injunction should be granted to Jackson Trak based on Mid States’ compliance with the notice provisions of the contract. The district judge specifically stated that he was not ruling on the substantive issue of breach of contract. Jackson Trak’s subsequent appeal also focused on the denial of the injunction based purely on Mid States’ compliance with notice and other procedural provisions of the section of the contract dealing with seizure of equipment.
Mid States cites for support of this claim Development Co. v. Arbitration Assoc., 48 N.C. App. 548, 269 S.E.2d 685 (1980), a case involving a breach of contract action in which a subcontractor claimed a bonus under a construction contract. There, the Court of Appeals of North Carolina upheld the trial court’s ruling that an arbitration proceeding relating to payment of the bonus was barred because the same issue was asserted and fully litigated in a prior court proceeding.
We have no quarrel with Mid States’ argument that the res judicata effect of prior litigation with respect to a demand for arbitration is a matter for judicial determination. However, the facts of this case are completely distinguishable from those of the North Carolina case. In that case, all substantive issues relating to the original breach of contract action and payment of the bonus had been raised and fully litigated in a previous district court proceeding. Here, the substantive issue of whether Jackson Trak breached its contract with Mid States was never decided by the district court.
Where the court specifically refuses to consider certain questions and reserves the litigants’ rights to have those issues determined in a later proceeding, res judicata does not preclude litigation of issues that were not considered or decided by the court. See Meenen v. Meenen, 180 Kan. 779, 792, 308 P.2d 158 (1957) (where the court reserved matters relating to accounting and distribution of property “so as to conserve the rights of the parties,” no res judicata effect would be given to the issues not considered or decided by the first journal entry); Gillet v. Powell, 174 Kan. 88, 95, 254 P.2d 258 (1953) (no res judicata effect where parties asked the court to take issue of partition of surface mineral interest out of the judgment in a partition action).
Further, a suit for an injunction is a separate cause of action from a suit for damages, and therefore res judicata does not preclude a subsequent action for damages. See Thompson-Hayward Chem. Co. v. Cyprus Mines Corp., 8 Kan. App. 2d 487, 660 P.2d 973 (1983). Here, in the injunction action, the Phillips County District Court properly refused to address the contractual issue of damages for wrongful seizure.
The Sedgwick County District Court correctly found that, since no prior judgment on the merits was rendered in the Phillips County District Court, the arbitration proceeding on the issue of damages for wrongful seizure of Jackson Trak’s equipment was not barred by the doctrines of res judicata or collateral estoppel.
WAIVER OF ARBITRATION
Mid States next contends that Jackson Trak waived its right to arbitration by submitting part of an arbitrable matter to the Phillips County District Court. It is the well established rule in Kansas that waiver can only result from the intentional relinquishment of a known right. Prather v. Colorado Oil & Gas Corp., 218 Kan. 111, 117, 542 P.2d 297 (1975).
Any conduct of a party inconsistent with the treatment of an arbitration provision as in effect, or any conduct which a court might reasonably construe as showing lack of intent to utilize an arbitration provision, may amount to a waiver. A right to arbitration may be waived by denying that there is an issue to arbitrate, by failing to perform the preliminary steps preceding arbitration, or by being unjustifiably slow in seeking arbitration. 5 Am. Jur. 2d, Arbitration and Award § 51, p. 557. Mid States cites a plethora of cases for the proposition that waiver of the right to arbitrate may be found by a single inconsistent act performed by the waiving party. As the district court found, however, all those cases are distinguishable.
Here, the Phillips County proceeding was limited to procedural issues relating to the injunction application. Jackson Trak’s application for the injunction explicitly reserved its right to arbitrate the issues of damages for wrongful seizure. More importantly, it was Mid States who initiated the action for possession in the Phillips County District Court and forced Jackson Trak to litigate whether Mid States had complied with the contract when it took possession of the equipment. Nothing in the record shows that Jackson Trak committed any act which indicated intent to waive its right to arbitration.
Further, both parties contracted to resolve théir disputes under the Construction Industry Rules of the American Arbitration Association. AAA rule 47(a) states as follows:
“No judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party’s right to arbitrate.”
In sum, the district court did not err in holding that Jackson Trak did not waive its right to arbitrate.
VIOLATION OF K.S.A. 5-401
Mid States contends that the arbitrators exceeded their powers by awarding damages for loss of use of equipment wrongfully seized by Mid States, a tort claim, because an award of a tort claim in arbitration violates K.S.A. 1987 Supp. 5-401. This statute provides as follows regarding the validity of agreements to arbitrate future tort claims:
“A written agreement to submit any existing controversy to arbitration or a provision in a written contract, other than a contract of insurance or a contract between employers and employees or between their respective representatives, to submit to arbitration any controversy, other than a claim in tort, thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Emphasis supplied.)
Initially we note that the contract in this case does not provide for arbitration of tort claims in violation of 5-401. Rather, the contract provided for arbitration of “all claims, disputes and other matters arising out of or relating to the contract.” Mid States argues, however, that the basis of Jackson Trak’s claim was the common-law tort of conversion of the equipment. We disagree. The claim is firmly grounded in contract. Judge Ron Rogg recognized this when he found that Jackson Trak proceeded on two theories, “one contract and one perhaps tort.” Jackson Trak referred to Mid States’ action both as “conversion” and “wrongful seizure” under the contract. In its demand for arbitration, Jackson Trak prayed for damages arising from breach of contract and conversion of the seized equipment.
In order to determine whether Mid States had the right to seize the equipment, the arbitrators had to determine if Jackson Trak’s work was defective under the contract. Ostensibly, the arbitrators determined that the work was not defective and that Mid States breached the contract by wrongfully seizing the equipment. Under the contract theory, damages for wrongful seizure, based on Mid States’ breach of the contract, could be awarded as contract damages. Damages recoverable for breach of contract include consequential damages which arise, in the usual course of things, from the breach itself, or as may reasonably be assumed to have been within the contemplation of both parties as the probable result of the breach. Kansas State Bank v. Overseas Motosport, Inc., 222 Kan. 26, 563 P.2d 414 (1977). The important aspect of the recovery of such consequential or special damages under a breach of contract theory is the element of foreseeability. 22 Am. Jur. 2d, Damages §§ 56, 57. In this case, it is certainly foreseeable that the parties would have contemplated damages for loss of use of the equipment if it were wrongfully seized by Mid States and held over a period of time.
Mid States’ other arguments regarding immunity under the Kansas Tort Claims Act, while theoretically interesting, are not relevant. First of all, we are not dealing with a “tort.” More significantly, this appeal involves a motion to confirm and/or vacate an arbitration award. While we recognize the policy behind immunity afforded by the Kansas Tort Claims Act, we also recognize that the legislature’s enactment of the Kansas Uniform Arbitration Act codified public policy in favor of arbitration of disputes. Here, both parties bargained at arm’s length for arbitration. Mid States has failed to show that the contract requiring mandatory arbitration was illegal or that the arbitrators exceeded their powers in making the award. The decision of the district court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Greg Kirby appeals following his convictions at a bench trial in Shawnee County District Court of burglary, K.S.A. 21-3715, and theft, K.S.A. 1987 Supp. 21-3701. In a published opinion by Briscoe, J., a unanimous panel of the Court of Appeals affirmed. State v. Kirby, 12 Kan. App. 2d 346, 744 P.2d 146 (1987). We granted review.
Upon careful consideration, we adopt the opinion of the Court of Appeals and affirm both the trial court and the Court of Appeals. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by the State from an order of the Saline District Court suppressing evidence and discharging the defendants at the close of a preliminary examination in two criminal cases. Defendants are Frank Darrell Guy and Anthony Albert Stone, both of whom were charged with various drug offenses, possession of drug paraphernalia, and possession or possession with intent to sell various controlled substances, including marijuana. The facts in each case were developed during a joint preliminary examination.
Captain Gary Hindman of the Salina Police Department had lunch on January 30, 1987, at the Park Inn Motel in Salina. As he was leaving the motel, about one o’clock p.m., he observed a new maroon Cadillac sedan pull into the parking lot. The occupants had long hair, one was dressed in “biker” clothes, and one had several tattoos on his arms. The car had no license plates but had a temporary permit in the rear window. One of the men went inside to the registration desk.
Hindman’s suspicions were aroused for several reasons. The dress and appearance of the pair did not comport with the car they were driving. He had heard there had been narcotics dealings at that motel. He read the window sticker and found that the car was owned by a Colorado rental agency. A telephone check with the agency disclosed that the name of the man who checked into the motel did not match the names of either of the men who had rented the car. Hindman thought it was odd that the defendants checked into the motel at midday. He assigned a detective to observe the car and its occupants.
Detective Don Poore, driving his private and unmarked vehicle, kept the Cadillac under surveillance most of the time from 5:30 o’clock p.m. until it was stopped about four hours later. He saw two men, later identified as Guy and Stone, leave the motel and get into the vehicle. He followed them around town for several hours. They stopped at a filling station, several taverns, and a residence. They talked with several people near the parked car and opened the trunk several times. The men entered several taverns but did not stay very long. Poore never saw the defendants take anything out of the trunk, nor did he see any money or other property change hands. Poore lost sight of the Cadillac several times, once when he returned to the police station and once due to local traffic. Detective Garman was also observing the Cadillac from another unmarked car during the later part of the evening. About 9 p.m. or a little later, the Cadillac headed north on Broadway, over the viaduct onto 9th Street and then east on Interstate 70. Detective Poore followed and maintained a uniform distance between his car and the Cadillac. In order to do so, he reached a speed in excess of 100 miles per hour. The Cadillac appeared to be going the same speed at that time.
Either Poore or Garman, who was also in pursuit, radioed ahead for assistance and other police officers responded. The Cadillac was stopped about 9:25 p.m., one-half mile east of the Abilene exit. Poore parked his car, walked up to the Cadillac, and observed in plain view on the right front floorboard a plastic baggie containing green vegetation which appeared to be marijuana. Both defendants were arrested for possession of marijuana. The discovery of the marijuana was made from outside of the vehicle. A later search of the defendants and of the vehicle uncovered other controlled substances and weapons.
The detectives were interested in stopping the Cadillac and checking the occupants because of their “suspicious activity” in Salina. That was the primary reason for the stop. The record is not clear whether the determination to stop the car was made and the call for assistance initiated before or after the Cadillac was observed traveling at over 100 miles per hour; however, the record is equally clear that the stop was made after that speed was observed. No traffic citation was issued for speeding. The purpose of the officers in making the stop was investigative, to check the occupants of the Cadillac because of what the officers found to be their questionable activity in Salina, recited above. This was not the routine stop of a speeding car by traffic officers on an interstate highway.
The trial court, at the conclusion of the evidence at the preliminary examination, sustained the defendants’ motion to suppress the evidence seized at the time of and subsequent to the stop. The court relied upon K.S.A. 22-2402, the Kansas stop and frisk statute, which provides:
“(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.”
The trial judge found that the officers stopped the car not for speeding but for investigation, and to identify the occupants. He pointed out that no accurate speed measurement was made, and that there was merely an estimate of the speed on the part of Officer Poore; but the judge said, “I have no doubt that these defendants were exceeding the speed limit.” He concluded that the defendants were not stopped for speeding, and the officers could articulate no basis for reasonably suspecting that the defendants were committing, had committed, or were about to commit a crime as required by the statute. Therefore, the court suppressed the evidence.
We agree with the trial court that the officers had no articulable basis to stop the defendants for drug-related activity. The officers saw no money or property change hands; they had no information that these defendants had ever been engaged in such activity; they did not identify those persons with whom defendants talked as being engaged in any unlawful activity; and they saw no violations of the law, not even traffic violations, within the city of Salina. The facts known to the officers, as related by them in the record, were insufficient to provide a reasonable suspicion that at the time the defendants left Salina they were committing, had committed, or were about to commit a crime.
We reviewed the “stop and frisk” cases under K.S.A. 22-2402 in State v. Epperson, 237 Kan. 707, 710-12, 703 P.2d 761 (1985). In that case we found that the officer had no reason for suspecting that the defendants were engaged in criminal activity, and we affirmed the action of the trial court in suppressing the items seized in the search that followed the unlawful stop. We stated the rule as follows:
“The ‘stop’ authorized by K.S.A. 22-2402 requires that a law enforcement officer must have prior knowledge of facts or observe conduct of a person which causes the officer to reasonably suspect that such person is committing, has committed, or is about to commit a crime.” State v. Epperson, 237 Kan. 707, Syl. ¶ 2.
In the later case of State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986), Justice Holmes explained the rule in a unanimous opinion. He said:
“[A] stop and frisk under [Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968),] and K.S.A. 22-2402 requires that the officer have a reasonable and articulable suspicion, based on facts known to him or her prior to the stop, that the individual stopped has committed, is committing, or is about to commit a crime.” 239 Kan. at 407.
We hold that at the time the defendants left Salina and turned onto Interstate 70 the pursuing officers did not have knowledge of facts giving rise to a reasonable and articulable suspicion that the defendants had committed, were committing, or were about to commit a crime. But the critical time that the officers must have knowledge of such facts is at the time of the actual stop. Here, when the stop was made, an officer had observed the Cadillac being driven at a speed in excess of 100 miles per hour — clearly in excess of the then maximum speed limit on that interstate highway, 55 miles per hour. Under K.S.A. 22-2402, an officer may stop a person whom he sees commit a crime, whether it be a felony, a misdemeanor, or a traffic offense. K.S.A. 1987 Supp. 21-3105, and 22-2402.
The detectives here involved were not traffic officers. They were not driving on Interstate 70 with the primary purpose of enforcing the traffic code. They had a hunch or a suspicion that defendants were involved in drug trafficking, but they had no sound basis, no facts, upon which to reach that conclusion. When the Cadillac exceeded the speed limit by more than 45 miles per hour, however, the law enforcement officers who observed that conduct had a lawful basis upon which to stop the vehicle.
The officers were candid in stating their underlying and principal purpose in pursuing and stopping the vehicle. Had the stop been made as defendants turned onto the Interstate highway, and before either officer observed any unlawful conduct, we would have an entirely different situation. However, that is not the case before us. Detective Poore observed a violation of the law. Whatever his underlying motive, he had the authority and the duty at that point to stop the speeding car.
The trial court observed that Detective Poore made no accurate speed measurement. Radar was not utilized here, as it is in most highway speeding cases. However, the utilization of a private car’s speedometer plus the estimate of an experienced officer has been held to be sufficient evidence to support a speeding conviction. See 7A Am. Jur. 2d, Automobiles and Highway Traffic § 371 and cases cited therein. Here, the observation by the officer of speed grossly exceeding the lawful limit was sufficient to cause him to reasonably conclude that the driver of the Cadillac was committing a traffic offense, and thus the stop was lawful.
The trial court erred in holding that the stop was unlawful and in suppressing the evidence for that reason.
The judgment is reversed, and the cases are remanded to the trial court for further proceedings in conformity with this opinion. | [
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The opinion of the court was delivered by
Prager, C.J.;
This is an appeal by the Kansas Workers’ Compensation Fund (Fund) from a judgment of the district court affirming an award of workers’ compensation and assessing the entire amount of the award against the Fund. The claimant is Ronald E. Denton. The employer is Sunflower Electric Cooperative, and its insurance carrier is Home Indemnity Company. Following the judgment of the district court, the Fund appealed to the Court of Appeals which affirmed the district court in Denton v. Sunflower Electric Co-op, 12 Kan. App. 2d 262, 740 P.2d 98 (1987). The Supreme Court granted the Fund’s petition for review.
The facts in the case, which are set out in detail in the Court of Appeals opinion, are essentially as follows: The claimant, Ronald E. Denton, was employed by Sunflower Electric Cooperative as a shift foreman. On May 21, 1983, claimant fell at work and injured his back. In August of that year, he underwent surgery for a ruptured disc. He returned to work in December 1983, and remained there until the plant shut down in August 1984. Den-ton applied for work at the Sunflower plant in Holcomb but was turned down because of his back problems. He then filed a workers’ compensation claim, and Sunflower impleaded the Workers’ Compensation Fund.
It was the position of the former employer, Sunflower Electric, that it had knowledge of Denton’s preexisting back problem and that those problems contributed to his current disability. The evidence showed that from 1978 until the date of injury, Denton had missed at least 18 days of work due to his. back. The Administrative Law Judge (ALJ) held in favor of Denton and then assessed the entire workers’ compensation award against the Fund. On appeal, the director affirmed. Thé Fund then appealed to the district court which also affirmed. The Fund then appealed to the Court of Appeals which affirmed the district court.
This court granted the Fund’s petition for review which raised a single issue: Whether the existence of a reservation in the mind of an employer in deciding whether to hire or retain a handicapped employee is an essential element of the burden of proof under K.S.A. 44-567(b). The Court of Appeals answered the question in the negative in a comprehensive opinion by the Honorable John E. Rees which sets forth the facts in detail, along with the applicable statutes and the court’s rationale in concluding that a mental reservation of the employer is not a necessary element under the statute.
Judge Rees’s well-written opinion analyzed the previous Kansas appellate cases on the issue and concluded that, for an employer to be relieved of liability for payment under K.S.A. 44-567, it is not necessary that the employer prove that it had a mental reservation when deciding to hire or retain the employee. The Court of Appeals opinion sets forth in great detail the evidence before the district court which established that Sunflower Electric had retained Denton as its employee after ac quiring knowledge of Denton’s preexisting back condition. It is not necessary to review the evidence of the employer’s prior knowledge in view of the fact that the Fund did not petition for review on that issue.
The Court of Appeals then proceeded to determine the second issue on the appeal — whether a mental reservation is required in order for an employer to shift liability to the Kansas Workers’ Compensation Fund. Judge Rees carefully analyzed the statutes and the Kansas cases and concluded that various statements made in cases where it was not necessary for the appellate disposition of the case were dicta. We agree with the analysis of the statutes and cases presented by Judge Rees and agree with the conclusion of the Court of Appeals that the existence of a “mental reservation” was not necessary in order for Sunflower Electric to shift to the Workers’ Compensation Fund the liability for the compensation owed to Denton.
The controlling statute is K.S.A. 44-567, which was originally enacted in Laws of 1974, Chapter 203, Section 47. It provides:
“44-567. Same; relief from or apportionment of liability for subsequent injuries to handicapped workmen; proof of knowledge of impairment required; presumptions; commissioner of insurance to be impleaded, (a) An employer (1) who operates within the provisions of the workmen’s compensation act (2) who. knowingly employs or retains a handicapped employee, as defined in K.S.A. 44-566 and amendments thereto, shall be relieved of liability for compensation awarded or be entitled to an apportionment of the costs thereof as follows:
“(A) Whenever a handicapped employee is injured or is disabled or dies as a result of an injury and the director awards compensation therefor and finds that the injury, disability or the death resulting therefrom probably or most likely would not have occurred but for the preexisting physical or mental impairment of the handicapped employee, all compensation and benefits payable because of the injury, disability or death shall be paid from the workers’ compensation fund.
“(B) Subject to the provisions of the workmen’s compensation act, whenever a handicapped employee is injured or is disabled or dies as a result of an injury and the director finds that the injury probably or most likely would have been sustained or suffered without regard to the employee’s preexisting physical or mental impairment but the resulting disability or death was contributed to by the preexisting impairment, the director shall determine in a manner which is equitable and reasonable and based upon medical evidence the amount of disability and proportion of the cost of award which is attributable to the employee’s preexisting physical or mental impairment, and the amount so found shall be paid from the workers’ compensation fund.
“(b) In order to be relieved of liability under this section, the employer must prove either that the employer had knowledge of the preexisting impairment at the time the employer employed the handicapped employee or that the employer retained the handicapped employee in employment after acquiring such knowledge. The employer’s knowledge of the preexisting impairment may be established by any evidence sufficient to maintain the employer’s burden of proof with regard thereto. If the employer, prior to the occurrence of a subsequent injury to a handicapped employee, files with the director a notice of the employment or retention of such employee, together with a description of the handicap claimed, such notice and description of handicap shall create a presumption that the employer had knowledge of the preexisting impairment.
“(c) Knowledge of the employee’s preexisting impairment or handicap at the time the employer employs or retains the employee in employment shall be presumed conclusively if the employee, in connection with an application for employment or an employment medical examination or otherwise in connection with obtaining or retaining employment with the employer, knowingly: (1) Misrepresents that such employee does not have such an impairment or handicap; (2) misrepresents that such employee has not had any previous accidents; (3) misrepresents that such employee has not previously been disabled or compensated in damages or otherwise because of any prior accident, injury or disease; (4) misrepresents that such employee has not had any employment terminated or suspended because of any prior accident, injury or disease; (5) misrepresents that such employee does not have any mental, emotional, or physical impairment, disability, condition, disease or infirmity; or (6) misrepresents or conceals any facts or information which are reasonably related to the employee’s claim for compensation.
“(d) An employer shall not be relieved of liability for compensation awarded nor shall an employer be entitled to an apportionment of the costs thereof as provided in this section, unless the employer shall cause the commissioner of insurance, in the capacity of administrator of the workers’ compensation fund, to be impleaded, as provided in K.S.A. 44-566a and amendments thereto, in any proceedings to determine the compensation to be awarded a handicapped employee who is injured or disabled or has died, 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.
“(e) Amendments to this section shall apply only to cases where a handicapped employee, or the employee’s dependents, claims compensation as a result of an injury occurring after the effective date of such amendments.
“(f) The total amount of compensation due the employee shall be the amount for disability computed as provided in K.S.A. 44-503a, 44-510 to 44-510g, inclusive, and 44-511, and amendments thereto, and in no case shall the payments be less nor more than the amounts provided in K.S.A. 44-510c and amendments thereto.”
It should be noted that K.S.A. 44-567 does not shift the burden of payment of workers’ compensation to the Fund merely because the employee has a preexisting impairment.
Section (a) (A) provides that if the director finds that the injury, disability, or death of an employee “probably or most likely would not have occurred but for the preexisting physical or mental impairment of the handicapped employee, all compensation . . . shall be paid from the workers’ compensation fund.”
Section (a) (B) provides that if the injury or death probably or most likely would have been sustained without regard to the employee’s preexisting impairment, the director shall apportion the compensation award and require the Fund to pay that proportion of the cost of the award which is attributable to the employee’s preexisting impairment.
K.S.A. 44-567(b) requires the employer to prove that it had knowledge of the preexisting impairment at the time the employer employed the handicapped employee or retained the handicapped employee in employment after acquiring such knowledge.
There is no provision in the statute requiring the employer to prove it had a “reservation” about employing the handicapped employee.
The concept that a “reservation” be considered is first suggested in Oates v. Post & Danley Truck Lines, 3 Kan. App. 2d 337, 594 P.2d 684 (1979). As pointed out by Judge Rees in his' opinion, Oates was decided on the basis of the employer’s prior knowledge of the employee’s disability. It did not hold that an employer had to prove a “reservation.” Later Court of Appeals cases cited by Judge Rees picked up the suggestion and began considering whether the employer had a “reservation” about employing the handicapped employee.
In Johnson v. Kansas Neurological Institute, 240 Kan. 123, 727 P.2d 912 (1986), the Supreme Court stated that, under K.S.A. 44-567(b), the employer had the burden of proving that it knowingly employed or knowingly retained in its employ a handicapped worker. The suggestion of the employer, KNI, that the court should overrule the reservation concept was not considered because the issue was not raised in the trial court.
The issue as to a requirement of a reservation is for our determination in this case. We hold that, under K.S.A. 44-567, an employer is not required to prove he, she, or it had a mental reservation when deciding to hire or retain a handicapped employee.
The statute only requires a knowledge of the preexisting impairment, not a reservation. What is a “reservation”? It has never been defined in the cases by anyone. A mental reservation obviously would require a personal, subjective state of mind in which the employer has a reluctance, a doubt, or a hesitancy about employing the handicapped person.
Some employers may well have a mental reservation in every case; other employers, being interested in helping a handicapped person, may never have a mental reservation. If the Ford Motor Company is the employer, whose state of mind is to be considered to determine if a mental reservation exists — the supervisor, the plant manager, or the president of the company? In a two-person partnership, which partner is considered to be the employer who has a reservation — the older partner or the partner who owns a greater percentage of the business?
Such complicated considerations were certainly not contemplated by the legislature when it enacted K.S.A. 44-567, which requires only a “knowledge of the preexisting impairment.”
We agree with the Court of Appeals that for an employer to be relieved of liability for payment of compensation as authorized by K.S.A. 44-567, it is not necessary that the employer prove it had a mental reservation when deciding to hire or retain the employee.
In 1987, the Kansas Legislature, obviously concerned with the so-called mental reservation requirement, amended K.S.A. 44-567(b) by adding the following statement at the end.
“If the employer files a written notice of an employee’s preexisting impairment with the director in a form approved by the director therefor, such notice establishes the existence of a reservation in the mind of the employer when deciding whether to hire or retain the employee.” L. 1987, ch. 189, § 3.
The 1987 amendment had not been enacted when this case was determined by the director and the district court, nor when it was submitted to the Court of Appeals. It is first mentioned in the Fund’s petition for review following the Court of Appeals decision.
We have considered the 1987 amendment to K.S.A. 44-567(b) and concluded that it should not be interpreted to change the determination of the Court of Appeals in this case. In our judgment, the legislature was concerned about the so-called “mental reservation” requirement mentioned in the various cases and concluded it should do something to nullify what it considered to be a court-established “mental reservation” rule.
The legislature left unchanged the language in 44-567(b) that “[i]n order to be relieved of liability under this section, the employer must prove either that the employer had knowledge of the preexisting impairment at the time the employer employed the handicapped employee or the employer retained the handicapped employee in employment after acquiring such knowledge.” A “mental reservation” was not added as a requirement to be proved by the employer. We hold that the amendment to K.S.A. 44-567 enacted in 1987 did not change the statutory requirements for an employer to be relieved of liability under that section.
For the reasons set forth above, we hold that for an employer to be relieved of liability for payment of compensation as authorized by K.S.A. 44-567 and as amended in 1987, it is not necessary that the employer prove it had a mental reservation when deciding to hire or retain a handicapped employee. Any holdings or language to the contrary contained in Johnson v. Kansas Neurological Institute, 240 Kan. 123; Ramirez v. Rockwell Int'l, 10 Kan. App. 2d 403, 701 P.2d 336 (1985); Hines v. Taco Tico, 9 Kan. App. 2d 633, 683 P.2d 1295 (1984); Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, 621 P.2d 448 (1980); and Oates v. Post & Danley Truck Lines, 3 Kan. App. 2d 337, are held to be erroneous and are hereby overruled.
The judgment of the Court of Appeals and the judgment of the district court are affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action. Ricky Ray Redford appeals his jury conviction of aggravated kidnapping, K.S.A. 21-3421; aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506; rape, K.S.A. 1987 Supp. 21-3502; burglary, K.S.A. 21-3715; criminal damage to property, K.S.A. 1987 Supp. 21-3720; and aggravated battery, K.S.A. 21-3414.
The facts are sordid and depict the tragic uncivilized consequences of drug addiction and its inevitable spinoff of drug dealing. It all started on a tranquil day in the spring of 1986. Donna, 22, was living with her mother and stepfather in Sedgwick County. Donna’s parents observed her talking to Ricky Redford and Lisa Shannon. They were parked in the victim’s driveway in a maroon Pontiac car. Donna’s mother spoke to her alone for a few minutes after seeing Donna was upset and had been crying. Donna assured her mother everything was okay and her problem was just something “her and Rick had to get straightened out.” The three were still talking near the car when Donna’s parents left to go to a coffee shop. Donna’s parents did not see her again for ten days.
Donna’s version of the events of those ten days differs greatly from Redford’s. She testified that Redford, who had once been a boyfriend of hers, showed up that afternoon at her parents’ house and accused her of stealing money and drugs from him. When she denied this, he hit her across the face, forced her into the back seat of the car and drove away. Redford also accused Donna of being involved with Jason Gestl, another former boyfriend of Donna’s, in stealing his keys to some rental storage units.
As the three of them proceeded down the road, Donna continued to protest her innocence. This prompted Shannon to pull off on a dirt road where Redford angrily dragged Donna out of the car. He bound her hands behind her back and told her she was going to pay for what she had done. He promised when he was through with her, no one would recognize her.
Donna testified Redford later blindfolded her as they proceeded across the country until they arrived at Gary Kanak’s farmhouse in Ellsworth County. Kanak was a friend of Redford’s. The two men sat in the farmhouse that night free-basing cocaine, while Donna watched. Her hands were still tied behind her back. Redford hit her several times during the evening when she continued to deny stealing from him. He finally took her to an upstairs bedroom and untied her hands, told her she was going to regret what she had done, and left her alone in the room. Redford had taken the telephone out of the room, and the second-story windows were high above the ground with no fire escape. She was imprisoned, but that made little difference because she was too afraid of Redford to attempt an escape under favorable conditions.
The next morning Redford came upstairs with a gun and dragged Donna out of bed by her hair. He again accused her of stealing from him, and told her to undress. She told him she did not want to have sex with him, but she was too fearful of what he would do to physically resist. Redford then raped Donna. As he left the room, he told her to leave her clothing off because he would be back.
The next day, Redford told Donna Shannon had gone to his Manhattan apartment and discovered money had been stolen from him which he owed to Cuban drug dealers. He said Gestl had told him Donna took the money. Donna denied this theft also. Gestl sometimes bought drugs from Redford, and the three of them had partied together previously. Gestl testified he had earlier given Redford a gun and shoulder holster because Redford demanded it in payment for drugs and money he claimed Donna had stolen from him.
At a later time, Redford, still carrying a gun, came upstairs with Shannon, and forced Donna to have oral sex with Shannon while he watched. After they left, Donna discovered Redford had left his pistol in the room. She considered shooting herself and she considered shooting Redford, but she feared someone else in the farmhouse would then shoot her. Redford soon returned to the bedroom, laughed when he saw the gun, and removed two bullets from it before taking it away.
On day four, Donna was again awakened by Redford dragging her off the bed by her hair. He shoved her down the stairs and into the living room, where she saw a man covered in blood whom she recognized as Gary Atwell. Redford told her he had beaten Atwell because she had blamed the thefts on him. He then handed Atwell a frying pan and told him he wanted to watch while Atwell and Donna beat one another. When Atwell refused to beat Donna, Redford ordered him to take a shower. While Atwell was showering, Redford kicked Donna and beat her with a chair and a broken lamp. He then violently shoved her out the door and against the car. She told him she believed the impact had broken her left wrist, to which he voiced total unconcern.
Redford and his friend Kanak then shoved Donna into a nearby barn. They tied her feet together with a rope and suspended her in the air from a beam for about an hour while Redford struck her and warned her that “she was going to pay.” Scars from the rope remained on Donna’s ankles at the time of trial. After Redford let her down, he told her “it was all over for her,” and that he wanted Gestl next. That evening, Redford, still carrying a pistol, went to the upstairs bedroom and forced Donna to have anal sex with him.
On day five of Donna’s captivity, a friend of Redford’s named Barbara examined Donna’s wrist and told Redford it appeared her arm was broken and she should be taken to the hospital. Redford agreed to let Donna go to the hospital with Barbara and Shannon, but told them not to give Donna’s real name to hospital personnel and to say Donna had been injured in an accident on a three-wheeled vehicle. He warned Donna to say nothing.
The examining nurse at the hospital testified it struck her as unusual that the two women with Donna were so aloof and unsympathetic. They offered her no support, even when it was determined her arm was fractured. Donna herself was very withdrawn and weepy and avoided eye contact. The woman fitting the description of Shannon did most of the talking and said Donna had been injured in a “three-wheeler accident.” Donna said little and would not permit the nurse to examine her black eye. Donna testified she was alone with the nurse for a few minutes but was afraid to say anything because “Rick had me believing he knew everybody. When you are in fear for your life you don’t think too straight.”
On the sixth day of Donna’s captivity, Shannon drove her back to the hospital to have her arm put in a cast. Mary Weese, the registered nurse who saw Donna that day, noticed bruises on her face and remembered she was very apprehensive and unwilling to talk. She remembered the woman accompanying Donna, whose description fit Shannon, did most of the talking and appeared to be more concerned about how long the procedure would take than with Donna’s well-being.
When they returned to the farmhouse, Redford wrote “KEY?” across Donna’s cast in red marker to remind her she had better tell him where she had hidden the keys to his storage units. The cast was admitted into evidence.
Although Donna could not remember the exact sequence of events during her captivity, she testified Redford forced her to perform oral sex upon two friends of his on two separate days and remembered Redford had beaten her at other times while he was interrogating her.
On the ninth day of Donna’s captivity, Redford and Kanak loaded up a Uzi machine gun, shotguns, handguns, and electric stun guns and took Donna back to Wichita to meet the two Cuban men whose money Redford was responsible for. Donna, Shannon, Kanak, and Redford stayed in one room at a Wichita motel. Redford warned Donna if she had anything to say she had better say it because “when the Cubans arrived, it would be out of [his] hands.”
When the Cubans arrived the next evening, Redford told them Donna had stolen their money and that some of it was at Gestl’s house. Redford then tied Donna’s hands behind her back and they drove to Gestl’s house with the two Cubans. One Cuban broke into the house while the other held a pistol to Donna’s head. They all went inside the house and Donna watched while Redford and the Cuban not guarding Donna ransacked Gestl’s house looking for the drug money. They poured cleaning fluid over two of Gestl’s pet parakeets, shot and cut up some other birds, and cut off the legs of a parrot and put it in a fish tank in which the fish were dying from Pennzoil and toilet bowl cleaner the men had poured into the tank. When the men had finished their destruction without finding the money, they left with Donna to look for Gestl.
They later returned and found Gestl trying to save his pets. Redford stood in the street with his pistol yelling, “Jason, come out, I have the people who killed your animals.” When Gestl came out, all three men jumped on him and began beating him and shocking him with stun guns. Donna sat in the back seat of the car and did not run because she was afraid she would be shot. She saw Gestl somehow break away from the men and run across the street as Redford and one of the Cubans shot at him. Redford and the two Cubans then jumped into the car and fled the scene. A neighbor of Gestl’s heard shots, saw a man jump into a car, and watched the car leave at a very high rate of speed, running several stop signs.
Donna testified Kanak and the two Cubans left Wichita that night. The next morning, she awoke to hear Redford telling Shannon he was going to Lyons to pick up some money and drugs and she was to watch Donna and make sure she did not leave or use the telephone. Shannon later fell asleep, however, and Donna left the room and ran to a neighboring motel and called her aunt. Donna told her she would be waiting for her in the restroom of the restaurant next door. The aunt notified the police and they came and took Donna to the hospital. Officer Matland Smith observed that Donna had bruises all over her face, legs, back, and arms; two black eyes; a left arm in a cast; and rope bums on her ankles.
Redford admitted from the outset he was a cocaine addict who laundered drug money for two Cuban cocaine dealers based in Florida. Both he and Donna admitted they had had a relationship which was based in large part on his ability to supply Donna with cocaine.
Redford denied Donna’s version of the events for the ten days she was missing. He testified he visited her at her parents’ house the first afternoon as a friend. He was sympathizing with her because she was upset because Gestl had told her parents “rumors” about her. Redford told her he had been through family problems himself and things would get better in time. He said he and Shannon were on their way to Kanak’s house in Ellsworth County, and invited her to come with them and get away from her problems for awhile. Donna said she would like to. He explained Donna’s failure to pack any clothing by saying he told her he would buy her anything she needed.
On the way to Ellsworth County, he claimed he was shocked when Donna confessed she had made a copy of the key to his apartment in Manhattan because she and Gestl had planned to rob it. He testified she told him she had decided to tell him about the plan because she had had an argument with Gestl. He claimed she said Gestl still planned to rob the place.
Jerry Paden and Roy Kubick, friends of Kanak, testified they were at the farmhouse the first night when Donna arrived. They said they talked with Donna, who did not seem to be apprehensive in any way. Kubick testified he saw Donna several days later when she used a restroom at a gas station and she still did not seem afraid.
Louis Martin, an acquaintance of Redford, testified that on the third day of what Donna claimed to be her captivity, Redford and Donna visited his house and Redford left Donna alone in the house for over an hour while he and Martin went to “see about a car.” He said Donna did not seem afraid and he saw no bruises on her. Martin remembered his neighbor, a deputy sheriff, had his marked patrol car parked in plain view in the driveway next door. They found Donna asleep on the couch when they returned home. Telephone records indicate Donna made two telephone calls from Martin’s house that day. She called both Gestl and her parents and told them she was okay. Donna denied making a phone call to Gestl, and said she was forced to call her parents to tell them she was okay.
Redford said Donna and Shannon went shopping in Great Bend on the third day of Donna’s visit and returned with “a whole bunch of clothes” bought with his money. Butch Hulse, a friend of Kanak’s, testified he saw Donna and Shannon return to the farmhouse in the car and carry some sacks into the kitchen. He heard Redford ask Donna if they had spent all the money he had given them. He said Donna looked tired but did not look like she had been beaten. Donna denied ever taking a shopping trip and said Redford gave her some new clothes because he said he was tired of looking at the same outfit all the time.
Redford said Shannon left Ellsworth County on the fourth day and went to Redford’s apartment in Manhattan. She later called Redford and told him the apartment had been burglarized. Redford wanted to go to Manhattan to check for himself. Kanak didn’t trust Donna alone in his house, so Redford dropped her off at a motel in Ellsworth on his way. Registration records from a motel in Ellsworth indicate a woman registered alone under the name used for Donna as an alias at the hospital. Donna admitted staying that night at the motel but claimed she was guarded the entire time. Telephone records show she called Gestl once again and talked to him for seventeen minutes. Gestl testified she again assured him she was okay, but she did not sound like herself and he could tell something was wrong.
Redford said he and Kanak went back to the motel early the next morning and he then questioned Donna for the first time. He begged her to help him get the money back from Gestl, and offered her $1,000 if she would help. She agreed and told Redford she had a key to Gestl’s front door and could get in and find the money in Gestl’s hiding place. Redford said he did not want Donna, Kanak, or Shannon to be involved with the Cubans when they went back to Wichita because he wanted “to take the heat himself.” The Cubans, however, insisted on talking to Donna, and then slapped her around and told her they would cut her up in little pieces if she did not help get the money back. He said he waited at the motel while Donna left with the Cubans to go to Gestl’s house.
The first issue on appeal is whether the trial court committed reversible error by failing to give the jury a limiting instruction on its consideration of evidence of prior crimes by Redford.
Redford contends the district court had the duty to instruct, sua sponte, that evidence of uncharged prior drug crimes by Redford were relevant only to show motive pursuant to K.S.A. 60-455. When a prior crime is admitted into evidence under K.S.A. 60-455, the trial court has a duty, regardless of request, to give an instruction limiting the purpose for which the evidence may be considered. State v. Whitehead, 226 Kan. 719, Syl. ¶ 2, 602 P.2d 1263 (1979).
Redford’s contention is without merit for several reasons. First, there is no indication from the record that evidence of prior uncharged crimes was admitted pursuant to K.S.A. 60-455. The evidence of prior drug dealings between Redford and Donna and Redford and Gestl established the relationship between these parties. The evidence of Redford’s drug dealings corroborated the testimony of Donna that Redford accused her of having stolen money and drugs from him and was desperate to find a way to get money to pay what he owed to drug dealers. It corroborated Gestl’s testimony that Redford told him Donna had stolen drugs and money from him and Gestl had to make it up to him.
“Res gestae evidence is that evidence which does not constitute a portion of the crimes charged but has a natural, necessary or logical connection to the crime.” State v. Peck, 237 Kan. 756, Syl. ¶ 2, 703 P.2d 781 (1985). The evidence of Redford’s drug dealings had a logical connection to the case in explaining why events happened, both according to Donna’s testimony and according to Redford’s testimony. The evidence is thus res gestae and no limiting instruction is necessary. State v. Peterson, 236 Kan. 821, 828-29, 696 P.2d 387 (1985); State v. Ferris, 222 Kan. 515, 517, 565 P.2d 275 (1977).
The second reason Redford’s argument must fail is that his counsel in his opening statement promised to introduce evidence of Redford’s prior drug dealings. He kept his promise. Evidence of Redford’s drug dealings was introduced during direct examination. Redford thus waived his right to complain of the absence of a limiting instruction. State v. Greene, 214 Kan. 78, 82, 519 P.2d 651 (1974), overruled on other grounds Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978); State v. Scott, 210 Kan. 426, 433-34, 502 P.2d 753 (1972).
Finally, Redford waived his right to object to the lack of a limiting instruction by failing to make a contemporaneous objection at any time during trial to references to his prior drug dealings. Also, since the evidence was res gestae, Redford does have the obligation to request the instruction. See K.S.A. 22-3414(3); State v. Holley, 238 Kan. 501, 506, 712 P.2d 1214 (1986). He did not request an instruction, and raised no objection to the lack of an instruction. He did not object even when a limiting instruction was given at Kanak’s and Shannon’s request which stated evidence of drug dealings by Donna and Redford could not be considered against Kanak or Shannon. He now, however, argues that the instruction given at Kanak and Shannon’s request may have caused the jury to believe it could consider the evidence “any way it wanted to” against Redford. This issue is without merit.
The second issue is whether the court erred in having read back the testimony of one witness and instructing the jury to continue its deliberations, when the jury requested the reading of the testimony of two witnesses.
At 4:30 p.m. on a Thursday afternoon, the jury notified the court it wished to renew its deliberations the next morning and desired to have the testimony of Redford and Donna read to it at that time. It stated it also had “other things to work on” the next day.
The court reporter became ill during the trial after taking Donna’s testimony. The court reporter was still sick Friday morning, when the readback was requested, but the substitute reporter was able to read back the testimony of Redford, whose testimony she had taken. The court therefore determined Redford’s testimony should be read back as requested, while Donna’s testimony was unavailable at that time. Redford’s attorney objected and moved for mistrial because Donna testified prior to Redford and he believed the testimony should be read back in the order of presentation. The court overruled the motion and the testimony of Redford was read to the jury. It resumed its deliberations at 11:28 a.m. During the jury’s further deliberations, the sick reporter came in to take her notes home and informed the court she would not be ready to read the testimony of Donna until Monday morning. The court asked if she could read any part of it later that afternoon, and she stated she could not. The court then called the jury in to explain the situation, and concluded, “You may continue your deliberations.” Redford’s attorney again objected, arguing the correct procedure would have been to ask the jury whether it wanted to continue its deliberations or wait until the second half of its request had been satisfied. The court stated it was up to the jury to object, and said the foreman would probably write another note if the jury did not want to continue until it got all the information. Defense counsel for Shannon pointed out the jury might well feel the court had ordered it to continue deliberations. The jury reached a verdict at 2:14 p.m. without having heard the readback of Donna’s testimony.
Under K.S.A. 22-3420(3), a trial court is required to have testimony read back to the jury when the jury so requests:
“After the jury has retired for deliberations, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant . . .
Redford argues that because of the disparity between Donna’s and his testimony, it is obvious the jury wished to compare the testimony side-by-side. He argues the only question for the jury was which testimony it believed, and the jury’s ability to make a comparison was thus crucial to his case. He contends a reasonable person would have delayed reading the testimony until all of it was available, or would have asked the jury how it wished to proceed. He contends the directive from the court that “y°u may continue your deliberations” did not properly inform the jury it had the choice to delay deliberations until Donna’s testimony was available Monday.
The State argues there is no evidence the jury wanted to place the testimony side-by-side to check for inconsistencies. It is just as likely the jury was searching for some particular statement and was unsure whether Donna or Redford had made it.
The means by which the court complies with a jury request to have testimony read back is subject to its discretion. The issue thus is whether the trial court abused its discretion and the appellant was prejudiced thereby. We hold the trial court did not abuse its discretion under the facts of this case. The court’s ruling was to the benefit of Redford since the jury was permitted to hear his explanation a second time, this time without the inculpatory accusations of the complaining witness. There is no showing of prejudice. This issue is thus without merit.
The next issue is whether the trial court’s instruction on aggravated kidnapping was erroneous. The information against Redford charged that:
“[B]etween April 30, 1986, and May 10, A.D., 1986, one RICKY RAY REDFORD . . . did then and there unlawfully, willfully take or confine another, to-wit: Donna ... , by threat or force, with the intent ... to hold the said Donna ... to inflict bodily harm on or to terrorize the said Donna . . . during which bodily harm was inflicted upon Donna . . .
This information was not amended after evidence was pre sented at trial. The trial court instructed the jury on the offense of aggravated kidnapping, over Redford’s objection, as follows:
“Defendants Redford, Kanak and Shannon are charged with the crime of aggravated kidnapping. Defendants plead not guilty.
“To prove this charge, each of the following claims must be proved, as to each defendant.
“Defendant, or someone acting in concert with defendant, unlawfully, willfully:
“1. took, or confined, Donna ... , by
“2. (a) force, or
(b) threat of force;
“3. (a) to facilitate the commission of a crime; or
(b) to inflict bodily injury, or to terrorize her; and
“4. bodily harm was inflicted upon her.
“5. These events, or some part of them, occurred in Sedgwick County, Kansas, and on or about April 30, 1986, through May 10, 1986.
“Rape is bodily injury.
“Aggravated sodomy is bodily injury.
“Any injury to the body being struck or bruised, or having one’s wrist broken, is bodily injury.”
Aggravated kidnapping is kidnapping as defined in K.S.A. 21-3420 with the addition that bodily harm is inflicted upon the person kidnapped. K.S.A. 21-3421. Aggravated kidnapping is made a more serious offense then simple kidnapping in order to deter a kidnapper from harming his victim. Slight injuries which result only from the force used in the taking itself thus do not constitute bodily injury for purposes of aggravated kidnapping. See State v. Sanders, 225 Kan. 156, 157-59, 587 P.2d 906 (1978).
There was evidence Donna was raped, sodomized, struck, and had her wrist broken and her face and body bruised in incidents which were outside the scope of force necessary to accomplish a simple kidnapping. The trial court correctly stated the law in stating that these harms constituted bodily injury. See State v. Coberly, 233 Kan. 100, 106, 661 P.2d 383 (1983) (rape); State v. Chears, 231 Kan. 161, 165, 643 P.2d 154 (1982) (aggravated sodomy); Sanders, 225 Kan. at 157 (scratch and a split lip).
Redford argues on appeal that the jury could have found Donna was first kidnapped when the Cubans took her to Gestl’s house against her will, and that Redford was guilty as an accomplice. It could have then decided that bruises resulting from having her hands tied were what amounted to bodily harm and made Redford guilty of aggravated kidnapping.
This argument is entirely without merit. There was evidence of bruises on Donna’s face and body, but defense counsel did not show Donna was specifically bruised from having her hands tied before being taken to Gestl’s, nor did the defense attempt to show Donna was kidnapped by the Cubans.
Redford also objects that the court broadened the information against him by instructing that the jury must find he kidnapped Donna in order to inflict bodily harm or to terrorize her, as indicated in the information, or “to facilitate the commission of a crime,” which words did not appear in the information. The general rule is that instructions should follow the charges contained in the information and should not be broader than the information. State v. Turbeville, 235 Kan. 993, 997, 686 P.2d 138 (1984).
The facts in this case, however, are similar to those in Turbeville, in which we held the defendant’s substantial rights were not prejudiced by violation of the rule. In Turbeville, the trial court added the alternative intents “to terrorize the victim or another” or “to facilitate flight” to the aggravated kidnapping instruction. We held because this language was taken directly from the statute and was supported by the evidence presented at trial, the error was harmless. The broadening of the instruction did not charge an additional crime but only stated several different kinds of intent by which aggravated kidnapping could be committed. The charge of aggravated kidnapping under the statute fully advised the defendant of the nature of the charges against him and did not mislead him in preparing his defense.
K.S.A. 21-3420 lists four different types of intent for which the taking of a person constitutes kidnapping:
“(a) For ransom, or as a shield or hostage; or
“(b) To facilitate flight or the commission of any crime; or
“(c) To inflict bodily injury or to terrorize the victim or another; or
“(d) To interfere with the performance of any governmental or political function.”
It is apparent the court added an additional intent under the statute as in Turbeville. As in Turbeville, there was evidence supporting the additional theory that Redford kidnapped Donna with intent to facilitate the commission of the crime of rape and sodomy. We hold there was error, but it was harmless under the facts of this case.
The next issue is whether the trial court erred in the instruction by defining rape as nonconsensual sexual intercourse without adding that the jury must find the victim “was overcome by force or fear.”
The offense of rape is defined by K.S.A. 1987 Supp. 21-3502 as nonconsensual intercourse occurring in one of four possible circumstances:
“(a) When the victim is overcome by force or fear;
“(b) when the victim is unconscious or physically powerless;
“(c) when the victim is incapable of giving consent because of mental deficiency or disease, which condition was known by the offender or was reasonably apparent to the offender; or
“(d) when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance administered to the victim by the offender, or by another person with the offender’s knowledge, unless the victim voluntarily consumes or allows the administration of the substance with knowledge of its nature.”
The omission of one of these four elements from the instruction was error. The trial court has the duty to inform the jury of the essential elements of each crime charged. State v. Lashley, 233 Kan. 620, 629, 664 P.2d 1358 (1983). The question to be determined is whether the omission is reversible error. Redford’s counsel made no objection to the instruction. K.S.A. 22-3414(3) states:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous.”
An instruction is clearly erroneous when the appellate court is firmly convinced there is a real possibility the jury would have returned a different verdict had the error not been made. State v. Maxwell, 234 Kan. 393, Syl. ¶ 5, 672 P.2d 590 (1983). Redford’s defense consisted of presenting a completely different version of events than that given by Donna. His only response to the charges of multiple rape and sodomy was to answer “[n]o,” when his counsel asked him, “[A]t any time did you engage in any oral or anal sex with Donna without her consent?” Donna consistently testified that she submitted to each act of sexual inter course without consent and because she was overcome by fear. There was no evidence of nonconsensual sexual intercourse under any circumstance other than fear.
The question therefore is whether the verdict would have been different had the jury been instructed Donna must have been overcome by force or fear. Under the facts of this case, we think not. The error was therefore harmless.
The next issue is whether the district court of Sedgwick County properly had venue over the case. The general rule of venue is that venue lies in the county where a criminal act occurs. K.S.A. 22-2602. However, “[w]here two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.” K.S.A. 22-2603.
Redford’s lack of objection to venue at trial is irrelevant because venue is a matter of jurisdiction. State v. Moore, 226 Kan. 747, 750, 602 P.2d 1359 (1979). Lack of jurisdiction is not a waivable defense and may be raised for the first time on appeal. State v. Minor, 197 Kan. 296, 300, 416 P.2d 724 (1966). Venue is a question of fact to be determined by the jury and may be proved by circumstantial evidence. State v. Martin, 241 Kan. 732, 743, 740 P.2d 577 (1987).
In State v. Korbel, 231 Kan. 657, 660, 647 P.2d 1301 (1982), a woman was kidnapped and raped. She was abducted in Sedgwick County but the evidence showed the rape might have occurred in Sumner County. We concluded venue was proper in Sedgwick County because the woman’s resistance to sexual intercourse was overcome by fear and force engendered in part by the initial kidnapping in Sedgwick County. The kidnapping in Sedgwick County was thus requisite to the commission of the rape in Sumner County.
Redford argues the jury could have found Donna voluntarily left with him in Sedgwick County and was only kidnapped by him in Ellsworth County when Lisa Shannon called and informed him his apartment in Manhattan had been robbed. Thus, he argues, venue is in Ellsworth County.
Redford objects to the court’s instructions that the State had to prove Redford engaged in sodomy with Donna without her consent, “in connection with events some part of which occurred in Sedgwick County,” and that to find Redford guilty of rape, the State must prove Redford engaged in sexual intercourse with Donna without her consent and “this occurred during a series of events, part of which occurred in Sedgwick County.” Redford contends because the instructions did not require the act committed in Sedgwick County to be requisite to the commission of the crimes committed in Ellsworth County, the jury could erroneously find venue for the rape and sodomy charges to be with Sedgwick County even if Donna voluntarily left with Redford to go to Ellsworth County.
We hold Korbel controls and that the force used in the kidnapping of Donna in Sedgwick County, and the fear it engendered in her mind, was a requisite part of the later crimes of rape and sodomy committed against her in Ellsworth County. Thus the venue was in either Sedgwick or Ellsworth County.
The next issue is whether the trial court incorrectly excluded evidence of Donna’s prior sexual conduct with Redford pursuant to K.S.A. 1987 Supp. 21-3525, which provides as follows:
“(1) The provisions of this section shall apply only in a prosecution for: (a) Rape, as defined by K.S.A. 21-3502 and amendments thereto; . . . (d) aggravated criminal sodomy as defined by K.S.A. 21-3506 and amendments thereto; ....
“(2) . . . [I]n any prosecution to which this section applies, evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in the presence of the jury, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the trial unless that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevance and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.” (Emphasis supplied.)
Redford’s counsel ignored the mandatory language of K.S.A. 1987 Supp. 21-3525 and failed to make a written motion to the court to admit evidence of prior sexual conduct. Nor did he make a proffer to show relevance. The trial court thus did not err in excluding the evidence.
On appeal Redford argues the “rumors” which Donna’s parents had heard and which upset Donna concerned her sexual relationship with him. He argues the testimony that Donna’s parents had heard “rumors,” instead of possibly corroborating Donna’s testimony that Redford was accusing her of stealing his drugs and money, should have explained to the jury how she was upset because her parents learned of her sexual relationship with Redford, and why she would leave town with Redford without packing or telling her parents. He argues that because this evidence would have been relevant to show he was not guilty of aggravated kidnapping rather than of rape or sodomy, it should have been allowed because K.S.A. 1987 Supp. 21-3525 applies only to the rape and aggravated criminal sodomy offenses.
It would be naive to pretend the jury would consider evidence of Donna’s prior sexual activities only for the purpose of determining if she had been kidnapped and not to determine if she had been raped and sodomized. The enactment of K.S.A. 1987 Supp. 21-3525 was prompted in part by the realization that the admission of evidence of prior sexual activity destroys the victim’s testimony. It would violate public policy to permit Redford to present evidence of the victim’s prior sexual activity merely because he was charged with other crimes in addition to rape and sodomy.
Redford’s final contention on appeal is that the combined effect of trial errors is such that he was denied a fair trial. The rule regarding a “cumulative effect” challenge is whether the defendant was prejudiced by the totality of the circumstances. State v. Williams, 235 Kan. 485, 496, 681 P.2d 660 (1984). Since the trial errors were deemed harmless, this final argument must also fail. See State v. McConnell, 9 Kan. App. 2d 688, 694, 688 P.2d 1224 (1984).
The judgment is affirmed.
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The opinion of the court was delivered by
Prager, C.J.:
This is a direct appeal by the defendant, Latisa Micheaux, from her conviction following a plea of guilty to one count of welfare fraud (K.S.A. 39-720 and K.S.A. 1986 Supp. 21-3701). The trial judge refused to follow the State’s recommendation that defendant be placed on probation and imposed sentence. Defendant then filed a timely appeal. The Court of Appeals reversed defendant’s conviction in an unpublished opinion filed June 18, 1987. The Supreme Court granted the State’s petition for review.
The sole issue before this court is whether the trial court lacked jurisdiction to convict defendant Micheaux of welfare fraud or theft because the information failed to allege a crime. The facts in this case are undisputed. The complaint/information charged the defendant with welfare fraud under K.S.A. 39-720 and K.S.A. 1986 Supp. 21-3701, which provide as follows:
“39-720. Penalty relating to fraudulent acts, civil actions, evidence. Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, shall be guilty of the crime of theft, as defined by K.S.A. 21-3701; and he shall be required to remit to the secretary the amount of any assistance given him under such fraudulent act. In any civil action for the recovery of assistance on the grounds the assistance was fraudulently obtained, proof that the recipient of the assistance possesses or did possess resources which does or would have rendered him ineligible to receive such assistance shall be deemed prima facie evidence that such assistance was fraudulently obtained.”
K.S.A. 1986 Supp. 21-3701:
“21-3701. Theft. 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:
“(a) Obtaining or exerting unauthorized control over property; or
“(b) Obtaining by deception control over property; . . .”
“Theft of property of the value of $150 or more is a class E felony. Theft of property of the value of less than $150 is a class A misdemeanor, except that theft of property of the value of less than $150 is a class E felony if committed by a person who has, within five years immediately preceding commission of the crime, been convicted of theft two or more times.”
The complaint/information on which defendant was convicted alleged one count of welfare fraud as follows:
“COMPLAINT/INFORMATION
“COMES NOW, Mark Sevart, a duly appointed, qualified and acting Assistant District Attorney of the 18th Judicial District of the State of Kansas, and for and on behalf of the said State gives the Court to understand and be informed that in the County of Sedgwick, and State of Kansas, and on or about the 11th day of May, 1984, A.D., and from then on continuously until and including the 4th day of September, 1984, one Latisa Micheaux, did then and there unlawfully, willfully and knowingly obtain or attempt to obtain cash assistance to which defendant was not entitled in a total and aggregate amount of $756.00, by means of a false statement or other fraudulent device, to wit: submission of income reporting forms to the State Department of Social and Rehabilitation Services on which defendant failed to disclose she was employed and receiving wages by otherwise failing to report to the State Department of Social and Rehabilitation Services that she was receiving income from a source other than welfare assistance.”
The Court of Appeals held that the information was fatally defective for the reasons stated in State v. Bryan, 12 Kan. App. 2d 206, 738 P.2d 463, rev. denied 241 Kan. 839 (1987). In Bryan, the defendant appealed her conviction of four counts of felony theft pursuant to K.SEA. 39-720 and K.S.A. 1986 Supp. 21-3701, commonly known as welfare fraud. The four counts of welfare fraud alleged in the information were essentially the same as the allegations contained in the information now before us. In Bryan, the court pointed out that none of the four counts alleged that the defendant had obtained control of the State’s property with the intent to deprive the owner permanently of the possession, use, or benefit of the property, which is an element of theft as set forth in K.S.A. 1986 Supp. 21-3701. Defendant Bryan contended that the district court erred in convicting her of welfare fraud on the grounds that an intent to deprive the owner permanently of the possession or ownership of the property is an essential element of the crime and, because the information failed to specifically include that necessary intent in each of the counts, the information was fatally defective. The court in Bryan agreed, stating in the opinion as follows:
“A conviction for welfare fraud under K.S.A. 39-720 is a conviction for theft. K.S.A. 39-720; State v. Ambler, 220 Kan. 560, 552 P.2d 896 (1976). An essential element of the crime of theft is that the accused obtain the property ‘with intent to deprive the owner permanently of the property.’ K.S.A. 1986 Supp. 21-3701; State v. Burnett, 4 Kan. App. 2d 412, Syl. ¶ 1, 607 P.2d 88 (1980).
“The State contends that a person who fraudulently obtains welfare assistance to which the person is not entitled, according to K.S.A. 39-720, ‘shall be guilty of theft.’ The problem with the State’s argument is that K.S.A. 39-720 does not stop at the point where it states that ‘[a]ny person who obtains ... by means of . . . fraudulent device, assistance to which the [person] is not entitled, shall be guilty of the crime of theft.’ (Emphasis added.) Presumably, the Legislature could have stopped at that point. See State v. Jones, 214 Kan. 568, 570, 521 P.2d 278 (1974) (‘The Legislature has the power to define and prescribe punishment for criminal offenses.’) However, the statute continues, saying that such person ‘shall be guilty of the crime of theft, as defined by K.S.A. 21-3701.’ (Emphasis added.) K.S.A. 1986 Supp. 21-3701 in fact defines ‘theft’ as obtaining control over property ‘with intent to deprive the owner permanently of the possession ... of the owner’s property.’ A person is not guilty of theft ‘as defined by K.S.A. 21-3701’ unless that person obtains control of the property with the intent to permanently deprive the owner of his property. Thus, we hold that an information charging an accused of‘welfare fraud’ under K.S.A. 39-720 must allege that the accused obtained control of the property with the intent to permanently deprive the owner of his property.” 12 Kan. App. 2d at 207-08.
The court in Bryan rejected the State’s contention that K.S.A. 39-720 is an independent penal statute and that the specific elements listed in that statute constitute an independent crime. The court stated that a conviction for fraudulently obtaining welfare assistance is a conviction for theft, specifically theft by deception under K.S.A. 1986 Supp. 21-3701(b), and that K.S.A. 39-720 does not define welfare fraud as a crime independent of theft, but defines it as theft. Thus, the State’s argument that K.S.A. 39-720 constitutes an independent crime was held to be without merit. In Bryan, the State contended that the reference in K.S.A. 39-720 to 21-3701 exists only for dispositional purposes; that is, to determine whether the proscribed act is a felony or a misdemeanor depending on the value of the assistance fraudulently obtained. The court in Bryan refused to accept this argument, concluding that the use of the words in K.S.A. 39-720 “shall be guilty of the crime of theft, as defined by K.S.A. 21-3701,” in place of the prior statutory language, showed that the legislature intended that the elements of theft under 21-3701 had to be proved in order to convict the defendant of welfare fraud under K.S.A. 39-720.
The issue presented in this case is difficult because of the peculiar language used in K.S.A. 39-720. Before determining the issue, it would be helpful to consider some of the general principles of law which are followed in this state in construing and determining the legal effect of the language used in an information in a criminal case. In State v. Bird, 238 Kan. 160, 708 P.2d 946 (1985), the following basic principles of law were recognized:
“In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of the information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal.” (Syl. ¶ I.)
“Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible.” (Syl. ¶ 2.)
“In this state, an information which charges an offense in the language of the applicable criminal statute is sufficient.” (Syl. ¶ 3.)
Under the Kansas code of criminal procedure, and more specifically in K.S.A. 1986 Supp. 22-3201, prosecutions for crime must be upon a complaint, indictment, or information. Section (2) of the statute provides in part:
“The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient.”
Section (5) of 22-3201 states:
“(5) When a complaint, information or indictment charges a crime but fails to specify the particulars of the crime sufficiently to enable the defendant to prepare a defense the court may, on written motion of the defendant, require the prosecuting attorney to furnish the defendant with a bill of particulars. At the trial the state’s evidence shall be confined to the particulars of the bill.”
K.S.A. 22-3208 provides in part:
“(3) Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. . . . Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.”
It is clear from the language of 22-3201 and 22-3208 and the decision of this court in State v. Bird, 238 Kan. 160, that the issue raised by the defendant that the information was fatally defective may be raised in this court, even though the defendant entered a plea of guilty to the charge of welfare fraud contained in the information.
The general rule followed throughout the United States and in Kansas is that, in charging a statutory offense, it is not necessary to use the exact words of the statute. An indictment or information for an offense is sufficient if it follows the language of the statute substantially or charges the offense in equivalent words or others of the same import if the defendant is thereby fully informed of the particular offense charged and the court is able to see therefrom on what statute the offense is founded. In the early case of State v. Patterson, 66 Kan. 447, 71 Pac. 860 (1903), it was held that, in a prosecution under a statute creating the crime of embezzlement by an officer of the city which did not allege in specific words an intent to defraud, having left such intent to be derived from the words “embezzle or convert to his own use,” the intent to defraud need not be alleged in specific words in an information for such crime.
In State v. Morris, 124 Kan. 505, 260 Pac. 629 (1927), the defendant was charged in the information with forgery in the language of the statute but the words “with intent to defraud” were omitted. This court held that, inasmuch as the information was drawn substantially in conformity with the statute, the information was not defective, because it alleged that the defendant had falsely, unlawfully, willfully, and feloniously made a fraudulent writing. The court stated that the day had passed in this jurisdiction “when criminals can hope to go unwhipped of justice because of the want of a technical recital in a criminal information which neither misled nor prejudiced them in the preparation or management of their defense.” 124 Kan. at 508. The court stated that there was no pretense that defendants did not understand they were on trial for the fraudulent making of a check on a Hiawatha bank to the prejudice of the owner of a filling station, the bank, and the man whose name they wrote on the check. The court thus upheld the information even though an intent to defraud was not specifically alleged.
In State v. Hillis, 145 Kan. 456, Syl. ¶ 1, 65 P. 2d 251 (1937), it was held that a count in an information containing the words of the statute “steal, take and carry away,” in charging the crime of petty larceny under G.S. 1935, 21-535, especially when those words were preceded by the word “unlawfully,” was sufficient without a specific allegation of criminal intent.
In State v. Hazen, 160 Kan. 733, 737, 165 P.2d 234 (1946), the court stated that in charging statutory offenses, except in those cases in which the statute simply designates and does not describe or name the constituent elements of the offense, informations are sufficient if they charge an offense in the language of the statute. Even the statutory words need not be strictly pursued, but others conveying the same meaning may be used. Sixteen Kansas cases handed down between 1875 and 1937 are cited to support the rule.
The long-recognized general rule was departed from in State v. Giddings, 216 Kan. 14, 531 P.2d 445 (1975). There, the defendant was convicted of forging and uttering a check in violation of K.S.A. 21-3710. The court held that where a specific intent is made part of the offense by the statute which creates it, that intent must be included in the charge set forth in the information and it is not sufficient to charge that the act was unlawfully, feloniously, and willfully done, because intent to defraud is a specific element of the offense of forgery as defined in K.S.A. 21-3710, that intent must be alleged in an information charging forgery in violation of that statute.
More recently, in State v. Lucas, 221 Kan. 88, 557 P.2d 1296 (1976), the defendant was convicted of aggravated robbery. The defendant challenged the sufficiency of the information, since it did not allege the acts were committed with criminal intent. This court rejected that argument, holding that the information was sufficient. We stated that the information charged the defendant in the words of the aggravated robbery statute and further alleged that the act was committed “feloniously,” which infers the acts were done with criminal intent.
In the recent case of State v. Garner, 237 Kan. 227, 699 P.2d 468 (1985), it was held in Syllabus ¶ 2:
“An information which charges an offense in the language of the statute or its equivalent is sufficient. Further, the exact statutory words need not be used in the information if the meaning is clear.”
From this long line of Kansas cases, we must conclude that an information which charges an offense in the language of the statute or its equivalent is sufficient, and, further, the exact statutory words need not be used in the information if the meaning is clear. While an information may be insufficient if it fails to allege an essential element of the offense, nevertheless, an information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.
The problem before us is essentially one of statutory interpretation. That problem becomes difficult in cases where the statute contains conflicting language making it extremely difficult to determine legislative intent. This court has held that the fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases, or clauses at some place in the statute must be omitted or inserted. Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, Syl. ¶ 3, 552 P.2d 1363 (1976). The various provisions of a statute in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if it is reasonably possible to do so. Callaway v. City of Overland Park, 211 Kan. 646, 650, 508 P.2d 902 (1973). When a statute is susceptible of more than one construction, it should be given the construction which, when considered in its entirety, gives expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute. Gnadt v. Durr, 208 Kan. 783, Syl. ¶ 2, 494 P.2d 1219 (1972).
K.S.A. 22-2103 states that the code of criminal procedure is intended to provide for the just determination of every criminal proceeding and that its provisions shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. As noted in the Judicial Council comments to 22-2103, our criminal code should not in any case be interpreted technically so as to defeat the ends of justice.
The statute which we must construe in this case is K.S.A. 39-720 and its relationship to K.S.A. 1986 Supp. 21-3701. As stated earlier in this opinion, the Court of Appeals held the information to be fatally defective on the basis of its decision in State v. Bryan, 12 Kan. App. 2d 206. The Court of Appeals in that case relied to a great extent on the fact that K.S.A. 39-720 stated that such person “shall be guilty of the crime of theft as defined by K.S.A. 21-3701.” The use of the the words “as defined by K.S.A. 21-3701” had the legal effect of making a charge for K.S.A. 39-720 the same as a charge of theft, and, therefore, K.S.A. 39-720 was not a distinct and separate crime. The court thus held the State’s argument that K.S.A. 39-720 constituted an independent crime was without merit.
We have concluded that the Court of Appeals in State v. Bryan erred in its reliance on the words “as defined by K.S.A. 21-3701” as used in K.S.A. 39-720. In our judgment, there is other language in the statute which demonstrates that the legislative intent was to make a charge under K.S.A. 39-720 an independent crime of welfare fraud, and that the purpose of referring to 21-3701 was simply to include welfare fraud in the general category of theft offenses and to carry the same penalties as theft. It is clear from the history of K.S.A. 39-720 that that statute was enacted to create an independent crime of welfare fraud to be utilized as a means of enforcing the Social Welfare Act which was enacted by the Kansas Legislature in 1937. A rather comprehensive review of the act is discussed in State v. Allison, 173 Kan. 107, 244 P.2d 176 (1952).
Down through the years there have been cases before the Supreme Court where it has been assumed that welfare fraud is an independent crime. In State v. Turner, 239 Kan. 360, 721 P.2d 255 (1986), the defendant entered a plea of guilty to “welfare fraud” (K.S.A. 39-720 and K.S.A. 21-3701[b]). The sufficiency of the information was not challenged, but the opinion seems to assume that welfare fraud is an independent crime.
When we closely examine the language of K.S.A. 39-720, it becomes obvious that a person convicted under that statute may be guilty even though no actual theft of property is involved as required by K.S.A. 1986 Supp. 21-3701. The statute declares, in substance, that any person who obtains or attempts to obtain by means of a willfully false statement or representation, assistance to which the applicant or client is not entitled shall be guilty of the crime of theft. The word “assistance” is a term used throughout the Social Welfare Act and is specifically defined in K.S.A. 39-702(d) as follows:
“(d) ‘Assistance’ includes such items or functions as the giving or providing of money, food stamps or coupons, food, clothing, shelter, medicine or other materials, the giving of any service, including instructive or scientific, and the providing of institutional care, which may be necessary or helpful to the recipient in providing necessities of life for the recipient and the recipient’s dependents. The definitions of social welfare service and assistance in this section shall be deemed as partially descriptive and not limiting.”
A person may be guilty under K.S.A. 39-720 where he wrongfully obtains “assistance” to which he is not entitled. “Assistance” includes, in addition to items of personal property, the giving of any services, including scientific or instructive services, and the providing of institutional care. The use of the broad term “assistance” is completely contrary to the concept that a person can be guilty under K.S.A. 39-720 only where he is involved in a theft of property as required by K.S.A. 1986 Supp. 21-3701. The theft of services is governed by K.S.A. 1986 Supp. 21-3704, a different statute which covers obtaining services from another by deception, threat, coercion, stealth, mechanical tampering, or use of a false token or device. In our judgment, it is incongruous to conclude that 21-3701, involving theft of property, should be extended to cover a violation of K.S.A. 39-720 where assistance other than property was obtained by an offender.
It is also important to note that K.S.A. 39-720 makes it a crime not only to obtain assistance, but also to attempt to obtain assistance. It would not be logical to conclude that a person who merely attempts to obtain assistance is subject to prosecution under 21-3701, which requires, in each instance, that the offender actually obtain “control of property.”
We also think it significant that K.S.A. 39-720 refers to the “penalty” relating to fraudulent acts. The use of the term “penalty” relating to fraudulent acts was used by the legislature when it originally enacted the Social Welfare Act in 1937. (L. 1937, ch. 327, § 18). The term “penalty relating to theft” was never used.
It is not surprising that confusion exists in this case as to the nature of the crime of welfare fraud. From the time the consolidated theft statutes were enacted in 1969, there has been some confusion as to the relationship of the crime of theft to the crimes of larceny, embezzlement, false pretenses, extortion, receiving stolen property, and the like. State v. Finch, 223 Kan. 398, 399, 573 P.2d 1048 (1978). There is a discussion of the historical background of the statute and the legislative objective sought in the consolidation of the state’s theft law in an excellent article by Professor Paul E. Wilson, Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L. Rev. 385 (1972). The statute is also discussed in State v. Bandt, 219 Kan. 816, 819, 549 P.2d 936 (1976). In his article, Professor Wilson points out that there was no legislative intent to change the basic nature of the crimes the new act comprehends. The crime of welfare fraud under K.S.A. 39-720 is essentially the same as the crime of obtaining or attempting to obtain welfare assistance by deception or fraud.
The information in the present case is set forth in full at the beginning of this opinion. The information alleges, in substance, that the defendant did unlawfully, willfully, and knowingly obtain or attempt to obtain cash assistance in the amount of $756 by means of a false statement or other fraudulent device, to-wit: a false income reporting form.
This complaint follows the wording of K.S.A. 39-720, and, in our judgment is sufficient to comply with the standards required for the allegations in an information which are discussed in full in the many cases cited heretofore. The welfare fraud statute requires only that a person “obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled.” Once such a fraudulent act is done, the crime is complete. Therefore, an intent to deprive permanently need not be alleged or proved. The information in this case was sufficient to fully advise the defendant as to the crime with which she was charged. She obtained welfare assistance unlawfully, willfully, and knowingly by use of a false statement or other fraudulent device. How could the defendant be more fully informed of the nature of the charge against her?
For the reasons set forth above, we hold that the information in this case was sufficient to charge the crime of welfare fraud under K.S.A. 39-720. We hold that the crime of welfare fraud is an independent crime from the crime of theft as defined by K.S.A. 1986 Supp. 21-3701 for the reason that it includes an attempt to obtain welfare assistance in addition to the actual obtaining of welfare assistance, and for the further reason that it covers not only the obtaining of property but the obtaining of services and institutional care. The information in this case was sufficient to charge the crime of welfare fraud, because it contains language sufficient to allege the basic elements of the offense intended to be charged, because it sufficiently apprises the defendant of what she must be prepared to meet, and because the language used is specific enough to make a plea of double jeopardy possible. State v. Bird, 238 Kan. 160, Syl. ¶ 2. In view of our holding in this case, the decision of the Court of Appeals in State v. Bryan, 12 Kan. App. 2d 206, is hereby overruled.
The judgment of the district court is affirmed and the judgment of the Court of Appeals is reversed. The case is remanded for further proceedings in the district court. | [
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The opinion of the court was delivered by
Holmes, J.:
Paul A. Scobee appeals his conviction by a jury of one count of involuntary manslaughter (K.S.A. 1986 Supp. 21-3404). The Kansas Court of Appeals, in an unpublished opinion filed June 18, 1987, reversed the conviction and remanded the case for a new trial. Although the panel of the Court of Appeals was unanimous in granting a reversal, it was divided as to the proper instructions to be given in the second trial. We granted the State’s petition for review.
The facts were stated by the Court of Appeals:
“On the evening of January 11, 1986, defendant Paul Scobee shot and killed Don Lankard in the driveway of the Scobee home in Garnett, Kansas. Scobee was charged with second-degree murder and a jury convicted the defendant of involuntary manslaughter.
“This case consists of five principal players: the defendant, Scobee; the victim, Lankard; Kevin Pretzer; and twin sisters Lisa and Leah Donahue. Pretzer and Lankard spent the afternoon of January 11 driving around the city of Garnett, rendezvousing with acquaintances, drinking beer, and smoking marijuana. The two continued their celebrating into the evening hours, meeting the Donahue sisters and the defendant at the local Sonic drive-in around 9:00 p.m.
“Leah Donahue, Lankard’s girlfriend, decided to ride around with Lankard and Pretzer for the evening with the understanding that she would meet the defendant and her sister at 10:00 p.m. Scobee and Lisa Donahue drove around town for about half an hour and decided that they should start looking for Leah. When they found her, she was involved in an argument with Lankard at the North lake in Garnett. Leah jumped into Scobee’s car and the three drove off.
“Scobee and the Donahue twins ended up at the girls’ home, where they stayed until approximately 11:00 p.m. Leah decided that she was hungry and the three left the Donahue house to go to the Sonic. Along the way, they encountered Lankard and Pretzer, who pulled up next to the three as they were stopped at an intersection in the town square. Scobee reached underneath the seat of his car, pulled out a gun, and laid it on his lap. Leah yelled that Scobee had a gun, and Lankard got out of Pretzer’s car and came towards Scobee’s truck. Scobee pulled away; the Pretzer vehicle followed closely behind.
“Pretzer and Lankard followed the defendant’s car to the Donahue house, where the girls were dropped off, and continued to follow the defendant around town. Defendant pulled into his parents’ driveway and got out of his car; Lankard got out of Pretzer’s car and ran towards the defendant. As the defendant got out of his car with his back to Lankard, he turned around, bringing his .22-calibre pistol up. At this point, the evidence is somewhat unclear. Pretzer testified that Scobee fired the gun as Lankard was approaching him. Scobee testified that he shot Lankard as Lankard ran into the gun.
“After the shooting, the defendant pointed the gun at Pretzer and told him to back off. Pretzer got back into his car and went to call an ambulance. The defendant went into his home, gave the pistol to his mother, asked her to call an ambulance and the police, and told her that he had shot Lankard.
“The defendant was charged with second-degree murder and a jury convicted him of the lesser offense of involuntary manslaughter.”
In addition to the foregoing facts, Scobee testified that Pretzer, armed with a length of iron pipe, was approaching closely behind Lankard. Pretzer also testified that he was armed with an iron pipe and that he and Lankard intended to “beat Scobee’s ass.” Additional facts will be stated as they become relevant to the issues on appeal.
The first issue is whether the trial court committed reversible error in instructing the jury on the misdemeanor theory of involuntary manslaughter based upon the statutory language “the wanton commission of an unlawful act not amounting to a felony.” Appellant’s counsel timely objected at trial to the particular wording of the involuntary manslaughter instruction given by the court and also argued that instead of instructing on misdemeanor-manslaughter, the instruction should have been based on the “commission of a lawful act in an unlawful or wanton manner” prong of the involuntary manslaughter statute.
K.S.A. 1986 Supp. 21-3404 provides:
“(a) Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner.
(b) As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state, which statute or ordinance is enacted for the protection of human life or safety.
(c) Involuntary manslaughter is a class D felony.”
Although Scobee was charged with second-degree murder, the court also gave instructions on the lesser crimes of voluntary manslaughter and involuntary manslaughter. The court instructed on involuntary manslaughter as follows:
“If you cannot agree that the defendant, Paul Scobee, is guilty of murder in the second degree or voluntary manslaughter, you should then consider the lesser included offense of involuntary manslaughter.
To establish this charge, each of the following claims must be proved:
1. That the defendant unintentionally killed Donald G. Lankard, Jr.;
2. That such killing was done while in the commission of the unlawful act of shooting a firearm within the city of Garnett, Kansas, under circumstances that show a realization of the imminence of danger to the person of another and a reckless disregard or complete indifference and unconcern for the probable consequences of the conduct.
3. That this act occurred on or about the 11th day of January, 1986, in Anderson County, Kansas and in the City of Garnett, Kansas.”
Appellant argues that although he did not intend to kill Lankard he did intentionally shoot in self-defense. Under such circumstances he argues that it was error to instruct on the misdemeanor theory based upon firing a gun in the City of Garnett and that instead the instruction should have been based upon “the commission of a lawful act [self-defense] in an unlawful or wanton manner.”
Appellant relies heavily upon this Court’s decision in State v. Gregory, 218 Kan. 180, 542 P.2d 1051 (1975). The facts in Gregory are quite similar to those in the present case. Gregory was charged with second-degree murder after the victim died of a pistol wound inflicted by Gregory, allegedly in self-defense. The shooting took place in the City of Coffeyville, which had a city ordinance against shooting a firearm in the city. The jury was instructed on the theory that firing a gun within the city limits was an unlawful act not amounting to a felony. This Court found the instruction to be erroneous under the facts of the case, and stated:
“Our difficulty with the entire misdemeanor-manslaughter theory is that the gun was concededly fired with intent to injure a human being. Absent some justification such as self-defense, the act was at least aggravated battery under K.S.A. 21-3414, a class C felony. The involuntary manslaughter statute requires that the unlawful act be one ‘not amounting to felony.’ Even though some ordinance may have been violated we find the undisputed facts present an insuperable barrier to finding that the shooting, if by itself a criminal act, did not amount to a felony.
“We are far more comfortable with making our analysis under what we are designating (2)(b), requiring a ‘lawful’ act done in either an unlawful manner or wantonly. All parties, including this court, agree that there was no element of wantonness involved, so our attention is focussed on determining whether the jury could have found that Gregory was engaging in a lawful act, but did so in an unlawful manner.
“K.S.A. 21-3211 provides:
‘A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.’
“Thus if the jury found that Gregory was in fact being attacked, it would necessarily find that he was entitled to defend himself. In doing so he was engaged in a ‘lawful act.’
“But the statute and our cases recognize that in repelling an attack one is limited to ‘that force which reasonably appears to be necessary for that purpose.’ [Citations omitted.] If the jury had found the deadly force employed by Gregory was ‘reasonably necessary’ to repel Fullard’s attack, it would have acquitted him. But if it found that force was excessive what could its verdict be? If it found no malice, it could not convict of murder. If it credited Gregory’s testimony that he did not intend to kill, it could not convict of voluntary manslaughter. Yet the use of excessive force eliminated the statutory justification for the homicide and made it unlawful. Still, it did not in itself constitute the misdemeanor ‘unlawful act’ under the involuntary manslaughter statute because by definition that would have to be an act ‘prohibited’ by statute or ordinance. There is, however, another solution to the jury’s dilemma. We think the jury could conclude on the facts of this case that Gregory had a right of self-defense, and his exercise of that right was a lawful act. It could also find, however, that shooting Fullard was not reasonably necessary — after all, his knife was not open when found. This use of excessive force could be found to be an ‘unlawful manner’ of committing the lawful act of self-defense, and thus supply that requisite element of involuntary manslaughter.” 218 Kan. at 185-86.
In Gregory we held:
“Involuntary manslaughter under K.S.A. 21-3404 requires an unintentional ‘killing.’ A defendant may be convicted of involuntary manslaughter for an intentional shooting if it is found that the killing of the victim was unintentional.” Syl. ¶ 3.
“Deliberately shooting a person with intent to injure, unless justified, is at least a felonious aggravated battery under K.S.A. 21-3414. As such, it cannot be an ‘unlawful act not amounting to a felony’ under the involuntary manslaughter statute (K.S.A. 21-3404) even if the shooting occurs in a city where the discharge of firearms violates a city ordinance.” Syl. ¶ 4.
See State v. Clark, 218 Kan. 18, 542 P.2d 291 (1975); and State v. Warren, 5 Kan. App. 2d 754, 624 P.2d 476, rev. denied 229 Kan. 671 (1981).
It appears clear that under Gregory the trial court in this case should have instructed upon “the commission of a lawful act [self-defense] in an unlawful or wanton manner.” This does not mean, however, that in every case where self-defense is asserted as justification for a killing the giving of a misdemeanor theory instruction is precluded. The Court of Appeals held that, under the facts of this case, the trial court was correct in giving the misdemeanor theory of involuntary manslaughter but committed error in failing to also give the self-defense portion of the instruction as approved in Gregory. In explaining its decision, the Court of Appeals stated:
“Evidence adduced at trial justified the trial court in giving this instruction. The defendant testified that he did not intend to kill Mr. Lankard. Further, the trial court judicially noticed that the shooting of a firearm within the city limits of Garnett was an ‘unlawful act.’ Lastly, there was evidence that the shooting of the pistol within the Garnett city limits was ‘wanton,’ that is, committed ‘under circumstances that show a realization of the imminence of danger to the person of another and reckless disregard or complete indifference and unconcern for the probable consequences of the conduct.’ The defendant testified that when he got out of the truck, he drew the pistol up and Lankard ran into it, whereupon the defendant pulled the trigger; defendant further stated that he intended to wave the gun and to direct them to back off. He also said that he was trying to stop Lankard. Defendant testified that he was carrying the pistol in his right hand, and that he was left-handed. This evidence justified the trial court in giving the misdemeanor-manslaughter instruction.
“However, the trial court did err in failing to instruct the jury that the defendant could be found guilty of involuntary manslaughter by performing a lawful act (self-defense) in an unlawful manner (with excessive force). See K.S.A. 1986 Supp. 21-3404(a); State v. Williams, 6 Kan. App. 2d 833, Syl. ¶ 4, 635 P.2d 1274 (1981). There was certainly evidence that the defendant at least believed he was acting in self-defense. Further, the defendant’s use of a pistol to resist the ‘attack’ of the unarmed victim certainly, at the very least, raises a question as to whether the force was excessive. See State v. Marks, 226 Kan. 704, 712-13, 602 P.2d 1344 (1979) (young man used pistol to repel the attack of a 65-year-old man with a cane; court held the force used by young man was excessive as a matter of law). Here, the trial court erred in not instructing the jury on the ‘excessive force’ theory of involuntary manslaughter.”
We agree that where the evidence might support either theory of involuntary manslaughter the court should instruct on both theories. It is not inconceivable that a defendant might assert the alternative theories of self-defense and wanton commission of an unlawful act not amounting to a felony and that the evidence could support either theory depending upon the jury’s belief of the evidence. See State v. Farley, 225 Kan. 127, 133, 587 P.2d 337 (1978). On retrial of this case the extent of the involuntary manslaughter instruction will have to be determined by the trial court based upon all the evidence. Based upon the record in the present appeal, it is difficult, under Gregory, to justify the misdemeanor theory instruction inasmuch as the trial judge found that Scobee “did not provoke an attack upon himself’ and that there was in fact “an attack upon him.” In addition, Scobee admitted he intended to shoot but that he did not intend to kill Lankard. He also contended that he fired his weapon in self-defense. We affirm the Court of Appeals decision that the involuntary manslaughter instruction given in this case was erroneous and requires reversal of the conviction.
The second issue is whether the trial court erred in failing to instruct the jury that if the defendant acted in self-defense, he had no duty to retreat. The Court of Appeals panel split on this issue, with Judge Meyer stating that, on remand, the trial court should instruct that there was no duty to retreat. The two concurring judges asserted that such an instruction would be improper, concluding that the issue is whether the defendant’s actions were reasonable under the circumstances, which was adequately presented to the jury by the instruction on self-defense patterned after PIK Crim. 2d 54.17. The jury was instructed on self-defense as follows:
“INSTRUCTION NO. 7
“The defendant, Paul Scobee, claims as a defense that he acted in self-defense. Evidence in support of this claim should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State’s burden of proof does not shift to the defendant. If the defense asserted causes you to have a reasonable doubt as to the defendant’s guilt, you should find the defendant not guilty.”
and
“INSTRUCTION No. 11
“The defendant, Paul Scobee, has claimed his conduct was justified as self-defense.
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself against such aggressor’s imminent use of unlawful force. Such justification requires both a belief on the part of the defendant and the existence of facts that would persuade a reasonable person to that belief.”
Appellant specifically requested an instruction to the effect that he was not under any duty to retreat from the attack upon him. The request was denied.
K.S.A. 21-3211 provides:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.”
There have been no recent Kansas cases addressing the issue of whether a person acting in self-defense is required to retreat. Several early cases have held there is no such duty, at least when the defendant did not provoke the attack. Although dicta, the court recognized as early as 1894 that a person is not required to retreat but “may stand his ground” and repel an unlawful attack. State v. Reed, 53 Kan. 767, Syl. ¶ 11, 37 Pac. 174 (1894). See State v. Davis, 169 Kan. 251, Syl. ¶ 1, 218 P.2d 215 (1950); State v. Furthmyer, 128 Kan. 317, 320, 277 Pac. 1019 (1929); State v. Petteys, 65 Kan. 625, Syl. ¶ 1, 70 Pac. 588 (1902); and State v. Hatch, 57 Kan. 420, 424, 46 Pac. 708 (1896). In Hatch, the Court stated:
“The doctrine that a party unlawfully attacked must ‘retreat to the wall’ before he can be justified in taking the life of his assailant in self-defense does not obtain in this State.” 57 Kan. at 424.
In denying the appellant’s request for an instruction that there was no duty to retreat, the trial court reasoned that the 1969 codification of self-defense in K.S.A. 21-3211 did not incorporate the prior Kansas case law rule that when acting in self-defense, the defendant has no duty to retreat. Later, the trial court essen tially held that the self-defense statute does not incorporate a rule on retreat, and the issue is simply whether the defendant’s response in using force against an aggressor was reasonable under the self-defense statute. We do not agree.
In State v. Stokes, 215 Kan. 5, 523 P.2d 364 (1974), this court held that the self-defense statute codifies the common-law right of self-defense. Since K.S.A. 21-3211 was enacted, we have not had occasion to specifically address whether the “no duty to retreat” rule remains the law in Kansas. Based on Stokes and the previously cited “no retreat” cases, we think that it does. There is nothing in K.S.A. 21-3102(1), which abolishes common-law crimes, to indicate that common-law defenses or rules relating thereto were abolished when the current version of the criminal code was enacted in 1969. There is no authority supporting the State’s contention that the common-law no duty to retreat rule in Kansas has been abolished by K.S.A. 21-3211.
The majority view in the United States is that one “may stand his ground and use deadly force if this reasonably seems necessary to save himself.” Perkins on Criminal Law, Ch. 10 § 4, p. 1005 (2d ed. 1969). It must also be recognized that a substantial minority of jurisdictions have adopted a “retreat rule,” under which “[ejven the innocent victim of a murderous assault must-elect an obviously safe retreat, if available, rather than resort to deadly force unless (1) he is in his ‘castle’ at the time, or his assailant is (2) one he is lawfully attempting to arrest or (3) a robber.” Perkins on Criminal Law, Ch. 10 § 4, p. 1009. Other jurisdictions require retreat before employing deadly force in self-defense but not before using non-deadly force. 2 Robinson, Criminal Law Defenses § 131(c)(4), p. 81 (1984). We conclude that the no duty to retreat rule as recognized in our earlier cases remains the law in Kansas.
Having determined that the rule prevails in Kansas, is an instruction necessary or is the general instruction on self-defense found in PIK Crim. 2d 54.17 sufficient? While the PIK instruction would ordinarily be sufficient, we hold that based upon the facts of the case a trial court may be under a duty to give an instruction to the effect that the defendant did not have a duty to retreat. The prosecution here built its case around the failure of appellant to retreat. It was contended that he could have driven to the police station, that he could have stayed in his car and honked the horn for help, or that he could have tried to escape into his home. Defense counsel, on the other hand, was precluded by the court from arguing that Scobee had no duty to retreat. Under the facts as developed in this case, we hold it was error to fail to give a “no duty to retreat” instruction. Lankard (the victim) and Pretzer were clearly the aggressors in an attack which the trial court found was not provoked by Scobee. Scobee was attacked in his own driveway and the prosecution was allowed to argue that he should have retreated. We agree with Judge Meyer that it was error in this case not to give the requested instruction.
In view of the decision reached by this Court, it is not necessary to address the other issues asserted on appeal.
The decision of the Court of Appeals is affirmed as modified herein; the conviction of the appellant is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff, an employee covered by a collective bargaining agreement, claims that she was assessed infractions for absences incurred due to work-related injuries and while she was under the care of a physician provided by defendant pursuant to K.S.A. 1987 Supp. 44-510 of the Workers’ Compensation Act. She further asserts that prior to her injuries she had not accumulated enough attendance infractions for termination. Plaintiff s union declined to arbitrate the issue.
Plaintiff filed a petition in the District Court of Sedgwick County alleging that she was wrongfully terminated by her employer, Safeway Stores, Inc., (Safeway) as a result of a workers’ compensation injury. The petition was filed prior to this court’s decision in Cox v. United Technologies, Inc., 240 Kan. 95, 727 P.2d 456 (1986). The defendant filed a motion for summary judgment. At the hearing on Safeway’s motion for summary judgment, considerable evidence and argument was presented to the district judge on the issue of whether plaintiff had sufficient infractions for termination prior to the additional absences assessed while she was off work due to injury. Despite the fact that this issue was controverted by documentary evidence, the district court granted Safeway’s motion. Plaintiff appealed.
The appeal was filed after our decision in Cox. The Kansas Court of Appeals, in an unpublished opinion filed October 1, 1987, affirmed the trial court’s grant of summary judgment to Safeway, holding that, pursuant to Cox, an employee covered by a collective bargaining agreement may not maintain a state tort action for retaliatory discharge, even if the union refuses to take the grievance to arbitration. This court accepted appellant’s petition for review to consider, whether Cox would apply when the union refuses to present an employee’s retaliatory discharge claim for arbitration and whether the district court erred by granting summary judgment. The majority of this court now overrules the decision in Cox, affirmed in Smith v. United Technologies, 240 Kan. 562, 572, 731 P.2d 871 (1987), and Armstrong v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119 (1987), reh. denied January 20, 1988, and extends recognition of the tort of retaliatory discharge for filing a workers’ compensation claim to employees protected contractually from such discharge by a collective bargaining agreement. Therefore, we reverse the Court of Appeals and, after reviewing the record, we further determine that because the facts in this case were disputed, the district court erred by granting summary judgment.
Coleman had been employed by Safeway in Wichita for several years prior to 1984. In August 1984, Safeway instituted a new attendance policy which required all employees to call in one half hour before the beginning of their shift if they were going to be absent. The attendance policy allowed a disabled employee to call in once a week if the disability lasted for more than a week, if a medical statement was provided with a return to work date, and if the approval of the plant nurse or Employee Relations Supervisor was obtained. Six infractions of the attendance policy resulted in termination.
On June 14, 1984, Coleman sustained a work-related injury to her wrist which required her to be off work. Coleman was treated for this injury by the company doctor. On September 19, 1984, she had surgery for this injury which required her to be absent from employment. During the time she was off work, although she was under the care of the company doctor, her employer assessed infractions against her for failing to call in daily to report her absences. Upon Coleman’s return to work she was terminated due to excessive absences.
Coleman filed a grievance with her union, which declined to pursue the matter through arbitration. Coleman appealed this decision to the Union Executive Committee, which affirmed the union’s decision not to arbitrate. Coleman then filed an action in Sedgwick County District Court alleging that she was fired while being off work due to a work-related injury, and while she was being provided medical care by her employer pursuant to the Workers’ Compensation Act, K.S.A. 1987 Supp. 44-510. The district judge, even though there was a genuine issue of fact, granted Safeway’s motion for summary judgment, finding that even if all the work-related absences were discounted, Coleman had incurred enough infractions before her surgery to be terminated. The judge further found that Safeway’s attendance policy was not arbitrary or capricious. Coleman appealed, contending that Safeway’s actions were tantamount to a wrongful discharge for exercising her rights under the Workers’ Compensation Act. The Court of Appeals affirmed pursuant to Cox v. United Technologies, 240 Kan. 95. We granted review.
The issue we consider here is whether, where a contract between an employer and employees, or their respective representatives, provides for arbitration of claims, the agreement to arbitrate includes arbitration of claims for an employer’s tortious acts which violate the public policy of this state, and, further, whether the contract precludes the wrongfully discharged employee from filing an action in tort. Safeway contends that the public policy determined in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), which allows employees to bring tort claims against their employers who discharge them for filing workers’ compensation claims, was properly limited to at-will employees, while Coleman argues that the public policy underlying Murphy must apply to all employees. We believe that Coleman is correct.
By “public policy,” we have referred to a principle of law which holds that no citizen can lawfully do that which injures the public good. See Master Builders Ass’n v. Carson, 132 Kan. 606, 607, 296 Pac. 693 (1931); Petermann v. International Brotherhood of Teamsters, Local 396, 174 Cal. App. 2d 184, 344 P.2d 25 (1959) (citing Safeway Stores v. Retail Clerks etc. Assn., 41 Cal. 2d 567, 575, 261 P.2d 721 [1953]).
In Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130, 421 N.E.2d 876 (1981), the Illinois Supreme Court commented on the definition of “public policy”:
“There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions.” 85 Ill. 2d at 130 (citing Smith v. Board of Education, 405 Ill. 143, 147, 89 N.E.2d 893 [1950]).
It is the general rule that contracts against public policy are illegal and void. An agreement or contract made in violation of established public policy is not binding and will not be enforced. The surrender of a fundamental right is not within the power of an individual if the public interest is prejudiced thereby. 17 Am. Jur. 2d, Contracts § 174, p. 532. An agreement is against public policy if it is injurious to the interest of the public, contravenes some established interest of society, violates some public statute, or tends to interfere with the public welfare or safety. Hunter v. American Rentals, 189 Kan. 615, 618, 371 P.2d 131 (1962). Illegality of a contract from the standpoint of public policy depends on the facts and circumstances of a particular case. In re Estate of Shirk, 186 Kan. 311, 350 P.2d 1 (1960).
Prior to the Court of Appeals decision in Murphy, other jurisdictions limited the employment-at-will rule so employers could not discipline or discharge employees for reasons violative of an established or statutorily declared public policy. Generally, cases involving discharge of employees in contravention of established state policy may be divided into three classes: (1) cases in which employees are discharged for refusing to violate criminal statutes; (2) cases in which employees are discharged for exercising a statutory right; and (3) cases in which employees are discharged for complying with a statutory duty. See Hill, Arbitration as a Means of Protecting Employees from Unjust Dismissal: A Statutory Proposal, 3 N. Ill. L. Rev. 111, 142 (1982). Specific motives for discharge of employees which have been held actionable by some courts as violative of state public policy include retaliation for filing workers’ compensation claims, retaliation for opposing illegal or unethical activities of the employer, retaliation for exercising rights under labor-management relations statutes, penalizing the employee for refusing to take a polygraph examination, and penalizing the employee for serving on a jury. See Morriss v. Coleman Co., 241 Kan. 501, 509, 738 P.2d 841 (1987).
Public policy can be determined by both the legislature and the courts. Under the Kansas Constitution, the primary lawmaking body is the legislature. Courts must respect legislative expressions when determining or when forming public policy. Given the right to form public policy by the legislature, courts are faced with three different situations: (1) The legislature has clearly declared the public policy of the state; (2) the legislature, though not directly declaring public policy, has enacted statutory provisions from which public policy may reasonably be implied; or (3) the legislature has neither made a clear statement of public policy nor can it be reasonably implied. Wicina v. Strecker, 242 Kan. 278, Syl. ¶ 3, 747 P.2d 167 (1987).
In deciding this case, we draw on both legislative and judicial expressions of public policy. Prior to Murphy, the legislature in 1973 expressed the public policy of this state regarding agreements to arbitrate future torts in the Uniform Arbitration Act, K.S.A. 5-401 et seq. The legislature forbade the inclusion of arbitration of such torts in arbitration contracts. Specifically, K.S.A. 1987 Supp. 5-401 provides:
“Validity of arbitration agreement, (a) A written agreement to submit any existing controversy to arbitration is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract.
(b) Except as provided in subsection (c), a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract.
(c) The provisions of subsection (b) shall not apply to: (1) Contracts of insurance; (2) contracts between an employer and employees, or their respective representatives; or (3) any provision of a contract providing for arbitration of a claim in tort.” (Emphasis added.)
In Murphy v. City of Topeka, 6 Kan. App. 2d 488, a Court of Appeals panel comprised of Justice Herd of the Supreme Court, Judge Swinehart of the Court of Appeals, and District Judge William M. Cook recognized a public policy exception to the employment-at-will doctrine for employees discharged in retaliation for filing workers’ compensation claims. The Murphy court stated the public policy as follows:
“The Workmen’s Compensation Act provides efficient remedies and protection for employees, and is designed to promote the welfare of the people in this state. It is the exclusive remedy afforded the injured employee, regardless of the nature of the employer’s negligence. To allow an employer to coerce employees in the free exercise of their rights under the act would substantially subvert the purpose of the act.” 6 Kan. App. 2d at 495-96.
The court in Murphy took care to emphasize the tort nature of the employee’s cause of action and stated that the claim arose “from a duty imposed by law based upon public policy preventing an employer from wrongfully discharging an employee in retaliation for filing a workmen’s compensation claim. Plaintiff s action clearly sounds in tort, and the mere existence of a contractual relationship between the parties does not change the nature of his action.” 6 Kan. App. 2d at 493. Although the employee in Murphy was an at-will employee, the primary emphasis of the opinion was on the strong public policy of Kansas underlying the Workers’ Compensation Act, applicable to all workers injured on the job. Allowing the cause of action in tort was necessary to provide Murphy with a remedy and, in addition, to enforce the duty of his employer to compensate Murphy for the work-related injury. This policy was affirmed in Anco Constr. Co. v. Freeman, 236 Kan. 626, 693 P.2d 1183 (1985), even though Freeman’s claim, that he was fired because he protested inadequate wages under the employment contract, was an assertion of an unfair labor practice under the exclusive jurisdiction of the National Labor Relations Act.
In Cox v. United Technologies, 240 Kan. 95, however, this court held that the public policy of Murphy was limited to employees at will and did not apply to employees covered by collective bargaining agreements which preclude discharge except for proper cause. The Cox court reasoned that because the employment agreement provided a grievance procedure, which includes binding arbitration, Cox and all other workers covered by such agreements did not require the tort remedy. Justice Herd dissented, reasoning that the grievance procedure in a union-management collective bargaining agreement pertains to breach of contract, not torts, and that the majority’s decision denied these workers, intended to be included by Murphy, an adequate remedy.
Cox was followed in Smith v. United Technologies, 240 Kan. 562, where we affirmed the trial court’s grant of summary judgment to defendant on plaintiffs claim of retaliatory discharge for filing a workers’ compensation claim. Smith and Cox, co-plaintiffs at the trial level, were covered by the same collective bargaining agreement and we applied the Cox rationale to Smith’s claim. 240 Kan. at 572-73.
Armstrong v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119 (1987), affirmed the Cox rationale that employees covered by collective bargaining have an adequate remedy and do not need the protection afforded at-will employees in Murphy. Although the district court in Armstrong also held that a state tort action for retaliatory discharge was preempted by federal labor law, the Court of Appeals, in an unpublished opinion filed March 5, 1987, did not address the preemption issue, but decided the case purely based on Cox. On Armstrong’s petition for review, the majority of this court found that the decision in Cox did not unconstitutionally (1) deny unionized workers due process of law; (2) create impermissible and irrational classification of employees and employers; or (3) violate the First Amendment right of free association of organized workers. Justice Allegrucci joined the dissents of Justices Herd and Lockett. The majority opinion referred to but did not address the federal preemption issue. However, by deciding Armstrong on state public policy grounds, the majority and the dissent implicitly agreed that the state tort action is not preempted by federal law.
Because the preemption question is an important issue, a review of principles of federal preemption in labor disputes is required. Section 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a) (1982), provides federal court jurisdiction for acts in violation of contracts between employers and labor organizations and has been construed to require the application of federal labor law to such suits. Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 7 L. Ed. 2d 593, 82 S. Ct. 571 (1962); Textile Workers v. Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957).
In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985), the United States Supreme Court established standards for deciding whether state tort claims are preempted by federal labor law. That case involved a claim by an employee against his employer alleging bad faith handling of a disability insurance claim due under his collective bargaining agreement. In holding that the state tort claim in that case was preempted, the court stated that the essence of preemption by § 301 of the LMRA is the need for uniformity in labor contract interpretation and that, if the resolution of the state tort claim depended upon reference to the labor contract, the tort claim would be preempted.
The Court reasoned that not all disputes “tangentially” involving a provision of the collective bargaining agreement would be preempted. The Court framed the issue as whether the state tort action confers nonnegotiable state law rights on employers and employees independent of any right established by contract or, instead, whether evaluation of the tort claim is “inextricably intertwined” with consideration of the terms of the labor contract. If the state tort law purports to define the meaning of the contract relationship, the state law is preempted. 471 U.S. at 211, 213. The Court, however, emphasized that “not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 or other provisions of the federal labor law. ... In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” 471 U.S. at 211-12.
The Illinois Supreme Court recently held in Gonzales v. Prestress Engineering Corp., 115 Ill. 2d 1, 503 N.E.2d 308 (1986), cert. denied 483 U.S. 1032, 97 L. Ed. 2d 779 (1987), that the tort of retaliatory discharge for filing a workers’ compensation claim is not preempted by federal law. The court reasoned that the Allis-Chalmers preemption does not extend to the tort of retaliatory discharge since the claim does not turn upon an interpretation of the labor contract, but instead arises out of alleged violation of the clearly mandated public policy of Illinois against discharging workers in retaliation for filing workers’ compensation claims. Because of the split in the federal circuits on this issue, the United States Supreme Court has-granted certiorari in Lingle v. Norge Div. of Magic Chef, Inc., 823 F.2d 1031 (7th Cir. 1987), cert. granted 108 S. Ct. 226 (1987), to decide whether state actions for retaliatory discharge for filing workers’ compensation claims are preempted by federal labor law.
We agree with the Illinois Supreme Court in Gonzales and believe that wrongful discharges under a contract must be distinguished from wrongful discharges in violation of state public policy. As the Court in Allis-Chalmers stated:
“In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” 471 U.S. at 212.
A state tort action for retaliatory discharge for filing a workers’ compensation claim is a claim for a violation of state public policy independent of a collective bargaining agreement. We recognize federal courts have jurisdiction over actions under section 301 of the LMRA for breach of collective bargaining agreements, and that principles of federal law preempt inconsistent state law in this area. However, the tort claim in question is based upon state public policy conferring upon all employees and employers certain nonnegotiable rights and imposing certain nonnegotiable duties and obligations, regardless of whether employees are covered by a collective bargaining agreement. We believe these rights and duties cannot be a part of a collective bargaining contract, and, thus, that a retaliatory discharge claim is not preempted by the bargaining agreement or the LMRA.
Returning to our discussion of Cox, Smith, and Armstrong, there are several important reasons for overruling our previous opinions. These cases stand for the disturbing proposition that an employee subject to a collective bargaining contract surrenders state tort remedies which were neither included in the bargaining process nor intended by the parties to be a part of the contract. In addition, by judicial pronouncement in Cox, employers with collective bargaining contracts are immunized from accountability for violations of state public policy. See Midgett v. Sackett-Chicago, Inc., 105 Ill. 2d 143, 150, 473 N.E.2d 1280 (1984), cert. denied 472 U.S. 1032, 474 U.S. 909 (1985).
Further, Cox did not fully recognize the limited remedy afforded the injured employee through collective bargaining. The grievance and arbitration procedure is an inappropriate forum for the enforcement of state public policy because arbitrators are bound by the limitations imposed by the terms of the collective bargaining agreement. The United States Supreme Court reached this result in Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974), holding that an employee’s arbitration proceeding did not bar an action under Title VII of the Civil Rights Act because arbitration was an inappropriate forum in which to adjudicate federal statutory rights. See also Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 67 L. Ed. 2d 641, 101 S. Ct. 1437 (1981) (suits under Fair Labor Standards Act).
Arbitral procedures, while well suited to the resolution of contractual disputes, are comparatively inappropriate for the resolution of tort claims. Even where the union has fairly and fully presented the employee’s claim, the employee’s statutory right might still not be adequately protected. As Justice Powell reasoned in Alexander, the specialized competence of arbitrators pertains primarily to the law of the shop, and not the law of the land. The factfinding process in arbitration does not equate with judicial factfinding. Rules of evidence do not usually apply; the rights and procedures common to civil trials such as discovery, compulsory process, cross-examination, and testimony under oath are often severely limited or unavailable. 415 U.S. at 56-57. These limitations have a significant impact in a case of retaliatory discharge where the focus is on the employer’s motive for the firing.
Even though a particular arbitrator may be competent to interpret and apply statutory law, he may not have the contractual authority to do so. An arbitrator’s power is both derived from and limited by the collective bargaining agreement. Because the arbitrator is required to effectuate the intent of the parties, rather than enforce the statute, the arbitrator may be required to issue a ruling that is proper under the contract but contrary to an employee’s protected state statutory right. See Barrentine v. Arkansas-Best Freight System, 450 U.S. at 742.
Finally, we believe the Cox, Smith, and Armstrong courts did not fully consider that decisions to enter collective bargaining agreements are made by majority vote. Thus, a number of employees who may have voted not to enter into the agreement are forced to accede to the will of the majority. The employee subject to a collective bargaining agreement whose individual right has been violated, is forced to submit his grievance under an agreement which was never designed to protect individual workers, but to balance the individual against the collective interest.
The potential result of a union’s emphasis on the collective good is that, in some cases, the employee may be left without a remedy for an employer’s violation of state public policy. Here, Coleman’s union has decided for the good of the union not to support Coleman’s claim by arbitration. If there is no independent state action for retaliatory discharge, and no avenue for Coleman to pursue her state public policy right against her employer, Coleman is limited to proceeding against her representative, the union, in federal or state court under Section 301 of the LMRA for her union’s breach of its duty of fair representation.
For all these reasons, we determine that employees covered by collective bargaining agreements who are wrongfully discharged in violation of state public policy, in this case the policy underlying the Workers’ Compensation Act, have a tort cause of action for retaliatory discharge. We stress that by recognizing this cause of action for Coleman and those like her, we do not hold that employees covered by collective bargaining agreements have a tort cause of action for wrongful discharge in general. Our recognition of such causes of action is limited to wrongful discharges in violation of state public policy clearly declared by the legislature or by the courts.
We turn now to the district court’s grant of summary judgment in favor of defendant Safeway. The district court determined that, even if Coleman’s work-related absences were discounted, she had still incurred enough absence infractions for termination. We disagree.
Summary judgment is proper if no genuine issues of material fact remain, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact exist. When a motion for summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion. Hunt v. Dresie, 241 Kan. 647, 652-53, 740 P.2d 1046 (1987). Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact. Richardson v. Northwest Central Pipeline Co., 241 Kan. 752, 740 P.2d 1083 (1987). Where the facts presented in a summary judgment motion are subject to conflicting interpretations or reasonable persons might differ as to their significance, summary judgment is improper. Williams v. Community Drivein Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296 (1974).
In this case, it was undisputed that Safeway could have terminated Coleman’s employment under the applicable attendance policy if she had accrued six infractions. The district court correctly decided that any absences caused by her work-related injury should not be counted against Coleman. Allowing an employer to discharge an employee for being absent or failing to call in an anticipated absence as the result of a work-related injury would allow an employer to indirectly fire an employee for filing a workers’ compensation claim, a practice contrary to the public policy of this state as decided in Murphy v. City of Topeka. Other jurisdictions have also recognized that it is a violation of public policy and workers’ compensation law to discharge an employee for absences due to work-related injuries. See e.g., Lo Dolce v. Regional Transit Service, Inc., 77 App. Div. 2d 697, 429 N.Y.S.2d 505 (1980). Safeway’s claim that Coleman was not discharged for absences, but for failing to call in to report absences, is not persuasive given the fact that Coleman was being treated by a company physician who provided reports to Safeway regarding Coleman’s condition.
The district court, however, erred in granting summary judgment on the issue of whether Coleman had accrued six infractions, even after the work-related absences were discounted. At the hearing on summary judgment, Coleman presented evidence which tended to show that before she began to accrue infractions for her work-related injury, she had only 4% or 5Vz infractions.' Further evidence, including the attendance record sheet, tended to show that absences which occurred on September 12 and September 13, 1984, were related to her injury. Therefore, reading the record in the light most favorable to plaintiff, as we are required to do on appeal, there was a genuine issue of material fact as to whether Coleman had accumulated six attendance infractions before her surgery on September 19,1984. The Court of Appeals decision affirming the district court is reversed. The district court’s grant of summary judgment is reversed and the case is remanded for further proceedings.
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The opinion of the court was delivered by
Holmes, J.:
Doris Miller appeals from a judgment of the Cowley District Court which upheld the decision of the defendant Board of Education, Unified School District No. 470 (hereafter the Board or U.S.D. No. 470) not to renew her teaching contract for the 1986-87 school year. The Court of Appeals affirmed the judgment of the district court. Miller v. U.S.D. No. 470, 12 Kan. App. 2d 368, 744 P.2d 865 (1987). We granted the appellant’s petition for review.
The facts, as taken from the petition, are not in dispute. Mrs. Miller, an Arkansas City resident, was a duly certified public schoolteacher with several years’ experience as a teacher in the Shawnee Mission School District. She was first employed by U.S.D. No. 470 for the school year 1984-85, teaching mathematics and computer science classes. The Board renewed her contract for the 1985-86 school year, during which she taught only mathematics classes. During the second year of her employment, Mrs. Miller, a nontenured teacher, was given timely notice that her teaching contract would not be renewed for the ensuing year. No reason for nonrenewal of the contract was given to Mrs. Miller by the Board or the school principal.
Pursuant to the Kansas Professional Negotiations Act, K.S.A. 72-5413 et seq., the Board and the Arkansas City Teachers’ Association (A.C.T.A.) had negotiated a master agreement which was in effect at all times relevant to the issues in this case. The master agreement provided in Article XI for a procedure to evaluate and assist all teachers in the U.S.D. No. 470 school system. The agreement, with some elaboration and more detail, basically follows the Kansas Evaluation of Certificated Personnel Act, K.S.A. 72-9001 et seq. Article XI stated in part:
“Any evaluation area in which the performance of the evaluatee was considered by the evaluator to be unsatisfactory will be noted on a Form 3. Such notice will place the evaluatee on a Plan of Assistance. Any information gathered during informal visitations that has a bearing on an unsatisfactory judgment must be documented and presented to the evaluatee at the next observation conference or sooner.” (Emphasis added.)
Appellant received five evaluations during her two-year employment with the Board and was never found to be “unsatisfactory” in any of the numerous areas of evaluation. Overall, as the Court of Appeals noted, the evaluations included nothing to indicate that her work was unsatisfactory or that her job was in jeopardy. The record provides no clue to the reasons the Board may have had for nonrenewing Mrs. Miller’s contract.
On May 7, 1986, Mrs. Miller filed suit alleging a breach of the Board’s “contractual duty to provide notice to plaintiff of any alleged unsatisfactory performance on her part and to place her on a plan of assistance.” She also alleged in separate counts that the Board’s action was arbitrary and capricious, and that it violated K.S.A. 72-9004(f), which prohibits nonrenewal on the basis of incompetence without an evaluation of the teacher in compliance with the Board’s policy filed with the State Board of Education pursuant to the Evaluation of Certificated Personnel Act, K.S.A. 72-9001 et seq.
The Board filed an answer which alleged, inter alia, that the petition failed to state a claim upon which relief could be granted, and a few days later filed a motion for summary judgment. Appellant filed a motion in opposition to the Board’s motion. Both parties filed briefs supporting their respective positions along with proposed conclusions of law requested by the trial court. Although the Board’s motion was denominated as amotion for summary judgment, the trial court considered it as a motion tinder K.S.A. 60-212(b)(6) or (c). Under the facts and circumstances of this case, the result is the same regardless of whether the motion is treated as one under K.S.A. 60-212 or as a motion for summary judgment. The trial court in an extensive memorandum decision sustained the Board’s motion for summary judgment.
While recognizing it was questionable whether Mrs. Miller even came under the asserted contractual provisions of Article XI, the trial court chose to base its decision on a determination that a school board is precluded as a matter of law from entering into any agreement which would restrict its right to nonrenew a nontenured teacher. Mrs. Miller appealed the decision to the Court of Appeals, which affirmed the trial court.
The sole issue on appeal, as stated by the Court of Appeals, was
“[wjhether a school board may, by a collectively negotiated contract, restrict its right to terminate a nontenured teacher.” 12 Kan. App. 2d 368.
The Court of Appeals in its opinion stated:
“Although the trial judge specifically declined to decide the case on whether an ‘Unsatisfactory’ rating is necessary to trigger the negotiated contract provision in question, we believe we would be justified in affirming the trial court on that basis.” 12 Kan. App. 2d at 372.
However, the Court of Appeals then went on to determine the broader issue. While we agree with the result reached by both the trial court and the Court of Appeals, we are of the opinion it was reached for the wrong reason. It has long been the law in this state that:
“The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.” Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 93, 708 P.2d 190 (1985).
The threshold issue which the trial court and the Court of Appeals should have addressed was whether Mrs. Miller even came within the provisions of Article XI, which she relies upon for her asserted cause of action. We find she did not. It is clear that Mrs. Miller was regularly evaluated as required by K.S.A. 72-9001 et seq., the Board’s written “policy of personnel evaluation procedure” filed with the State Board of Education, and the master agreement entered into between the Board and the A.C.T.A. At no time did she receive any evaluation rating of “unsatisfactory” which would have required school officials to place her on a plan of assistance.
It appears to be the position of the appellant that under the master agreement a nontenured teacher could not be nonrenewed unless she was rated unsatisfactory and placed on a plan of assistance. Nowhere in the master agreement is there any indication that it was the intent of the parties to limit the rights of the Board to nonrenew a nontenured teacher under any and all circumstances. Article XI merely sets forth a plan of evaluation and assistance for teachers who have been evaluated as unsatisfactory. Here, Mrs. Miller was not rated unsatisfactory in any of the areas subject to evaluation, and Article XI has no bearing whatsoever upon the Board’s decision to nonrenew her contract. The language of the contract is clear and unambiguous and must be applied in accordance with its language. Having failed to demonstrate that she even comes under the purview of Article XI, we agree that Mrs. Miller’s detailed petition fails to state a cause of action. The Court of Appeals recognized that the factual situation asserted by Mrs. Miller precludes her reliance upon Article XI in this action. She simply does not come within the contractual provisions of the master agreement upon which she relies. Assuming, arguendo, that Mrs. Miller is correct in her contention that a school board has the power to limit its authority to nonrenew a nontenured teacher, what relief could be granted to the appellant in this case? Absolutely none, because the contract provision upon which she relies does not apply to the facts of her case.
Inasmuch as appellant failed to meet the threshold requirement of showing Article XI applies in her case, the Court of Appeals opinion as it relates to the broad issue of whether a school board may restrict its authority to nonrenew a nontenured teacher is dicta and should not be considered as precedent on that issue. The determination of that issue must wait for a later day when it is clearly before the court.
In her petition for review, Mrs. Miller attempts to assert new issues which were not raised in the district court or on appeal to the Court of Appeals. Since the new issues asserted were never presented to the trial court, they will not be considered for the first time on appeal. State v. Vakas, 242 Kan. 103, Syl. ¶ 4, 744 P.2d 812 (1987).
The judgment of the district court and the judgment of the Court of Appeals are affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Appellant, Larry Edmiston, filed an action to quiet his title and to determine the priority of various parties claiming a security interest in a herd of cattle he had purchased. The district court ordered the sale of the cattle pursuant to an existing contract and the payment of the sale proceeds into court. Because the purchaser under the contract refused to buy the cattle, Edmiston sold the cattle at a public auction, paid off several of his obligations and finally paid the remainder of the proceeds of the sale into court. The district court found Edmiston and one of the defendants, the First National Bank of Holcomb, in contempt and ordered them to pay the total proceeds from the sale into court. In an unpublished opinion, citing Ensch v. Ensch, 157 Kan. 107, 115-16, 138 P.2d 491 (1943), as authority, the Court of Appeals determined that the district court’s order allowing the sale under the contract and the requirement that the proceeds be paid into court did not specifically prohibit the sale of the cattle to other parties nor require those funds be paid into court, and reversed the contempt judgment. We granted the appellants’ petition for review. On review, we find that the Court of Appeals misapplied Ensch. Therefore, we reverse the Court of Appeals, affirm the district court, and remand the case for further action.
In November 1984, Edmiston purchased a 75% interest in 382 head of cattle from T. John Hayden. First National Bank of Holcomb (Holcomb Bank) financed the purchase and took a security interest in the cattle. Edmiston entered into a contract to sell the cattle to Lobo Order Buyers. In February 1985, Edmiston and Holcomb Bank were apprised of a potential prior security interest by First National Bank of Perryton, Texas (Perryton Bank), who had loaned money to Hayden. In an effort to determine the priority of the security interest of the creditors, on April 9 Edmiston filed a “Petition for Interpleader and Quiet Title to Personal Property.” Both banks were served with notice the following day.
On April 30, 1985, the district court entered an order authorizing sale of the cattle to Lobo with payment of all the proceeds into court. Lobo refused to purchase the cattle. A few weeks later, without authority of the court, Edmiston sold the cattle at a public auction. Instead of paying the proceeds of the sale into court as ordered, $136,220 was deposited in Edmiston’s account at Holcomb Bank. The bulk of this money was paid to Holcomb Bank in satisfaction of its cattle loan, an unrelated loan which Edmiston had with Holcomb Bank, and various other creditors of Edmiston. He paid the remaining $29,203.68 into the district court.
Shortly thereafter, Perryton Bank filed a motion requesting that both Edmiston and Holcomb Bank appear and show cause as to why they should not be held in contempt of the district court’s order requiring all proceeds to be paid into court. K.S.A. 20-1204a. After the show cause hearing, the district court found both Edmiston and Holcomb Bank in contempt of the order, and directed both parties to pay $136,220 into court. The court also imposed a fine of $100 per day until the full amount was paid and ordered both parties to pay Perryton Bank’s attorney fees.
Edmiston and Holcomb Bank appealed. In an unpublished opinion filed May 14, 1987, the Court of Appeals reversed the district court’s order holding the parties in contempt of the April 30, 1985, order. The Court of Appeals concluded that, because the contempt order did not specifically prohibit the conduct of the appellants, they had not violated the district court’s order, citing Ensch v. Ensch, 157 Kan. 107.
The Court of Appeals’ opinion states some well-established principles governing contempt actions: Contempt of court may either be direct or indirect, criminal or civil. Direct contempt is committed during the sitting of the court or of a judge in chambers, in its or his presence, while all other contempts are indirect. K.S.A. 20-1202. Civil contempt is the failure to do something ordered by the court for the benefit or advantage of another party to the proceeding. State, ex. rel., v. Bissing, 210 Kan. 389, 395, 502 P.2d 630 (1972). By the very nature of a contempt proceeding, the decision of guilt or innocence of an accused rests in the sound discretion of the trial court before whom the matter is pending. When a trial court has exercised that discretion and its discretion has been challenged by appeal, the sole duty of the appellate court is to determine whether the record reveals such an abuse of discretion as to warrant a reversal of its action. Fleming v. Etherington, 227 Kan. 795, Syl. ¶ 6, 610 P.2d 592 (1980).
We agree with the Court of Appeals’ statement of the law. When the lawful command of the court is defied, it is the duty of a judge to take affirmative action. In exercising the power of contempt, the court upholds the power and integrity of the proceedings. The procedure to be followed in bringing the accused before the court on a contempt accusation is provided by K.S.A. 20-1204a. Contempt proceedings must follow the pre scribed procedure and are to be strictly construed against the movant. In re Seelke, 235 Kan. 468, 470, 680 P.2d 288 (1984).
After stating the principles, the Court of Appeals found that the district judge abused his discretion by holding Edmiston and Holcomb Bank in contempt.
The pertinent parts of the district court’s order state:
“2. That Plaintiff, Larry Edmiston, is authorized to sell and Defendant Lobo Order Buyers, Inc. is authorized to purchase from Plaintiff those certain mixed steers now in Plaintiffs possession and which are the subject matter of this litigation, at the times, for the price and under the terms otherwise set forth in that certain written livestock contract dated February 4, 1985, executed by Plaintiff and Defendant, Lobo Order Buyers, Inc., respectively.
“3. That the purchase of said cattle by Defendant Lobo Order Buyers, Inc., if such is consummated, shall be by a check payable jointly to Plaintiff, Larry Edmiston, and the Clerk of the Finney County District Court, which said check upon receipt by Plaintiff shall be immediately endorsed by him and delivered unto the Clerk of the Court; that thereafter the Clerk shall deposit such sale proceeds in an interest bearing account of the Clerk’s selection there to remain until further order of this Court.
“4. That any and all claims of ownership, security interests, liens for agistment or care and feeding, or other interest that any of the parties hereto may now or hereafter acquire in and to said cattle, except the ownership interest acquired by Lobo Order Buyers, Inc. shall be transferred to the proceeds derived from the sale of said cattle, and without prejudice to any such parties’ claim of ownership or lien notwithstanding such parties’ loss of possession of such cattle through the sale herein ordered.
“It Is, Therefore, by The Court Ordered, Adjudged and Decreed that each of the findings heretofore made be and become the final order of this Court; that Plaintiff is authorized to sell those cattle which are the subject matter of this litigation unto Defendant, Lobo Order Buyers, Inc. in the manner above set forth and to cause all of the proceeds derived from said sale to be paid unto the Clerk of this Court for said Clerk to deposit and hold until further order of this Court.’’
The Court of Appeals concluded that the district court’s order only directed proceeds to be paid into court if a sale to Lobo were consummated; therefore it did not govern a sale to another party. The court cited Ensch for the propositions that, before one can be punished for contempt for not complying with an order of a court, a particular or precise thing to be done by the party proceeded against must be clearly and definitely stated; further, a party to an action should not be punished for contempt for disobeying a decree if the decree is capable of construction consistent with innocence.
The Court of Appeals misapplied the holding in Ensch to this case. In Ensch, an action for specific performance of an oral contract, a stipulated order was filed which required the defendant to deliver to the plaintiff a life insurance policy. The plaintiff was unaware that the defendant had previously used the policy as collateral for a loan. When the defendant delivered the policy subject to the lien, the plaintiff requested the court find the defendant guilty of contempt for violating the stipulated order. The trial court held the defendant, the plaintiff s mother-in-law, in contempt, and ordered the defendant to purge the contempt, have the lien released within thirty days, or go to jail. The district court reasoned that even though the original stipulated order did not state that the defendant had to deliver the policy free from liens, that is what was implied and intended by the parties. The Ensch court reversed, concluding that since the order did not state that the policy had to be free from liens when delivered, the order was subject to different interpretations. 157 Kan. at 112-16.
Ensch is clearly distinguishable from this case. This case involves an interpleader action. An interpleader is a joinder device whereby all of those who claim some interest in a particular fund or personal property are joined in an action where the parties may assert and litigate their various claims. Club Exchange Corporation v. Searing, 222 Kan. 659, 567 P.2d 1353 (1977). Interpleader protects the stakeholder from multiple suits, and from determining at the parties’ peril the validity and priority of the various claims. It brings the parties together in one action allowing a fair and equitable determination of all the parties’ interests. Under K.S.A. 60-222 (a), the stakeholder need not be neutral. One condition unavoidable in interpleader actions is that the court obtains jurisdiction over the disputed property (the res).
Here, the court obtained jurisdiction over the cattle upon the filing of the interpleader action. The district court ordered the sale of the cattle to convert the cattle to cash to avoid the cost of maintaining the animals during the pendency of the interpleader action. By the clear terms of the order, the court agreed to relinquish its jurisdiction over the cattle only if the proceeds from the sale were paid into the court. Edmiston and Holcomb Bank, without approval of the court, sold the cattle to another party and used a portion of the funds from the sale for their own benefit, thereby depriving the other parties in the action from exercising their right to the subject matter of the lawsuit. It is the general rule that when litigation is pending the destruction, removal, concealment, or disposal of the subject matter of a lawsuit by a party to the action is contempt of the court even in the absence of a court order regarding the property. See 17 C.J.S., Contempt § 11.
The Court of Appeals decision requires every court order to be so drafted as to prohibit every potential action a party might take to violate the order, including those actions implicitly forbidden. The action of Edmiston and Holcomb Bank deprived the court of the subject matter of the action in derogation of Perryton Bank’s claimed security interest. The Court of Appeals mistakenly placed primary emphasis on the fact that the order did not specifically prohibit sale of the cattle to parties other than Lobo. While the sale to a party other than Lobo may not have been prohibited by the order, the requirement that the proceeds from the sale of the cattle be paid into the district court was completely ignored. Thus, the very purpose for which Edmiston had brought the interpleader action was defeated.
The statement in Ensch that a decree or order will not be expanded by implication in contempt proceedings, beyond the meaning of its terms when read in the light of the issues and the purpose for which the suit is brought, cannot be used as authority approving the actions of Edmiston and Holcomb Bank. No reasonable construction of the order would have permitted Edmiston and Holcomb Bank to sell the cattle to any party and to distribute the proceeds of the sale in a manner that they determined. Such action makes any determination by the court of the priorities of the parties to the subject matter of the suit a useless act. When examined in light of the purpose for which Edmiston brought the interpleader action, i.e., the determination of the competing interests of all parties in the cattle or the sale proceeds, the district court was correct in holding Edmiston and Holcomb Bank in contempt.
We reverse the Court of Appeals, remand to the district court, and reinstate the contempt order of the district court. The $100 per day fine is to be computed from the date of the contempt order to the date the original appeal was filed, August 22, 1985— August 26, 1985, and commence to run again from the date of the mandate of this proceeding, pursuant to K.S.A. 20-1205. We also grant appellees’ motion for attorney fees in an amount to be determined when the proper documentation is submitted. | [
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The opinion of the court was delivered by
Holmes, J.:
Forrest L. Stukey appeals from his conviction by a jury of one count of rape (K.S.A. 1986 Supp. 21-3502), contending error in the admission of certain expert testimony.
As the issues on appeal are confined to the admissibility of testimony by the State’s expert witness, there is no necessity to recite the facts surrounding the alleged rape of the victim. The prosecution called as a witness Susan Scholl, a forensic examiner employed by the Kansas Bureau of Investigation laboratory. She was examined at length as to her qualifications as a forensic expert and no objections were made to her qualifications and none are asserted on appeal.
As a part of the investigation of the instant case, Ms. Scholl analyzed samples of blood and saliva obtained from the appellant pursuant to court order. She also analyzed specimens collected from the victim utilizing rape kit swabs and procedures and then compared her findings from the two different sources. She testified to the particular attributes or characteristics of appellant’s body fluids and concluded that appellant is a nonsecretor and that his blood is PGM type 1+ and that both are genetically inherited traits. The rape kit analysis revealed semen from a nonsecretor with PGM type 1+ blood. She then testified, over appellant’s objection, that approximately 20 percent of the general population are nonsecretors. She also testified on cross-examination that 40.7 percent of the Caucasian population share the PGM type 1+ blood classification. Finally, she testified on both direct and cross-examination that approximately 9% of the population exhibit both characteristics in combination, that is, are both nonsecretors and have PGM subtype 1+ blood. When asked on cross-examination about the basis for the 9 percent figure, Ms. Scholl responded that since the two attributes are independent of one another their respective percentage frequencies were multiplied together, yielding the 9 percent figure. Appellant asserts error in the admission of the testimony relating to the percentage of the population which has either or both characteristics.
The first issue on appeal is whether it was error to admit testimony on the percentage of nonsecretors in the general population and the percentage of persons with PGM type 1+ blood in the Caucasian population. Initially, it should be noted that the admissibility of expert testimony lies within the trial court’s discretion, and its determination of the issue will not be reversed on appeal absent a showing of abuse of discretion. State v. Carr, 230 Kan. 322, 325, 634 P.2d 1104 (1981), and cases cited therein.
Appellant does not contend that the evidence of his PGM type 1+ blood and of his being a nonsecretor was inadmissible. See State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981). He does contend, however, that it was error to allow Ms. Scholl to testify as to the percentage of the population which would have each characteristic and the percentage of the population which would have both, asserting there was an insufficient foundation for the testimony. No explanation of appellant’s contention is contained in his brief and his entire argument is that the “figures came in unadorned and unfounded.”
The admission of expert testimony is governed by K.S.A. 60-456 et seq. K.S.A. 60-456 provides in part:
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing, and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.”
We assume the appellant’s argument to be that the State failed to present sufficient foundation to show that the 20 percent and 40.7 percent figures were based upon established facts known to the witness. In Washington, this court considered the admissibility of similar, if not identical, testimony. This court stated:
“Defendant next challenges the admission of probability testimony offered by Burnau in the form of population percentages with the same blood characteristics as the accused. Expert testimony of mathematical probabilities that a certain combination of events will occur simultaneously is generally inadmissible when based on estimations rather than on established facts. See Annot., Evidence-Probabilities-Criminal Cases, 36 A.L.R.3d 1194; People v. Collins, 68 Cal. 2d 319, 66 Cal. Rptr. 497, 438 P.2d 33 (1968); State v. Sneed, 76 N.M. 349, 414 P.2d 858 (1966). By contrast, population percentages on the possession of certain combinations of blood characteristics, based upon established facts, are admissible as relevant to identification. See State v. Rolls, 389 A.2d 824 (Me. 1978) (EAP enzyme analysis allowed of dried blood found on defendant’s pants found to correspond to analysis of rape victim with vaginal laceration); People v. Gillespie, 24 Ill. App. 3d 567, 321 N.E.2d 398 (1974); State v. Coolidge, 109 N.H. 403, 260 A.2d 547 (1969) (microanalysis of particles taken from victim’s clothing and defendant’s automobile). Attacks on the validity of the underlying statistics go to the weight of such evidence, not its admissibilty. State v. Rolls, 389 A.2d at 824 (percentage based on FBI and Scotland Yard studies challenged as hearsay; held, the objection goes to the weight, not admissibility); accord, People v. Gillespie, 24 Ill. App. 3d at 575. The percentage of population possessing certain blood characteristics has been held to be ‘reasonably within [the] expertise’ of the forensic expert testifying to blood type analysis. Redd v. State, 240 Ga. 753, 243 S.E.2d 16 (1978). In the present case, Burnau testified that her percentage statistics were based on population studies published by the American Association of Blood Banking. Based on these studies, the percentage of blacks in the population having certain characteristics was multiplied by the total number of characteristics found, with a finding that 3.1% would have the same combination of proteins and enzymes. The additional factor that defendant was a nonsecretor reduced the percentage to 6/10 of 1%. Any challenge to the reliability of the testing went to its weight, not its admissibility. The trial court did not err in allowing Burnau to testify to this statistical information.” 229 Kan. at 58-59. (Emphasis added.)
In State v. Pearson, 234 Kan. 906, 678 P.2d 605 (1984), the appellant asserted error in the admissibility of expert testimony concerning the population frequency of various blood types and enzymes. This court recognized our earlier language in Washington and stated:
“This court held in State v. Washington, 229 Kan. 47, 59, 622 P.2d 986 (1981), that evidence of population percentages concerning the possibility of certain combinations of blood characteristics, based upon established facts, is admissible as relevant to identification, and that this information is reasonably within the expertise of the forensic expert testifying to blood-type analysis.” 234 Kan. at 922.
In the present case, Ms. Scholl, on cross-examination, when questioned about the basis for her testimony that 20 percent of the population are nonsecretors, stated:
“Well, there have been a lot of studies done where known blood and saliva samples were taken from individuals and then tested to determine whether or not an individual, each of those individuals was a secretor or a nonsecretor, and it was found in each of these studies that no more than 20 percent of the case samples turned out to be from nonsecretors. So, I base that numerical value on a lot of different testing that’s been done across the country.”
In Washington and Pearson the expert witnesses testified to specific studies upon which they based their opinions as to the percentage figures, while in the present case Ms. Scholl testified that her opinion as to the percentage of nonsecretors was based upon “a lot of studies.” The testimony that 40.7 percent of the Caucasian population have PGM type 1+ blood was not supported by reference to any particular studies or authorities but was elicited by appellant on cross-examination.
Is the failure to name and rely upon one or more specific studies fatal to the expert’s testimony? We think not. In Washington and in Pearson, we recognized that knowledge of the percentage of the population possessing certain blood characteristics was “reasonably within the expertise of the forensic expert.” Here, Ms. Scholl was clearly qualified as a forensic expert within the field of blood chemistry, and testing for blood types, enzymes and characteristics, and knowledge of the population percentages used here were reasonably within her expertise. We find no abuse of discretion in the admission of her testimony relating to the percentages of the population who are nonsecretors and who have PGM type 1+ blood.
The second issue on appeal is whether the trial court erred in allowing Ms. Scholl to testify as to the percentage of the population which has, in combination, the factors of being a nonsecretor and PGM type 1+ blood based upon application of what the appellant denominates as the “product rule” of probability. It is a generally accepted rule of statistical analysis that the probability of two or more independent events co-existing is equal to the probability of each event multiplied by the probability of each of the other events. In the present case, Ms. Scholl testified that the characteristics of being a nonsecretor and having the PGM type blood are independent genetic factors. She also testified that approximately 9% of the population has a combination of the two characteristics. She reached this conclusion by multiplying 40.7 percent (the PGM type 1+ percentage) by 20 percent (the nonsecretor percentage). Although the actual mathematical calculation would be 8.14 percent, she apparently rounded the figure up to the next higher integer, which would actually work in appellant’s favor.
The identical method utilized by Ms. Scholl was approved by this court in Washington. In the cases relied upon by appellant as authority for his arguments in this case, the method of multiplying the percentage probabilities, similar to that utilized here, was applied based upon estimates and events which were clearly not scientific facts, and therefore the cases are not at all persuasive. As appellant states in his brief, “[T]he product rule itself was not criticized, its application to the estimates was.” Here, the use of a multiplication formula was applied to accepted facts known to the witness. We find no abuse of discretion in the admission of the expert testimony including the evidence based upon the application of the so-called “product rule.”
The judgment is affirmed.
Prager, C.J., not participating. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the State, pursuant to K.S.A. 1986 Supp. 22-3602(b)(3), upon a question reserved by the prosecution. The statute was amended in 1987; however, the amendment does not affect this appeal. Although the State designates two issues on appeal, we need only address the first. The appellant states the first issue as:
“Does a defendant who testifies at his trial, is convicted, imposition of sentence is suspended, and who does not file any post-trial motions within ten days nor file a notice of appeal, retain a Fifth Amendment right not to testify against the codefendants ?”
The facts are not in dispute. Charges were filed on September 17, 1986, against Bret and Barbara Wagner, defendants in this case, and against Robert Arthur Kaltenborn on four counts: (1) possession of cocaine with intent to sell, (2) conspiracy to sell or possess cocaine, (3) possession of marijuana and/or THC, and (4) possession of drug paraphernalia. On October 9, 1986, at the preliminary examination, the conspiracy count was dismissed as to all three defendants and they were bound over for trial on the remaining felony counts. Kaltenborn had been arrested and charged along with the Wagners following a drug raid upon the Wagner home, where Kaltenborn resided. Although a joint preliminary hearing was held for all three defendants, only the cases of the Wagners were consolidated for trial.
Kaltenborn was tried on February 4 and 5, 1987, and was convicted of possession of cocaine. The charge of possession of marijuana and/or THC had been dismissed by the trial court and the jury found Kaltenborn not guilty of possession of drug paraphernalia.
On March 17, 1987, Kaltenborn was sentenced to three to ten years. The journal entry in his case states:
“Now on this 17th day of March, 1987, the above-entitled matter comes on for sentencing, the Honorable James P. Buchele presiding. The State appears by Kenneth R. Smith, Assistant District Attorney. The defendant appears in person and by William Smith, his attorney. Thereupon, allocution is had and the Court, being duly advised in the matter, sentences the defendant to the Secretary of Corrections for a period of not less than three (3) years, nor more than ten (10) years for the offense of Possession of a Narcotic Drug. Imposition of said sentence is suspended and the defendant is placed on supervised probation for a period of five (5) years under the usual terms and special conditions as set forth in the Presentence Investigation incorporated by reference herein.”
The Wagners’ jury trial commenced April 9, 1987, before the Hon. Franklin Theis. During the State’s case, the prosecution desired to call Kaltenborn as a witness. At a hearing, outside the presence of the jury, Judge Theis advised Kaltenborn, inter alia, that:
“Technically you have the right to appeal within 120 days of your sentence. That is you still maintain a Fifth Amendment right, You could in that period move for a new trial. You could appeal the finding of guilty by that jury. And the fact that you are on probation isn’t part of that. After the expiration of 120 days that right, you have the right not to testify, not to give any statements against yourself would expire and you have the duty as any witness to be required to answer questions under oath because you couldn’t be reprosecuted on the basis of them. Since you still have trial rights and appeal rights left, you have the right to exercise the Fifth Amendment. That is decline to answer questions on the grounds they might incriminate you.”
Mr. Kaltenborn then exercised his Fifth Amendment rights, declined to testify, and was excused from his subpoena. It is clear that Judge Theis was advising Kaltenborn of his rights under K.S.A. 1986 Supp. 22-3608(1) and K.S.A. 1986 Supp. 21-4603(3).
Appellant asserts that pursuant to K.S.A. 1986 Supp. 22-3608(2), Kaltenborn had only ten days from March 17, 1987, in which to appeal and, as more than ten days had elapsed prior to the Wagner trial, he no longer retained a Fifth Amendment right not to testify. The statute provides:
“Time for appeal to supreme court. (1) If sentence is imposed, the defendent may appeal from the judgment of the district court not later than 10 days after the expiration of the district court’s power to modify the sentence. The power to revoke or modify the conditions of probation or the conditions of assignment to a community correctional services program shall not be deemed power to modify the sentence.
(2) If the imposition of sentence is suspended, the defendant may appeal from the judgment of the district court within 10 days after the order suspending imposition of sentence.”
The State contends that the actions of Judge Buchele in sentencing Kaltenborn constituted a suspension of sentence under 22-3608(2). Thus, the narrow issue before this court is whether the trial judge was correct in his determination that Kaltenborn’s appeal rights were controlled by 22-3608(1) rather than 22-3608(2). We find that he was correct.
K.S.A. 1986 Supp. 21-4602 provides, in part:
“(2) ‘Suspension of sentence’ means a procedure under which a defendant, found guilty of a crime, upon verdict or plea, is released by the court without imposition of sentence. The release may be with or without supervision in the discretion of the court.
“(3) ‘Probation’ means a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment, subject to conditions imposed by the court and subject to the supervision of the probation service of the court.”
K.S.A. 1986 Supp. 21-4603, which sets forth the various authorized dispositions that a trial court may make, provides, in part:
“(2) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
(a) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;
(b) impose the fine applicable to the offense;
(c) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
(d) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
(e) assign the defendant to a community correctional services program subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution; or
(f) impose any appropriate combination of (a), (b), (c), (d), or (e).
(3) Any time within 120 days after a sentence is imposed or within 120 days after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.
(7) An application for or acceptance of probation, suspended sentence or assignment to a community correctional services program shall not constitute an acquiescence in the judgment for purpose of appeal, and any convicted person may appeal from such conviction, as provided by law, without regard to whether such person has applied for probation, suspended sentence or assignment to a community correctional services program.”
K.S.A. 1986 Supp. 22-3716 sets forth the procedures to be followed when a person may have violated the conditions of probation or suspension of sentence and provides in part:
“(2) Upon arrest and detention pursuant to subsection [1], the court services officer or community correctional services officer shall immediately notify the' court and shall submit in writing a report showing in what manner the defendant has violated the conditions of release or assignment. Thereupon, or upon an arrest by warrant as provided in this section, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged. The hearing shall be in open court and the state shall have the burden of establishing the violation. The defendant shall have the right to be represented by counsel and shall be informed by the judge that, if the defendant is financially unable to obtain counsel, an attorney will be appointed to represent the defendant. The defendant shall have the right to present the testimony of witnesses and other evidence on the defendant’s behalf. Relevant written statements made under oath may be admitted and considered by the court along with other evidence presented at the hearing. If the violation is established, the court may continue or revoke the probation, assignment to a community correctional services program or suspension of sentence and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” (Emphasis added.)
When all of the foregoing statutes are read in conjunction with K.S.A. 1986 Supp. 22-3608, we think it is clear that the State has confused the suspension of the execution of sentence with the suspension of the imposition of sentence. In determining the proper disposition to be made following a conviction, the court has several alternatives under K.S.A. 1986 Supp. 21-4603, including probation and suspension of the imposition of sentence. Release of a defendant “without imposition of sentence” and release of a defendant upon probation “after imposition of sentence” are, by statutory definition, mutually exclusive. K.S.A. 1986 Supp. 21-4602(2) and (3). When the court elects to release a defendant without the imposition of sentence, no statutory sentence is pronounced and, upon compliance with the terms of the orders of the court, the defendant may be granted a final release without a sentence ever being imposed. When a defendant is released without imposition of sentence, K.S.A. 1986 Supp. 22-3608(2) controls the time for an appeal. On the other hand, when sentence is pronounced by the court and its execution is suspended by placing the defendant on probation, K.S.A. 1986 Supp. 22-3608(1) is the controlling statute for an appeal.
While the journal entry in Kaltenborn’s case does state, “Imposition of said sentence is suspended,” that language is clearly inconsistent with what actually took place. Sentence was imposed upon Kaltenborn but the execution thereof was suspended when he was placed upon five years’ supervised probation. The trial court was correct in its ruling that Kaltenborn still retained the Fifth Amendment right not to testify in the Wagners’ case as his appeal time had not run in his own case. See State v. Anderson, 240 Kan. 695, 700-01, 732 P.2d 732 (1987), and cases cited therein.
In view of the result reached on the narrow issue presented, additional arguments and the issue concerning double jeopardy asserted by appellant need not be addressed.
The appeal is denied. | [
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On the 16th day of October, 1987, Thomas D. Kelley, Jr., of Kansas City, an attorney admitted to practice law in the State of Kansas, voluntarily surrendered his license to practice law pursuant to Supreme Court Rule 217 (235 Kan. cxxxii).
Several complaints against the respondent have been filed with the Disciplinary Administrator and are now pending before the Kansas Board for Discipline of Attorneys or this Court. The Court, having reviewed the formal complaints on file, finds that respondent’s surrender of his license and privilege to practice law in Kansas should be accepted.
It is Therefore Ordered that Thomas D. Kelley, Jr., be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts is directed to strike his name from the rolls of attorneys admitted to practice law in Kansas.
It is Further Ordered that Thomas D. Kelley, Jr., shall forthwith comply with the provisions of Supreme Court Rule 218 (235 Kan. cxxxii).
It is Further Ordered that this order shall be published in the official Kansas Reports.
It is Further Ordered that all disciplinary proceedings pending before the Board for Discipline of Attorneys and the Kansas Supreme Court against Thomas D. Kelley, Jr., be and they are hereby terminated and the costs thereof are charged to Thomas D. Kelley, Jr. | [
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The opinion of the court was delivered by
Prager, C.J.:
This is an appeal by the State on a question reserved following the acquittal of the defendant, Lloyd D. Clothier, on a charge of involuntary manslaughter (K.S.A. 1987 Supp. 21-3404).
The evidence presented at the trial was essentially as follows: Defendant Clothier was awakened by his barking dog at his home around 3:30 a.m. on November 23, 1986. He got up and let the dog out of the house. A few minutes later, the dog returned. Defendant returned to bed, but the dog continued snarling. Defendant got up, took a revolver from his nightstand, and went to the dining room. He looked out the window and observed someone reaching in the window of his automobile parked on the driveway. The person had not only broken the window but had actually opened the door of the vehicle. Defendant was scared and concerned, because his garage door opener was located inside the vehicle. Defendant testified that he wanted to scare the person away so he fired a warning shot through the window, not intending to hurt anyone. He then saw someone run behind the car and across the yard. He fired another shot, aiming down at the ground, to warn the person not to return. Defendant told his girl friend to call the police. He then stepped outside of the house and saw 15-year-old Seanan Picard lying injured on the driveway. Picard later died from a gunshot wound to the head. Defendant was acquitted by the jury on the theory that he acted in defense of his property.
The State appealed on a question reserved. The question presented is whether the district court erred in instructing the jury that a person may use deadly force to defend a dwelling or property other than a dwelling, without limiting such instruction to situations in which human life and safety are imminently endangered. The court instructed the jury as follows:
“INSTRUCTION 6
“Use of force in the defense of a dwelling. A person is justified in the use of force against another when and to the extent that it appears to him and he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon his dwelling. Such justification requires both a belief on the part of defendant and the existence of facts that would persuade a reasonable person to that belief.
“Use of force in defense of property other than a dwelling. A person who is lawfully in possession of property other than a dwelling is justified in the threat, or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat of force thereof as a reasonable man would deem necessary to prevent or terminate the interference may be intentionally used.”
At the close of the evidence the State submitted to the court a proposed jury instruction which stated:
“A person is justified in using force likely to cause death or great bodily harm in defense of property not a dwelling only when he reasonably believes that such force is necessary to prevent death or great bodily harm to [himself] [another].”
The instruction, as actually given by the court, followed the language of K.S.A. 21-3212 and K.S.A. 21-3213, as well as PIK Crim. 2d 54.18 and 54.19. K.S.A. 21-3212 and K.S.A. 22-3213 provide as follows:
“21-3212. Use of force in defense of dwelling. A person is justified in the use of force against another when and to the extent that it appears to him and he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon his dwelling.”
“21-3213. Use of force in defense of property other than a dwelling. A person who is lawfully in possession of property other than a dwelling is justified in the threat or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat thereof as a reasonable man would deem necessary to prevent or terminate the interference may intentionally be used.”
The State argues that these statutes are in derogation of the common law which prohibits the use of deadly force in defense of property unless there is a threat of imminent bodily harm prior to the use of such force. At the time of the adoption of the Kansas Criminal Code in 1969, the proposal by the Kansas Judicial Council included the following concluding sentence to the proposed K.S.A. 21-3213:
“It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defending property other than a dwelling.”
That sentence was deleted by the legislature, demonstrating an intent to avoid limitation, thus leaving this section apparently as broad as K.S.A. 21-3212. See the author’s comment in Vernon’s Kansas Crim. C. § 21-3213, p. 200 (1971). In adopting that position, the Kansas legislature joined a minority of jurisdictions which permit the use of all reasonably necessary force in the defense of property other than a dwelling.
It is the position of the State on this appeal that the jury instructions on the use of force in defense of a dwelling and in defense of property other than a dwelling (K.S.A. 21-3212 and 21-3213) are unconstitutional as a violation of the Fourth Amendment to the United States Constitution. The State bases its argument on the case of Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985), where the United States Supreme Court ruled that the Fourth Amendment prohibits the use of deadly force by a police officer to prevent the escape of a suspected felon unless it is necessary to prevent the escape and the pursuing police officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Tennessee v. Garner involved an action brought by a father in federal district court seeking damages against a police officer and the city of Memphis, Tennessee, under 42 U.S.C. § 1983 (1982), for claimed violations of his deceased son’s constitutional rights. The son was killed by the Memphis police officer as the son fled over a fence in the backyard of a house he was burglarizing. The officer used deadly force to prevent the escape, observing only that the burglar was 17 or 18 years old and of slight build. The United States Supreme Court held that the use of deadly force under those circumstances to prevent the escape of an unarmed suspected felon violated the Fourth Amendment civil rights of the deceased son.
The State on this appeal has taken the position that, if the police cannot use deadly force to stop a 15-year-old burglary suspect without probable cause, why should a private citizen have that privilege? The State maintains that the defenses created by K.S.A. 21-3212 and 21-3213 constitute state action which violates the Fourth Amendment.
Counsel for the defendant first contends that this court lacks jurisdiction to determine the issue, because the issue of constitutionality of the two statutes was not raised in district court. We have considered the record in the case and note that the prosecutor objected to the failure of the trial court to give the requested instruction, and specifically mentioned the case of Tennessee v. Garner and that there was a constitutional issue involved. The trial court overruled the State’s objection. Under the circumstances, we have concluded that this court has jurisdiction of the issue on this appeal.
In determining this issue, we note that the State concedes that the instruction on defense of property given by the trial court was a correct statement of Kansas law. The statutory justification for the use of deadly force is contained in K.S.A. 21-3211, 21-3212, and 21-3213 and presents a fact issue to be determined by the trier of fact using an objective standard, i.e., from the viewpoint of a reasonable man in the accused’s position. State v. Simon, 231 Kan. 572, 646 P.2d 1119 (1982).
The instructions as given by the court in this case follow the requirements of the Kansas statute. It has long been the rule in Kansas that all crimes are established by legislative act. There are no common-law crimes in Kansas, and there can be no convictions except for such crimes as are defined by statute. State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986); State v. Young, 55 Kan. 349, 356, 40 Pac. 659 (1895). As pointed out in State v. Sexton, 232 Kan. 539, 543, 657 P.2d 43 (1983), it is also the rule in this state that a criminal statute will not be extended by courts to embrace acts or conduct not clearly included within its prohibitions, citing State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978). Our criminal statutes are to be strictly construed. State v. Kearns, 229 Kan. 207, 208, 623 P.2d 507 (1981).
The State’s argument in this case presents essentially a quarrel with the legislative wisdom of deciding to grant the defenses set forth in K.S.A. 21-3212 and K.S.A. 21-3213. In asking this court to change the rule of self-defense provided by statute, the State is in effect asking this court to exercise a legislative prerogative. The legislature has made a determination that juries in Kansas should be allowed to determine whether the action of a person was reasonable or unreasonable in the use of force in defense of his property.
As to the claim of unconstitutionality based upon Tennessee v. Garner, we hold that the rule of that case has no application in a criminal case. Tennessee v. Garner must be followed in determining the rights of an injured victim in a civil action where he claims that excessive force was used by a police officer or by a private individual. The rule, however, has no application where an owner of property who used force in defense of his property is charged with the crime of involuntary manslaughter. In the opinion in Tennessee v. Garner, the Supreme Court of the United States does not at any place state that a criminal defense such as we have in K.S.A. 21-3212 and K.S.A. 21-3213 would be a violation of the United States Constitution.
State v. Stokes, 215 Kan. 5, 523 P.2d 364 (1974), was a case involving defense of the person, not property. There is no language in Stokes which changes the law of defense of property as provided by K.S.A. 21-3212 and 21-3213.
As pointed out by counsel for the defendant in his brief, the law in Kansas is clear that the legislature has determined by statute that a jury should determine whether or not the application of force in defense of property was reasonable under all the circumstances existing. The trial court in this case had no right to exercise its judgment in determining the reasonableness of the defendant’s actions, for to do so would be an intrusion into the function of the jury. Based upon the reasoning set forth above, we hold that the trial court did not err in its instructions to the jury on the issue of the reasonableness of the force used by defendant in defense of his property.
The appeal of the State is denied. | [
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Per Curiam:
Two original actions in discipline, resulting from complaints filed by the office of the Disciplinary Administrator against Richard W. Niederhauser, of Kansas City, an attorney admitted to the practice of law in Kansas, have been consolidated before this court.
Case No. 61,883
This case involved complaints before the Kansas Board for Discipline of Attorneys numbered W3973 and B4058. In W3973 the hearing panel of the Board found that respondent represented Joanne Williams in a personal injury action for her minor children David and Michael. Children’s Mercy Hospital in Kansas City, Missouri, had a claim for services to the children in the amount of $2,202.15. Upon settlement of the case, respondent apparently obtained an endorsement of the settlement draft from the hospital, which was named as a payee, in return for his personal check in the amount of $2,202.15. The check given the hospital was written on an account of the respondent’s which had been closed at least two weeks earlier. The funds which should have been paid to the hospital were converted to respondent’s personal use. The hearing panel found violations of Rule 225 (1987 Kan. Ct. R. Annot. 122 et seq.) including DR 9-102(A) and DR 1-102(A)(1), (4), and (6), and recommended disbarment.
Complaint B4058 concerned a dispute over the services to be performed and the fee in a child visitation matter. Respondent was paid $100.00 of an agreed $150.00 fee. He did not proceed to file the papers seeking visitation privileges and contended he was not required to proceed until the entire $150.00 was paid. The client was of the opinion the necessary papers would be prepared and filed forthwith with the balance of $50.00 to be paid at a later date. As the evidence was conflicting, the panel dismissed this complaint but directed respondent to refund the $100.00 retainer.
Case No. 61.835
This case also involved two separate complaints. In complaint W3616 respondent received $1,158.60, which was to be paid to Bethany Medical Center on behalf of a client. Respondent issued his trust account check to the medical center in that amount and the check was returned for insufficient funds. Respondent candidly admitted that he knew at the time he issued the trust account check it would result in the account being overdrawn and that he commingled trust account funds with his personal funds. The panel found a violation of DR 9-102(A) and recommended public censure.
In complaint W3624 the respondent represented Michelle Wren, who had been involved in a personal injury accident. Ms. Wren had previously been represented in the same case by Jack J. Isgur, who asserted an attorney’s lien for services in the amount of $427.50. The case was settled for $4,475.00 and Mr. Isgur was a named payee on the settlement draft. Respondent, in an attempt to accommodate his client, endorsed Mr. Isgur’s name to the draft without his authority. Mr. Isgur was eventually paid and the panel, in recommending informal admonition from the Disciplinary Administrator, found a violation of DR 1-102(A)(6) but did not find that respondent acted in a fraudulent or dishonest manner.
The respondent appeared before this court on March 25, 1988, pursuant to Rule 212(d) (1987 Kan. Ct. R. Annot. Ill) and forthrightly admitted the violations and conduct as hereinbefore set forth. Respondent admitted that he had experienced financial and professional difficulties and conceded that he should not be allowed to practice law at the present time. Respondent asked this court to consider indefinite suspension rather than disbarment and expressed the hope that he could eventually be returned to the practice of law.
The court, having carefully considered the record, finds that the various violations found by the hearing panels of the Board are supported by clear and convincing evidence. A majority of the court is of the opinion that respondent should be disciplined by indefinite suspension.
It Is Therefore Ordered that Richard W. Niederhauser be and he is hereby indefinitely suspended from the practice of law in the State of Kansas and the costs herein are assessed to the respondent.
It Is Further Ordered that Richard W. Niederhauser shall comply forthwith with the provisions of Rule 218 (1987 Kan. Ct. R. Annot. 116).
Effective this 29th day of April, 1988. | [
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Per Curiam:
This original action in discipline was filed by the Office of the Disciplinary Administrator against J. William Stapleton, of Overland Park, an attorney admitted to the practice of law in Kansas. Extensive exceptions were filed to the report of the hearing panel of the Board for Discipline of Attorneys. The thrust of many of these exceptions is that the panel should have believed respondent’s testimony relative to disputed facts rather than the testimony of the complainant.
Mickey Gitlin, President of Alcops, Inc., brought an action in the Johnson County District Court (Case No. C 133386) against Kenneth Melichar, who had formerly been an employee of Alcops, Inc. The petition alleged that Melichar had violated a covenant not to compete and had converted corporation assets. Melichar filed a counterclaim claiming unpaid wages. Throughout these stages of the action, Alcops was represented by the law firm of Bronston and Smith. In December of 1984, Mickey Gitlin retained respondent to represent the corporation in the Melichar action, paying a $1,000.00 retainer. No response had been filed to the counterclaim by the first attorneys representing Alcops and respondent did not file an answer thereto. Problems arose relative to discovery. Interrogatories and requests for production of documents filed by Melichar were met with no response. A subsequent motion to compel was ignored. Melichar filed motions for dismissal of the petition and for summary judgment on his counterclaim. The hearing on these motions was set for October 18,1985. Respondent did not appear for the hearing and the motions were sustained. Charles Droege subsequently entered his appearance on behalf of Alcops in the Melichar action and was successful in having the court’s actions of October 18, 1985, set aside.
An additional part of the complaint herein concerns a $2,200.00 loan Gitlin made to respondent on May 1, 1985. Respondent signed a note for this loan. The loan was not repaid and judgment was entered against respondent on the loan on May 8, 1987.
Further, respondent failed to cooperate with the Disciplinary Administrator in the investigation of this complaint.
The panel’s conclusions of law are as follows:
“1. The panel concludes that J. William Stapleton failed to represent Alcops, Inc., competently in violation of DR 6-101 by neglecting the legal matter entrusted to him. Respondent also violated that disciplinary rule by failing to respond to pleadings, failing to file timely discovery responses, failing to respond to dispositive motions, and failing to appear for a hearing on said motions.
“2. Respondent violated DR 1-102(A)(4) in his private financial dealings with Mr. Gitlin. Respondent also violated DR 5-104(A) by borrowing funds from Mr. Gitlin and failing to separate the loan transaction from his professional services. As a result of respondent’s failure to account for the fees advanced to him, and his attempt to treat other funds borrowed from Mr. Gitlin as being repayable through professional services, respondent defeated the purpose of DR 9-102.
“3. Respondent violated Supreme Court Rule 207(a) by failing to cooperate with the investigation of the Disciplinary Administrator.”
“Having carefully considered the charges of misconduct and the evidence presented at the hearing, the panel concludes that J. William Stapleton should be suspended from the practice of law for his misconduct. The panel recognizes that respondent may have accepted employment by Mr. Gitlin’s detective agency in circumstances which would prompt other attorneys to withdraw immediately. Four lawyers represented Mr. Gitlin’s firm before the foray ended. Lack of cooperation and frustration may be experienced by an attorney in the representation of a client, but a lawyer’s conduct cannot be measured by that of the client. Adherence to the standards of professional responsibility is essential in all circumstances. Respondent has failed to abide by the rules of professional responsibility in this instance. The panel believes that respondent should be considered for reinstatement following a suspension of brief duration.”
In his exceptions filed herein, respondent argues that: (1) Mr. Gitlin was a very difficult client who refused to comply with the requested discovery procedures; (2) the $2,200.00 loan was to be repaid in cash or services (the services alternative was denied by Gitlin); and (3) he had no knowledge of the October 18, 1985, hearing date (there was evidence to the contrary). However, in his brief herein, respondent concedes the following:
“1. Respondent should have- attempted to answer the defendant’s counterclaim out of time even though it had been on file over three months before he was retained. However, no harm came to his client due to his failure to do so.
“2. Respondent should have sent out periodic written fee statements to Mr. Gitlin.
“3. Respondent should have withdrawn from representation of Mr. Gitlin and Alcops when it became apparent that there would be no cooperation with discovery request.
“4. The respondent should never have accepted money from Mr. Gitlin in the form of a loan.
“5. The respondent should have made a greater effort to cooperate with the investigator Carol Leek, and because of the difficulty of phone communications he should have promptly responded to her in writing.”
Respondent then urges the court to impose the discipline of public censure rather than the discipline of suspension from the practice of law as recommended by the panel.
After reviewing the record, we are satisfied there is clear and convincing evidence supporting the panel’s conclusions that respondent violated DR 1-102(A)(4) (1987 Kan. Ct. R. Annot. 123), DR 5-104(A) (1987 Kan. Ct. R. Annot. 140), DR 6-101 (1987 Kan. Ct. R. Annot. 143), and Rule 207(a) (1987 Kan. Ct. R. Annot. 105).
Although it is a close question, we conclude that the proper discipline to be imposed is that of public censure pursuant to Rule 203(a)(3) (1987 Kan. Ct. R. Annot. 102).
It is Therefore Ordered that J. William Stapleton be and he is hereby disciplined by public censure for the violations herein.
It is Further Ordered that a copy of this order be published in the official Kansas Reports and that the respondent pay the costs of this proceeding.
Effective this 29th day of April, 1988. | [
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The opinion of the court was delivered by
Holmes, J.:
The State of Kansas, pursuant to K.S.A. 22-3603, appeals from a pretrial order suppressing physical evidence in two companion cases on the basis that the evidence had been obtained as a result of an unreasonable search and seizure in violation of the Fourth Amendment. The two cases have been consolidated on appeal and were transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).
The facts are not disputed. On October 3, 1987, Curtis L. Smee was performing his duties at Webster State Park as an employee of the State Department of Wildlife and Parks. He was responsible for collecting trash from the park’s trash barrels. In carrying out those duties, he stopped at the park’s Necessary Shop, apparently owned and operated by the defendants, Larry Z. and Leiana J. Smith. The Necessary Shop sold fish bait and other items to park visitors. The shop displayed a “closed” sign and its trash barrel was empty. While checking it, however, Smee heard an odd hissing sound like water running or spraying. He circled the building to locate the source of the noise.
Attached to the Necessary Shop by an enclosed walkway was the trailer home of the shop’s proprietors, the defendants herein. Smee located a leaking hose from a water cooler, but it was not the source of the noise. He continued on around the trailer house and discovered its rear door standing open. It appeared to have been broken into or forced open. He then entered the house and could hear the hissing noise more clearly. He proceeded through the house in the direction of the noise and found a leaking hose in the runway between the shop and the defendants’ home. He turned the water off and then reentered the trailer house for the purpose of securing the open door. In the house he noticed a cupboard door standing open and on one of its shelves he saw a water pipe and several bags containing what appeared to be marijuana. He walked to the cupboard to get a closer look, then proceeded on to the rear door and, from the interior, secured its hasp with a screwdriver. He then walked back through the trailer, into the shop, and out the shop’s front door, locking it behind him.
Later, Smee informed the park rangers of what he had seen. The rangers contacted the sheriff s office, which in turn used the information provided by Smee to secure a search warrant. Law enforcement officers seized numerous items from the trailer, including about five ounces of marijuana, several pipes, and two packages of rolling papers. The defendants were each charged with one count of possessing marijuana with intent to sell, K.S.A. 1987 Supp. 65-4105(b)(l); one count of possessing drug paraphernalia, K.S.A. 65-4152; one count of possessing controlled substances upon which no tax had been paid, K.S.A. 1987 Supp. 79-5208; and one count of conspiracy to possess marijuana with intent to sell, K.S.A. 21-3302 and K.S.A. 1987 Supp. 65-4127b.
The defense filed a motion to suppress the physical evidence as the fruit of an unreasonable search by Smee in violation of the protections guaranteed by the Fourth Amendment. Following a hearing at which Smee testified, the trial court sustained the motion. The State then appealed. We reverse the trial court.
The Fourth Amendment to the United States Constitution, which is made applicable to the various states by the Fourteenth Amendment, reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In the instant case, the search by law enforcement officers was pursuant to a warrant issued upon probable cause as set forth in the sheriff s affidavit. However, the information in the sheriff s affidavit was obtained from Smee as a result of his warrantless entry into the appellees’ property. It is the entry and discovery of the marijuana and paraphernalia by Smee which are alleged to have violated the Fourth Amendment safeguards under the “fruit of the poisonous tree” doctrine as promulgated in Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), and its progeny.
The narrow issue before us is whether the fact that Smee was a State employee engaged in his job of collecting trash requires the exclusion of the physical evidence he observed during his entry into the Smiths’ residence and business property. It is generally recognized, and this court has held, that a search by a private citizen, who is not acting as an agent of the State, is not subject to the Fourth Amendment. State v. Miesbauer, 232 Kan. 291, 293, 654 P.2d 934 (1982); State v. Boswell, 219 Kan. 788, 793, 549 P.2d 919 (1976) (citing Burdeau v. McDowell, 256 U.S. 465, 65 L. Ed. 1048, 41 S. Ct. 574 [1921], and Annot., 36 A.L.R.3d 553). The corollary, of course, is that searches by agents of the State are subject to constitutional restrictions. This court has held also that the kind of “search” subject to the Fourth Amendment and to Section 15 of the Kansas Constitution’s Bill of Rights impliedly involves an exploratory investigation. State v. Yates, 202 Kan. 406, Syl. ¶ 1, 449 P.2d 575 (1969). In this case, Smee took it upon himself to determine the source of the hissing noise he heard while conducting his duties as a State employee. In doing so, he approached the house trailer, which he entered in search of the source of the noise. Appellees contend, and the district court held, that the unauthorized entry by Smee was conducted in the course of his duties as a State employee, and therefore the Fourth Amendment and the exclusionary rule required exclusion of all evidence which resulted from that initial entry.
In the present case there is no contention that Smee had any connection with the park rangers, the sheriff, or any other law enforcement agency. His entry into the Smith property was not an investigatory search made in collusion with law enforcement officers or any other government employees or officials. Smee’s actions were found to be in good faith and, as the trial judge stated, he “was apparently acting as a good neighbor” when he made his unauthorized entry into the Smiths’ property. The court also found, there were no exigent circumstances which would justify the warrantless search as an exception to the general rule that all searches must be conducted pursuant to a warrant supported by probable cause for the issuance of the warrant. Although it may be argued that the entry by Smee and the inadvertent discovery of the marijuana and paraphernalia was not a “search” in the usual connotation of the term, for the purposes of this opinion we will consider it as a search for Fourth Amendment analysis.
The trial court concluded that because Smee was a government employee his actions in entering the Smith property “are constitutionally subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures.” In doing so the court stated:
“In New Jersey v. T.L.O., 469 U.S. 325, [83 L. Ed. 2d 720,] 105 S. Ct. 733 [1985], the Supreme Court recognized that the Fourth Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by school officials as well as law enforcement officials. Speaking for the majority of the Court, Justice White said, at page [335]:
‘It may well be true that the evil toward which the Fourth Amendment was primarily directed was the resurrection of the pre-Revolutionary practice of using general warrants or “writs of assistance” to authorize searches for contraband by officers of the Crown. (Citations omitted.) But this Court has never limited the Amendment’s prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the Court has long spoken of the Fourth Amendment’s strictures as restraints imposed upon “governmental action” — that is, “upon the activities of sovereign authority.” (Citation omitted.) Accordingly, we have held the Fourth Amendment applicable to the activities of civil as well as criminal authorities: building inspectors, see Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L. Ed. 2d 930 (1967), OSHA inspectors, see Marshall v. Barlow’s Inc., 436 U.S. 307, 312-313, 98 S.Ct. 1816, 1820, 56 L. Ed. 2d 305 (1978), and even firemen entering privately owned premises to battle a fire, see Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 1948, 56 L. Ed. 2d 486 (1978), are all subject to the restraints imposed by the Fourth Amendment. As we observed in Camara v. Municipal Court, supra, “[t]he basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” 387 U.S., at 528, 87 S.Ct. at 1730.’
Since Mr. Smee is obviously a government employee who trespassed in and through the defendants’ residence in search of a water line leak, his actions in so doing are constitutionally subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures.”
Appellees, likewise, rely heavily upon T.L.O. and the cases cited therein.
T.L.O. involved a fourteen-year-old freshman at a public high school. A teacher caught T.L.O. smoking in a school restroom in violation of school rules. The teacher escorted her to the assistant principal’s office where she denied she had been smoking and claimed that she did not smoke at all. The assistant principal demanded to see T.L.O.’s purse and, upon opening it, found a package of cigarettes. He also noticed a package of cigarette rolling papers and, in searching further, found some marijuana, empty plastic bags, a quantity of one-dollar bills, and a pipe. In a separate zippered compartment of the purse, he found two letters implicating T.L.O. in marijuana dealing and a list of names of people who owed her money.
During delinquency proceedings, T.L.O. moved to suppress the physical evidence on the grounds that it was obtained in violation of the Fourth Amendment. The Supreme Court, on certiorari, held that the constitutional protection against unreasonable searches applies to schoolchildren searched by school officials. See Comment, Constitutional Law: Privacy Penumbra Encompasses Students in School Searches, 25 Washburn L. J. 135 (1985).
In Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967), Camara was charged with a criminal offense of violating the San Francisco housing code for refusing to allow a building inspector to inspect his residence without a warrant. The Supreme Court held that an administrative search of the defendant’s home was subject to the restrictions of the Fourth Amendment even though the proposed search did not involve law enforcement officials, and even though there was no indication that a crime had been or was being committed.
In a companion case, See v. City of Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967), a representative of the Seattle fire department sought to enter and inspect, without a warrant, a commercial warehouse owned by See. The proposed inspection was part of a periodic city-wide canvass to determine compliance with Seattle’s fire code. See refused entry to the fire department inspectors. The Supreme Court held that searches of commercial properties, as well as residential, were subject to the warrant and reasonableness requirements of the Fourth Amendment.
Marshall v. Barlow’s, Inc., 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978), involved an attempt by an inspector from the Occupational Safety and Health Administration to conduct a warrantless inspection of the business premises of Barlow’s, Inc., an electrical and plumbing installation business. Mr. Barlow refused the inspector admission without a warrant. Citing Camara and See, the Supreme Court stated:
“This Court has already held that warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes. . . .
“These same cases also held that the Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations. Ibid. The reason is found in the ‘basic purpose of this Amendment . . . [which] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’ Camara, [387 U.S.] at 528 [, 18 L. Ed. 2d 930, 87 S. Ct. 1727]. If the government intrudes on a person’s property, the privacy interest suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards. It therefore appears that unless some recognized exception to the warrant requirement applies, See v. Seattle would require a warrant to conduct the inspection sought in this case.” 436 U.S. at 312-13.
In Michigan v. Tyler, 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942 (1978), police and fire officials conducted several warrant-less searches at the scene of a fire which destroyed a furniture store in Michigan. The fire broke out about midnight and was finally extinguished about 4:00 a.m. During that period, fire officials took pictures and removed several plastic containers containing flammable liquid. At 8:00 the same morning, fire officials returned to the scene for further investigation. They returned again on at least three occasions — once four days, once seven days, and once twenty-five days after the fire. All of the searches were made without a warrant. During these visits, additional evidence was seized. Tyler was prosecuted on arson charges and evidence seized during the warrantless searches by the fire officials was used against him. The Supreme Court found the initial search during the fire was constitutional due to the exigent circumstances that existed and also found the search conducted later that morning was constitutional as being merely a continuation of the initial search conducted during the fire. However, the Supreme Court found the three searches made days after the fire, at times when no emergency or exigent circumstances existed, violated the Fourth Amendment.
Justice Stewart, writing for the majority, stated:
“The decisions of this Court firmly establish that the Fourth Amendment extends beyond the paradigmatic entry into a private dwelling by a law enforcement officer in search of the fruits or instrumentalities of crime. As this Court stated in Camara v. Municipal Court, 387 U.S. 523, 528, the ‘basic purpose of this Amendment ... is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’ The officials may be health, fire, or building inspectors. Their purpose may be to locate and abate a suspected public nuisance, or simply to perform a routine periodic inspection. The privacy that is invaded may be sheltered by the walls of a warehouse or other commercial establishment not open to the public. See v. Seattle, 387 U.S. 541; Marshall v. Barlow’s, Inc., ante, at 311-313. These deviations from the typical police search are thus clearly within the protection of the Fourth Amendment.” 436 U.S. at 504-05.
There are several distinctions between these cases and the one now before us. One common thread runs through the cases in which the Supreme Court has held that a warrantless search is unreasonable and within the protections afforded by the Fourth Amendment. In every case, the search has been conducted or sought by government “officials” or “agents” as a part of their regular duties of employment and were conducted within the scope of that employment. No case has been cited by counsel, and our research has found none, in which the sole basis for invoking the Fourth Amendment protections was the mere fact that the person who discovered the incriminating evidence happened to be a government employee as opposed to a private citizen. In every case the search or proposed search has furthered the government’s objectives as they relate to the duties of the government employee.
In the present case, Smee’s duties were limited to the collection of trash. In that position he happened to be a State employee. His illegal entry into the Smiths’ property had no connection with his duties of collecting trash and no connection with the objectives of the governmental entity which employed him. As stated by the trial court, his actions were nothing more than those of “a good neighbor.” Under such circumstances his actions were tantamount to those of a private citizen with no different status than that of an employee of an independent privately owned trash service. As stated earlier, there was no evidence of any connection or collusion between Smee and law enforcement officials or other government officials or agencies which led to the entry into the Smiths’ property. Nor was this a search, investigatory or otherwise, conducted at the instigation of any other employees, agents, or officials of any government agency. If there had been any such connection or collusion, we agree that the full panoply of Fourth Amendment protections would apply. Smee, when he entered the Smiths’ property for absolutely no purpose connected with his employment, had the same status as any private citizen acting under similar circumstances. Compare United States v. Smith, 810 F.2d 996 (10th Cir. 1987), cert. denied_U. S._(October 11, 1988).
In State v. Miesbauer, 232 Kan. 291, 654 P.2d 934 (1982), the defendant was convicted of the first-degree murder of his wife. In April 1981 the McPherson County Sheriff received a telephone call from Mrs. Miesbauer’s employer, who reported that Mrs. Miesbaum had failed to appear for work for several days. After several telephone calls proved unproductive, the sheriff drove to the Miesbauer residence. He received no response at the door and walked around the house observing that all the doors were locked. He then talked with a neighbor who voiced some concern about the whereabouts of the Miesbauers and informed the sheriff that Mrs. Miesbauer had a sister who lived in Hutchinson. The sheriff contacted the sister, advised her of his concerns, and gave her the name of a local locksmith. The sister drove to McPherson, contacted the locksmith, and gained entry to the Miesbauer home. The victim’s body was found in the basement. The sheriff was contacted, a warrant was obtained, and a search was conducted which resulted in physical evidence in addition to the body of the victim.
The defendant moved to suppress all evidence recovered from the Miesbauer home, asserting it was obtained improperly. This court held:
“The conduct of a private person acting independently and not under the authority or direction of the State is not included in the proscriptions of the Fourth Amendment of the United States Constitution or section 15 of the Kansas Bill of Rights.” 232 Kan. 291, Syl. ¶ 1.
In the opinion, Justice McFarland, writing for a unanimous court, stated:
“The facts herein clearly do not establish any agency relationship between the private citizens and the sheriff. However, we must point out that the agency questions only arise when a law enforcement officer has enlisted a private citizen to search premises for evidence of a crime which the officer believes has been committed. In the case before us, there is nothing in the record indicating the sheriff suspected that foul play was the reason for either Miesbauers’ absence from employment. The discovery of the body was a surprise to all concerned and did not arise from any homicide investigation. The sheriff became involved by simply responding to a routine inquiry of a citizen concerned over the unusual absence of an acquaintance. After his initial visit to the premises he was concerned that the Miesbauer pets might be in the home and in need of care. The relatives went to the home because of their own concerns after being contacted by the sheriff. The locksmith merely assisted the relatives. By no stretch of the imagination can the conduct of anyone involved in the entry of the home be termed insidious or nefarious. Further, the entry hardly rises to the level of ‘search.’ As a matter of public policy such neighborly concerns of friends and relatives and considerate responses by law enforcement officers are to be encouraged rather than condemned.
“We conclude there was no illegal search and seizure and the trial court did not err in denying defendant’s motion to suppress such evidence.” 232 Kan. at 293-94. (Emphasis added.)
The connection of the sheriff in Miesbauer to the warrantless discovery of evidence was much closer than the connection in this case between law enforcement officials and Smee’s discovery of marijuana in the Smiths’ trailer home.
The underlying rationale for application of the exclusionary rule is to deter law enforcement and other government officials and agents from unreasonable intrusions upon the lives and property of citizens. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). To exclude relevant evidence solely for the reason that it was inadvertently stumbled onto by a government employee, as in this case, bears no rational relationship to the reasons for and the purposes of the exclusionary rule. Absent any showing that Smee entered the Smiths’ property as a part of his duties of employment or at the instigation of or in collusion with other government officials or agents, his actions amounted to nothing more than a similar intrusion by a private citizen. We hold that under the facts of this case, the Fourth Amendment prohibition against unreasonable warrant-less searches does not apply and therefore the exclusionary rule does not bar the admissibility of the evidence seized in this case.
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The opinion of the court was delivered by
Lockett, J.:
After claimant injured his back on the job, he gave his employer notice of the injury and filed a claim for workers’ compensation. Claimant returned to work and injured his back a second time. Claimant gave notice of the second injury, but failed to file a claim for that injury. Three preliminary hearings were held. At each of the preliminary hearings, evidence of both injuries was introduced, and at the conclusion of each of the preliminary hearings, the judge ordered the employer to pay compensation for temporary total disability and to provide medical treatment for both accidents. At the hearing to determine the claimant’s disability compensation, the employer alleged that, because the claimant had failed to file a claim for the second injury, the statute of limitations barred recovery for the second injury. The employer also contended that, because the claimant had failed to prove what percentage of his disability resulted from the first accident, he was barred from all recovery. The administrative law judge agreed. Because the technical rules of procedure did not apply, the Director of Workers’ Compensation reversed the administrative law judge, finding that the respondent had sufficient notice of the claim for the second accident, and awarded compensation for both injuries. On appeal, the district court affirmed the Director. The employer appealed. The Court of Appeals, in an unpublished opinion, held that claimant’s failure to file a claim for the second injury, pursuant to K.S.A. 44-520a(a), precluded him from receiving benefits for the second injury, even though extensive proof of the second accident was offered at the administrative hearing. We granted review and reverse the Court of Appeals and affirm the district court.
On January 6, 1983, claimant, Richard Pyeatt, employed by respondent, Roadway Express, Inc., sustained an on-the-job injury to his lower back when a piece of heavy freight fell and knocked him to the floor. Claimant notified his supervisor of the accident and was referred for medical treatment. Pyeatt returned to work without any restrictions. On February 3, 1983, he filed a claim for compensation and an application for hearing.
Needing less strenuous work because of continuing back problems, Pyeatt successfully bid for a job as a forklift operator. On March 8, 1983, Pyeatt sustained a second injury to the same portion of his lower back when a forklift malfunctioned and threw him backwards against and over the seat. After the second accident, Pyeatt filed an accident report stating that the second accident had aggravated the prior back injury. Pyeatt did not file a second claim or amend his original claim for compensation to include the additional disability to his back caused by the second injury.
Prior to the hearing to determine temporary total disability compensation and medical benefits, three preliminary hearings were held on December 8, 1983, July 20, 1984, and October 12, 1984. Evidence of both the January and March accidents was admitted at all three preliminary hearings. Claimant testified about the March forklift accident and stated that the March accident aggravated the January injury. Attorney for respondent questioned claimant about the January accident and at length regarding the subsequent March accident. Claimant stated that the pain in his lower back and the numbness in his leg markedly increased as a result of the March 8 aggravation of his injury.
Claimant’s first full hearing was held on November 8, 1985. Claimant introduced depositions of Dr. James Bolin, who had examined him after the March accident, and Dr. Dale Darnell, who had been selected by the employer and had performed claimant’s back surgery. Dr. Darnell testified that he had not examined claimant prior to the second accident. He described claimant’s symptoms and surgery. He stated that after surgery Pyeatt was permanently restricted in the amount of weight he could lift and was further restricted from repetitive stooping, bending, or squatting. Darnell’s opinion was that claimant suffered from permanent partial disability to the body as a whole of 20 percent.
Dr. Bolin confirmed this opinion and agreed that claimant should be restricted from lifting items exceeding 30 pounds, as well as from doing over-the-road driving. Bolin testified that claimant could not return to work on the loading dock. Dr. Bolin also noted that he had reviewed claimant’s medical records, which indicated that the first injury occurred on January 6, 1983.
At the hearing for compensation, the parties stipulated that the date of the accident alleged was January 6, 1983. Following the hearing, in a letter brief written to the administrative law judge, respondent’s attorney defended arguing that Pyeatt’s claim for compensation should be denied because the evidence at the hearing showed that “whatever disability claimant may have sustained resulted from the March 8, 1983 accident,” not the January 6 accident for which the claim was filed. The adminis trative law judge agreed and denied disability, finding claimant had failed to establish that his disability was caused by the January 6 accident and had not amended his complaint to include the March 8 accident.
On application for review, the Director reversed the administrative law judge, stating that the crux of the administrative law judge’s decision was that claimant had not properly pled the March 8 date of the accident. The Director noted that it would have been better form if Pyeatt had amended the pleadings to conform with the proof, but found that denial of Pyeatt’s claim for compensation for this reason was “too high a standard to set as a general rule for workers’ compensation proceedings.” The Director found claimant’s proofs to be in order regarding injuries, loss of time, medical expenses, and permanent disability, “with the only failing being that the Application for Hearing stated one date of accident while the proofs showed multiple dates of accident.” The Director awarded claimant 106.14 weeks of temporary total disability and 261.51 weeks of compensation for 60 percent permanent partial general bodily disability. The district court affirmed the Director and adopted the findings of fact and conclusions of law. Respondent appealed.
The Court of Appeals accepted respondent’s contention that compensation may not be awarded for disability which was caused in whole or in part by an accident for which no claim was filed. The court found that, although Roadway was aware of both accidents, this did not negate the claimant’s statutory requirement to file a claim for the second accident. K.S.A. 44-520a(a). The Court of Appeals concluded that no compensation could be awarded for the March 8 accident, and remanded to the district court to determine the portion of claimant’s disability attributable to the first accident. Chief Judge Abbott dissented, noting that it was impossible to separate the two accidents and, further, that the respondent had actual knowledge of both accidents and was not prejudiced. We granted review to determine whether, where two successive accidents contribute to a claimant’s disability and the employer is aware of both accidents, there can be an award of compensation for the disability caused by both accidents where the employee failed to file a claim for the second accident.
This case involves the construction of K.S.A. 44-520a(a). Our scope of review on questions of law in workers’ compensation cases is unlimited.
K.S.A. 44-520a(a) upon which respondent relies provides in part:
“No proceedings for compensation shall be maintainable under the workmen’s compensation act unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or his duly authorized agent, or by delivering such written claim to him by registered or certified mail within two hundred (200) days after the date of the accident . . . .”
The purpose of the requirement for a written claim is to enable the employer to know about the injury in time to investigate it. Craig v. Electrolux Corporation, 212 Kan. 75, 82, 510 P.2d 138 (1973). Here, Pyeatt filed a claim for the January accident. The Court of Appeals recognized and the record clearly demonstrates that the employer was aware of both the January and March accidents, since Pyeatt filed a separate report for each accident and the employer was required to pay temporary total disability and provide medical treatment for the resulting disabilities. However, the Court of Appeals found:
“[T]he fact that an employer is aware of a second accident does not negate the employee’s statutory requirement to file a claim for the second accident if he is in fact seeking compensation for it.”
The Court of Appeals, strictly construing K.S.A. 44-520a(a), disregarded the fact that as early as December 8, 1983, nearly two years before the hearing on the claim, the employer had been notified of the March accident and was aware that Pyeatt’s claim for compensation included the aggravation of the initial injury attributable to the March accident. At the first preliminary hearing on December 8, 1983, claimant testified and was cross-examined about the March accident. At the conclusion of the hearing, the administrative law judge ordered the employer to provide Pyeatt with medical treatment by Dr. Darnell and pay temporary total disability compensation.
On July 20, 1984, at the second preliminary hearing approximately sixteen months prior to the full hearing, Pyeatt again requested that the employer provide medical treatment required by the January accident and the aggravation caused by the March accident. The employer was ordered to pay for the application of a body cast recommended by Dr. Darnell and extended compensation for Pyeatt’s temporary total disability.
A third preliminary hearing was held thirteen months prior to the full hearing. Again the administrative law judge ordered the employer to provide additional medical treatment, including surgical lumbar fusion by Dr. Darnell, and extended temporary total disability.
Here, the crux of the appeal is (1) whether the administrative law judge lacked jurisdiction to hear Pyeatt’s claim for compensation for the March accident, since Pyeatt had failed to amend his first claim or file a second claim for compensation, or (2) whether Pyeatt’s failure to amend the first claim or file the second claim was a technical noncompliance with procedural requirements of the Workers’ Compensation Act which should not be allowed to defeat an otherwise meritorious claim. See Craig v. Electrolux, 212 Kan. at 81 (citing 3 Larson’s Workmen’s Compensation Law § 78.10, § 78.11 [1973]).
Clearly, the procedural requirements of the Act cannot be ignored to the disadvantage of the employer. However, it is equally well established that in interpreting the Workers’ Compensation Act, a liberal construction must be applied in order to award compensation to a worker when it is reasonably possible to do so. Nordstrom v. City of Topeka, 228 Kan. 336, Syl. ¶ 2, 613 P.2d 1371 (1980). Neither the director, the administrative law judge, nor the court is bound by the technical rules of procedure, but each is required to give the parties a reasonable opportunity to be heard and to present evidence, to insure the employee an expeditious hearing, and to act reasonably without partiality. K.S.A. 44-523(a). An important objective of workers’ compensation law is the avoidance of cumbersome procedures and technicalities of pleading, so that a correct decision may be reached by the shortest and quickest possible route.
This is not a case where the employer had no notice of Pyeatt’s accidents or lacked knowledge that Pyeatt’s claim for compensation was for the January accident and the March aggravation of the injury. Pyeatt did file reports of both accidents and a written claim for compensation for the first accident. He later filed three written applications for preliminary hearings and at each of the preliminary hearings evidence of both accidents was introduced. As a result of that evidence, the employer was ordered to provide additional medical benefits and pay additional temporary total disability compensation for the extended periods. Respondent had sufficient notice that Pyeatt claimed the subsequent March 8 injury aggravated the prior injury and sought compensation for the injury and disability resulting from the cumulative effect of two work-related accidents. Aware of both accidents, the respondent chose to defend against the claim by arguing that claimant’s permanent disability resulted only from the March accident and that his failure to amend the claim to include the March 8 accident allowed the statute of limitations to run. In respondent’s brief filed in the district court the following statement appears: “In all candor, it would appear that claimant’s disability results from the March 8, 1983 accident.”
The claim Pyeatt initially filed did vary from his subsequent claim and the proof offered at the disability hearing. Such variance is fatal if the employer is required to defend against an award of compensation for an unknown injury. Under such circumstances, an employer would be prejudiced by the inability to have previously investigated the facts prior to the hearing to determine whether the injury was work-related.
Here, the employer was not prejudiced. Pyeatt did file reports of both accidents and a written claim for compensation for the first accident. Though the claimant failed to amend his original claim, the respondent had sufficient notice of the accidents and sufficient knowledge that Pyeatt’s claim for compensation was based on both accidents. The decisions of the administrative law judge and the Court of Appeals must be reversed.
ADDITIONAL ISSUES
Respondent raised additional issues which the Court of Appeals did not reach. Respondent contends that claimant’s failure to file an application for a hearing for the March accident so prejudiced respondent’s right to claim reimbursement from the Workers’ Compensation Fund, K.S.A. 444567(d), that the claim should be denied. This contention is without merit.
The Workers’ Compensation Act provides that when a claim arises from injury or disability resulting from a preexisting physical impairment, in an appropriate case, the employer has the right to implead the Workers’ Compensation Fund and obtain reimbursement.
K.S.A. 44-567(d) provides:
“(d) An employer shall not be relieved of liability for compensation awarded nor shall an employer be entitled to an apportionment of the costs thereof as provided in this section, unless the employer shall cause the commissioner of insurance, in the capacity of administrator of the workers’ compensation fund, to be impleaded, as provided in K.S.A. 44-566a and amendments thereto, in any proceedings to determine the compensation to be awarded a handicapped employee who is injured or disabled or has died, 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.”
The statute requires that the Fund be impled prior to the first full hearing on the claim. A decision of the Court of Appeals has construed this to be true even when the employer has no knowledge of a preexisting condition prior to the first full hearing. Griggs v. Sears, Roebuck & Co., 4 Kan. App. 2d 22, 601 P.2d 695 (1979). Here, the record shows that the respondent had knowledge of both accidents. In fact, the employer used evidence of the second accident as a defense at the first full hearing to argue that compensation should be denied because all of Pyeatt’s disability resulted from the second accident. This knowledge is equally sufficient to have impled the Fund. In addition, impleading the Fund is inconsistent with the respondent’s admission to the district court that all of claimant’s disability stemmed from the March accident. If only one of the two accidents caused the worker’s disability, then the Fund would not be responsible because there was no preexisting disability.
Next, respondent argues that there is no evidence that the disability was caused by claimant’s employment. On reviewing questions of fact on appeal, we must decide whether the judgment of the district court is supported by substantial competent evidence. The term “substantial evidence” when applied to workers’ compensation cases means evidence which possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented can be reasonably resolved. Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981). The testimony of claimant and the two treating physicians is sufficient to satisfy the requirement of substantial evidence.
The final question is whether the court erred by awarding Pyeatt 60 percent permanent partial disability. The test for determining permanent partial general disability is the extent to which the injured worker’s ability has been impaired to engage in work of the same type and character he or she was performing at the time of the injury. In considering a permanent partial general disability under K.S.A. 44-510e, the work disability is measured by the reduction, expressed as a percentage, in the worker’s ability to engage in work of the same type and character that he or she was performing at the time of the injury. Where a claimant in a workers’ compensation case is found to suffer a permanent partial general disability, the pivotal question is, what portion of claimant’s job requirements is he or she unable to perform because of the injury? Ploutz v. Ell-Kan Co., 234 Kan. 953, Syl. ¶¶ 3, 4, 5, 676 P.2d 753 (1984).
The Director awarded claimant 60 percent permanent partial disability stating:
“Both Dr. Darnell and Dr. Bolin felt the claimant had a 20% functional impairment. Dr. Darnell would limit the claimant’s lifting to 15 to 30 pounds on a repetitive basis, but allow him an occasional lift of up to 50 pounds. Dr. Bolin would limit claimant’s overall lifting to 30 pounds. Dr. Bolin also felt the claimant should not do over-the-road driving, but could drive a forklift on a smooth surface. The claimant’s testimony is the only testimony in the record which directly relates to the work the claimant was doing at the time of his injury. The claimant was of the opinion that 60% of his work involved lifting of over 50 pounds, 80% over 40 pounds, 90% over 30 pounds. He testified that 90% of his work involved lifting. When reviewing the type of lifting the claimant was required to do and the description of how that work was accomplished by moving objects from a truck to a cart or two-wheeled dolly and movement by means of a dragline, the Director finds the claimant is unable to perform 60% of the job duties of the type and character that he was performing at the time of the injury.”
The district court agreed with the findings of the Director. Under the evidence, the district court’s award of 60 percent permanent partial disability was correct.
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The opinion of the court was delivered by
Prager, C.J.:
Pedro Mariche, defendant, appeals an order of the district court that allowed his ex-wife, Elizabeth A. Mariche, plaintiff, to garnish social security disability benefits, received by defendant and deposited in defendant’s bank account, to pay delinquent child support. Defendant maintains that social security disability payments are exempt from garnishment under the provisions of K.S.A. 1987 Supp. 60-2308(a).
The facts are undisputed and were stipulated to by the parties for the purpose of this appeal. The parties were divorced in 1981, and defendant was ordered to pay $300 per month for support of his three minor children. He failed to make all of the required payments and, by April of 1987, he was in arrears in the amount of $14,000. On April 1, 1987, the Social Security Administration (SSA) determined that defendant was totally disabled and entitled to social security disability payments. On April 10, the SSA deposited $2,468 directly into defendant’s bank account at the Credit Union of Dodge City. Plaintiff, through a garnishment order issued in the divorce case on April 16, attached the balance of the account in the amount of $1,400. The parties stipulated that all funds in the account came from social security disability payments. Defendant challenged the garnishment order, claiming that social security disability benefits are exempt from gar nishment under K.S.A. 1987 Supp. 60-2308(a). Both the district magistrate and the district judge held that defendant’s social security disability benefits were not exempt from garnishment and could be applied to the payment of past-due child support. Defendant appealed, and the case was transferred to the Supreme Court.
The basic issue on appeal is whether the district court erred in holding defendant’s social security disability benefits were not exempt from garnishment to pay past-due child support under K.S.A. 1987 Supp. 60-2308(a), which provides as follows:
“Pension and retirement money exempt, exception, (a) Money received by any debtor as pensioner of the United States within three months next preceding the issuing of an execution, or attachment, or garnishment process, cannot be applied to the payment of the debts of such pensioner when it is made to appear by the affidavit of the debtor or otherwise that such pension money is necessary for the maintenance of the debtors support or a family support wholly or in part by the pension money. The filing of the affidavit by the debtor, or making proof as above provided, shall be prima facie evidence, and it shall be the duty of the court in which such proceeding is pending to release all moneys held by such attachment or garnishment process, immediately upon the filing of such affidavit, or the making of such proof.” (Emphasis supplied.)
Defendant maintains that he is a “pensioner of the United States,” and that his social security disability payments are thus exempt from garnishment. Defendant cites no Kansas case law to support his position.
We have concluded that the issue presented in this case is governed by the federal statutes pertaining to social security disability benefits. Prior to 1975, 42 U.S.C. § 407 (1970) provided that social security payments of all types were not transferable or assignable or subject to execution-, levy, attachment, garnishment, or other legal process:
“The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”
Aware of the importance of the right of a spouse and children to receive support from an absent parent, Congress in 1975 enacted § 459 of the Social Security Act (42 U.S.C. § 659 [1982]), which waived the sovereign immunity previously enjoyed by the United States and specified that wages of government employees and also social security benefits are subject to garnishment in child support and alimony cases. A1983 amendment to 42 U.S.C. § 407 included a provision that no other law enacted before, on, or after a certain date could be construed to limit, supersede, or otherwise modify the provisions of § 407 except to the extent it does so by express reference to that section. 42 U.S.C. § 407 (Supp. Ill 1985). Currently, 42 U.S.C. § 659 (Supp. Ill 1985) provides:
“Notwithstanding any other provision of law, (including section 407 of this title) effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.” (Emphasis supplied.)
42 U.S.C. § 662(f) (Supp. Ill 1985) defines “remuneration for employment” to include “periodic benefits ... or other payments to such individual under the insurance system established by subchapter II of this chapter.” (Emphasis supplied.) 42 U.S.C. § 423 (1982 and Supp. Ill 1985) provides for social security disability benefits and is included in subchapter II of the Social Security Act. Thus, under the federal statutes, the garnishment of social security disability benefits is authorized in order to permit recovery of past due child support or alimony payments. The Code of Federal Regulations (5 C.F.R. § 581.103 et seq. [1988]) interprets the federal statutes to authorize the garnishment of federal disability payments to pay child support and alimony payments.
The federal statutes have been utilized by state courts in permitting the garnishment of federal wages and social security disability payments to pay delinquent child support. In Re Marriage of Schonts, 345 N.W. 2d 145 (Iowa App. 1983), was a case where the ex-wife brought proceedings to garnish money the husband had deposited in a bank in an effort to collect child support arrearages under the parties’ divorce decree. The trial court quashed the garnishment on the basis the payments were exempt. The Iowa Court of Appeals reversed, holding that the former husband’s social security disability payments were available for payment of past-due child support. In reaching that conclusion, the Iowa Court of Appeals applied the provisions of 42 U.S.C. §§ 407 and 659. Iowa had a statute similar to K.S.A. 1987 Supp. 60-2308 which exempted all pension money from legal process. The court concluded, however, that the exemption statutes in Iowa were enacted for the purpose of protecting the wife, husband, and children, and, therefore, past-due child support payments could be recovered by garnishment of the father’s social security disability payments.
It should be noted, however, that at the end of the opinion, the Iowa court stated that a trial court has discretion to use equitable principles in determining the amount of social security disability payments which should be applied to past-due child support. The court stated:
“We make note, however, the trial court should consider the particular circumstances of the case so as not to appropriate all of Harry’s money to satisfy the arrears if, indeed, he relies on that money for his sole support. See 24 Am. Jur. 2d, § 723. The payment of the arrears should be geared to the particular case.” 345 N.W. 2d at 147.
In Barbour v. Barbour, 642 S.W.2d 904 (Ky. App. 1982), the Kentucky Court of Appeals applied the federal statutes and held that federal social security disability payments were subject to legal process for the payment of past-due child support.
The same basic principle is recognized in Brevard v. Brevard, 74 N.C. App. 484, 328 S.E.2d 789 (1985). There, the North Carolina Court of Appeals held that, although social security disability benefits payable to a divorced father were subject to be applied for the payment of child support, benefits which are payable to the children and not to the father may not be garnished to recover past-due child support. The court reasoned that the children and not the father were entitled to the funds. The children were the beneficiaries of the benefits while the father was merely the representative payee. The exceptions to 42 U.S.C. § 407 were not applicable, because the children were not individuals obligated to pay child support under state law.
The foregoing analysis of the federal statutes and regulations and the various state cases which have considered the issue makes it clear that social security disability benefits payable to a parent are subject to garnishment to satisfy past-due child support payments decreed by state courts. Before leaving the issue, however, it should be noted that the Kansas cases have consistently held that pension benefits and property exempted by statute ordinarily are not exempt from garnishment for past-due child support ordered in a divorce decree.
Mahone v. Mahone, 213 Kan. 346, 517 P.2d 131 (1973), provides an excellent analogy for this case. In Mahone, three children sued their father for past-due child support, seeking to garnish all Kansas Public Employees Retirement System (KPERS) pension funds due him. The father argued that K.S.A. 74-4923 (Weeks) provided a statutory exemption for those funds. At that time, the statute provided that any KPERS funds “ ‘shall not be subject to execution, garnishment, or attachment, or any other process or claim whatsoever.’ ” 213 Kan. at 348. (NOTE: K.S.A. 74-4923 [Weeks] was later amended to specifically exclude garnishment for child support or maintenance against the KPERS fund.)
In Mahone, 213 Kan. at 350, the court ruled that the exemption was inapplicable to a claim for child support, basing its holding on the purpose of the exemption. The court reviewed several exemption statutes and noted that the general purpose behind such statutes was to allow a person the necessary funds to support his family free from creditors. See Southwest State Bank v. Quinn, 198 Kan. 359,424 P.2d 620 (1967). Thus, in spite of the traditional homestead exemption, a wife could enforce her claim for alimony as a lien on homestead property. Mahone v. Mahone, 213 Kan. at 351 (citing Blankenship v. Blankenship, 19 Kan. 159 [1877], and Johnson v. Johnson, 66 Kan. 546, 72 Pac. 267 [1903]). The Mahone court then ruled that a father’s duty to support his children took precedence over the statutory exemption. The court concluded:
“This court as a matter of public policy has always vigorously protected the right of a dependent child to receive support from his father. The denial of relief to the minor children in cases such as this might well cast upon the public the burden of supporting a pensioner’s children and relieve him and his property of that obligation. Such a holding in our judgment would be perversive of the true purpose and policy of our exemption laws and the intent of the legislature in providing the exemption contained in K.S.A. 74-4923.” 213 Kan. at 352.
The “true purpose and policy” of the exemption law at issue here is also clear. K.S.A. 1987 Supp. 60-2308 is designed to protect the funds necessary to support a pensioner and his family. This conclusion is supported by the wording of the statute itself “that such pension money is necessary for the maintenance of the debtor’s support or a family support.” K.S.A. 1987 Supp. 60-2308(a).
31 Am. Jur. 2d, Exemptions § 3, p. 331, states the general rule as follows:
“Exemption laws are the product of an enlightened public policy, which seeks to afford some measure of protection to the family of an unfortunate debtor, as well as to the debtor himself, and incidentally to the public. ... By allowing the debtor to retain certain property free from molestation or appropriation by creditors, they thereby extend to him an opportunity of self-support so that he will not become a burden upon the public. Every man, even the extravagant and improvident, owes a first duty to those immediately depending upon him.”
Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. State, ex rel., v. Unified School District, 218 Kan. 47, 49, 542 P.2d 664 (1975). In our judgment, the legislative intent of K.S.A. 1987 Supp. 60-2308(a) is to protect the debtor and also his family. Thus, this court should interpret that statute to allow garnishment of social security disability benefits for past-due child support. If the court were to allow the defendant to shelter his benefits, it would defeat the purpose of this exemption law rather than uphold it.
We have concluded that the trial court did not err in holding that social security disability payments are not exempt from garnishment to pay delinquent child support under the provisions of K.S.A. 1987 Supp. 60-2308(a). That issue is controlled by the federal statutes and regulations which permit the garnishment of social security disability benefits for the payment of past-due child support as ordered in a Kansas divorce case.
In his brief, defendant in the alternative argues that, if the social security disability payments are not exempt under K.S.A. 1987 Supp. 60-2308, then the garnishment is subject to the limitations specified in K.S.A. 1987 Supp. 60-2310, which limits the percentage of earnings which may be subjected to wage garnishment. It provides:
“(a) Definitions. As used in this act and the acts of which this act is amendatory, unless the context otherwise requires, the following words and phrases shall have the meanings respectively ascribed to them:
“(1) ‘Earnings’ means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise;
“(2) ‘disposable earnings’ means that part of the earnings of any individual remaining after the deduction from such earnings of any amounts required by law to be withheld;
“(3) ‘wage garnishment’ means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt; . . .
“(b) Restriction on wage garnishment. Subject to the provisions of subsection (e), only the aggregate disposable earnings of an individual may be subjected to wage garnishment. The maximum part of such earnings of any wage earning individual which may be subjected to wage garnishment for any workweek or multiple thereof may not exceed either (1) twenty-five percent of the individual’s aggregate disposable earnings for that workweek or multiple thereof, or (2) the amount by which the individual’s aggregate disposable earnings for that workweek or multiple thereof exceed an amount equal to 30 times the federal minimum hourly wage, or equivalent multiple thereof for such longer period, whichever is less. . . .
“(g) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed:
“(1) If the individual is supporting a spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50% of the individual’s disposable earnings for that week;
“(2) if the individual is not supporting a spouse or dependent child described in clause (1), 60% of such individual’s disposable earnings for that week; and
“(3) with respect to the disposable earnings of any individual for any workweek, the 50% specified in clause (1) shall be 55% and the 60% specified in clause (1) shall be 55% and the 60% specified in clause (2) shall be 65%, if such earnings are subject to garnishment to enforce a support order for a period which is prior to the twelve-week period which ends with the beginning of such workweek.” (Emphasis supplied.)
Defendant maintains, in substance, that under 60-2310 plaintiff should not be entitled to attach more than 65 percent of his disposable earnings for any workweek. We have concluded that the defendant’s position does not have merit. We note that, under K.S.A. 1987 Supp. 60-2310, “wage garnishment” is defined as any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt. Earnings are defined as compensation paid for personal services, whether denominated as wages, salary, commission, bonus, or otherwise. In our judgment, social security disability payments do not fit this definition of earnings because they are not received as compensation for personal services. Thus, social security disability benefits are not subject to the percentage limitations on garnishments set forth in K.S.A. 1987 Supp. 60-2310. Furthermore, according to the undisputed facts, the defendant received a payment of $2,468. Sixty-five percent of that amount is $1,604. By the time plaintiff garnished the account, only $1,400 was left, which is less than 65%.
For the reasons set forth above, we have concluded that the trial court did not err in holding that the $1,400 which defendant had deposited in his bank account was subject to garnishment for the payment of past-due child support. This conclusion is based upon the provisions of the federal statutes and regulations and the past decisions of this court which have consistently interpreted exemption statutes to permit a garnishment for the payment of past-due child support.
The judgment of the district court is affirmed. | [
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Tyson Wade Whiteside was admitted to the practice of law in the State of Kansas in September 1972. In 1983 he was suspended from the practice of law in Kansas for nonpayment of registration fees pursuant to Rule 208 (1987 Kan. Ct. R. Annot. 106). Sometime prior to 1983, respondent commenced the practice of law in the State of Missouri and on or about the 29th day of July 1986, the respondent was disbarred from the practice of law in the State of Missouri by order of the Supreme Court of Missouri in disciplinary case number 67837.
The order of the Supreme Court of Missouri found that the respondent had been charged with professional misconduct in the following particulars:
“Count I
“During June of 1984, Respondent was retained to handle an immigration case involving Jose Wilson Hidalgo and Marlene Maria Hidalgo. Respondent was retained by relatives of these individuals, Mr. Edward S. Alviso, Sr. and Carolina Jimenez. These persons furnished Respondent with a total sum of $8,000.00 to constitute an appearance bond of $4,000.00 for each individual. Respondent, thereafter, used said money to post the bond with the Immigration and Naturalization Service District Office in Kansas City, Missouri, and obtained from that office original receipts running to the Respondent in his individual name. Regulations of the Immigration Service required submission of said receipts as a condition before the money on deposit could be returned to the individuals who furnished the same.
“Respondent, thereafter without notice to his clients, moved from his office address in Suite 285, 9229 Ward Parkway, Kansas City, Missouri, and left the State of Missouri. Respondent on being contacted by Staff Counsel of this committee and by the new attorney for the aforesaid clients, failed to timely arrange for return to the clients of the clients’ property specifically, the receipts for the bonds from the Naturalization Service, contrary to DR1-102(A)(1)(4)(5)(6); DR6-101(A)(3); DR7-101(A)(1)(2)(3); and DR9-102(B)(2)(3)(4).
“Count II
“The Respondent in his individual capacity was named as the defendant in civil actions instituted against the Respondent in the Circuit Court of Jackson County in 21 cases during the years of 1983, 1984 and 1985. In most cases, judgments were rendered against the Respondent and some of said suits were on insufficient funds checks which Respondent had uttered, contrary to DR1102(A)(3)(5)(6).
“Count III
“Respondent failed to pay his 1984 enrollment fee to the Clerk of the Missouri Supreme Court and his right to practice law in the State of Missouri was automatically suspended in accord with Rule 6.01(d). Respondent practiced law in the State of Missouri during 1984 when he knew that said privilege had been suspended by reason of the aforesaid rule.
“Respondent further failed to pay the 1985 enrollment fee and continued to practice law in this state after January 31,1985, until Respondent left the State of Missouri, contrary to DR1-102(A)(4)(5)(6).
“Count IV
“Respondent has failed to cooperate with Staff Counsel and the Advisory Committee and failed to appear at a hearing before the Advisory Committee on June 27, 1985, all contrary to DR1-102(A)(4)(5)(6).”
The Supreme Court of Missouri found that the respondent had violated several of its disciplinary rules and entered its order disbarring the respondent.
Based upon the findings and order of the Supreme Court of Missouri, this court issued several orders directed to the respondent to appear and show cause why he should not be disbarred in Kansas. On July 22, 1988, such an order was issued and thereafter served upon the respondent directing him to appear before this court on the 16th day of September, 1988. Respondent has failed to appear in response to such order.
The court being fully advised finds that the charges and findings of the Supreme Court of Missouri constitute violations of the Kansas Code of Professional Responsibility, Rule 225 (1987 Kan. Ct. R. Annot. 122), and that respondent should be disbarred from the practice of law in the State of Kansas.
It is Therefore Ordered that Tyson Wade Whiteside be and he is hereby disbarred from the practice of law in the State of Kansas. The Clerk of the Supreme Court is directed to strike his name from the roll of attorneys admitted to practice law in this State.
It is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the plaintiffs, Clifford F. Davis and Iva L. Davis, from the involuntary dismissal of this action by the Leavenworth District Court. Defendants are Greenamyre Rentals, Inc., the owners of the property rezoned, and the City of Leavenworth.
The facts are not disputed. Greenamyre Rentals, Inc., filed an application for approval of a planned unit development (PUD) and for rezoning with the City of Leavenworth pursuant to K.S.A. 12-729. Plaintiffs are the owners of property which lies within 200 feet of the Greenamyre tract. On September 9,1986, the City of Leavenworth approved Greenamyre’s request for rezoning along with the preliminary plans submitted with the application. The City’s approval was formalized on the same date by the adoption of Leavenworth City Ordinance No. 6482, which rezoned the Greenamyre tract from single family residential to planned unit development.
Several months later, an application for final approval of the planned unit development was submitted by Greenamyre, and approval was granted by the City on January 13, 1987. The rezoning ordinance adopted September 9, 1986, was first published on January 16, 1987. Within 30 days, and on February 12, 1987, plaintiffs filed their petition for review of the rezoning decision of the City of Leavenworth.
The trial court’s memorandum and order finding that the court lacked subject matter jurisdiction because plaintiffs’ action was not filed “within 30 days after the making of a decision” on the zoning ordinance, and ordering the action dismissed, was filed July 24, 1987, and copies were mailed to counsel. On August 20, 1987, the trial court filed a judgment form. On August 27, 1987, notice of appeal was filed by the plaintiffs. Appeal was taken to the Court of Appeals, and the case was later transferred to this court pursuant to K.S.A. 20-3018.
Defendants moved to dismiss the action in the Court of Appeals. They challenged the jurisdiction of the appellate court, contending that the notice of appeal was not timely filed. They claimed that the time for appeal commenced to run on July 24, 1987, when the trial judge’s memorandum and order was filed. The Court of Appeals examined the facts carefully, and in a lengthy memorandum denied defendants’ motion for involuntary dismissal. The Court of Appeals found that the appeal was timely filed, and we agree. K.S.A. 60-258 provides in applicable part that:
“No judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court.”
The memorandum and order prepared, signed, and filed by the trial court did not direct counsel to prepare a journal entry, nor did it recite that it would serve as a journal entry. Later, the trial court prepared and filed a judgment form in compliance with K.S.A. 60-258. The judgment form directed the entry of judgment in accordance with the trial court’s memorandum and order and also assessed the cost of the proceeding against the plaintiffs. We conclude the judgment became effective upon the filing of the judgment form. Plaintiffs’ notice of appeal was timely filed.
A review of the statutes involved is necessary to an understanding of the factual background. We will discuss them in numerical order, and quote such portions of the statutes, or the substance thereof, as applicable.
Article 7, chapter 12 of the Kansas Statutes Annotated contains the general provisions for planning and zoning in cities. K.S.A. 12-707 authorizes zoning by cities. The statute reads:
“The governing body of any city is hereby authorized by ordinance to divide such city into zones or districts, and regulate and restrict the location and use of buildings and the uses of the land within each district or zone.” (Emphasis added.)
K.S.A. 12-708 provides for the development of zoning plans by the planning commission, the giving of notice of public hearings by the commission, the recommendation of a proposed zoning ordinance to the city, and the city’s adoption thereof by ordinance. It also sets forth the procedure by which changes in zoning may be effected or property may be rezoned. A property owner may petition for a change. Notice of hearing must be published in the official city newspaper, notice by mail must be given to certain nearby landowners, the commission must hold a public hearing and make recommendations to the governing body of the city, and the change is effected by city ordinance.
K.S.A. 12-712 is the zoning appeals statute. It reads:
“Any ordinance or regulation or amendment thereto provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance, regulation or amendment thereto determined by bringing an action against the governing body of the city within thirty days after the making of a decision on a zoning ordinance or regulation, or amendment thereto, by such governing body. Such action shall be brought in the district court of the county in which such city is situated.”
K.S.A. 12-725 through -733 authorize both cities and counties to zone certain described areas for “planned unit development.” K.S.A. 12-726(e) defines planned unit development as follows:
“ ‘Planned unit development’ is an area of land controlled by a landowner to be developed as a single entity for a number of dwelling units, office uses, commercial uses, or any combination thereof, if any, the plan for which does not correspond in lot size, bulk or type of dwelling or commercial or industrial use, density, lot coverage and required open space, to the regulations established in any one or more of the districts created from time to time under the provisions of municipal zoning regulations adopted pursuant to the provisions of article 7 of chapter 12 and article 29 of chapter 19 of the Kansas Statutes Annotated and amendments thereto.”
K.S.A. 12-728 is a lengthy statement of the standards and conditions for all planned unit developments.
K.S.A. 12-729 reads in part as follows:
“An application for approval of a planned unit development shall constitute the filing of an application for the establishment of a planned unit development district by the landowner in the same manner prescribed for amending the zoning ordinance in K.S.A. 12-708, 19-2919 and 19-2927 et seq. The same requirements for notice and advertisement of public hearings shall be required as conventional zoning. Similarly, the same procedures as required for the adoption of an original zoning ordinance or the amendment thereto shall be followed by the planning commission and the governing body in the establishment of the planned unit development. Protests to the establishment of such a planned unit development zoning district shall be the same as provided for conventional zoning. Before any zoning, occupancy or building permit shall be issued or before any development of land shall take place, the landowner shall:
“(a) Submit a preliminary development plan for the planned unit development, including all of the area to comprise such planned unit development. . . .
“(b) After approval of a preliminary development plan by the approving authority, the landowner shall file with the register of deeds a statement that such a plan has been filed with the approving authority and has been approved and that such planned unit development is applicable to certain specified legally-described land ....
“(c) Submit an application for final approval. This may be for all of the land included within a plan, or to the extent set forth in tentative approval for a section thereof. The application shall include such drawings, specifications, covenants, easements, conditions and form of performance bond as set forth in the approval of the preliminary development plan and in accordance with conditions established in the zoning regulations for planned unit developments.
“A plan submitted for final approval shall be deemed to be in substantial compliance with the plan previously given tentative approval provided any modification by the landowner of the plan as tentatively approved does not:
“(1) Vary the proposed gross residential density or intensity of use by more than five percent (5%) or involve a reduction in the area set aside for common open space, nor the substantial relocation of such area, nor
“(2) increase by more than ten percent (10%) the floor area proposed for nonresidential use, nor
“(3) increase by more than five percent (5%) the total ground area covered by buildings nor involve a substantial change in the height of buildings.
“A public hearing need not be held to consider modifications on location and design of streets or facilities for water or disposal storm water or sanitary sewers or other public facilities required as a tentative condition of approval of a preliminary development plan. The burden shall, nevertheless, be upon the landowner to show the approving authority good cause for any variation between the plan as tentatively approved and the plan as submitted for final approval. In the event a public hearing is not required for final approval and the application for final approval has been filed, together with all drawings, specifications and other documents in support thereof, the approving authority shall within forty-five (45) days of such filing grant such plan final approval: Provided, however, That in the event the plan as submitted contains variations from the plan given tentative approval but remains in substantial compliance with the plan as submitted for tentative approval, the approving authority may, after meeting with the landowner, refuse to grant final approval and shall within forty-five (45) days from the filing of the application for final approval so advise the landowner in writing of said refusal, setting forth in said notice the reasons why one or more [of] said variations are not in the public interest. The landowner may either treat the refusal as a denial of final approval and resubmit said final plan in accordance with the request of the approving authority, or he or she may notify the approving authority within forty-five (45) days of notice of the date of refusal, his or her notice to appeal the decision of the approving authority. In the event such an appeal is filed, the approving authority shall schedule a public hearing, giving such notice as is required for preliminary approval. After a public hearing by the approving authority and in the event the landowner is not in agreement with the decision of the approving authority, the landowner may request within thirty (30) days that the application for final plan approval be submitted to the governing body for final decision. Any reason for disapproval of the final development plan by either the approving authority or the governing body shall be set forth in full. A plan or any part thereof which has been given final approval by the approving authority, or upon appeal to the governing body, shall be so certified by the secretary of the approving authority, and shall be filed of record with the register of deeds immediately following the satisfying of all conditions precedent and conditioned upon such approval. In the event that a plan or section thereof is given final approval and thereafter the landowner shall abandon said plan or the section thereof finally approved and shall so notify the municipality in writing, or in the event the landowner shall fail to commence the planned unit development within eighteen (18) months after final approval has been granted, then in that event such final approval shall terminate and shall be deemed null and void unless such time period is extended by the approving authority upon written application by-the landowner.”
K.S.A. 12-730 provides for public hearings. It reads:
“Before the approving agency shall approve a preliminary development plan, they shall hold a public hearing giving the same notice as is required for an amendment to the zoning ordinance map. A public hearing on the application for final approval of the plan or part thereof shall not be required provided the plan or part thereof submitted for final approval is in substantial compliance with the plan theretofore given tentative approval.”
Article 30 of chapter 12 includes general provisions relating to the adoption of city ordinances.
K.S.A. 12-3007 requires the publication of ordinances, and fixes the effective date. It reads:
“The city clerk shall cause all ordinances, except appropriation ordinances, as soon as practicable after they have been passed and signed, ... to be pub lished once in the official city newspaper, unless a statute requires more publications. Ordinances shall take effect the day of publication unless a different and later day is stated in the ordinance or otherwise specified by statute: Provided, That appropriation ordinances shall take effect upon passage. The publisher shall print in a line preceding the number of the ordinance a statement in parentheses as follows: (Published_, 19_), giving the month, day and year. The manner of publication and effective date of codifications shall be as hereinafter provided.” (Emphasis added.)
K.S.A. 12-3008 requires the city clerk to keep an “ordinance book” in which shall be entered a copy of every ordinance immediately after its publication, or, in the case of appropriation ordinances, immediately after passage. The clerk is required to append a certificate, certifying the name of the newspaper and the date of publication of each ordinance.
K.S.A. 1987 Supp. 60-2101(d) provides for appeals from the judgment or final order made by a political or taxing subdivision. It reads:
“A judgment rendered or final order made by a political or taxing subdivision, or any agency thereof, exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means for 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 subdivision or agency within 30 days of its entry, and then causing true copies of all pertinent proceedings before such subdivision or agency 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 . . . .” (Emphasis added.)
The first issue is whether K.S.A. 12-712 or K.S.A. 1987 Supp. 60-2101(d) is the proper statute under which the plaintiff landowners could appeal in this action. Counsel contends that our prior case law is conflicting. Sabatini v. Jayhawk Construction Co., 214 Kan. 408, 520 P.2d 1230 (1974), arose from an annexation proceeding. Plaintiff brought the action to enjoin the city from approving the plat and annexing a subdivision containing 22 acres. The ordinance challenged in that case was enacted pursuant to K.S.A. 1973 Supp. 12-520(g). Appellants contended that they had a right to test the reasonableness of the platting and annexation under the authority granted in K.S.A. 12-712. We noted that section 712 was originally enacted as a part of chapter 100 of the laws of 1921, relating to zoning. Appellants attempted to tie the remedy provided in section 712 to K.S.A. 1973 Supp. 12-705, -705a, -705b, and -705c, all of which relate to the platting and the subdividing of land. We held that the “act” referred to in K.S.A. 12-712 is restricted to the act of which 12-712 was originally a part, chapter 100 of the laws of 1921 relating to zoning, and does not refer to chapter 99 of the laws of 1921, which are the platting and subdividing statutes. In short, the controversy in Sabatini was not over zoning, but over platting and annexation, and we held that K.S.A. 12-712 did not provide an appropriate vehicle for appeal for platting and annexation matters. Although we said that the “act” referred to in section 712 is restricted to chapter 100 of the laws of 1921 relating to zoning, the essence of our holding was that section 712 provides for appeals in zoning matters only, not for appeals from other city action.
In the more recent case of Sprint Print, Inc. v. City of Overland Park, 238 Kan. 230, 708 P.2d 210 (1985), we held that the purpose of K.S.A. 12-712 is to insure the availability of appellate review for all city zoning actions, including the denial by a city under its zoning ordinance of a special use permit. We said: “[I]t is obvious judicial review for reasonableness pursuant to K.S.A. 12-712 should be available for all zoning actions taken by a city, including special use permits.” 238 Kan. at 233. Special use permits were not within the 1921 zoning act.
In the present case, the action requested by the developer was the rezoning of a tract of land to permit a planned unit development. The action is governed by K.S.A. 12-725 et seq. Those statutes were enacted in 1969, and are separate from and supplemental to the conventional zoning statutes. It is said that PUDs “merge such diverse land uses as housing, recreation, and commercial units in one self-contained development. PUDs are zoned under special cluster zoning requirements that compute roads and park areas as a percentage of the square feet of land required for homes or living units.” Galaty, Allaway, & Kyle, Modern Real Estate Practice, p. 37-38 (9th ed. 1982). “Planned Unit Development (PUD) is a zoning technique which allows more flexibility than conventional zoning to permit clustering of residential uses and, in some instances, compatible commercial and industrial uses. The limitations of lot by lot development are avoided by focusing on density requirements and mixtures of uses.” Rhyne, The Law of Local Government Operations § 26.39, p. 780 (1980). Those descriptions of a PUD parallel the definition set forth in 12-726(e). Here, the City ordinances pro vided for PUD zoning. The City approved the application and the preliminary plan filed by Greenamyre, and formally rezoned the tract by adopting an ordinance. This was a zoning action. Accordingly, K.S.A. 12-712 provided the appropriate vehicle under which to challenge the reasonableness of the City’s action.
The action being proper under K.S.A. 12-712, the question then arises: When does the 30-day period for an appeal commence? The City’s action in approving the preliminary plans and in rezoning the property was taken by the enactment of a city ordinance. K.S.A. 12-712 requires that action be commenced “within thirty days after the making of a decision on a zoning ordinance or . . . amendment.” The City argues that the time commenced to run when the City governing body passed and enacted the ordinance, September 9, 1986. Changes in zoning are required to be by ordinance. K.S.A. 12-708. The simple approval of the preliminary plan, without more, had no effect on adjoining landowners; the act which affects others is the rezoning of the property. That was accomplished by ordinance.
The ordinance here at issue, however, was not effective on September 9, 1986. Instead, it was effective upon publication— January 16, 1987. The city ordinance was not published for over four months, despite the requirement of K.S.A. 12-3007 that ordinances be published “as soon as practicable after they have been passed and signed.” “Practicable” was defined in Beck v. Shawnee County, 105 Kan. 325, 335, 182 Pac. 397 (1919), as meaning “capable of being . . . done or accomplished.” Webster’s Third New International Dictionary 1780 (1964) defines “practicable” as meaning “capable of being put into practice, done or accomplished.” Publication could and should have been accomplished immediately after September 9, 1986, when the ordinance was passed. The decision by the City could only be made by ordinance. The ordinance was passed but not published. The decision was thus in limbo, suspended in midair.
Until the ordinance was published, there was no City action, no decision from which to appeal. K.S.A. 12-3007 specifically provides that “[ordinances shall take effect the day of publication.” There was no decision to rezone the property until the ordinance was enacted by the City, signed, and published. The 30-day period commenced on January 16, 1987, when the ordinance was published. This suit to challenge the reasonableness of the rezoning ordinance, commenced on February 12, 1987, was timely filed.
The judgment is reversed, and the case is remanded to the district court of Leavenworth County for further proceedings. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the State of Kansas on a question reserved, arising out of a ruling by the trial court during a criminal prosecution by the State against Milton Guinn, defendant. Only one issue is involved. It is stated in the State’s brief as. follows: Whether a “Financial and Statistical Report for Adult Care Homes,” which we will refer to as a “Cost Report,” is a claim or demand as contemplated by K.S.A. 21-3904.
The statute upon which prosecution was based reads as follows:
“21-3904. Presenting a false claim. Presenting a false claim is knowingly and with intent to defraud presenting a claim or demand which is false in whole or in part, to a public officer or body authorized to audit, allow or pay such claim.
“Presenting a false claim for fifty dollars ($50) or more is a Class E felony. Presenting a false claim for less than fifty dollars ($50) is a class A misdemeanor.”
Milton Guinn was charged in Shawnee District Court with 26 felony counts. Count 1 of the third amended information charged Guinn with conspiracy to present false claims to the Kansas Department of Social and Rehabilitation Services (SRS). Guinn was found not guilty of the conspiracy charge by the jury, and the conspiracy charge is not before us. Counts 2 through 26 charged Guinn with presenting specific false claims to the SRS in violation of K.S.A. 21-3904. At the conclusion of the State’s evidence, and on motion for acquittal made by the defendant, the trial court found that the “Cost Reports” presented as “claims” by the State were not “claims” within the meaning of the statute and that the State had failed to present a prima facie case as to Counts 2 through 26. The court thereupon acquitted Guinn of those charges. The State appeals, contending that the “Cost Reports” were “claims” within the meaning of the statute.
The facts upon which this prosecution was based are lengthy and complicated; however, for the purpose of this appeal, we need not present all of the detail which evolved during the lengthy jury trial. The State of Kansas has undertaken, under extensive statutes and regulations, to reimburse the operators of nursing homes the necessary, proper, and reasonable costs of providing care for certain eligible persons. SRS computes the per diem cost of patient care which it will pay to each nursing home, based upon the financial data provided to the State by each nursing home. This data is supplied periodically to SRS by the nursing homes on a “Financial and Statistical Report for Adult Care Homes,” commonly referred to as a “Cost Report.” The statistical information varies from nursing home to nursing home, as do the resulting reimbursable per diem costs. When a nursing home is sold in an arms-length transaction to a person or corporation wholly unrelated to the former owner, new Cost Reports must be filed and the new owner may be entitled to draw a higher per diem rate than the former owner because of the larger investment the new owner has in the physical facility. Similarly, if the operator of a nursing home engages a third party, who is not related to the operator, to provide management services for the home the operator may be entitled to claim the amount of management fees as a basis for an increase in the per diem rate. If, however, the operator provides such services or if they are provided by a close relative of the operator, then management services may not form a basis for computing the per diem rate.
The “Cost Report” is the first step in the claim procedure. Standing alone, however, the cost report does not engender the payment of funds by SRS to the provider. It merely forms the statistical base upon which SRS computes the allowable daily rate for care by the particular facility. Each month, the nursing home files with SRS a Form DFA 389A, the Adult Care Home Service Claim. That form enumerates all of the eligible persons who have been cared for in the home during the past month, and shows the number of days that cafe has been provided for each person. SRS then takes the total number of days during which care for eligible patients has been provided, multiplies that by the applicable per diem rate, and pays the amount so determined to the operator of the nursing home.
Count 2 of the third amended information charged that Guinn did unlawfully, feloniously, willfully, and knowingly, and with intent to defraud, present a claim to a body authorized to credit, allow, or pay it, the SRS, in the amount of $783,100 for North-view Manor, a/k/a McPherson Care Center of McPherson, which was false in part, in that he reported amounts as property costs as though the parties had engaged in an arms-length transaction when they had not, and reported a claim for reimbursement of management fees when the parties involved were related parties and not entitled to such reimbursement. Counts 3 through 26, in similar language, charged Guinn with filing various false claims for The Alma Manor of Alma, Belle-View Manor of Belleville, The Colonial Terrace of Independence, The Colonial Lodge of Independence, Ivy Manor Nursing Home of Wichita, Phillips-burg Nursing Center of Phillipsburg, Seneca Manor Nursing Home of Wichita, Special Care Development Center of Win-field, Special Care Development Center-Haven, United Christian Care Center of Wichita, and Wakeeney Manor of Wakeeney. The amounts which were alleged to be false in part varied from $403,417 to $1,517,800 and were submitted during the period from October 29, 1979, to November 28, 1982. At trial, the State offered and the court received in evidence the Cost Reports filed for the various nursing facilities; however, no Adult Care Home Service Claims were offered or received in evidence. Similarly, there was no evidence that the nursing homes had claimed or the state had paid excessive amounts for patient care. There was no evidence, for example, that the Northview Manor at McPherson had claimed and the state had paid $783,100 when only a part of that amount should have been claimed or paid.
Failure to file a Cost Report does not prevent the provider from being paid for care furnished; failure to file the Cost Report only causes a reduction to the lowest rate paid for the level of care in which the provider participates. K.A.R. 30-10-13-A-3-c-(2) (1978) (revoked May 1, 1985). K.A.R. 30-10-12-C-l (1978) (revoked May 1, 1985), however, provides that providers “will be paid, at least monthly, for routine services and supplies rendered to eligible beneficiaries provided that: 1. The agency [SRS] is billed on form DFA-389A (adult care home service claim).” Thus, failure to file an Adult Care Home Service Claim will prevent the provider from being paid; payment only follows when those claim forms are filed.
The State introduced evidence tending to show that Guinn and Melvin T. Crawford had undisclosed interests in the various nursing home operating corporations and management corporations, and that the increased property costs and management fees claimed by line items in the Cost Reports should not have been claimed and were false representations which were included in the Cost Reports to increase the base upon which per diem rates were calculated by SRS.
The principal case relied upon by the State is State v. Ruud, 259 N.W.2d 567 (Minn. 1977), cert. denied 435 U.S. 996 (1978). The Ruuds were convicted of filing false claims with the Minnesota counterpart of SRS. They had included some $40,000 of improper expenses in the cost report filed with Minnesota. The opinion in Ruud indicates that Minnesota made monthly payments to the Ruuds based upon the rate calculated by use of the false information contained the Cost Report. Whether a Cost Report is a “claim” was not directly addressed in Ruud. The opinion recites that, according to the State’s evidence, the inclusion of $40,049.36 in expenses improperly claimed as patient care costs resulted in overpayment of $15,723.68. In the case at hand, we have no evidence that Forms DFA 389A, Adult Care Home Service Claims, were filed, or that any claim or payment, let alone any excessive claim or overpayment, was ever made based upon false information contained in the Cost Reports.
In Evans v. United States, 11 F.2d 37 (4th Cir. 1926), the Court of Appeals held that a claim is not limited to the demand alone; it also includes the statement of facts set forth in support of the claim. We have no quarrel with that statement; but the opinion does not say that a statement of facts, absent a demand, constitutes a claim.
Other cases cited are distinguishable and not helpful. We agree that the statute does not require a showing that the claim was paid, or that the governmental entity actually paid money in reliance upon the claim. But under the regulations of SRS, the Cost Report is but a part of the claim process. It is the first step. The second step in the filing of an Adult Care Home Service Claim. The word “claim” has been variously defined in the context of its usage since the earliest Kansas cases. See Irwin v. Paulett, 1 Kan. 418, 426 (1863). As it is used in K.S.A. 21-3904, “claim” means a demand for something due or supposed to be due; a request for the payment of money. Here, the Cost Report, though false, was not a request for payment. By itself, it did not constitute a “claim” as that term is used in K.S.A. 21-3904.
We are not holding that no attempt was made to commit a crime, or that no crime was committed. We are not holding that the Cost Reports filed by and on behalf of the various nursing homes named above were lawful and proper. We are not holding that the filing of a spurious Cost Report, followed by the filing of an Adult Care Home Service claim for payment of money, is not the filing of a false claim. All we hold here is that a Cost Report, by and of itself, is not a “claim or demand” under the statute.
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by the State pursuant to K.S.A. 1987 Supp. 22-3602(b)(l) from the district court’s dismissal, upon defendant Stephen Trudell’s motion, of one count of aggravated vehicular homicide, K.S.A. 1987 Supp. 21-3405a.
This criminal prosecution grew out of the following facts: On the afternoon of June 29, 1986, Stephen Trudell was driving his car at a high rate of speed, trying to elude a pursuer with whom Trudell had fought after the pursuer and others had ejected him from a Wichita private club. In his haste, Trudell drove into the rear end of a pickup truck driven by Rickie Brixius, in which Patricia Brixius was a passenger. The collision caused the truck to smash into a light pole, propelling Patricia, who was approximately 25 weeks pregnant, from the truck. She was taken to a hospital for examination. The hospital staff discovered bruises on her abdomen. A fetal heartbeat was found at the time of the first examination, but all fetal activity had stopped by nightfall. After a stillborn birth of the fetus on July 2, 1986, it was determined that abnormal trauma to Patricia’s stomach had torn the placenta, blocking the blood supply to the fetus and resulting in its death. There was medical testimony the fetus had been viable before the accident.
Trudell was found to have a .208% alcohol level in his blood. He stipulates for the purpose of his motion to dismiss that there is a causal relationship between his operation of the motor vehicle while under the influence of alcohol and the death of the fetus.
Trudell was charged with one count of driving under the influence, a class A misdemeanor, K.S.A. 1987 Supp. 8-1567; and one count of aggravated vehicular homicide, a class E felony, K.S.A. 1987 Supp. 21-3405a.
Trudell moved for dismissal of the aggravated vehicular homicide count on the ground the facts did not support a cause of action under which he could be legally convicted. The district court heard the motion on March 6, 1987, and took it under advisement. The preliminary hearing was scheduled for March 13, 1987. Since the court had not reached a decision on the motion to dismiss by that date, it continued the preliminary hearing. The State objected to a continuation of the preliminary hearing and asked that the motion not be decided until after the preliminary hearing. The court overruled the objection on the grounds a preliminary hearing is a right accorded a defendant and not the State.
On April 2, 1987, Trudell waived his preliminary hearing. On the same day, the court dismissed the aggravated vehicular homicide charge with prejudice. The court then granted the State’s motion to dismiss the driving under the influence charge without prejudice. The State appealed the dismissal of the aggravated vehicular homicide count.
The issue on appeal is whether the district court erred in ruling a viable fetus is not a “human being” within the meaning of the aggravated vehicular homicide statute, K.S.A. 1987 Supp. 21-3405a, which reads:
“(1) Aggravated vehicular homicide is the unintentional killing of a human being, without malice, which is done while committing a violation of K.S.A. 8-1566, 8-1567 or 8-1568, and amendments thereto, or the ordinance of a city which prohibits any of the acts prohibited by those statutes.”
Under the common law, a human fetus was not a human being. Note, Judicial Recognition of Feticide: Usurping the Power of the Legislature?, 24 J. Fam. L. 43, 45 (1985-86). American case law accepted the common-law rule that the killing of a fetus was not criminal homicide unless it was born alive and then died of injuries inflicted prior to birth (the “born alive rule”). See the discussions in Keeler v. Superior Court, 2 Cal. 3d 619, 87 Cal. Rptr. 481, 470 P.2d 617 (1970); Commonwealth v. Cass, 392 Mass. 799, 805, 467 N.E.2d 1324 (1984); see Temkin, Prenatal Injury, Homicide, and the Draft Criminal Code, 45 Cambridge L.J. 414 (1986); Note, Criminal Law — Feticide—The Unborn Child as a “Human Being,” 45 Tul. L. Rev. 408 (1971).
The adoption of the bom alive rule by the courts was prompted in part by the state of medical science. At that time science was unable tp accurately establish the cause of fetal death. The high rate of prenatal mortality raised a presumption the fetus would not have been born alive in any event. See 24 J. Fam. L. at 45; Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L. Rev. 563, 567-80 (1987).
Kansas, however, early on modified the common-law rule by enacting a statute which made the killing of a viable fetus a homicide. Kansas’ first statute on the subject adopted the language of New York’s special feticide statute, which was the first to modify the common-law mle in the United States. The Kansas statute provided:
“The wilful killing of any unborn quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter in the first degree.” Kan. Terr. Stat. 1855, ch. 48,
This statute was in effect continuously from 1855 to 1969. See R.S. 1923, 21-409; G.S. 1949, 21-409; K.S.A. 21-409 (Corrick).
In 1969 the legislature repealed the entire criminal code and enacted a new code. L. 1969, ch. 180. The new code does not contain a statutory equivalent to former K.S.A. 21-409 (Corrick). It contains five homicide statutes: first-degree murder, K.S.A. 21-3401; second-degree murder, K.S.A. 21-3402; voluntary manslaughter, K.S A. 21-3403; involuntary manslaughter, K.S.A. 1987 Supp. 21-3404; and vehicular homicide, K.S.A. 21-3405. All five of these statutes refer to the homicide victim as a “human being.” Thus, for Kansas to have a criminal statute pertaining to the killing of a human embryo or fetus, other than for abortion, K.S.A. 21-3407, the term “human being” would have to apply.
There is no court decision in this state holding a viable fetus to be a “human being”. However, in State v. Burrell, 237 Kan. 303, 699 P.2d 499 (1985), with facts quite similar to the case at bar, we made a statement upon which the State relies. There, the criminal defendant killed a woman and her eighth-month viable fetus when he ran a stop sign while under the influence of alcohol. He was charged with two counts of involuntary manslaughter; one count for the death of the woman, and the other count for the death of her viable fetus. The only issue on appeal was whether the trial court erred in finding involuntary manslaughter had not been committed because the element of wantonness was not present. In dictum, however, we stated, “It was clearly established through the evidence at the preliminary hearing that the defendant had committed an unlawful act not amounting to a felony, namely, running a stop sign contrary to K.S.A. 8-1528, which resulted in the unintentional killing of two human beings.” 237 Kan. at 306.
We also had occasion in Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962), to decide whether an action could be maintained for the wrongful death of a viable unborn child under our former wrongful death statute, G.S. 1949 60-3203 (1959 Supp.). The statute read in part:
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter or his personal representative if the former might have maintained an action had he lived against the latter for an injury for the same act or omission.”
The facts in Hale were also similar to the instant case. A pregnant woman lost a viable fetus because of a car accident. We determined that the question under the statute was whether the unborn child would have been able, had it lived, to bring an action for injuries inflicted upon him before he was born. After noting other jurisdictions differed in whether such an action could be brought in the absence of specific statutory language allowing a right of action for prenatal injuries, we determined such a right existed in Kansas and therefore the parents had the right to bring the wrongful death action. We thus joined quite a number' of courts which have allowed wrongful death actions involving an unborn child despite lack of specific statutory language, beginning with Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949). See, e.g., White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); see Comment, Criminal Law — Viable Fetus is Person for Purposes of Massachusetts Vehicular Homicide Statute, 19 Suffolk U.L. Rev. 145, 147 (1985).
G.S. 1949, 60-3203 (1959 Supp.) was reenacted in 1963 as our present K.S.A. 60-1901, which reads as follows:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased.”
We note the legislature changed, without further explanation, the word “one” to “person” in the reenacted statute. The State argues the legislature adopted, in reenacting the statute, our holding in Hale and that, therefore, the word “person” in our present wrongful death statute includes an unborn viable fetus. It then argues it is illogical to consider a fetus a “person” under K.S.A. 60-1901, but not to consider the same fetus a “human being” under K.S.A. 1987 Supp. 21-3405a. It notes that, in ordinary language, “person” and “human being” are synonymous. Ordinary words are to be given their ordinary meaning in construing a statute. State v. Thompson, 237 Kan. 562, 566, 701 P.2d 694 (1985). The State argues the reason the legislature did not reenact our feticide statute, K.S.A. 21-409 (Corrick), in its 1969 revision of the criminal code was that in its reenactment of the wrongful death statute after Hale it intended the term “person” or “human being” to at all times include a fetus. The State makes a persuasive argument deserving serious consideration.
It is indeed presumed that the legislature acts with full knowledge as to judicial decisions on prior law. State v. Coley, 236 Kan. 672, 675, 694 P.2d 479 (1985). However, our largest hurdle is that a criminal statute, with its punitive effect, cannot be construed liberally for the State. The rule of strict construction of penal statutes against the State and for the accused is, according to Justice Marshall, “not much less old than construction itself.” United States v. Wiltberger, 18 U.S. (5 Wheat) 76, 95, 5 L. Ed. 37 (1820). Whereas a tort statute may be construed liberally in order to give effect to its remedial purpose, we may not give a different meaning to a word in a criminal statute than that word usually possesses. The word should not be given a meaning which leads to uncertainty or confusion if it is possible to construe it otherwise. State v. Thompson, 237 Kan. at 566; State v. Dubish, 234 Kan. 708, 712, 675 P.2d 877 (1984). See 19 Suffolk U.L. Rev. at 148-49.
Thus, the issue is clearly presented. Does the dictum in Burrell and our holding in Hale, a civil action construing G.S. 1949, 60-3203 (1959 Supp.), provide the necessary precedent for us to give a liberal construction to a criminal statute?
The matter of the rights of a fetus in vehicular homicide cases has been the subject of much litigation and research. See 19 Suffolk U.L. Rev. 145. The majority of jurisdictions which have confronted the issue has followed Keeler, 2 Cal. 3d 619, in holding the term “fetus” does not fall within the definition of a human being under criminal statutes unless the term is so defined by the legislature. The court in State v. Dickinson, 28 Ohio St. 2d 65, 275 N.E.2d 599 (1971), reversed a conviction of vehicular homicide, rejecting the district court’s reasoning that prior cases defining fetuses as “persons” for purposes of civil personal injury cases necessitated the same definition under the penal statute.
The same issue was presented in People v. Greer, 79 Ill. 2d 103, 402 N.E.2d 203 (1980), with the State claiming that, because a fetus was recognized as a “person” in tort law when the State’s criminal code was enacted, the legislature must therefore have considered a viable fetus to be a “human being” under the homicide statute. In rejecting this argument, the court pointed out the law has had a long history of protecting the fetus under some circumstances, such as in property cases, but not in others. 79 Ill. 2d at 112-15. See Keeler, 2 Cal. 3d at 638-39.
In State v. Amaro, 448 A.2d 1257 (R.I. 1982), the court rejected the same argument to the effect that, because it had previously construed “person” to include a viable fetus in a tort action, it must do so in a criminal case. The court held a statute in a civil case may properly be liberally construed to effect the remedy sought while a penal statute must be narrowly construed under due process to protect the rights of the accused.
In State v. Soto, 378 N.W.2d 625 (Minn. 1985), the court held the state’s vehicular homicide statute did not include a viable fetus within the statutory phrase “human being,” also rejecting the State’s argument that such a decision would be inconsistent because the court had previously recognized a wrongful death action for a viable fetus. The court held the different purposes of civil and criminal statutes necessitate different rules of construction. See Comment, Feticide: Murder in Kentucky? 71 Ky. L.J. 933, 947-48 (1982-83).
The Massachusetts and South Carolina Supreme Courts are the only, courts of last resort which have to this date recognized feticide in the absence of a specific statute. See 24 J. Fam. L. at 53-58.
The Massachusetts court had earlier decided a viable fetus would be considered a “person” for purposes of the State’s wrongful death statute. The court held, because the legislature was presumed to have knowledge of its previous decision and “person” is synonymous with “human being”, “[i]n the absence of any indication that the Legislature directed its attention to the problem,” a fetus was considered to be protected under the criminal code in order to maintain consistency with the earlier civil decision. Commonwealth v. Cass, 392 Mass. at 801-04.
The South Carolina court was also influenced by its earlier decision, twenty years previously, that a wrongful death action could be maintained for a viable fetus. The court felt consistency demanded the same definition under the civil and criminal statutes. State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984). Several states have since declined to follow the reasoning of these two courts. See People v. Vercelletto, 135 Misc. 2d 40, 514 N.Y.S.2d 177 (1987); State ex rel. Atkinson v. Wilson,_W. Va._, 332 S.E.2d 807 (1984); Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987).
However, in spite of the liberal construction they gave their criminal codes, both the Massachusetts and South Carolina courts agreed that their definitions of “person” to include a fetus under their state homicide statutes could not, under due process, be applied retroactively.
The retrospective application of an unforeseeable judicial enlargement of a criminal statute violates a criminal defendant’s due process right to advance notice as much as would the retrospective application of a new statute. Bouie v. City of Columbia, 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697 (1964). Such an enlargement would have the same effect as an ex post facto law forbidden by Article I, Section 10 of the United States Constitution.
It was concern for due process and the separation of powers which caused most courts faced with the present issue to find no criminal liability in the absence of action by the legislature. The leading case of Keeler, 2 Cal. 3d 619, held a construction of a criminal statute to include a viable fetus within the meaning of the term “human being” exceeds judicial power and denies the defendant due process of law. The court held that making a person criminally liable for the killing of a fetus was a legislative function since criminal law is statutory. See State v. McCall, 458 So. 2d 875 (Fla. Dist. App. 1984); State v. Brown, 378 So. 2d 916 (La. 1979); State v. Larsen, 578 P.2d 1280 (Utah 1978); State v. Dickinson, 28 Ohio St. 2d 65; see generally 21 Val. U.L. Rev. at 604.
The Michigan Court of Appeals, when faced with the issue, felt the common-law rule was outmoded due to medical advances, but held itself bound to follow common-law in the absence of a statute specifically defining the act as criminal. The court noted, “It is one thing to mold, change, and even reverse established principles of common-law in civil matters. It is quite another thing to do so in regard to criminal statutes.” People v. Guthrie, 97 Mich. App. 226, 232, 293 N.W.2d 775 (1980), app. denied 417 Mich. 1006 (1983).
As the district court in the instant case observed, if it is the desire of the people in Kansas to give the same protection to a fetus as it gives to a human being, it is the legislative branch which is the proper forum to resolve the issue. It is in that forum that the Constitutions require the issue to be addressed and it is that forum in which proper debate may go on. See Justice Wilkins’ dissent in Commonwealth v. Cass, 392 Mass. at 808.
The legislatures in several states have responded to judicial decisions on the issue in this case by enacting feticide statutes. The California Legislature, after Keeler, enacted a statute which provides, “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Cal. Penal Code § 187(a) (West 1988 Supp.); cf. People v. Carlson, 37 Cal. App. 3d 349, 112 Cal. Rptr. 321 (1974). Utah and Louisiana have also, in response to judicial decisions, amended their criminal statutes in order to punish the killing of a fetus. La. Rev. Stat. Ann. § 14:2(7) (West 1986); Utah Code Ann. § 76-5-201(1) (1983 Supp.); see State v. Gyles, 313 So. 2d 799 (La. 1975).
In the 1987 Kansas legislative session, bills were introduced in the House and Senate which would make criminal certain actions resulting in injury or death to an unborn child. Section 2(a) of the proposed act (Senate Bill 110; House Bill 2277) states:
“Criminal vehicular operation resulting in death to an unborn child is operating a vehicle in a grossly negligently manner or in a manner while under the influence of alcohol or drugs, or a combination of alcohol and drugs, in violation of K.S.A. 8-1567 and amendments thereto which result in death to an unborn child.”
Section 2 (b) provides: “Criminal vehicular operation resulting in death to an unborn child is a class E felony.” Both bills were referred to the Judiciary Committees during the 1987 legislative session. On January 27, 1988, the Senate Judiciary Committee recommended Senate Bill 110 not be passed. As of March 17, 1988, House Bill 2277 was still in committee.
The effect of such an act, if passed, would be to return to the pre-1969 modification of common-law in making the purposeful killing of a fetus a crime. The proposed bill would go further, however, in that proposed Section 1(d) defines “unborn child” as “the unborn offspring of a human being from the time of con ception until birth.” This would be a departure from previous Kansas law in that the fetus would not have to be viable before harm to it would be considered a crime. “Viability” refers to the physiological capability of the fetus to live outside the womb. Black’s Law Dictionary 1404 (5th ed. 1979). See Note, A Century of Change: Liability for Prenatal Injuries, 22 Washburn L.J. 268 (1983). A fetus generally reaches viability at between 24 to 28 weeks’ gestation. See 21 Val. U.L. Rev. at 569. The proposed legislative bills show the Kansas Legislature is aware of the failure of K.S.A. 1987 Supp. 21-3405ato make specific provisions for the protection of a fetus.
For the foregoing reasons, we hold the district court did not err in ruling that the term “human being” in K.S.A. 1987 Supp. 21-3405a does not include a fetus.
The State raises an additional issue in its brief, although it does not list it separately as required by Supreme Court Rule 6.02(e) (1987 Kan. Ct. R. Annot. 24). The State argues the district court was required to honor its request that a preliminary hearing be held before the court ruled on Trudell’s motion to dismiss the count of aggravated vehicular homicide. The State’s only citation in support of this argument is State v. Pigg, 80 Kan. 481, 484-85, 103 Pac. 121 (1909).
In Pigg, the defendant/appellant offered to waive a preliminary examination when he was brought up on a warrant charging him with larceny. The State asked, however, that an out-of-state witness against the defendant be examined by the court in order to furnish a basis for requiring a recognizance for his appearance at trial. From this testimony, probable cause was found that the defendant was guilty of larceny from the person, a different offense from that with which he was charged. He was therefore bound over to the district court to answer that charge. He was later tried on the offense and convicted. He appealed, arguing that when he offered to waive preliminary examination, the magistrate was required to bind him over to answer the original charge without hearing evidence. We affirmed his conviction, holding the magistrate had the discretion to hear the evidence offered by the State. Although agreeing the most common reasons for the requirement of a preliminary examination are to inform the defendant of the nature of the crime with which he is charged and to find if there is probable case for believing him guilty, we held the preliminary examination also may serve to determine bail and to perpetuate testimony which might otherwise be lost.
There is nothing in Pigg which indicates a district court does not have the discretion to decide a motion before preliminary examination. The State does not show how it was prejudiced by the court’s decision to do so. There was no argument about the facts in this case, and the matter of law the court had to decide in determining the motion to dismiss was vigorously briefed orally and in writing by both parties. The evidence from the record shows only that, had a preliminary examination been held before the motion was decided, it would have wasted both the parties’ and the court’s time. K.S.A. 1987 Supp. 22-2902 states that a defendant charged with a felony has the right to a preliminary examination. The State has no such right.
The district court acquires jurisdiction of a criminal case upon the filing of the complaint, information, or indictment and thus has the discretion to rule on a motion therein prior to preliminary examination if notice and appearance requirements have been met.
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The opinion of the court was delivered by
Lockett, J.:
Kenneth Rasch appeals convictions of four counts of aggravated robbery, K.S.A. 21-3427, one count of attempted aggravated robbery, K.S.A. 21-3427 and K.S.A. 1987 Supp. 21-3301, and two counts of aggravated battery, K.S.A. 21-3414. Rasch contends (1) that his convictions for aggravated robbery should be reversed because the State did not amend the jurisdictionally defective complaint by interlineation or by filing an amended complaint, and..(2) that the trial court erred by admitting Rasch’s incriminating statements.
On September 11, 1986, a man and woman, later identified as the defendant Kenneth Rasch and his companion Glenna Preston, entered the State Street Club in Lindsborg, Kansas. After having drinks, the couple left the club. Shortly thereafter, Rasch re-entered the club and ordered the bartender to give him the money from the cash drawer. When the bartender hesitated, Rasch held a loaded pistol to the bartender’s neck. The bartender placed approximately $118.00 from the cash register on the bar.
When one of the six Bethany College students in the establishment approached the bar, the defendant pointed the gun at him and demanded and received the student’s money. Rasch then struck one of the female students with the gun. When one of her male companions attempted to assist her, Rasch struck him with the gun. Rasch then ordered everyone to stand behind the bar, place their money on the bar, and lie down. One of the students grabbed Rasch and wrestled him to the floor while others summoned the police. After the police arrived, Rasch was taken to the hospital and treated for lacerations he received while being apprehended.
As police interviewed witnesses, Glenna Preston drove up in front of the bar and told an officer that she had been there earlier “with someone else.” The officer took Preston to the hospital to see if she could identify the robber. At the hospital emergency room, Preston initially denied knowing Rasch. Feeling Preston was lying, the officer arrested her as an accomplice to the crime, and then handcuffed her. When Preston stated that she should take another look to see if she could identify the robber, the officer took her back into the emergency room. Preston walked over to Rasch and stated, “Look what you’ve got me into.” Rasch answered, “Sorry I got you into this mess.” At trial, Rasch’s incriminating statement was admitted. All eight persons present at the bar positively identified Rasch as the robber. Rasch was convicted of all counts.
Rasch first contends that the complaint was jurisdictionally defective and his conviction for aggravated robbery void because in each of the four aggravated robbery counts the complaint failed to allege an essential element: that the taking was by force or threat of harm. Robbery is defined as the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force. K.S.A. 21-3426. Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3427.
Each of the counts filed against defendant stated:
“Count I: . . . feloniously and willfully take property, to wit: [$5.00] in cash from the person of [John M. Paulsen] while the said Kenneth Rasch was armed with a dangerous weapon, to-wit: a .32 caliber handgun, contrary to K.S.A. 21-3427 the penalty sections being K.S.A. 21-4501(b) and 21-4503(l)(a) a Class B Felony.”
Nearly two months before trial, the prosecutor recognized the omission in the complaint and orally moved to amend the charges. Without objection from defendant, a journal entry was filed which stated:
“NOW ON THIS 1st day of December, 1986, this matter comes on upon the oral motion of the State of Kansas to amend the complaints in Count I of 86 CR 2233 and Counts I, II and III in 86 CR 2239 by adding the language ‘by force’ after the word property in the first sentence of each count and to amend Count IV of 86 CR 2239 by adding the language ‘by force’ after the word crime in the fourth sentence of said count. The State of Kansas appears by Ty Kaufman, McPherson County Attorney; the defendant appears in person and with his counsel, John B. Klenda.
“Thereupon, the State makes its argument and the defendant indicates that he has no objection to the amendments as proposed by the State and the Court having heard the arguments and statements of counsel ORDERS that the complaints in 86 CR 2233 and 86 CR 2239 be amended by adding the language ‘by force’ at the places indicated herein.
“It is so Ordered.”
Conceding that the complaints as originally filed lacked the statutory language “[b]y threat of bodily harm. . . or by force,” the State argues that the journal entry cured the defective complaint.
Historically, the purpose of the information or complaint was twofold: (1) to disclose sufficient factual information to enable a magistrate to make an intelligent and impartial finding that there is probable cause to believe that a specific crime has been committed by the defendant and (2) to inform the defendant of the particular offense alleged to have been committed and to protect him against double jeopardy. State v. Jones, 242 Kan. 385, 394, 748 P.2d 839 (1988); 41 Am. Jur. 2d, Indictments and Informations § 3, p. 882.
Early Kansas cases held that an information was sufficient if it fairly apprised the defendant of the crime charged against him and was definite enough so that the court would have no trouble in ascertaining the correct sentence to impose. State v. McCarthy, 124 Kan. 20, 257 Pac. 925 (1927); State v. Hutzel, 108 Kan. 456, 195 Pac. 887 (1921). In State v. Neer, 169 Kan. 743, 222 P.2d 558 (1950), the defendant contended that the information charging him with burglary was insufficient in that it did not contain the element of “entering.” This court concluded that the information, which charged defendant with breaking into a building was sufficient, and that no information would be found insufficient which did not substantially prejudice the rights of the defendant. 169 Kan. at 746. A conviction based on a complaint or information which did not substantially prejudice the rights of a defendant was valid if the jury had been properly instructed on the elements of the crime.
State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966), changed the law regarding the sufficiency of complaints. Minor was charged with first-degree manslaughter. The complaint alleged first-degree manslaughter as defined by the then-controlling statute, K.S.A. 21-407 (Corrick), which stated:
“The killing of a human being without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree.”
Raising the issue sua sponte, the Minor court took exception to the fact that the complaint failed to allege that the killing described would be murder at common law and reversed Minor’s conviction, stating:
“In Kansas all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute. Where an information, as here, fails to allege an essential element of manslaughter in the first degree, it cannot be cured by the court or the parties proceeding to trial, as if the information did charge manslaughter in the first degree, and a judgment of conviction for manslaughter in the first degree based upon an information which does not charge such offense is void for lack of jurisdiction of the subject matter.” 169 Kan. at 299.
Since Minor, this court has reversed a number of criminal convictions on the basis that the complaints failed as jurisdictional instruments. Rasch relies upon State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979), where defendants appealed from their convictions of aggravated robbery, arguing that even though the information alleged an unlawful, willful, and felonious taking while armed with a dangerous weapon, it was jurisdictionally defective because it failed to allege that the taking was done by force or threat of bodily harm. Citing Minor, the Howell & Taylor court found the failure to include in the information the element of taking by force or by threat of bodily harm omitted an essential element of the crime, and this court reversed defendants’ convictions. The court further noted that neither the evidence introduced at trial nor the jury instructions could cure the jurisdictional deficiency of an information. See State v. Slansky, 239 Kan. 450, 720 P.2d 1054 (1986), and State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986).
Prosecutions in the district court are upon a complaint, indictment, or information. The charging document is a plain and concise written statement of the essential facts constituting the crime charged, and may be in the language of the statute. It states for each count the official or customary citation of the statute, rule or regulation, or provision of the law which the defendant is alleged to have violated. Error in the citation or its omission is not grounds for dismissal of the charging document or for reversal of a conviction if the error or omission did not prejudice the defendant. 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. K.S.A. 1987 Supp. 22-3201.
By statute, the only pleadings required to be filed by the State in a criminal proceeding are the complaint, information, or indictment, and the bill of particulars when ordered. Defenses and objections based on defects in the institution of the prosecution or in the complaint, information, or indictment other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as provided by statute constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the complaint, information, or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding. A plea of guilty or a consent to trial upon a complaint, information, or indictment shall constitute a waiver of defenses and objections based upon the institution of the prosecution or defects in the charging document other than it fails to show jurisdiction in the court or to charge a crime. K.S.A. 22-3208.
The State claims that the oral motion to amend the complaint and the subsequent journal entry cured the insufficiency of the complaint. The State argues because there was no motion to amend the defective complaint in State v. Howell & Taylor, that case is not controlling. We agree.
In State v. Wilson, 240 Kan. 606, 731 P.2d 306 (1987), this court indicated a willingness to accept an oral amendment to cure a jurisdictionally deficient information. Wilson was charged with murder in the first degree and convicted of murder in the second degree. The information omitted the statutory requirement that defendant acted maliciously, deliberately and with premeditation. This court found that the information charged neither first-degree murder nor any other degree of criminal homicide. During the trial, the prosecutor suggested that the information needed to be amended, but made no written or oral motion to amend the information. The trial judge stated, “The State’s motion to amend to conform to the evidence is sustained.” The State never stated on the record the substance of or the precise wording which the State wished to insert in or strike from the information. Because the record was silent as to the exact change the prosecutor wished to make, the Wilson court found that the defective information had never been amended to charge a crime, and then stated:
“Informations are required to be in writing, and may be amended at any time with leave of court before verdict or finding ‘if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.’ K.S.A. 1985 Supp. 22-3201(2) and (4).” 240 Kan. at 608.
“Where leave is granted to the prosecution to amend an information, the amendment must be made either (a) by filing an amended information, or (b) by striking out or writing in the pertinent matter by interlineation upon the document on file.” 240 Kan. at 608.
Here, on the record, the prosecutor made a specific motion to amend the complaint to include the language “by force” and specified the particular places in the complaint where the amendment was to be inserted. The court inquired whether the defendant had any objection and defendant answered no. Four days later, and nearly two months before trial, a written journal entry, approved by Rasch’s counsel, was filed with the court noting the amendment with particularity and specifying the exact places in the complaint where the amended language was to be inserted.
When the defendant and his attorney are present and permission is obtained from the judge, the State may orally amend the complaint or information any time before the verdict or finding, if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced. When the jury has been properly instructed on the elements of the crime, a complaint or information which the State has orally amended to correct a deficiency is valid unless the substantial rights of the defendant are prejudiced. The amendment to the complaint or information may be shown by interlineation on the complaint or information, by the filing of an amended complaint or information, or by a journal entry stating the amendment to the complaint or information. We agree with the State’s reasoning that its oral motion stating the amendment, followed by a written journal entry containing the amendment made on the record with the defendant and his attorney present and later approved by defendant’s counsel, gave Rasch adequate notice of the crimes with which he was charged and satisfied all jursdictional requirements.
Rasch also claims that since the officer had not advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the incriminating statement he made to his girlfriend Preston in the hospital emergency room should have been suppressed and that its admission was reversible error. Rasch argues that he was the focus of the investigation at the time the statement was made and that the statement was “extracted” from him by “forcing” Preston to become a surreptitious informant. He claims the officer’s acts in this case were similar to police practices condemned in Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964), and State v. McCorgary, 224 Kan. 677, 585 P.2d 1024 (1978).
To recapitulate: After the crime had been committed, Glenna Preston drove up to the club. She stated to the police officer that she had been at the club earlier. Up to that point, the police knew that they had apprehended the man who had robbed the individuals in the club, but had been unable to identify the defendant by name. The officer then took Preston to the hospital to see if she could assist with the identification. At the emergency room, Preston initially stated that the defendant’s name was Kevin. The officer then asked if defendant was the person who had accompanied her to the club. Preston stated she didn’t recognize the defendant. Defendant then stated: “[WJho’s she, what’s she doing in here, get out of here.”
The officer and Preston left the emergency room. The officer felt Preston was lying. He handcuffed Preston and arrested her as an accessory to the crime. The officer testified that, at that time, Preston stated maybe she could identify the defendant. She walked over to defendant, held up the handcuffs and stated: “Look what you’ve got me into.” Defendant answered: “Sorry I got you into this mess. Thanks for the ride.”
Defendant’s attempt to equate these facts with the facts of Massiah and McCorgary must fail. Massiah and McCorgary both dealt with the clandestine interrogation of an indicted defendant in the absence of counsel. The facts of the case at bar do not rise (or fall) to this level. The defendant was in custody, but Preston was not an undercover agent planted to trick the defendant into confessing. Here, the purpose of Preston’s presence was identification, not interrogation. She was not forced to re-enter the emergency room, but volunteered to do so. Defendant’s statements were not elicited by interrogation, but rather were voluntary, spontaneous statements. Incriminating statements which are made freely and voluntarily without threat of force or compulsion are not barred by the failure to inform a defendant of his rights under Miranda. State v. Sparks, 217 Kan. 204, Syl. ¶ 5, 535 P.2d 901 (1975).
Defendant’s conviction was based on the identification by eight eyewitnesses, all of whom positively identified defendant as the perpetrator. The only defense raised by defendant was the defense of voluntary intoxication. We have no hesitation in holding that the admission into evidence of the defendant’s voluntary statement to his girlfriend was proper.
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Per Curiam:
This is an original action in discipline. The hearing panel on November 3,1987, unanimously recommended that the respondent be disbarred. The court adopts the panel’s recommendation.
Respondent advised the panel that it was his desire to stipulate to the truth of all of the allegations contained in the formal complaint. Before accepting the stipulation, the panel received affirmative answers from respondent to the following three questions:
1. Was the respondent admitting the allegations contained in paragraphs 1 through 15, inclusive, of the formal complaint because those allegations were true, correct, and accurate?
2. Was the respondent aware that the allegations contained in the formal complaint, if true, established serious violations of the Code of Professional Responsibility?
3. Was the respondent aware that by admitting the allegations of misconduct set forth in the formal complaint that the panel would most likely recommend to the Supreme Court that the respondent be disbarred?
The respondent further advised the panel that as soon as his last remaining bankruptcy case was completed, he intended to voluntarily surrender his license to practice law in Kansas and to move to the State of California. He did not plan to further engage in the practice of law.
Marvin and Barbara Cox, the parents of respondent’s clients, were killed in an automobile accident in Wisconsin. Respondent was retained by the four Cox sons to represent the estates of Marvin and Barbara Cox and to take necessary action to assure that a wrongful death action was filed.
Respondent filed a petition for issuance of letters of adminis tration in the estates of Marvin E. and Barbara Cox. Subsequent to the issuance of the letters of administration no further filings were made by respondent in the probate case. Respondent failed to file an inventory and neglected to file appropriate documents regarding federal estate tax and Kansas inheritance tax.
Respondent wrote to the Cox brothers and told them of an upcoming meeting with the Aetna adjustor at respondent’s office. Mike Cox came to the office. After waiting three hours, Mr. Cox was told by respondent that Aetna had canceled the meeting. At this time, respondent was instructed by the Cox brothers to file a wrongful death suit. Respondent promised to do so within the next few days.
From late January 1986, until the middle of March of that year, respondent assured the Cox brothers that he was negotiating with Aetna. The brothers were again to meet with the Aetna adjustor at respondent’s office. After arriving, the brothers were informed by respondent that the Aetna adjustor had again canceled the meeting. The brothers contacted respondent numerous times by phone. On one occasion they were told by respondent that there was a pretrial conference set in the wrongful death case on June 1, 1986, and that the trial in the case would be held in the federal court in Wichita on August 27, 1986.
In June of 1986, Mike Cox talked to another attorney about the wrongful death case. That attorney checked court records and found that no wrongful death case was filed. The brothers confronted respondent and respondent admitted that he had lied to them about filing the wrongful death case. In addition, respondent admitted that he had lied to the Coxes about there being meetings with the Aetna adjustor in respondent’s office.
Respondent has neglected a legal matter entrusted to him. As a result of this neglect, the Cox brothers suffered monetary damages. The brothers lost more than $70,000 as a result of respondent’s neglect to timely complete his settlement with the Aetna Life Insurance Company and by respondent’s failure to timely file federal estate tax returns and state inheritance tax returns.
The respondent offered no evidence.
The respondent declined the panel’s invitation to make a statement in his behalf.
The panel found by clear and convincing evidence that the allegations of the formal complaint were true, accurate, and correct.
The panel concluded that the respondent violated DR 1-102(A)(4) (1987 Kan. Ct. R. Annot. 123) by engaging in conduct involving dishonesty, fraud, and deceit and that the respondent violated DR 6-101(A)(3) (1987 Kan. Ct. R. Annot. 143) by neglecting legal matters entrusted to him.
The court agrees with the findings and conclusions of the panel.
It is Ordered that William L. Winkley be and he is hereby disbarred from the practice of law in the State of Kansas. The privilege and license of William L. Winkley to practice law in this state are hereby revoked. The clerk of this court is directed to strike the name of William L. Winkley from the roll of attorneys in the State of Kansas.
It is Further Ordered that: (1) William L. Winkley shall forthwith comply with the provisions of Supreme Court Rule 218 (1987 Kan. Ct. R. Annot. 116); (2) this order shall be published in the official Kansas Reports; and (3) the costs of this action shall be assessed to the respondent. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendants Charles J. Schlein and Robert W. Burgoon were each convicted of one count of gambling in violation of K.S.A. 21-4303(b) (entering or remaining in a “gambling place” with intent to make a bet). Schlein and Burgoon each were separately sentenced to serve 30 days in the Johnson County Adult Detention Center and fined $150.
Both appealed, claiming the State failed to prove the place they had entered or remained in was a “gambling place.” Schlein also claims that the trial court’s instructions failed to define a gambling place. The Court of Appeals reversed their convictions. 17 Kan. App. 2d 434, 839 P.2d 58 (1992). The State’s petition for review was granted.
James Carmack, special agent with the Kansas Bureau of Investigation (KBI), discovered a flier at the Woodlands racetrack advertising an annual marathon poker tournament. The flier included a map showing the location, date, and time the tournament would be played. On the date advertised in the flier, KBI agents and Overland Park police officers investigated the poker tournament being held at the location stated in the flier, a residential address in Johnson County, Kansas.
Police detective John Jackson, wired with a transmitter and working undercover, went to the residence and asked the suspected tournament organizer if he might participate in the tournament. After Jackson paid the organizer an entry fee of $150, he was escorted next door to the adjoining half of the two-story duplex. The suspected tournament organizer was the lessee of both premises. Half of the duplex was occupied as his family residence. Jackson walked through the lower level of the tournament half of the duplex, going from room to room. He observed only a table and chairs in the dining room and a sofa and television in the living room.
Approximately eight men were present when Jackson arrived. Jackson watched other individuals arrive. Each paid the $150 entry fee. While waiting for the tournament to commence, Jackson read information supplied by the tournament organizer. It explained the entry fees, a breakdown of how the money would be paid to the winners, what poker games would be played, how much betting would be allowed in each round, the times the players would be playing, break times, and the rules of the tournament.
Eventually, 22 people, including Jackson, assembled to play poker. The tournament organizer gathered the players together, explained the rules, and assigned each player a number that corresponded to a chair on the second floor in which the player would be seated.
The players then went upstairs. Green-topped card tables had been placed in each of the three upstairs rooms. At each card table were chairs with numbers on them. Poker chips and playing cards were on each table. No other furnishings were in the rooms. Jackson located his assigned chair in one of the rooms. He began playing various poker games with other players, using the poker chips to bet. Jackson left his chair twice, looked, into the other two rooms, and observed other individuals playing poker.
At approximately midnight, after Jackson signaled, the other •police officers and the KBI agents entered the home and arrested the tournament players. The KBI agents seized several gambling related items, including four card tables, a number of stacking chairs, numerous boxes of poker chips, playing cards, $1,777 in cash, a tournament survey sheet, "tournament rules and information sheets, and a trophy etched with “St. Patrick’s Day Marathon Poker Championship” and the prior winners’ names dating back to 1987.
Complaints were filed against Schlein and Burgoon alleging each had engaged in gambling in violation of K.S.A. 21-4303(b). During Schlein’s trial, Detective Jackson testified that at one time he patrolled the area of Overland Park in which the residence is located. Jackson admitted that he had never heard of gambling taking place on the premises before the night of the tournament. Jackson stated that to his knowledge the property had never been used previously for gambling purposes. Special agent Carmack testified he did not know whether the residence had ever been used for gambling prior to the poker tournament and, to his knowledge, the premises were used for gambling only on this one occasion.
At the close of the State’s evidence, Schlein moved the trial court for judgment of acquittal, asserting the State had failed to prove he had entéred and remained in a gambling place for the purpose of making a bet. Schlein argued the State had failed to prove that the premises had been used previously as a gambling place.
In ruling on a motion for judgment of acquittal, if a trial judge concludes from the evidence that a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt, the motion must be denied and the case must go to the jury. The trial court denied Schlein’s motion. On appeal, the reviewing court must decide whether a rational factfinder could have found the accused guilty beyond a reasonable doubt. State v. Crichton, 13 Kan. App. 2d 213, 218-19, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989).
During the jury instruction conference, Schlein objected to the trial court’s instruction on die elements of the crime of gambling and requested his proposed instruction be given. The trial court overruled Schlein’s objection. After deliberations, the jury found Schlein guilty.
Burgoon did not request a jury trial. In a trial to the court, Burgoon and the State stipulated that (1) there was a poker tournament, which involved the playing of cards, betting, and the exchange of money which took place at a house address in Overland Park, Johnson County, Kansas; (2) this place was an unoccupied one-half of a duplex which contained poker tables, poker chips, playing cards, and poker rules and game schedules; (3) the defendant took part in the tournament and he willfully entered and remained in the- house with the intent to make a bet; (4) the winners of the tournament were to receive cash prizes; and (5) this tournament had been held in prior years at various locations. The stipulation also indicated the State had and would offer as evidence poker rules, a trophy, poker player names including the name of Robert W. Burgoon, and other written paraphernalia. Based upon the stipulation, the trial court found Burgoon guilty.
On appeal, Schlein contends the trial court erred in denying his motion for judgment of acquittal, while Burgoon contends the trial court erred in finding him guilty, because the State did not prove they had entered a “gambling place.” The defendants argued to the trial court there was no evidence that the residence had a reputation as a gambling place or that the residence was frequently visited by persons known to be commercial gamblers. The defendants asserted K.S.A. 21-4303(b) contemplates something more than one evening of gambling at a location before the statute is violated.
Gambling is entering or remaining in a gambling place with intent to make a bet, to participate in a lottery, or to play a gambling device. K.S.A. 21-4303(b). A “gambling place” is any place, room, building, vehicle, tent, or location which is used for any of the following: making and settling bets; receiving, holding, recording, or forwarding bets or offers to bet; conducting lotteries; or playing gambling devices. Evidence that the place has a general reputation as a gambling place or that, at or about the time in question, it was frequently visited by persons known to be commercial gamblers or known as . frequenters of gambling places is admissible on the issue of whether it is a gambling place. K.S.A. 21-4302(5)..
The question presented to the Court of Appeals by Schlein and Burgoon in their consolidated appeals was whether evidence that the premises had previously been used as a gambling place is required to prove they entered a gambling place with the intent to make a bet. Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 1, 829 P.2d 561 (1992). Penal statutes must be strictly construed in favor of the persons sought to be subject to them. State v. Thompson, 237 Kan. 562, 566, 701 P.2d 694 (1985).
The State contended K.S.A. 21-4302(5), which defines “gambling place,” is quite broad in scope- and is not limited to places that have a reputation as a gambling place. The State asserts any place where gambling occurs may qualify as a gambling place if it is being used for the purposes described in K.S.A. 21-4302(5). The State argues that half of the duplex where the gambling occurred was not being used as a residence but was being used solely for the puipose of housing an elaborately organized marathon poker tournament. The State contends this is sufficient evidence to show the defendants entered into a “gambling place” with the intent to place a bet.
The Court of Appeals observed that the definition of gambling place found in K.S.A. 21-4302(5) is similar to the definition of gambling place set forth in Wis. Stat. § 945.01(4)(a) and (b) (1991), which states:
“(a) A gambling place is any building or tent, any vehicle (whether self-propelled or not) or any room within any of them, one of whose principal uses is any of the following: making and settling bets; receiving, holding, recording or forwarding bets or offers to bet; conducting lotteries; or playing gambling machines.
“(b) Evidence that the place has a general reputation as a gambling place or that, at or about the time in question, it was frequently visited by persons known to be professional gamblers or known as frequenters of gambling places is admissible on the issue of whether it is a gambling place.”
(We note the New Mexico statute prohibiting gambling, N.M. Stat. Ann. § 30-19-1.E (Michie 1992 Supp.), when defining a gambling place, also expressly requires proof that one of the principal uses of the premises is gambling.)
In State v. Nixa, 121 Wis. 2d 160, 360 N.W.2d 52 (1984), the Wisconsin Court of Appeals was required to interpret the definition of “gambling place” in Wis. Stat. § 945.01(4) and determine whether the evidence sustained the defendant’s conviction on a charge of illegally remaining in a gambling place. Nixa had been arrested after allegedly participating in a gambling party in the recreational building of an apartment complex. The arrest followed an investigation by the sheriff’s department and city police conducted after the sheriff’s department received an anonymous telephone call about the gambling party. Upon arriving at the apartment complex, the police discovered a room fully equipped with gambling tables and related paraphernalia and crowded with people eating, drinking, and gambling. Nixa was charged with one count of making a bet and one count of entering and remaining in a gambling place. Nixa unsuccessfully moved to dismiss the charge of remaining in a gambling place, contending the one-time use of the apartment recreational building for gambling did not constitute a gambling place under Wis. Stat. § 945.01(4). 121 Wis. 2d at 162.
The Wisconsin Court of Appeals observed that various terms in the statute suggest that prior gambling activity is essential for a location to be considered a gambling place. The definition in subsection (a) of Wis. Stat. § 945.01(4) provides that a location may be considered a gambling place if one of its principal uses is gambling. The court noted subsection (b) provides that evidence showing a place has a reputation for gambling or is frequently visited by gamblers or people known as frequenters of gambling places is admissible on this question and concluded the term “one of whose principal uses” implies a pattern of similar use on a prior occasion or occasions. 121 Wis. 2d at 164.
The Nixa court, quoting State v. Morrissy, 25 Wis. 2d 638, 642-43, 131 N.W.2d 366 (1964), reasoned that die use of a place or room at any given time may determine its principal use at that time but for the purpose of Wis. Stat. § 945.01(4), such use must be considered in light of the overall or other uses of the place or room. 121 Wis. 2d at 165. The Nixa court concluded under the circumstances evidence of prior gambling activity was necessary to prove the existence of a gambling place, held the evidence was insufficient, as a matter of law, to satisfy the element of the offense requiring proof of a gambling place, and reversed Nixa’s conviction. 121 Wis. 2d at 164.
Our Court of Appeals observed that several of our sister states have held that more than one occasion of gambling must be shown to prove the premises is a gambling place. For authority it cited State v. Cieri, 128 Conn. 149, 151-52, 20 A.2d 733 (1941) (“[T]he use of a place to render it a gambling house must be frequent, customary, common or habitual . . . and a single act of gaming is insufficient to constitute it a gaming house.”); Glisson v. State, 208 So. 2d 274 (Fla. Dist. App. 1968) (evidence must show gambling had been habitually carried on in house in question); Whatley v. State, 189 Ga. App. 173, 174, 375 S.E.2d 245 (1988), cert, denied 189 Ga. App. 913 (1989) (evidence is required that gambling activity had been occurring on premises on an ongoing basis); People ex rel. Guido v. Calkins, 13 Misc. 2d 791, 793, 178 N.Y.S.2d 385 (1958) (a gambling establishment is not one set up to exist for a moment, but is a regular place for the transaction of gambling as a business); and Schepps v. City of El Paso, 338 S.W.2d 955, 959 (Tex. Civ. App. I960) (one occasion of gambling in a house will not be sufficient evidence to find the premises is a gambling house). It noted that the court in Calkins stated: “ ‘[Assisting in the operation of a gambling establishment ... is to be distinguished from the occasional placing of a bet or the wagering which occurs between friends, as an incident or form of recreation.’ 13 Misc. 2d at 793.” 17 Kan. App. 2d at 441. For a minority view that one instance of gambling is sufficient to render a premises a gambling place, it noted People v. Smith, 50 Ill. App. 2d 361, 365, 200 N.E.2d 748 (1964).
After reviewing relevant gambling statutes from other states, cases interpreting such statutes, and K.S.A. 21-4302 and 21-4303, the Court of Appeals pointed out that the Kansas Judicial Council notes following K.S.A. 21-4303 provide:
“ ‘Under subsection (b) it must be proved that (1) the offender entered or remained in a gambling place, i.e., a structure, one of whose principal uses is for making and settling bets, receiving, holding, recording or forwarding bets or offers to bet, conduct lotteries, or playing gambling devices [21-4302(5)] and (2) that the offender had an intent to make a bargain which is a bet under 21-4302(1) or to participate in an enterprise which is a lottery under 21-4302(2) or to play a contrivance which is a gambling device under 21-4302(4).’ (Emphasis supplied.)” 17 Kan. App. 2d at 438.
It observed that although the notes and comments of the Judicial Council do not have the force and effect of law and are advisory only, they may be one indication of legislative intent, citing State v. Noah, 246 Kan. 291, Syl. ¶ 3, 788 P.2d 257 (1990). It pointed out that the Judicial Council notes following K.S.A. 21-4305 and K.S.A. 21-4308 also refer to a gambling place as a place or structure, one of whose principal uses is for making and settling bets. In addition, it observed that the Judicial Council notes following K.S.A. 21-4302 state the statutes of Wisconsin, New Mexico, and Colorado were consulted in preparing that section, K.S.A. 21-4303, and certain other Kansas criminal statutes relevant to gambling. 17 Kan. App. 2d at 438. The Court of Appeals concluded that although
“the language of K.S.A. 21-4302(5) defining a gambling place does not include the phrase ‘one of whose principal uses,’ the Judicial Council notes following K.S.A. 21-4303 clearly show the legislature intended that under K.S.A. 21-4303(b) the State must prove the defendant entered or remained in a gambling place, i.e., a structure, ‘one of whose principal uses is for making and settling bets.’ (Emphasis supplied.)” 17 Kan. App. 2d at 440.
The Court of Appeals found that the evidence was clear that the premises, at no previous time, had the reputation of a gambling place or had been used as such. It found that because the State failed to establish that the residence was a gambling place within the meaning of K.S.A. 21-4302(5), Schlein’s and Burgoon’s convictions for a violation of K.S.A. 21-4303(b) must be reversed.
Judge Rulon dissented, finding the statutory language in K.S.A. 21-4303(b) and K.S.A. 21-4302(5) clear and unambiguous. Judge Rulon concluded, “There is no statutory requirement that more than one instance of gambling occur before a premises is rendered a gambling place. Judicial Council notes are not the equivalent of statutory law” (17 Kan. App. 2d at 443), and he also disagreed with the majority’s decision that the district court erred when instructing the jury. Judge Rulon’s use of the phrase “more than one instance of gambling” refers to use of a premises for gambling on different occasions.
We disagree with the analysis of the cases the majority of the Court of Appeals cites for the proposition that evidence that the premises had previously been used for gambling is required to prove the accused entered the premises in order to gamble. We find these cases distinguishable based on their facts.
In State v. Cieri, 128 Conn. 149, two partners owned and operated a restaurant. On a day when the defendant was absent and the partner was in charge of the premises, two police officers in civilian clothes entered the restaurant and each ordered a glass of beer. One officer played a pinball machine. When the indicator showed the officer was entitled to a free game, the officer inquired of the partner in charge if he could have a cigar rather than the free game. The partner in charge of the premises handed a cigar to the officer as an award for a free game. The officers then played the machine for 35 or 40 minutes without winning, expending $2.15 in the process. The defendant, although he was. not present, was convicted of keeping a place for the purpose of gaming.
The appellate court in Cieri noted that to “keep a place,” as used in the relevant statute, means an appropriation of the place by the person in control for the conduct of his business therein. The court observed although the pinball machine had been located in the restaurant for three months, it was not a gambling machine per se. The court found that the only evidence that the pinball machine was used for gambling was the time it was used by the officers. The court concluded that the single incident of gaming was insufficient to establish that the defendant, who was not present at the time the offense occurred, was guilty of keeping a place for the purpose of gaming. 128 Conn, at 151-52.
In Whatley v. State, 189 Ga. App. 173, the defendant was charged with intentionally operating and participating in the earnings of a gambling place. A gambling place was defined by statute as any real estáte or other property whatsoever, one of the principal uses of which is the making or settling of bets or the playing of gambling devices. All the evidence obtained against the defendant was seized from his home during the execution of a search warrant for marijuana. The evidence offered in support of a commercial gambling charge consisted of several hundred parlay stubs and a notebook containing notations on football games and betting amounts. At trial, there was no evidence that these items had been on the premises except on the day seized, nor was there any evidence that gambling activity had occurred on the premises. The court determined there was no inference that the conduct of gambling operations was “one of the principal uses” of the residence and therefore it could not conclude the house was being used as a “gambling place” within the meaning of the statute. The defendant’s conviction was reversed. 189 Ga. App. at 174.
In Schepps v. City of El Paso, 338 S.W. 2d 955, several persons, including the defendant, agreed to shoot dice. They assembled in a house owned by the mother of one of the players. The house was vacant at the time. Officers of the vice squad, peeking through the window of the house, observed a dice game, obtained a search warrant, and with the help of other officers raided the house. The officers seized two pair of dice, one blanket, and $3,675 in cash. The defendant was arrested and charged with gambling. The question before the appellate court was whether the officers had the right to seize the money used in a gambling game open to the public. The court noted Texas law contemplated and only authorized confiscation of money found in gambling devices such as slot machines, pinball máchines, etc., and not money whose title and possession are undisputed, as in this case. The monies were not in fact used in the gambling device but were the fruits of gambling. The court noted that the statute that allowed officers to seize money required that the seizure be made in a gambling house. The court concluded there was no evidence that the house was open to the public for gambling. 338 S.W. 2d at 958-59. ...
In People ex rel. Guido v. Calkins, 13 Misc. 2d 791, the defendant was arrested and charged in the information with wrongly, unjustly, unlawfully, and knowingly committing the crime of common gambling. The information alleged that on April 22, 1958, in the city and county of Schenectady at about 3:45 p.m., , the defendant aided and abetted in the operation of the gambling establishment known as the Albany Street Card Shop. The issue was whether the information failed to particularize the defendant’s wrong. The county court found that the common, normal, ordinary meaning of the words used in the information stated with clarity that the defendant, at the time and place specified, was a common gambler and engaged in the operation of a gambling establishment. It noted that assisting in the operation of a gambling establishment, as the defendant therein was charged, is to be distinguished from the occasional placing of a bet or. the wagering which occurs between friends as an incident or form of recreation. The court found that the information was sufficient. 13 Mise. 2d at 793.
The question of the application of a statute to a given set of facts is a question of law. Brookover Feed Yards, Inc. v. Carlton, Commissioner, 213 Kan. 684, 687, 518 P.2d .470 (1974). The rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate, legislative design .and the true intent of the legislature. State v. Gonzales, 245 Kan. 691,. 705, 783 P.2d 1239 (1989) (quoting State v. Carmichael, 240 Kan. 149, 159, 727 P.2d 918 [1986]). ....
K.S.A. 21-4303(b) prohibits entering or remaining in a gambling place with intent to make a bet. A “gambling place” is any place used for making and settling bets; receiving, holding, recording or forwarding bets or offers to bet; conducting lotteries; or playing gambling devices. K.S.A. 21-4302(5) permits evidence that the place has a general reputation as a gambling place or that,, at or about the time in question, it was frequently visited by-persons known to be commercial gamblers or known as frequenters of gambling places to be admitted to prove whether the premises is a gambling place.- - ....
Judge Bullock in his dissent discusses the role of the Kansas Judicial Council in drafting proposed legislation and accompanying the proposed draft with explanatory notes intended to assist the legislature in understanding and interpreting the proposed legislation. Judge Bullock then states, “Upon those occasions when the legislature elects to adopt the proposed statutes drafted by the Council, it frequently publishes the Council’s explanatory notes as footnotes (or headnotes) to the statutory enactment.”
Bills enacted by the legislature and signed by the governor do not contain the Judicial Council notes. The 1969 revision of the Kansas Criminal Code, which included the statutes under consideration here, did not contain the Judicial Council notes as part of the legislative enactment. See L. 1969, ch. 180.
After a bill has been enacted into law, K.S.A. 77-133 requires the Revisor of Statutes to prepare' and include in the Kansas Statutes Annotated: .
“(a) Prefatory material, including statement of copyright authority, authentication statements and table of contents;
(b) captions prefacing the text of the statutes and constitutions, showing their scope, in boldface type;
(c) the history of each statutory section;
(d) source notes \e.g., Judicial Council notes] and revisor’s notes;
(e) cross references to related or qualifying provisions of other sections of the statutes;
(f) appropriate research' and practice aids citing pertinent parts of other publications relating to Kansas laws if made available by the publisher thereof;
(g) notes, where possible and appropriate, citing identical statutes. of other states; . >
(h) case annotations covering the reported decisions of the state and federal courts construing and interpreting Kansas laws; and
(i) table of sections showing location of present and former legislative enactments in compilation.”
In arranging the material in the Kansas Statutes Annotated and latest supplements thereto, the Revisor of Statutes is not allowed to alter the sense, meaning, or effect of any legislative act. Any correction made by the Revisor of Statutes in editing which affects the substantive meaning of the law is construed as a clerical error only. K.S.A. 77-136.
In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 846, 610 P.2d 1107 (1980), we pointed out that the 1969 Kansas Criminal Code, K.S.A. 21-3101 et seq., was a thorough revision of the Kansas criminal statutes, the result of five years of study by the Kansas Judicial Council. We noted that the Council’s com ments on the various sections, originally published in the Judicial Council Bulletin in April 1968, had been edited by the Revisor of Statutes and printed in the Kansas Statutes Annotated. We further stated that these comments, published before the code was enacted by the legislature, are helpful in determining legislative intent.
The Arredondo court failed to note that the Reyisor’s Note to the Kansas Criminal Code indicates that the April 1968 Judicial Council comments were edited by the Office of the Revisor of Statutes to reflect changes later made by the Judicial Council and the legislature. Changes in the comments were then approved by Professor Paul E. Wilson, who served the Judicial Council in the preparation of the Kansas Criminal Code, rather than by the legislature. See Kansas Statutes Annotated, VoÍ. 2A, p. 145.
Judge Bullock’s extensive research of cases where Kansas appellate courts have consulted the explanatory notes of the Kansas Judicial Council in construing a statute indicates that 2 out of a total of 101 cases support the majority. It is important to note that out of the remaining 99 cases, Judge Bullock is unable to cite a single case where the notes of the Judicial Council have been used to insert an additional element of proof in a criminal statute, as his dissenting opinion would have this court do.
As support for use of historical notes and commentaries to determine the legislative intent when enacting K.S.A. 21-4303, Judge Bullock also cites this court’s practice of publishing the drafters’ commentaries to the Model Rules of Professional Conduct, Kansas Supreme Court Rule 226 (1992 Kan. Ct. R. Annot. 238). We note that pur prefatory rule to the Model Rules does not support Judge Bullock’s reasoning but limits the use of the preamble and commentaries by the following language:
“To the extent that they are not inconsistent with the rules herein adopted or the statutory or case law of Kansas, the court also adopts in principle the preamble and comments accompanying the Model Rules, except as hereinafter modified.” (Emphasis added.)
In his dissent, Justice Allegrucci disagrees with our holding that K.S.A. 21-4303(b) does not require proof the residence had previously been used for gambling or that gambling is “one of its principal uses.” First, we note K.S.A. 21-4302(5) defines “gambling place” with reference to bets, offers to bet, lotteries, or gambling devices. These terms are all plurals, indicating, at least facially, that more than one bet is required to convert a place into á “gambling place.” The question whether a single bet converts a premises into a gambling place is not the question raised on appeal. Second, we note that there is no stated or implied right to gamble in the Constitutions of the United States or the State of Kansas. To allow bona fide nonprofit, religious, charitable, fraternal, educational, and veterans organizations to play bingo; nonprofit organizations to operate horse and dog racing and parimutuel wagering; and the State to operate a lottery required three amendments to the Kansas Constitution. See Kan. Const. Aft. 15 §§ 3a, 3b, and 3c. Third, rather than addressing the facts of-this case, Justice Allegrucci’s dissent constructs a scenario in which, on one occasion, bets or offers to bet are made in a home, school, church, monastery, or nursing home in order to argue the legislature intended a place could be a gambling place only when gambling occurs at the place on a second or subsequent occasion.
Using the facts of this case, however, if one advertises and invites the public to participate in a poker tournament in his or her home, in a school, in a church, in a monastery, or in a nursing home; charges each contestant an entry fee; provides the contestants with the rules of the tournament; and provides prizes—‘each of those places would be converted into a gambling place and an individual who enters the premises where gambling is occurring, with the intent to participate in the poker tournament, has entered into a gambling place.
Nowhere in K.S.A. 21-4303(b) is there any reference to the phrase “one of whose principal uses” or to a requirement that the premises have been used previously for gambling. The statute is clear and unambiguous in this regard and is not open to construction or speculation as to the legislative intent behind it. In addition, nowhere in K.S.A. 21-4302(5) is there a reference to that phase or requirement.
“It has long been the rule in Kansas that in determining whether a statute is open to construction, or in construing a statute, ordinary words are to be given their ordinary meaning and courts are not justified in disregarding the unambiguous language. State v. Gibson, 8 Kan. App. 2d 135, 137, 651 P.2d 949 (1982); State v. Howard, 221 Kan. 51, 54, 557 P.2d 1280 (1976). Even a penal statute subject to strict construction should not be read so as to add that which is not readily found therein, or to read out what, as a matter of ordinary language, is in it. State v. Logan, 198 Kan. 211, 213, 424 P.2d 565 (1967).” State v. Haug, 237 Kan. 390, 391-92, 699 P.2d 535 (1985).
See Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶, 7, 834 P.2d 368 (1992).
The notes and. comments of the Kansas Judicial Council appearing in Article 43 of Chapter 21 of the Kansas Statutes. Annotated were not enacted by the Kansas Legislature, do not have the force and effect of law, are advisory only, and were edited and published by the Revisor of Statutes. They should not be construed as expressing legislative intent but they may be one indication of legislative intent. Where a statute is of doubtful meaning and susceptible upon reading of two constructions, the court may look to other sources,' such as 1 the Judicial Council notes, to determine the reason for the Act, and the purpose intended to be accomplished. But when a statute is clear and unambiguous, the court must give effect to the legislative intent therein expressed rather than make a deteimination of what the law should or should not be. Thus, no room is left for statutory construction. In re Mary P., 237 Kan. 456, 459, 701 P.2d 681 (1985).
Here, the statutory definition of a “gambling place” is clear and unambiguous. The statute contains no requirement that the premises must have been used previously as a gambling place before it is rendered a gambling place. The statute does not expressly require that the place have as “one of its principal uses” the making and settling of bets. The legislature was aware that the Wisconsin and New Mexico statutes defining a gambling place included the phrase “one of whose principal uses is for making and settling bets” but chose not to incorporate that phrase in the Kansas statute.
Judicial Council notes are not the equivalent of statutory law. Use of the notes by the Court of Appeals to define the statute by requiring proof that the premises previously had been used as a gambling place added an element to the offense not present in the statute. The district court correctly determined that K.S.A. 21-4303(b) does not require the State to prove that the residence had previously been used for gambling.
The second issue raised is whether the trial court erred in refusing to instruct the jury pursuant to Schlein’s proposed instruction defining a gambling place.
Over Schlein’s objection, the trial judge instructed the jury pursuant to PIK Crim. 2d 65.06:
“The defendant is charged with the crime of gambling. The defendant pleads not guilty.
"To establish this charge each of the following claims must be proved:
1. That the defendant entered or remained in a gambling place with intent to make a bet; and
2. That this act occurred on or about the 8th day of March, 1991, in Johnson County, Kansas.”
Schlein’s proposed instruction defined a gambling place as “one of whose principal uses is for making and settling bets.” Based on its decision of the first issue, the majority of the Court of Appeals panel concluded the trial court erred in refusing to instruct the jury pursuant to Schlein’s proposed instruction defining a gambling place.
If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error. State v. Morris, 244 Kan. 22, 23, 765 P.2d 1120 (1988). Here, the trial court’s instruction defining a gambling place was properly based upon the statute. The trial court correctly instructed the jury.
The judgment of the Court of Appeals is reversed. The judgment of the district court is affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
Dementrius Toney appeals his jury trial convictions of first-degree murder (K.S.A. 1992 Supp. 21-3401) and two counts of unlawful possession of a firearm (K.S.A. 1992 Supp. 21-4204).
For his first issue, defendant contends the trial court abused its discretion in allowing the State to present evidence concerning gang membership and gang behavior.
At about 6:15 p.m. on the evening of August 23, 1991, 15-year-old Tommy O’Neal was riding his bicycle on Piatt Street in Wichita. An automobile was observed following him. Very shortly thereafter, the boy was observed running in the opposite direction, and he was crying. The same automobile reappeared and was observed to stop. A black man, later identified as the defendant, was seen to leave the front passenger’s seat of the vehicle and run after Tommy, displaying a gun as he pursued. The witness lost sight of the two running individuals after they turned a corner. The witness heard shots from the area a second or two after the running defendant turned the corner. Tommy’s body was found in a residential yard. He had been shot three times by a .38 caliber gun: in the heart, in the back, and in the head. The forensic expert, Dr. William Eckert, was of the opinion that the head shot was the final shot fired and that the victim was on the ground when it was fired.
Police investigating the crime were confronted with what appeared to be a premeditated killing by an unknown assailant with no apparent motive. The following day, defendant was arrested, as a result of an unrelated incident (discussed in a later issue), in possession of the gun which was later discovered to have been used to kill Tommy.
The State proceeded to trial on the theory that the killing was gang related. It had evidence that a few days before the killing (on August 17 or 18), Tommy had been confronted by defendant (age 16) and a group of associates at a Wichita shopping center. The group threatened to kill Tommy. Defendant was heard to say, “Yeah, nigger, tell them it was Meechy.” Meechy was defendant’s nickname. The group poked and hit at Tommy, but he got away with the aid of a friend. During the altercation, reference was made to a prior incident where Tommy was said to have been in a car at a time when someone else in the car had pulled a gun on one of the group assaulting Tommy. It could be inferred the mall incident was in retaliation for the earlier incident.
At trial, evidence was introduced that defendant was a member of the Insane Crips gang, and the Crips gang members believed Tommy was either a member of the rival gang or a “wannabe” of that gang. An expert on gang behavior testified “wannabe” refers to an individual who hangs around a gang with a desire to be admitted into membership. The expert also testified how a gang retaliates for slights or threats by another gang by injury to a rival gang member or one of its “wannabes.” There was also evidence introduced that the victim, on occasion, wore Insane Crips colors. Presumably, this was perceived as mixed allegiance on Tommy’s part and could have been a factor in the slaying of Tommy. The State’s theory was that defendant’s motive was retribution for an infraction on Tommy’s part of the complex code of conduct under which gangs operate. Sufficient evidence was admitted to support such a conclusion.
Defendant sought to exclude evidence of his gang membership in a motion in limine and expanded this to include all evidence generally related to gangs by objection at trial.
The issue before us is whether admission of such gang evidence constituted a breach of judicial discretion.
Defendant contends evidence of defendant’s gang membership and gang conduct was so prejudicial that such consideration outweighed any probative value such evidence may have had. A trial judge has discretion to exclude evidence when its probative value is outweighed by its prejudicial effect on the jury. State v. Martin, 237 Kan. 285, Syl. ¶ 1, 699 P.2d 486 (1985). Thus, defendant argues that it was an abuse of judicial discretion not to exclude the gang-related evidence. We do not agree.
The complained-of evidence all went to the motive for the killing of Tommy by defendant. A similar issue was raised in State v. Tran, 252 Kan. 494, 505, 847 P.2d 680 (1993), wherein we stated:
“Motive
“The State argues that evidence of gang membership was relevant to establish Hieu’s motive for the crime. Following the fight inside the skating rink, Corby Turner heard a group of three to five Vietnamese males talking about the incident. Turner heard the people in the group say ‘they were gonna get even and they knew how they were gonna do it.’ According to the State, Turner’s conversation established a link between the fight in the skating rink and the fight in the parking lot that lead to Toan’s death. The motivation or desire to ‘get even’ with the Trans, who were involved in the arrest of Jimmy Nguyen, a member of the Local Boys, led to the confron tation in the parking lot. Hieu was a participant in the fight in the parking lot. Hieu made sure the gang retaliated with the Trans when he shot Toan in the back of the head.
“Officer Carey testified that if someone got a member of the gang in trouble, the gang would retaliate. Absent evidence of gang affiliation, the jury would wonder why Hieu felt the need to get even with the Tran brothers. Again, evidence of gang affiliation established an alliance among Jimmy, who started the initial fight inside the skating rink; Kevin, who started the fight in the parking lot; and Hieu, who fired the shot that killed Toan. Without evidence of gang affiliation, the State’s attempt to establish a motive for the crime would have been impeded.
. “The trial court did not abuse its discretion when it allowed the State to present relevant evidence of gang membership to establish Hieu’s motivation for the crime. Relevant evidence is evidence ‘having any tendency in reason to prove any material fact.’ K.S.A. 60-401(b).
“The motive concept is similar to the concept adopted by the United States Supreme Court in [United States v. Abel, 469 U.S. 45, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984),] that gang evidence may be admitted to prove bias. 469 U.S. at 49. The admission of evidence to prove motive is also consistent with one of the conclusions within the University of Chicago study cited by Hieu. The study notes: ‘The definition of a gang incident should be restrictive based on gang function, motivation or particular circumstances, not gang membership alone. A gang incident therefore should be any illegal act which arises out of gang motivation or gang-related circumstances.’ Spergel, Youth Gangs [Problem and Response: A Review of the Literature, Part 1, National Youth Gang Suppression and Intervention Project, Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, and School of Social Service Administration, University of Chicago (April 1990)] at 292.”
We note that the trial court gave the following limiting instruction in the case before us:
“Evidence has been admitted tending to prove that Dementrius Toney is a member of the Insane Crips. This evidence may be considered solely for the purpose of proving his motive.”
The admissibility of evidence is governed by its relevancy to the issue in question. State v. Reynolds, 230 Kan. 532, Syl. ¶ 4, 639 P.2d 461 (1982). Relevant evidence is evidence “having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). The exclusion of evidence is within the discretion of the trial court. State v. Reynolds, 230 Kan. at 536.
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. Tuley v. Kansas Power & Light Co., 252 Kan. 205, 217, 843 P.2d 248 (1992).
The complained-of evidence was clearly relevant to the issue of the defendant’s motive for the murder of the victim. Its exclusion would have thwarted the State’s effort to establish motive herein. In a murder trial, evidence of a defendant’s motive for the premeditated killing of the victim is always prejudicial to the defendant in the sense it increases the chances of conviction.
We find no error or abuse of judicial discretion in the trial court’s admission of the complained-of evidence.
For his second issue, defendant contends the trial court erred in denying his motion to suppress evidence and statements arising-from the stop of a vehicle. Defendant contends police officers lacked probable cause to stop the vehicle.
The pertinent facts and circumstances are as follows. On August 24, 1991, at about 6:00 p.m., Officer Norton radioed that he was giving chase to a stolen moped in the area of Central and Ash. Other officers proceeded to the area. Norton continued to advise by radio, of his perception of events. He stated the black male operating the moped had jumped off the vehicle and was running. The officer indicated he had previously seen the moped’s operator near a yellow two-door Cadillac and that the operator was now in the Cadillac which was leaving the scene with four or five black males inside. Officers hearing the communication and approaching the area saw a yellow two-door Cadillac with a number of black males inside leaving the scene. Officers Easter and McCormick stopped the Cadillac. As Officer Easter approached the stopped vehicle on foot, he recognized defendant as the occupant of the right front passenger’s seat and saw him appear to place something under the seat. The driver was Edrick King. In the back seat were Jesse Brown, Michael Williams, Byron Brown, and Lementrius Toney (defendant’s twin brother).
A .38 caliber handgun was retrieved by an officer from under the front passenger seat. Ballistics tests established this to have been the weapon which had killed Tommy O’Neal the previous day. Edrick King advised Officer Easter that the gun had been in defendant’s possession when he had entered the vehicle and that defendant had placed it under the seat. Defendant was arrested at the scene for unlawful possession of a firearm, as he had been convicted of a felony (possession of cocaine) earlier that year. The other count of unlawful possession of a firearm herein was for possession of the firearm the day previously when Tommy O’Neal was killed with the gun.
The State argues that the propriety of the car stop is not properly before us, as defendant did not object at trial to the introduction of evidence arising from the stop except on chain of custody grounds as to the gun. The State’s point has merit.
When a motion to suppress evidence is denied, defendant must make a timely objection at trial, at the introduction of the evidence, specifying the ground for the objection in order to preserve the issue on appeal. K.S.A. 60-404. Anderson v. Scheffler, 248 Kan. 736, Syl. ¶ 5, 811 P.2d 1125 (1991); State v. Wilson, 247 Kan. 87, 98, 795 P.2d 336 (1990); State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). Moreover, defendant may not object to the introduction of evidence on one ground at trial, and then assert a different objection on appeal. State v. Skelton, 247 Kan. 34, 44, 795 P.2d 349 (1990); State v. Clark, 222 Kan. 65, Syl. ¶ 6, 563 P.2d 1028 (1977); State v. Patchett, 203 Kan. 642, 645, 455 P.2d 580 (1969).
Even if we were to consider this issue on its merits, defendant’s contention must fail.
The scope of appellate review is clear herein. If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, this court on review will not substitute its view of the evidence for that of the trial court. State v. Grissom, 251 Kan. 851, Syl. ¶ 17, 840 P.2d 1142 (1992); State v. Garcia, 250 Kan. 310, Syl. ¶ 2, 827 P.2d 727 (1992); State v. Chiles, 226 Kan. at 144.
K.S.A. 1992 Supp. 22-2402(1) provides:
“Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name [and] address of such suspect and an explanation of such suspect’s actions.”
The officer making the stop must be able to articulate the basis for his reasonable suspicion. What is reasonable is based on the totality of circumstances and is viewed in terms as understood by those versed in the field of law enforcement. State v. McKeown, 249 Kan. 506, 511, 819 P.2d 644 (1991); State v. Keene, 8 Kan. App. 2d 88, 90, 650 P.2d 716, rev. denied 232 Kan. 876 (1982), cert, denied 459 U.S. 1217 (1983). It is clear that the knowledge of one police officer is imputed to fellow officers. State v. Niblock, 230 Kan. 156, 161, 631 P.2d 661 (1981).
Under the totality of the circumstances herein, the district court’s determination that the police had probable cause to stop the Cadillac in question is supported by substantial evidence.
For his third issue, defendant contends the trial court erroneously admitted hearsay statements of Edrick King.
The complained-of statements occurred at the scene of the car stop and concern King’s statements relative to defendant’s possession of the gun and his placement of the same under the seat. Additional facts need to be set forth relative to this issue.
At the time of the stop, Officer Easter took charge of defendant, and Officer McCormick dealt with the driver, Edrick King. A check of police records revealed that King possibly had city arrest warrants against him. King was handcuffed and placed in the officer’s vehicle. King refused a request to search the vehicle.
Defendant was patted down by Officer Easter. No weapons were found, but a bulge with the feel of a beer or pop can was felt on his person. Defendant was later seen to place an object onto the front seat of the Cadillac. The object was retrieved and found to be a can of a cereal malt beverage. As Officer Easter knew defendant to be 16 years of age, his possession thereof was an offense, and defendant was arrested therefor. The gun was retrieved from under the seat. A check of the serial number was made and Officer Easter was advised the gun had been reported stolen. The gun had been reported stolen by its owner, Regina Lynn Randall, on August 14, 1991. She had purchased the gun a week earlier.
Officer McCormick advised Edrick King that a gun had been found in the vehicle. King denied ownership. King asked what defendant had said about him. When told defendant had stated the gun was already in the vehicle when defendant had entered, King told the officer that he was not going to “take the fall” for defendant and that defendant brought the gun into the vehicle and had placed it under the seat. The officer stated King appeared scared at this time.
■ Sometime prior to trial, King was shot to death. The State sought to introduce King’s statements through the testimony of. Officer McCormick under authority of K.S.A. 1992 Supp. 60-460(d)(1) and (2). The statute provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(d) ... A statement which the judge finds was made (1) while the declarant was perceiving the event or condition which the statement narrates, describes or explains, (2) while the declarant was under the stress of a nervous excitement caused by such perception or . . . .”
The trial court held a hearing outside the presence of the jury wherein Officer McCormick testified as to the conversation and was questioned by the court as to details of what he had observed of King’s demeanor and what the officer knew of King’s demeanor on prior occasions. The trial court took the matter under advisement. The trial court ultimately permitted Officer McCormick to testify as to what King told him. The court stated its rationale as follows:
“The Court has reviewed all of the legal authorities that have been offered on both sides of this matter. The Court has reviewed the statute and the case law and the arguments that the parties have presented. First of all, let me find that Edrick King is unavailable as a declarant with respect to the statements which he made on August the 24th, 1991. The State has assured the Court that Mr. King has died after that incident and is not available for testimony because of his death. The exception which the State argues applies here is the res gestae exception, and I thought it was helpful to review the case—the Supreme Court case called Idaho vs. Wright[, 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990)]; and in that opinion the Supreme Court observes that reliability of a statement by an out-of-court declarant can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. Res gestae is an historical exception to the hearsay rule. The reason that res gestae is an exception is that the statement is closely connected in time to the principal occurrence and, in fact, forms a part of the principal occurrence, here the discovery of a .380 semiautomatic in the vehicle which was driven by Edrick King on August 24th, 1991.
“I find that the statement that was made was made by Mr. King immediately after the discovery of the .380 semiautomatic weapon. The declaration was made as part of the res gestae. I think it is admissible under the circumstances because it was made as the event was transpiring. His statement was spontaneous. Even though it was a self-serving statement, it’s admissible. He consistently repeated his denial of ownership of that gun and gave an immediate explanation of the origin of the gun and attributed that to Mr. Dementrius Toney. In addition, I have the testimony of the arresting officer, McCormick, about the fact that Mr. [King] seemed scared, that he raised his voice in vehement denial that he owned the gun, and that his denials were persistent and immediate; and I believe the combination of these factors persuades me that his statement is admissible under 60-460(d)(l). I am not going to address it as an excited utterance exception under (d)(2), although I believe it would probably be admissible under that exception as well.
“Now, I find this an unusual situation because Mr. King, after reviewing the statement that was given by Ruthina Horn, [was] reputedly and alledgedly formerly a member of a gang called Insane Crips and possibly even the leader of that gang; and here we have the State of Kansas presenting to the Court as an exception to the hearsay rule a statement by an unavailable declarant who had very close ties to criminal activity in this community; and it is for this reason that there’s some concern on the Court’s part about some latitude that needs to be afforded to the defendant to fully explore the reputation of that declarant; and it goes to bias and motive; and I will— I want to say this out of the jury’s presence—extend to Mr. Gribble [defendant’s attorney] the opportunity to interrogate and cross-examine the witnesses who speak about this arrest with respect to Mr. King’s reputation, also with respect to any examination of Ms. Ruthina Horn and her knowledge about Mr. King and his reputation, association with this particular organization of individuals. I believe the jury’s entitled to know what there is to know about him, how he conducted himself and his contact with this entire situation.”
In State v. Bratt, 250 Kan. 264, 824 P.2d 983 (1992), we reviewed the rules for determining when incriminating statements admissible under the hearsay rule met the requirements of the Confrontation Clause of the United States Constitution. We stated:
“[Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 107 S. Ct. 2531 (1980),] noted the Confrontation Clause operates in two ways when determining the admissibility of hearsay statements. First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness’ statement is admissible only if it bears adequate indicia of reliability. 448 U.S. at 65. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. . . . 448 U.S. at 66.” 250 Kan. at 270.
In State v. Peterson, 236 Kan. 821, 829, 696 P.2d 387 (1985), we discussed “res gestae” as follows:
“Res gestae is a broader concept than an exception to the hearsay rule. It actually deals with admissibility of evidence of acts or declarations before, during or after happenings of the principal event. Those acts done or declarations made before, during or after the happening of the principal occurrence may be admitted as part of the res gestae where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence. [Citation omitted.] Res gestae includes those circumstances which are automatic and undesigned incidents of the particular litigated act, which may be separated from the act by lapse of time but are illustrative of such act. It is the whole of the transaction under investigation or being litigated and every part of it. Acts done or declarations made before, during or after the principal occurrence may be admissible as part of the res gestae to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.”
In Drake v. Moore, 184 Kan. 309, 318, 336 P.2d 807 (1959), we stated, “A great deal of room must be left to the discretion of the trial court in determining admissibility of evidence as a part of the res gestae.”
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. 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. State v. Lumbrera, 252 Kan. 54, Syl. ¶ 5, 845 P.2d 609 (1992).
The trial judge observed Officer McCormick during his testimony during the hearing out of the presence of the jury and made extensive inquiry of the witness as to the circumstances existing when the statements were made, his observation as to King’s demeanor at the time, and the comparison of same with prior conversations between King and the officer. The res gestae aspect involves the crime of unlawful possession of a firearm which had just occurred, not the murder of Tommy O’Neal.
We find no error or abuse of discretion in the trial court’s determination that the statements should be admitted on res gestae grounds.
For his fourth issue, defendant contends the trial court abused its discretion in refusing to permit defense counsel to cross-examine Officer Easter as to statements made by the defendant after the discovery of the gun; specifically, that after he was arrested and given his Miranda warning, the defendant stated, “It’s not my gun. It belongs to Edrick King.”
Defendant contends that if Edrick King’s statements are part of the res gestae, then so are defendant’s statements. The defendant takes the position that he was absolutely precluded from questioning Officer Easter as to defendant’s statements about the gun. We do not read that conclusion into the court’s rationale.
The court stated:
“This is a matter that has developed in the midst of trial in the midst of testimony, and there’s not always a sufficient opportunity to brief it and analyze it as fully as possible; but it is the Court’s impression that there is a distinct difference when it is the statement of a defendant that’s being offered in the nature of an admission; and unless the defendant chooses to take the stand, and I’m not in any way compelling or coercing him to make that decision at this time, I don’t believe that his statement can be offered as res gestae on cross-examination; and l wont permit defense counsel to cross-examine Officer Easter as to this matter.” (Emphasis supplied.) - .
Officer Easter had been called by the State in its case in chief. The emphasized portion of the trial court’s ruling precludes defense counsel from that line of inquiry in cross-examination of the witness. Under the court’s ruling, there would be nothing to preclude defendant from recalling Officer Easter as a defense witness and inquiring as to defendant’s statements. It is the stage of the proceeding involved that appears to be the basis of the trial court’s decision not that the testimony cannot come in on the basis of res gestae. Officer Easter was not recalled and no further effort was made to secure the admission of the testimony. The trial court may have been overly technical, but it appears that it was simply stating that the matter was being raised prematurely. At that time it was not known if defendant wpuld be testifying. If defendant had taken the stand, the hearsay exception would not be an issue as defendant would have been available for cross-examination. The court was merely stating that defense counsel could not question the officer on this subject at this time on cross-examination in the State’s case in chief. -
Even if we were to conclude that the trial court’s refusal to permit the cross-examination of Officer Easter as to defendant’s responses to inquiries about the gun constituted an abuse of judicial discretion, we would be dealing with harmless error' at most.
Harmless error is error which does not affirmatively appear to have prejudicially affected the substantial rights of the complaining party. State v. Getz, 250 Kan. 560, 571, 830 P.2d 5 (1992); State v. Peltier, 249 Kan. 415, Syl. ¶ 4, 819 P.2d 628 (1991), cert, denied 120 L. Ed. 2d 875 (1992); State v. Zamora, 247 Kan. 684, 690, 803 P.2d 568 (1990).
There is little possibility that the excluded statements would have changed the outcome of the trial. The State had a strong case against defendant. Defendant’s statements came after the officer had removed a gun from under the seat in which he was sitting. He had been arrested and given his Miranda warnings. Defendant had every reason to attempt to distance himself from possession of the gun at the time the statements were made, and the statements were wholly self-serving. As a convicted felon, possession of the gun was itself a felony offense whether or not it was linked to the Tommy O’Neal homicide or discovered to have been stolen.
We find no reversible error in this issue.
For his final point, defendant contends the trial court violated his constitutional right to due process when it denied his motion to suppress eyewitness identification evidence.
On appeal, defendant does not argue that the photographic lineup was unduly suggestive. In denying defendant’s motion to suppress, the district court remarked on the closeness of the resemblance of the photos, including the fact that a picture of defendant’s twin brother Lementrius Toney was in the group. Rather, defendant pointed to the lack of certainty in trial identification evinced by two eyewitnesses. One of the eyewitnesses, Theresa Jackson, positively identified defendant’s photo but waffled on identifying defendant at the preliminary hearing. The following exchange took place at the preliminary hearing on direct examination between the prosecution and the witness:
“Q. Are you scared today to come in and testify?
“A. Yes.
“Q. Why are you scared?
“A. Because whenever he gets out, he knows my face and he might come after me.
“Q. The person that did this?
“A. Yeah, the person that shot Tommy, or they can call a gang member up and tell them to come and hunt me down. Then I would be laying in the grave.”
The trial court gave the PIK Crim. 2d 52.20 eyewitness identification instruction herein.
Again, we iterate there is no claim on appeal that the photographic lineup was impermissably suggestive and in any way tainted the in-court identification of defendant. Thus, the weight to be afforded the testimony of the eyewitnesses was properly left to the jury applying the eyewitness identification instruction.
No error or abuse of discretion has been shown in the trial court’s denial of defendant’s pretrial motion to suppress eyewitness identification evidence.
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The opinion of the court was delivered by
Allegrucci, J.:
This is the direct appeal of Alonzo Cheeks from his jury conviction of first-degree murder, the killing of a human being committed in the perpetration of abuse of a child, in violation of K.S.A. 1992 Supp. 21-3401(a)(2).
Alonzo Cheeks was convicted of killing Mary Anderson. Mary was bom on May 4, 1988, and she died on September 16, 1989.
Cheeks and Mary’s mother, Felisa Anderson, lived together in September 1989. A number of children lived with them, including Anderson’s small children and several of her young siblings.
Anderson went to the store during the afternoon of September 16, 1989. Alonzo was the only adult who stayed at the residence with the children.
When Anderson returned, Alonzo was at the door saying that there was something wrong with Mary. Alonzo said that Mary “had turned colors and stuff.” Mary was lying on a mattress on the living room floor with nothing on. When Mary did not respond to mouth-to-mouth resuscitation, she was taken to the hospital. Unsuccessful resuscitation efforts were continued at the hospital for approximately an hour.
The external portion of the autopsy revealed a number of bruises and lacerations on her head, particularly on the inside of her lips. There was a bruise on the left side of her chest.
The major features revealed by the internal examination were in her head. Her skull was fractured on the side. There was hemorrhage around and in the brain. There was hemorrhage underneath her scalp, over her eyes, in the tissues of her chest, and around her liver.
The doctor who performed the autopsy was of the opinion that Mary’s death was due to the hemorrhage inside her head. Based on the combination of the injuries inside the head and under the scalp, the fracture of the skull, and the external bruises and lacerations, he concluded that her death was due to “child abuse or beating.”
Cheeks gave two taped interviews to police during the evening of September 16, 1989. Cheeks said that when Anderson went to the store he stayed inside and watched television. Demon, only a few months old, stayed in with him. At first Mary was in the house, and then she went out. When she went outside she was wearing her diaper, a dress, and socks.
Cheeks said that he opened the door and put Mary out on the porch because she was crying at the door. When he put her out, he saw other children outside, including Bub, age five, and Pasha, age three or four.
Sometime later the children wanted to come in to watch television, but Cheeks would not let them in. Cheeks had dozed off. He said that Mary had been outside approximately 50-60 minutes.
Cheeks reported hearing a bang. Cheeks said that Bub was holding Mary under the armpits. Bub said that Mary was not breathing and that Pasha had done something.
Cheeks took Mary from Bub. He said that she was “just hanging,” her eyes were open just a little, and that she did not breathe except for two deep breaths. Cheeks stripped off her clothes and diaper, hit her buttocks, and hit her face. Cheeks removed her clothes and diaper because he had observed some paramedics do that to someone else. He put Mary on the bed in the living room. Cheeks said that, at that time, Anderson returned with some other adults, and they took over.
When Mary was taken to the hospital, Cheeks stayed at the residence with the other children. At that time, Bub told Cheeks that Pasha pushed Mary into a tire or tire rim. Bub also said that Pasha pushed Mary down some stairs.
Anderson testified that when she was at the hospital with Mary she did not know what had happened to Mary. When she went home, she talked to the other children. Bub told her about the tire and about Pasha pushing Mary down the stairs. Cheeks told her that Bub brought Mary into the house and told him that Pasha had pushed her down the stairs. Anderson testified that Cheeks did not mention a tire to her.
Officer Anthony Clemons testified that he talked with Anderson at the hospital. Anderson said that Cheeks told her that Mary had been pushed into a tire by one of the other kids and that the tire fell on her.
Cheeks denied hitting Mary on September 16, 1989, other than on the face and buttocks when he was trying to revive her. He said that only one time before had he “whipped” Mary. He hit her one time on the arm and then made her stand up for awhile. He hit her because she had defecated on the floor in several rooms and was playing in her feces, throwing it on the wall, and laughing. He had to clean up the mess.
Cheeks said that on September 16, 1989, Mary had defecated in the kitchen, and it had gotten on the carpet or cupboard. He said that he was not upset by it because her mom had to clean up the mess.
Cheeks described Mary as a child who cried and cried when she wanted something. Officer Pat Luther testified that Cheeks told him that Mary cried a lot and got on people’s nerves.
Richard Krugman, M.D., a pediatrician who heads the C. Henry Kemp National Center for the Prevention and Treatment of Child Abuse and Neglect at the medical school at the University of Colorado, concluded that Mary’s death resulted from physical abuse and beating, not from accidental trauma. His conclusion, in this case as in others, was based principally on the mismatch between the medical findings and the explanation(s) which had been offered for the child’s injuries. He testified that another factor which was considered was behavior on Mary’s part which might trigger abuse of a child. The two most common “behavioral triggers” are crying and defecating or urinating.
The pathologist testified that Mary’s injuries were not consistent with either a tire falling on her or her falling down stairs. He testified that her skull fracture was very fresh and that it could only have been caused by a considerable amount of force.
We first consider whether the district court committed reversible error in instructing the jury. Cheeks complains of the following instruction:
“No. 10
“Mr. Cheeks is charged with the first degree murder under the rule of law sometimes called the ‘felony murder rule.’ It is not a defense to the charge of murder, under the felony murder rule, that the killing was accidental.
“You are further instructed that if you are convinced beyond a reasonable doubt that it was reasonably foreseeable that a killing might occur in the perpetration of the crime of child abuse, the exact manner in which that killing might occur need not be foreseen.”
Defense counsel objected to the district court’s giving the instruction on the following grounds:
“We object to the instruction labeled number 10 as unnecessary. Basically, it presumes guilt, puts the jury in a mindset of finding guilt. Is unnecessary. Instruction Number 9 fully and sufficiently instructs the jury as to how they make their decision.”
The district court overruled the objection. Instruction 9, to which defense counsel referred, states:
“The defendant, Alonzo D. Cheeks, is charged with the crime of murder in the first degree. Mr. Cheeks pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That Mr. Cheeks killed Mary J. Anderson;
2. That such killing was done while in the commission of the crime of child abuse, a felony; and
3. That this act occurred on or about the 16th day of September, 1989, in Sedgwick County, Kansas.
“The elements of the crime of child abuse are as follows:
1. That the defendant willfully and cruelly beat or willfully inflicted cruel and inhuman bodily punishment upon a child;
2. That the child was under the age of eighteen years of age; and
3. That this act occurred on or about the 16th day of September, 1989, in Sedgwick County, Kansas.”
Instruction 11 states the following:
“As used in these instructions the following words are defined as indicated.
“ ‘Intentionally’ means conduct that is purposeful and willful and not accidental.
“ ‘Willfully’ means conduct that is purposeful and intentional and not accidental.”
Cheeks’ argument with regard to Instruction 10 focuses on the statement that it is not a defense that the killing was accidental. His defense was that Mary’s death was accidental. His concern is that the jurors could interpret the instruction as directing them to disregard the defense theory. The State counters that Instruction 10 does not deprive Cheeks of his defense when it is read in conjunction with Instructions 9 and 11. The State quotes State v. Morris, 244 Kan. 22, 23, 765 P.2d 1120 (1988), for the following principles:
“Jury instructions are to be considered together and read as a whole, without isolating any one instruction. [Citation omitted.] If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. [Citation omitted.]”
The evidence presented the jury with two choices. The jury could have found that Mary died as the result of injuries she sustained in an accident which occurred while she was outside with the other children, or the jury could have found that Mary died as the result of injuries she sustained as a result of a beating by Cheeks.
Instruction 10 is somewhat confusing because the principle it states better fits circumstances which would be charged under K.S.A. 1992 Supp. 21-3401(a)(l), “the killing of va human being committed . . . [ijn the perpetration of or attempt to perpetrate any felony,” than the circumstances of the present case. In a typical felony-murder case not based on child abuse, a gun might be fired during an armed robbery and a store clerk die from the gunshot wound. The evidence would establish that there was an armed robbery, the underlying felony, and that the store clerk was killed during the robbery. The jury would not be charged with making a choice between robbery occurring and the store clerk dying in some unknown, unrelated manner. In the present case, the jury was charged with determining whether Cheeks beat Mary and she died or whether Mary was involved in an accident while outside and she died. In the armed robbery circumstances, the jury should understand from the pertinent portion of Instruction 10 that its verdict did not depend on whether the trigger was pulled purposefully or during, a struggle. In the present circumstances, where the jury had to decide between an accident and a beating as the efficient cause of Mary’s death, it may have been confusing for the jury to be instructed that it is not a defense that the killing was accidental. In the present case, the- first paragraph of Instruction 10 should have been clarified or omitted.
However, notwithstanding our criticism of Instruction 10, we agree with the State that Instructions 9 and 11 save Instruction 10 from being misleading because the jury could not convict Cheeks under Instructions 9 and 11 if it determined that Mary had suffered a serious accident while playing outside. Under Instruction 9, to convict Cheeks, the jury had to find that Cheeks killed Mary while willfully and cruelly beating or inflicting cruel and inhuman bodily punishment upon Mary. We do not find that Instruction 10, when read in conjuction with Instructions 9 and 11, constitutes error.
On appeal, Cheeks also complains of the district court’s failure to give an additional instruction on intent. In this regard this court has stated:
“In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.” State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 (1992).
Defense counsel requested the district court to give PIK Crim. 2d 54.01-A (1988 Supp.):
“In order for the defendant to be guilty of the crime charged the state must prove that his conduct was intentional. Intentional means willful and purposeful and not accidental.
“Intent or lack of intent, is to be determined or inferred from all of the evidence in the case.”
The district court declined on the grounds that “child abuse requires a specific criminal intent” and another instruction was being given on intent. It was the view of the district court that the defendant was getting what he wanted, but in a slightly different form.
We agree. The substance of the requested instruction was present in Instructions 9 and 11 which were given by the district court. This court has stated: “Error cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused.” State v. Crabtree, 248 Kan. 33, Syl. ¶ 6, 805 P.2d 1 (1991). Considering the instructions as a whole, we cannot say the failure to give PIK Crim. 2d 54.01-A was error.
We next consider if the district court committed error in admitting the testimony of Dr. Richard Krugman, the State’s expert witness. This court recently stated:
“The admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.” Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. ¶ 8, 822 P.2d 591 (1991).
Dr. Krugman testified on behalf of the State. Dr. Krugman is a member of the Start Team, “which is a state and regional team which is headed by an attorney, former criminal attorney, and consists of an attorney, a social worker, a pediatrician, ... a forensic psychiatrist, and a civil attorney who review and consult on criminal cases of abuse and neglect.” He testified that the “Start Program consults on approximately a hundred cases a year.” As a member of the Start Team, Dr. Krugman was asked to testify in the present case. He testified that he reviewed x-rays, medical records, the autopsy report, police reports, and the transcripts of Cheeks’ taped interviews.
Dr. Krugman testified that he had an opinion “as to the cause of the injuries that were suffered by Mary J. Anderson that led to her death.” Defense counsel made the following objection: “Objection, your Honor, foundation; request that I could voir dire the witness as to his review of those documents.” The district court overruled the objection and denied the request, stating that counsel would have an opportunity to cross-examine Dr. Krugman. Dr. Krugman expressed the following opinion: “Our opinion in reviewing these materials was that Mary was a victim of non-accidental trauma; that is, she had been physically abused and that her death was a result of physical abuse and beating.”
On appeal, Cheeks complains that Dr. Krugman testified on behalf of an “abuse determining committee” and that his testimony invaded the province of the jury. In this regard, Dr. Krugman testified that the “diagnosis” of child abuse “is primarily made on the basis of the discrepant history,” i.e., the injuries are not of a sort which could have been caused by the event(s) which were recounted. It is Cheeks’ position that Dr. Krugman passed upon his credibility by “testifying] that he did not believe that the information in Alonzo’s statements concerning what Bub told him had happened was accurate.” In addition, Cheeks argues that Dr. Krugman’s conclusions lack solid support. He contends that they were based in large part on police reports, which Dr. Krugman had no expertise in deciphering. He further contends that Dr. Krugman did not hold himself out to be a forensic pathologist and that Dr. Krugman conceded he could not determine cause from examination of injuries. Cheeks does not give a record reference for this last contention.
Cheeks principally relies on State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), where the admission of improper expert testimony was held to be prejudicial error. Bressman was convicted of rape; he maintained no sexual contact had occurred despite the victim’s advances. Tests were conducted on saliva, hair, urine, clothing, and vaginal swabs; there was a physical examination of the victim. None of these tests showed that sexual acts had taken place, and there was no evidence of trauma. The State’s expert witness was the physician who examined the victim. The physician testified that, in her opinion, the victim was raped. This court held that the opinion lacked a proper foundation, was unnecessary to aid the jurors’ understanding, and required an evaluation of the credibility of the victim’s account. The court stated:
“There was no showing that she was trained as an expert in psychiatry. There was no showing that the bases for her conclusions were generally accepted in the field of psychiatry. Her conclusions were not based on a psychiatric examination and diagnosis. Although she had had some contacts in the past with women who came to the hospital claiming they had been raped, her conclusion was essentially based on the story related to her by Mrs. T and her physical examination of Mrs. T which was negative in result.
“We further hold that a jury could properly assess the state of mind and actions of Mrs. T following the arrest of the defendant. As noted in Lollis [u. Superior Sales, 224 Kan. 251, 580 P.2d 423 (1978)], the basis for the admission of expert testimony is necessity. Here the normal experiences of laymen jurors would permit them to draw proper conclusions from the evidence presented by the State. In addition, Dr. Stass-Isem, in arriving at her opinion that Mrs. T had been raped, of necessity had to pass upon the credibility of Mrs. Ts story. The legal principles followed in Lollis v. Superior Sales Co. and Smith v. Estate of Hall, [215 Kan. 262, 524 P.2d 684 (1974),] are applicable and precluded the admission of Dr. Stass-Isem’s opinion that Mrs. T had been raped.” 236 Kan. at 303-04.
The State would distinguish Bressman on its facts and for the following reason: “While Dr. Krugman testified that, in his opinion, Mary had been physically abused and she died as result of physical abuse, it remained for the jury to determine whether the defendant physically abused Mary.” This is not all that different from the examining physician testifying that, in her opinion, the victim had been raped, and it remained for the jury to determine whether Bressman had raped her.
Cheeks also cites State v. Clements, 244 Kan. 411, 770 P.2d 447 (1989); State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986); and State v. Lash, 237 Kan. 384, 699 P.2d 49 (1985). In Lash, the court stated that the result is controlled by Bressman. The holding in Lash is as follows: “A certified psychologist, who is qualified as an expert witness and who has interviewed the alleged victim, may not testify that in his opinion the alleged victim had been sexually molested by the defendant.” 237 Kan. 384, Syl. ¶ 2.
In Jackson, a social services supervisor and a social worker, both with extensive specialized training and experience in child abuse investigation, were each permitted to testify that, in her opinion, the child was telling the truth and was sexually abused by Jackson. The court discussed the applicability of its decisions in Lash and Bressman, determined that Bressman is “somewhat distinguishable in that the physician in the Bressman case did not have psychiatric training,” and noted that in Lash and Bressman the victims testified. 239 Kan. at 469-70. Despite these differences, the court concluded, as it had in Lash and Bressman, that it was improper for the district court to permit the witnesses to give their opinion testimony. The court reasoned:
“Here, the witnesses attempted to serve as human lie detectors for the child and both told the jury that in their professional opinions the child was truthful and the defendant was guilty as charged. We are convinced that it was the function of the jury to hear the testimony of the witnesses as to what the child said, and then to make a determination of the reliability of the child’s statements. K.S.A. 1985 Supp. 60-460(dd) provides a substantial exception to the hearsay rule in child molestation cases. We are not prepared to enlarge that exception, or to enlarge the scope of permissible expert testimony, in order to leave the determination of the truthfulness of the victim of a crime up to the judgment of expert witnesses. It must be determined by the jury.” 239 Kan. at 470.
K.S.A. 1992 Supp. 60-460(dd) excepts from the hearsay rule statements of alleged child victims which would prove the crime. The only child’s statement in the present case is not that of the victim and exculpates rather than incriminates Cheeks. The statutory basis for Jackson does not have application in the present case, but the underlying rationale does. This court disapproves the practice of expert witnesses telling the jurors whom to believe.
Clements involves another consideration. The State’s expert witness described a profile of sexual offenders, in particular their treatability and psychology. The witness had never talked with Clements. In closing argument, the prosecutor tied the expert witness’ general profile of sexual offenders to Clements. 244 Kan. at 417. On appeal, Clements argued that “the only logical inference that the jury could have drawn from [the expert’s] testimony was that Clements fit the profile of the typical child sexual of fender and was, therefore, guilty of the offense charged.” 244 Kan. at 418. The court agreed and stated: “Here, the expert’s testimony detailing the characteristics of the individual who typically sexually abuses children did not assist the jury in determining if the child was sexually abused by Clements. 244 Kan. at 421.
The pertinent syllabus paragraph from Clements states: “Evidence which only describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question and the only inference which may be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one.” 244 Kan. 411, Syl. ¶ 3.
In the present case the expert witness described “the two most common behavioral triggers that lead to an assault or abuse of a child.” He identified children’s crying and defecating as those “triggers” and testified as follows:
“[W]hen those behaviors occur in the presence of an individual who is stressed and isolated and no one else can help with the frustration that many people feel when they’re trying to take care of children who often can become difficult, that may lead to the explosion that occurs around the physical abuse or physical assault of a child.”
Then he tied the profile to the defendant and Mary:
“Q. Doctor, in reviewing in particular the case of Mary Anderson, did you find any behavioral triggers that were present?
“A. Well, the law enforcement reports reflected in their interviews the loss of bowel control and, in fact, she had—she apparently had defecated on the carpet and she also—there was also in the interviews discussion of crying and her crying behavior, particularly when her mother left, that she cried a great deal. Either—both of those are present in this case. Certainly, the loss of bowel—of bowel control which, in a 16 month old, you wouldn’t even call it a loss of bowel control because you don’t expect a 16 month old to have bowel control but that defecation on the carpet I think was likely a trigger in this case.”
The inference is that, because Mary had cried and defecated in the kitchen on the day she died, Cheeks must be guilty of beating her to death. Crying, however, is typical behavior for 16-month-old children, and the record is not clear if Mary had a dirty diaper or had defecated on the kitchen floor. This testimony did not aid or assist the jury in determining if Cheeks physically abused Mary. It is not relevant to whether Cheeks committed the crime charged. Here, as in Clements, the inference is an impermissible one, and the admission of the expert testimony is an abuse of discretion and reversible error.
In view of our decision, we need not address the final issue raised by the defendant.
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Ter Curiam:
The City of Wichita appeals from the trial court’s ruling that the justification by necessity defense absolved the defendant, Elizabeth A. Tilson, of criminal liability for her actions in trespassing on property owned by the Wichita Family Planning Clinic, Inc., (Clinic) on August 3, 1991. This appeal is taken pursuant to K.S.A. 22-3602(b)(3) on a question reserved by the City. We sustain the appeal.
The facts are not seriously disputed. On August 3, 1991, Elizabeth A. Tilson. was arrested for trespassing on property of the Clinic located at 3013 East Central in Wichita, Kansas. The Clinic does not deny that it provides abortion services to some of its patients. Ms. Tilson and others were gathered at both entrances of the Clinic attempting to stop patrons from entering the Clinic. Ms. Deborah Riggs, administrator of the Clinic, asked the individuals to leave the premises. The protesters failed to respond to the request. Ms. Riggs then called Captain William Watson of the Wichita Police Department to the scene. Ms. Riggs asked Captain Watson to request the individuals to leave the Clinic premises. The protesters made no response to his command.
Ms. Tilson was subsequently arrested by Officer Gary Smith for criminal trespass in violation of Section 5.66.050(a) (1992) of the Code of the City of Wichita which provides in part:
“Criminal trespass is entering or remaining upon or in any land, structure, vehicle, aircraft or watercraft by a person who knows he/she is not authorized or privileged to do so, and:
“(a) Such person enters or remains therein in defiance of an order not to enter or to leave such premises [or] property personally communicated to such person by the owner thereof or other authorized person;
“Any person who commits a criminal trespass within the corporate limits of the city of Wichita shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars or imprisonment which shall not exceed six months, or by both such fine and imprisonment. (Ord. No. 39-765, § 1).”
On November 13, 1991, the defendant was found guilty in Wichita Municipal Court of criminal trespass in violation of the city ordinance. The court ordered her to pay a $1,000 fine, serve six months in the Sedgwick County Adult Detention Facility, and pay all court costs. On the same date, the defendant appealed her conviction to the Sedgwick County District Court.
On January 14, 1992, the district court held a pretrial conference to determine if the court would hear evidence on the issue of when human life begins. At the hearing, the defendant noted that she would be asking the court to make the determination when life begins and at what point in time life has constitutional protection. The trial court found that evidence of when life begins was relevant and would be admitted. On January 21, 1992, the court ruled that it would allow the defendant to present evidence on any common-law defense, including the defense of necessity.
At trial, the defendant admitted that shé blocked the entrance to the Clinic but asserted that her actions were excused by the necessity defense. Specifically, she claimed her actions were justified because “abortion takes the life of an unborn baby, and I wanted to prevent that, and I wanted to prevent the detrimental effect that happens to the woman, the father of the baby, the grandparents and brothers and sisters involved.” There was no evidence introduced, and no claim has been made by the defendant, that the abortions performed by the Clinic were illegal or that the Clinic was operating in any illegal manner. Defendant in her brief, as she did before this court, takes great umbrage with being referred to as a “protester” and instead portrays herself as being on a “rescue” mission. By whatever name or designation she chooses to be known, it is admitted that she violated the criminal code of the City of Wichita.
On July 20, 1992, following a three-day bench trial, Judge Paul Clark held that the defendant had violated § 5.66.050(a) of the Code of the City of Wichita. He further held, however, that the defendant was absolved of any criminal liability for her actions, based upon the necessity defense. Judge Clark, in a 25-page memorandum opinion, held that the doctrine of justification by necessity was recognized under Kansas law. He additionally held that the doctrine was applicable to the defendant’s actions and justified her trespassing upon the Clinic property for the purpose of saving a human life. At trial, over the objections of the City, the. defendant waS allowed to introduce expert testimony on the question of when life begins. The City did not attempt to controvert such evidence but instead took the position that the evidence was inadmissible because it was irrelevant to the issues before the court and that the necessity defense did not apply to the charges in this case.
Pursuant to K.S.A. 22-3602(b)(3), the City of Wichita timely appeals from the trial court’s holding that the necessity defense was applicable to the defendant’s act of criminal trespass on the property of the Clinic.
The. issues as stated by the City in its docketing statement read:
“1.- Did the District Court err in holding that the necessity defense was recognized by Kansas law on August 3, 1991?
' “2. Did the District Court err in concluding that the necessity defense was applicable to the facts of this case thereby discharging the Defendant from criminal liability for her actions in violating Section 5.66.050(a) of the Code of the City of Wichita?”
The City contends' that the trial court erred in concluding that the necessity defense was recognized by Kansas law and applied to defendant’s criminal acts of trespass. These issues are questions of law subject to broad appellate review. State, ex rel., v. Doolin & Shaw, 209 Kan. 244, 261, 497 P.2d 138 (1972).
Before turning to the specific issues on appeal, some background on the necessity defense is deemed advisable. Necessity is a common-law defense recognized in some jurisdictions, while in others it has been adopted by statute. Several states which have no. Statute on the defense have not determined whether the common-law defense will be recognized. It has been referred to by. various, terms, including “justification,” “choice of evils,” or “compéting harms.” Depending upon the jurisdiction, various elements must be proven in order, for a defendant to establish the defense. Section 3.02 of the Model Penal Code, adopted by a. number of states and relied upon by the City, provides one formulation of the necessity defense:
“(1) Conduct that the actor believes to be necessary to avoid a- harm, ot evil to himself or to another is justifiable, provided that:
(a) the harm or evil sought to. be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and
(b) neither the Code nor other law defining the offense próvides exceptions or defenses dealing with the specific situation involved; and
(c) a legislative purpose to exclude the justification claimed do.es noj otherwise plainly appear.” Model Penal Code § 3.02 (1962), 10 U.L.A. 477 (1962).
In his treatise on criminal law defenses, Professor Robinson explains the necessity defense another way:
“The lesser evils defense, sometimes called ‘choice! of evils' or ‘necessity’ or the general justification defense, is recognized in about one-half of American jurisdictions. It is perhaps the best illustration of the structure and' operation of justification defenses generally. It explicitly relies upon the rationale inherent in all justifications: while the defendant may have caused the harm or evil contemplated by an offense, given the justifying circumstances, he has not caused a net harm or evil and is therefore to be exculpated. The principle of this general justification defense may .be .stated as follows:
“Lesser Evils. Conduct constituting an offense is justified if:
"(1) any legally-protected interest is unjustifiably threatened, or ah opportunity to further such an interest is presented; and
“(2) the actor engages in conduct, constituting the offense,
(a) when and to the extent necessary to protect or further the interest,
(b) that avoids a harm or evil or furthers a legal interest greater than the harm or evil caused by actor’s conduct." (Italics in original.) 2 Robinson, Criminal Law Defenses § 124(a) pp. 45-46 (1984).
Necessity is generally considered to be an affirmative defense that must be proved by the defendant, usually beyond a reasonable doubt. State v. O’Brien, 784 S.W.2d 187, 189 (Mo. App,. 1989). Also, “[t]he burden of production for the defense of lesser evils (choice of evils, necessity) is always on the defendant.” 2 Robinson, Criminal Law Defenses. § 124(a), p. 47. However, some jurisdictions treat the defense as an “ordinary” defense that must be disproved by the prosecution beyond a reasonable doubts See, e.g., Commonwealth v. Brugmann, 13 Mass. App. 373, 379, 433 N.E.2d 457 (1982). ■
Regardless of what name is attached to the defense (and for the sake of simplicity we will , refer to it as the necessity defense) one thing is clear: The harm or evil which a defendant,. who: asserts the necessity defense, seeks to prevent must be a legal harm or evil as opposed to a moral or ethical belief of the individual defendant.
The . City contends that there is no judicial decision in Kansas which expressly recognizes the necessity defense. It notes that the trial court relied upon State v. Taylor, 138 Kan. 407, 26 P.2d 598 (1933), for its determination that the defense was recognized under Kansas law. The City, however, correctly points out that the defense of necessity was not an issue in Taylornor did the case set forth the elements of such a defense.
In Taylor, the defendant was charged with shooting his estranged wife and her brother. The defendant attempted to remove one of his children from the home of his brother-in-law. The defendant alleged that he acted in self-defense in shooting his brother-in-law. Taylor, however, does not mention or recognize the necessity defense. The passage from Taylor relied upon by the trial court in its memorandum opinion has no bearing upon the defense of necessity. Taylor does not support the trial court’s holding that the necessity defense is recognized under Kansas law.
The City then observes that the only reported case in Kansas which discusses but failed to recognize the necessity defense is State v. Greene, 5 Kan. App. 2d 698, 623 P.2d 933 (1981). In Greene the defendants, protesters at the Wolf Creek nuclear power plant, asserted that the compulsion defense set forth in K.S.A. 21-3209(1) relieved them of criminal liability. The Kansas Court of Appeals held that the defendants were not entitled to an instruction regarding the compulsion defense because the defense did not apply to acts which the legislature had expressly concluded not to be criminal. In Greene the issue involved the applicability of the statutory compulsion defense which may be related to or synonomous with the necessity defense in some jurisdictions and/or under certain circumstances. In considering the compulsion defensé as it applied to activities of the defendants, who were opposed to nuclear power, at the Wolf Creek nuclear power plant, the court did discuss several cases wherein the defense had been asserted at nuclear power plants, but it did not recognize the necessity defense as viable in Kansas. In fact, the defendant conceded in her brief, “State v. Greene, 5 Kan. App. 2d 698, 623 P.2d 933 (1981), does not apply. It does not address the justification defense.” Additionally, amicus curiae Right to Life of Kansas, Inc., asserts in its brief, “We concur with the Appellant’s statement that Kansas has never expressly adopted or recognized the necessity defense.” Our own research confirms that the parties and amicus are correct and that the necessity defense, except as codified in statutes such as those relating to self-defense and compulsion, has not been adopted or recognized in Kansas. Nor do we find it necessary in the resolution of this appeal to make such a determination. Whether the necessity defense should be adopted or recognized in Kansas may best be left for another day.
The issue before us is simply whether the necessity defense, if it were recognized, even applies at all in a case such as this one. Although we decline to specifically determine whether the necessity defense should be adopted or recognized in Kansas, to decide the issue before us it is necessary to consider the issue in light of the necessity defense and its applicability to the charges in this case.
It is established, beyond any argument, that since 1973 a woman has an unfettered constitutional right to an abortion during the first trimester of pregnancy and a somewhat more restricted right to abortion thereafter. Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). In that case the Supreme Court held:
“(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
“(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
“(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Roe v. Wade, 410 U.S. at 164-65.
The City maintains that because no legal harm is caused by an abortion, “the harm caused by the defendant’s criminal acts exceeds the harm sought to be prevented by the City’s ordi nance.” The City notes that defendants in several jurisdictions have raised the necessity defense in situations involving trespass or public protest, including those against abortions, and that the “overwhelming majority of jurisdictions have rejected the defense.”
Numerous courts have considered whether the necessity defense applies to abortion trespass cases. See Annot., “Choice of Evils,” Necessity, Duress, or Similar Defense to State or Local Criminal Charges Based on Acts of Public Protest, 3 A.L.R.5th 521.
Every appellate court to date which has considered the issue has held that abortion clinic protesters, or “rescuers” as they prefer to be called, are precluded, as a matter of law, from raising a necessity defense when charged with trespass. See Allison v. City of Birmingham, 580 So. 2d 1377 (Ala. Crim. App. 1991), cert, denied 580 So. 2d 1390 (Ala. 1991); Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981); Pursley v. State, 21 Ark. App. 107, 730 S.W.2d 250 (1987), rev. refused July 22, 1987; People v. Garziano, 230 Cal. App. 3d 241, 281 Cal. Rptr. 307, rev. denied August 1, 1991, cert, denied 116 L. Ed. 2d 750 (1991); State v. Clarke, 24 Conn. App. 541, 590 A.2d 468, cert, denied 219 Conn. 910 (1991); Gaetano v. United States, 406 A.2d 1291 (D.C. 1979); Hoover v. State, 198 Ga. App. 481, 402 S.E.2d 92 (1991); People v. Krizka, 92 Ill. App. 3d 288, 416 N.E.2d 36 (1980); Sigma Repro. Health Cen. v. State, 297 Md. 660, 467 A.2d 483 (1983); State v. O’Brien, 784 S.W.2d 187 (Mo. App. 1989); State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992); People v. Crowley, 142 Misc. 2d 663, 538 N.Y.S.2d 146 (1989); State v. Thomas, 103 N.C. App. 264, 405 S.E.2d 214, cert, denied 329 N.C. 792 (1991); State v. Sahr, 470 N.W.2d 185 (N.D. 1991); Kettering v. Berry, 57 Ohio App. 3d 66, 567 N.E.2d 316 (1990); State v. Clowes, 310 Or. 686, 801 P.2d 789 (1990); Com. v. Wall, 372 Pa. Super. 534, 539 A.2d 1325, appeal denied 521 Pa. 604 (1988); State v. Morton, 1991 W L 80204 (Tenn. Cr. App.) (unpublished op.), appeal denied (1991); Crabb v. State, 754 S.W.2d 742 (Tex App. 1988), cert, denied 493 U.S. 815 (1989); Buckley v. City of Falls Church, 7 Va. App. 32, 371 S.E.2d 827 (1988).
The only reported case which we have found that recognized the necessity defense in an abortion clinic/trespass case is a Rochester, New York, city court case. People v. Archer, 143 Misc. 2d 390, 537 N.Y.S. 2d 726 (1988). The decision in Archer was limited to late-term abortions, and in its opinion the court recognized that “Roe prohibits the State statutory necessity defense whenever there are intentional interruptions which interfere with the performance of first trimester abortions.” 143 Misc. 2d at 403. Archer is not persuasive on any issue before this court and is inapplicable to the facts here.
The courts have invoked several different rationales in rejecting application of the defense. The majority of courts reason that because abortion is a lawful, constitutionally protected act, it is not a legally recognized harm which can justify illegal conduct.
In State v. O’Brien, 784 S.W.2d 187 (Mo. App. 1989), the defendant was charged with trespass at an abortion clinic and, as in our case, asserted the necessity defense, contending she was on a rescue mission to save and protect unborn children. She attempted, as defendant did here, to introduce evidence of when life begins in support of her defense. The Missouri court stated:
“Since abortion remains a constitutionally protected right, the defense of necessity must be viewed in that context.
“Viewed in that setting every court which has considered the defense of necessity has for various reasons, rejected it when asserted in trespass-abortion proceedings. . . .
“In short, the defense of necessity asserted here cannot be utilized when the harm sought to be avoided (abortion) remains a constitutionally protected activity and the harm incurred (trespass) is in violation of the law.” 784 S.W.2d at 192.
Another court has reasoned:
“Through judicial decision and legislative determination denying abortion recognition as a harm, the law has preempted the central inquiry of the necessity defense: whether the activity sought to be stopped or the criminal conduct employed to stop it is the ‘greater harm.’ By denying abortion classification as a harm the law has determined that the greater harm per se is in the criminal conduct. The defense of necessity which has been created by the law may not, therefore, be employed to justify or excuse it.” Kettering v. Berry, 57 Ohio App. 3d at 68-69.
In Com. v. Markum, 373 Pa. Super. 341, 541 A.2d 347, appeal denied 520 Pa. 615 cert, denied 489 U.S. 1080 (1988), the defendants were convicted of criminal trespass. They alleged that the crimes were justified to prevent the loss of a human life. The court held that the necessity defense was unavailable because a woman’s right to obtain an abortion was protected by the United States Constitution. The court stated:
“As we have noted, pre-viability abortion is lawful by virtue of state statute and federal constitutional law. The United States Supreme Court, from Roe through its progeny, has consistently held that the state’s interest in protecting fetal life does not become compelling, and cannot infringe on a woman’s right to choose abortion, until the fetus is viable. Roe at 163-64, 93 S. Ct. at 732. Appellants do not suggest that viability and conception are simultaneous ocurrences. We find that a legally sanctioned activity cannot be termed a public disaster.” Com. v. Markum, 373 Pa. Super at 349.
In People v. Krizka, 92 Ill. App. 3d 288, the defendants were charged with trespass on medical center property to prevent abortion. The defendants asserted the necessity defense based upon their contention that life begins at conception and that they were attempting to save lives. The court stated:
“Defendants here contend that they had to commit the acts of criminal trespass in order to prevent the deaths of fetuses, which they perceived as the greater injury. We disagree with defendants’ contention because the ‘injury’ prevented by the acts of criminal trespass is not a legally recognized injury.” 92 111. App. 3d at 290.
After briefly discussing Roe and its progeny, the court continued:
“We therefore conclude that defendants did not engage in illegal conduct because they were faced with a choice of evils. Rather, they intentionally trespassed on complainant’s property in order to interfere with the rights of others. . . . Under Roe, an abortion during the first trimester of pregnancy is not a legally recognizable injury, and therefore, defendants’ trespass was not justified by reason of necessity.
“Defendants attempt to circumvent the effect of Roe and to bolster their defense of necessity by arguing that they reasonably believed that they acted to prevent the destruction of human life. They point to language in Roe in which the court declined to speculate on when human life begins. [Citation omitted.] Defendants argue that life begins at the time of conception, and that they were denied due process of law because the trial court refused to admit evidence which was proffered to support this contention.
“True, in Roe, the court acknowledged the existence of competing views regarding the point at which life begins. However, the Court declined to adopt the position that life beings at conception, giving recognition instead to the right of a woman to make her own abortion decision during the first trimester. [Citation omitted.] We do not believe that the Court in Roe intended courts to make a case-by-case judicial determination of when life begins. We therefore reject defendants’ argument.” 92 Ill. App. 3d at 290-91.
In State v. Sahr, 470 N.W.2d 185 (N.D. 1991), the court was faced with an abortion-trespass case in which the defense was, again, the same as that asserted by the defendant in the present case. The defendants in Sahr asserted the necessity defense based upon their beliefs that life begins at conception and their actions were justified to save innocent human lives. The court discussed at some length the necessity defense and, having done so, stated:
“As a result, we conclude that we need not determine the precise scope of the necessity defense available in this state. In our view, the defendants’ criminal trespasses at medical clinics to prevent legal abortions may not be justified under any reasonable formulation of the necessity defense.
“The evil, harm, or injury sought to be avoided, or the interest sought to be promoted, by the commission of a crime must be legally cognizable to be justified as necessity. ‘[I]n most cases of civil disobedience a lesser evils defense will be barred. This is because as long as the laws or policies being protested have been lawfully adopted, they are conclusive evidence of the community’s view on the issue.’ 2 P. Robinson, Criminal Law Defenses § 124(d)(1), at 52. Abortion in the first trimester of pregnancy is not a legally recognized harm, and, therefore, prevention of abortion is not a legally recognized interest to promote.
“The element of a legally cognizable injury for the necessity defense has been identified repeatedly in decisions on other criminal attempts to protest abortions at medical clinics. ... In sum, a claim of necessity cannot be used to justify a crime that simply interferes with another person’s right to lawful activity.” 470 N.W.2d at 191-192.
Finally, in Com. v. Wall, 372 Pa. Super. 534, the court was faced with the same arguments and after reviewing the necessity defense the court held the necessity defense did not apply in an abortion-trespass setting. The court found that the defendants had failed to establish any of the requirements to justify a necessity defense. Having done so, the court went on to state:
“Despite the above [the appellant’s inability to satisfy any of the elements of the necessity defense], appellant nevertheless insists that he was justified in violating the law in this case because his actions were motivated by higher principles. To accept appellant’s argument would be tantamount to judicially sanctioning vigilantism. If every person were to act upon his or her personal beliefs in this manner, and we were to sanction the act, the result would be utter chaos. In a society of laws and not of individuals, we cannot allow each individual to determine, based upon his or her personal beliefs, whether another person may exercise her constitutional rights and then allow that individual to assert the defense of justification to escape criminal liability. We recognize that, despite our proscription, some individuals, because of firmly held and honestly believed convictions, will feel compelled to break the law. If they choose to do so, however, they must be prepared to face the consequences. Thus, such private attempts to circumvent the law with the aim to deprive a pregnant woman of her right to obtain an abortion will not be tolerated by this Court. Accordingly, for the reasons set forth above, we conclude that the trial court properly determined that appellant was not entitled to raise the justification defense.” 372 Pa. Super, at 543-44.
We concur with the statements of the Pennsylvania court and others cited herein. To allow the personal, ethical, moral, or religious beliefs of a person, no matter how sincere or well-intended, as a justification for criminal activity aimed at preventing a law-abiding citizen from exercising her legal and constitutional rights would not only lead to chaos but would be tantamount to sanctioning anarchy.
Defendant argues that as she had expert medical testimony that life begins at conception, the necessity defense must be allowed. We do not agree. When the objective sought is to prevent by criminal activity a lawful, constitutional right, the defense of necessity is inapplicable, and evidence of when life begins is irrelevant and should not have been admitted.
While we could review the myriad of other cases on the specific issue before us, nothing would be gained by doing so. As stated earlier, all of the appellate court decisions hold that the necessity defense is not applicable in abortion-trespass criminal prosecutions. We again point out that our opinion should not be construed as an indication that we recognize or adopt the necessity defense as the law in Kansas. We make no such determination here. Defendant has wholly failed to demonstrate that the necessity defense would apply to this case even if the defense was recognized.
The appeal is sustained. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the State from an order dismissing the complaint (K.S.A. 22-3602[b][l]).
Robert C. Donlay was charged with aggravated false impersonation under K.S.A. 21-3825 (class E felony). Donlay showed another individual’s driver’s license and signed that person’s name to the tickets he received when a state trooper stopped Donlay for speeding and for a seat belt violation. The trial court dismissed the charge, reasoning that Donlay should have been charged with the more specific crime of unlawful use of a driver’s license, K.S.A. 8-260(a)(3) (class B misdemeanor).
Based upon the driver’s license produced and the signature on the tickets, the trooper believed he had issued tickets to Matthew
J. Jacobs. The two tickets were filed in Reno County District Court. Jacobs did not appear on the appearance date, and the trial court entered a plea of not guilty on behalf of Jacobs. Trial was set for a specific time and a notice to appear was sent to Matthew J. Jacobs.
Jacobs contacted the prosecutor, obtained the ticketed car’s license number, produced alibi evidence, and told the prosecutor the tickets actually belonged to Donlay. The State dismissed the charges against Jacobs.
The State then filed a complaint against the true driver, Don-lay, for aggravated false impersonation, contrary to K.S.A. 21-3825. At the preliminary hearing, the trooper testified Donlay had not represented himself as Jacobs at any time after he handed Donlay the citation.
The trial court ruled it was inappropriate to charge Donlay under K.S.A. 21-3825 because a more specific statute, K.S.A. 8-260, is available that deals with the particular action. The trial court reasoned Donlay should have been charged under K.S.A. 8-260(a)(3), which states in pertinent part:
“(a) It shall be unlawful for any person, for any purpose, to:
“(3) Display or represent as the person’s own, any driver’s license not issued to the person.”
Consequently, the trial court dismissed the aggravated false impersonation charge. Rather than file a misdemeanor charge under K.S.A. 8-260(a)(3), the State appealed.
Two issues are briefed: whether Donlay could be charged with a violation of either or both K.S.A. 21-3825(d) and K.S.A. 8-260(a)(3) and whether K.S.A. 21-3825(d) is applicable under the facts of this case.
The second issue was not considered or raised in the trial court. However, “ ‘[interpretation of statutes is a question of law.’ ” Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). In addition, “[t]he judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.” State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991).
A majority of this court finds the language in K.S.A. 21-3825(d) dispositive of this appeal. That statute provides in pertinent part:
“Aggravated false impersonation is falsely representing or impersonating another and in such falsely assumed character:
“(d) Doing any other act in the course of a .. . prosecution whereby the person who is represented or impersonated may be made liable to the payment of any . . . costs . . ., or his rights may be in any manner affected.” (Emphasis added.)
The question then becomes when does “in the course of a prosecution” commence? Is it when a crime is committed and an investigation begins, or is it when charges are filed with a court of competent jurisdiction? In this case, an argument can be made that it is somewhere in between, i.e., when the ticket was issued based upon exhibiting someone else’s driver’s license and upon signing the ticket with the other person’s name.
The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984).
K.S.A. 21-3825(d) prohibits “[d]oing any other act in the course of a suit, proceeding or prosecution.” (Emphasis added.)
A “suit” is a proceeding in a court for the enforcement of a right. It would not include the investigatory phase in preparing to file a suit. See United States v. Safeway Stores, 140 F.2d 834, 838 (10th Cir. 1944); Dobbins et al. v. First Nat. Bank, 112 Ill. 553, 566 (1884); Drake v. Gilmore et al., 52 N.Y. 389, 394-95 (1873).
Additionally, Black’s Law Dictionary 1434 (6th ed. 1990) defines “suit” as:
“A generic term, of comprehensive signification, referring to any proceeding by one person or persons against another or others in a court of law in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity. [Citations omitted.] It is, however, seldom applied to a criminal prosecution.”
Black’s Law Dictionary 1204 (6th ed. 1990) also defines “proceeding”:
“In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like.
“An act which is done by the authority or direction of the court, agency, or tribunal, express or implied; an act necessary to be done in order to obtain a given end; a prescribed mode of action for carrying into effect a legal right. All the steps or measures adopted in the prosecution or defense of an action. Statter v. United States, C.C.A. Alaska, 66 F.2d 819, 822. The word may be used synonymously with ‘action’ or ‘suit’ to describe the entire course of an action at law or suit in equity from the issuance of the writ or filing of the complaint until the entry of a final judgment, or may be used to describe any act done by authority of a court of law and every step required to be taken in any cause by either party. The proceedings of a suit embrace all matters that occur in its progress judicially."
A “proceeding” is the attempted enforcement of a right or law in a prescribed manner and requires commencement of the action. Matter of Schorer, 154 Misc. 198, 200, 277 N.Y.S. 677 (1935). Mere preparation is not a “proceeding.”
The legislature has made the crime of aggravated false impersonation apply to acts in the course of a suit or in the course of a proceeding, which requires that a civil action be filed or a proceeding be commenced. If that is a given, would the legislature intend something different for “in the course of a prosecution”?
Black’s Law Dictionary 1221 (6th ed. 1990) defines “prosecution” as:
“A criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime. U.S. v. Reisinger, 128 U.S. 398, 9 S. Ct. 99, 32 L. Ed. 480. The continuous following up, through instrumentalities created by law, of a person accused of a public offense with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused.
“The term is also used respecting civil litigation, and includes every step in action, from its commencement to its final determination. The Brazil, C.C.A. Ill., 134 F.2d 929, 930.”
In 1905, this court considered the term “prosecute” and, with approval, set forth:
“In the American and English Encyclopedia of Law (2d ed.), volume 23, page 268, there is a fair statement of what is included in the term ‘prosecute.’
“ ‘To prosecute is to proceed against judicially. A prosecution is the act of conducting or waging a proceeding in court; the means adopted to bring a supposed offender to justice and punishment by due course of law. It is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or government, as by indictment or information.’ ” State v. Bowles, 70 Kan. 821, 827, 79 Pac. 726 (1905).
In the context of the Sixth Amendment right to counsel, this court, in State v. Bristor, 236 Kan. 313, 320-22, 691 P.2d 1 (1984), stated:
“The Supreme Court has not defined precisely when a prosecution begins. The plurality in Kirby [v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972)] indicated that adversary judicial criminal proceedings are initiated by way of ‘formal charge, preliminary hearing, indictment, information, or arraignment.’ 406 U.S. at 689. In Brewer v. Williams, 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232, reh. denied 431 U.S. 925 (1977), the court found a criminal prosecution had begun when an arrest warrant had been issued, the accused had been arraigned on that warrant before a judge, and the accused had been committed by the court to confinement in jail. 430 U.S. at 399. However, Brewer did not answer when a criminal prosecution begins, because the court did not say whether one of these factors would have been sufficient or whether the combination of several or all of them triggered the right to counsel. Relying on Kirby, an Indiana court found that a driver had no right to consult with an attorney before deciding whether to take a breathalyzer test because the Sixth Amendment right to counsel did not attach ‘until a judicial adversary proceeding had been initiated against him, that is, after the filing of an affidavit or indictment charging him with a crime.’ Davis v. State, 174 Ind. App. 433, 435-36, 367 N.E.2d 1163 (1977). Accord State ex rel. Webb v. City Court of City of Tucson, 25 Ariz. App. 214, 542 P.2d 407 (1975); State v. Petkus, 110 N.H. 394, 269 A.2d 123 (1970), cert, denied 402 U.S. 932 (1971); Flynt v. State, 507 P.2d 586 (Okla. Crim. 1973); State v. Newton, 291 Or. 788, 636 P.2d 393 (1981).
“In this case, there is some discrepancy between the Court of Appeals majority and dissent as to whether a complaint had been filed against Bristor when the BAT was administered. The majority found the issuance of a ticket the equivalent of a complaint. 9 Kan. App. 2d at 406. The dissent, relying on K.S.A. 8-2108, found a ticket does not become a complaint until it is filed with the court. 9 Kan. App. 2d at 420. K.S.A. 8-2108 provides, ‘. . . such citation [the ticket] when filed with a court having jurisdiction shall be deemed to be a lawful complaint for the purpose of prosecution.’ Under this statute, Bristor’s ticket did not become a complaint until it was filed with the court three days after his arrest.
“It is not until after the test has been administered that the State commits itself to the criminal prosecution.”
K.S.A. 8-2108, part of the Kansas Uniform Act Regulating Traffic; Arrests, Citations, Penalties, provides:
“In the event the form of citation provided for in K.S.A. 8-2106 and amendments thereto includes information required by law and is signed by the officer preparing it, such citation when filed with a court having jurisdiction shall be deemed to be a lawful complaint for the purpose of prosecution for the violation specified.”
We see nothing inconsistent between K.S.A. 8-2108 and K.S.A. 1992 Supp. 22-2202(8), which defines a complaint and provides that a notice to appear issued under the Uniform Act Regulating Traffic shall be deemed a valid complaint if it is signed by a law enforcement officer. K.S.A. 1992 Supp. 22-2202(8) does not do away with the specific requirement set forth in 8-2108 that the citation be filed with a court having jurisdiction before it is deemed to be a lawful complaint for the purpose of prosecution. Cf K.S.A. 12-4201 (“The prosecution for the violation of municipal ordinances shall be commenced by the filing of a complaint with the municipal court.”); K.S.A. 22-2301(1) (“Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate.”); K.S.A. 22-2303(l)(“In misdemeanor cases and traffic infraction cases a prosecution may be begun by filing an information in the district court”).
Giving the words in K.S.A. 21-3825(d) their ordinary meaning, a majority of this court is satisfied the legislature intended, and an ordinary reasonable person reading K.S.A. 21-3825(d) would conclude the statute requires, that the prosecution formally be commenced by a complaint being filed in a court having jurisdiction before “any other act in the course of a prosecution can occur.” • , .
Thus, the trial court was correct in dismissing the felony because no act occurred after the complaint was filed that would be a violation of K.S.A. 21-3825(d).
Having so held, the remaining issue is moot.
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Joseph P. Genchi, whose last registration address filed with the Clerk of the Appellate Courts is Estes Park, Colorado, and who is an attorney admitted to the practice of law in the State of Kansas.
The complaint filed against respondent arises out of a final adjudication in Colorado that respondent was guilty of professional misconduct (People v. Genchi, 824 P.2d 815 [Colo. 1992]). The complaint herein is filed pursuant to Rule 202 (1992 Kan. Ct. R. Annot. 152).
Although being duly notified of the filing of the formal complaint herein and the hearing thereon, respondent did not file an answer or appear before the Kansas Board for Discipline of Attorneys (Board). Further, respondent did not appear before this court.
Rule 202 provides, inter alia:
“A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.”
In the Colorado proceeding, two attorney disciplinary proceedings were consolidated for hearing before the Colorado Supreme Court. In the first proceeding (91 SA 336), Colorado found that respondent was guilty of professional misconduct in two areas: (1) abusive behavior toward an expert witness during a deposition and shortly thereafter; and (2) obtaining court continuances by fallacious claims of ill health. The discipline imposed was a six-month suspension from the practice of law. In the second pro ceeding (91 SA 351), Colorado also found respondent was guilty of professional misconduct in two areas: (1) failure to make prompt disposition of settlement proceeds received on behalf of a client; and (2) unreasonable delay in the preparation of a journal entry in a divorce action. The discipline imposed was public censure.
The hearing panel of the Board found that: (1) in 91 SA 336, respondent had violated DR 1-102(A)(5) and (6) (1992 Kan. Ct. R. Annot. 189); DR 6-101(A)(3) (1992 Kan. Ct. R. Annot. 214), and DR 9-102(B)(4) (1992 Kan. Ct. R. Annot. 231) and recommended a six-month suspension from the practice of law; and (2) in 91 SA 351, respondent had violated DR 1-102(A)(5) and DR 6-101(A)(3) and recommended the discipline of public censure.
This court, having considered the record, the report, and the recommendations of the disciplinary hearing panel, accepts and concurs in the findings, conclusions, and recommendations of the panel with the exception that we elect to treat all of the misconduct as having occurred in one proceeding and impose one order of discipline.
It is therefore ordered that Joseph P. Genchi be suspended from the practice of law in the State of Kansas for a period of six months commencing on the date of this opinion.
It is further ordered that respondent shall forthwith comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176) and pay the costs of this action and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Six, J.:
This traffic checklane search and seizure case is before us on an interlocutory appeal. James MacDonald was charged with possession of .marijuana with intent to sell or distribute (K.S.A. 65-4127b[3]) and possession of drug paraphernalia (K.S.A. 65-4152[a][2]). The trial court suppressed the evidence seized during the checklane operation. We have jurisdiction under K.S.A. 2O-30l8(c) (transfer ón our. motion from the Court of Appeals).
..The trial court applied K.S.A. .1992 Supp. 22-2402, commonly referred to as the stop and- frisk statute. (K.S.A. 1992 Supp. 22-2402 is a codification of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 [1968]. See State v. McKeown, 249 Kan. 506, 508-09, 819 P.2d 644 [1991].) The date of the trial court’s ruling was May 1, 1992. Davis v. Kansas Dept. of Revenue, 252 Kan. 224, 843 P.2d 260 (1992) (decided December 11, 1992), and State v. Barker, 252 Kan. 949, 850 P.2d 885 (1993) (decided April 16, 1993), affect the case at bar. Consequently, our standard of review is unlimited because the issues involve the selection, interpretation, and application of a question of law. See Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2, 823 P.2d 782 (1991). .
The issues raised by the State focus on asserted trial court error in ruling that: (1) the traffic checklane failed to comply with the requirements of State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), or, in the alternative, that the holding in Deskins applies only to DUI checklanes; (2) the state trooper lacked probable cause to search the car driven by MacDonald (we consider whether the detection of the odor of marijuana standing alone provides probable cause for a vehicle, search following a checklane stop); and (3) MacE>onald’s incriminating statements were improperly obtained.
We hold that the evidence should not have been suppressed.
Facts
Trooper Heim of the Kansas Highway Patrol participated in a traffic checklane operation in Saline County (the checklane operation approved in State v. Barker, 252 Kan. 949).
The checklane was described in Barker'.
“On November 20, 1991, the Kansas Highway Patrol and other law. enforcement agencies set up a checklane as part of a law enforcement effort called ‘Span 70.’ The checklane was part of a national law enforcement project, the purpose of which was to create a strong law enforcement presence along the entire expanse of Interstate 70. The traffic checklane was a local multijurisdictional law enforcement effort to focus on checking drivers’ licenses- and reducing ‘accident-related causative factors.’
“The operation was implemented on November 20, 1991, from 2:00 a.m. until 6:00 a.m. A briefing was held for all personnel involved, including the Kansas Highway Patrol, Saline County Sheriff’s Department, Dickinson, County Sheriff’s Department, Saline County Attorney’s Office, Kansas Department of Transportation, and the Bureau of Alcohol, Tobacco, an.d Firearms prior to the commencement of the checklane stops.
“The checklane was set up at a- rest area just west, of Solomon in Saline County in such a way that all traffic on the interstate, whether eastbóund or westbound, could be funneled into the rest area and stopped. Signs were' posted approximately 500 feet from the entrances, to the rest area, advising motorists of the checklane. There was no advance publicity regarding the checklane.” 252 Kan. at 950-51. . .
At approximately 4:00 a.m., Trooper Heim stopped a car driven by MacDonald. MacDonald’s window was down. The trooper recognized an odor he thought to be marijuana (or burned marijuana). He had been trained to identify its scent and had previously smelled marijuana. Heim asked for MacDonald’s driver’s license and inquired of MacDonald and the passengers about the odor. He was told that what he had smelled was incense and cigarette smoke. Heim requested MacDonald to pull the car off to the side for further investigation (vehicles were beginning to stack up in the checklane). MacDonald complied and the conversation continued. Heim testified that he did not believe that the odor of incense matched the odor coming from the car; howT ever, he also testified that he had not intended to arrest the occupants of thé car based solely on the marijuana odor.
Heim looked into the car in an attempt to observe marijuana cigarettes, pipes, or marijuana. He observed a small metal box in the door pocket. Heim asked MacDonald what was inside thé box. MacDonald replied, “What box?” The trooper indicated that he pointed to the box and said, “[T]hat box, right there.” MacDonald took the box out and opened it, displaying what Heim recognized as marijuana.
Heim then (1) asked MacDonald to step out of the car; .(2) advised MacDonald of his Miranda rights (Heim testified he believed that MacDonald understood his rights); (3) asked MacDonald if he had any additional marijuana or pipes (MacDonald retrieved a small baggie of marijuana from his pants pocket and a wooden pipe from his sock); and (4) removed the other occupants from the car so that the officers could search for additional marijuana. MacDonald and the car’s owner gave verbal consent to search the car. Seven ziplock baggies, each containing approximately one and one-half ounces of marijuana, were discovered in a backpack that belonged to MacDonald.
Heim testified that during the time the car’s passengers were in the restroom, where they had been taken because of the cold temperature, the officers inquired as to the purpose of the seven baggies of marijuana. MacDonald and another passenger of the car informed the officers that the baggies were to be given out to friends as Thanksgiving gifts. Heim testified that all of the occupants of the car were then arrested and transported to the Salina police station. MacDonald was again informed of his Miranda rights. He signed a waiver and, in Heim’s opinion, understood his rights.
The Application of Deskins
The State asserts that the trial court erred when it ruled that the traffic checklane failed to comply with the requirements of State v. Deskins, 234 Kan. 529. In Deskins, we identified various factors that should be considered in determining whether a stop at a traffic checklane is reasonable when there is neither a warrant nor probable cause to otherwise justify the stop:
“(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (7) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.” 234 Kan. at 541.
The only Deskins factor advanced in the case at bar which was not analyzed in Barker is “fear and anxiety.” The anxiety factor in Deskins does not speak in terms of hypothetical anxiety. The Deskins factor is phrased “fear and anxiety generated.” (Emphasis added.) 234 Kan. at 541. The trial court stated that “[t]here was no direct testimony upon this issue [of fear and anxiety].” The trial court explained that the only evidence introduced on the factor was the testimony of a highway patrolman, which indicated that motorists did not exhibit fear or anxiety. There is insufficient evidence of fear and anxiety in the record to support a conclusion that the checklane was unreasonable.
Barker controls. The checklane complied with the Deskins factors. See Barker, 252 Kan., at 956-57.
The trial court, in the case at bar, presented an alternative basis for suppressing the evidence, i.e., Deskins only applies to DUI checklanes.
The State responds by observing that we specifically approved driver’s license checkpoints in Deskins, 234 Kan. 529, Syl. ¶ 9. The State notes that the facts in Deskins are similar to the instant facts in that the trooper in Deskins made a DUI and possession of marijuana arrest (a small bag of marijuana was found in the car’s glove compartment after Deskins’ arrest). Furthermore, the State reasons that officers are not required to close their eyes to all offenses that are not traffic related. We agree.
MacDonald takes the position that the checklane was set up for general law enforcement purposes and, as such, was not authorized by Deskins. The same view was advanced unsuccessfully in Barker. 252 Kan. at 954. The initial stop of the car driven by MacDonald was reasonable. The detention of the car was consistent with the “drug interdiction” purpose referenced in Barker. 252 Kan. at 954.
Probable Cause to Search the Car
When the trial court considered the question of probable cause, it concluded:
“Heim had a reasonable suspicion of marijuana in the vehicle from the odor emanating from the car. He then had the defendant pull his car out of line and the defendant was further detained. At that point in time, the court believes K.S.A. 22-2402 became implicated. Heim then observed a small tin box in the car and asked the defendant, ‘what’s in the box?’ The defendant responded by opening the box and showing the contents to Trooper Heim (which he reasonably believed upon observation to be marijuana). In the court’s opinion, this questioning went beyond that permitted under K.S.A. 22-2402, and was designed to procure or should have been reasonably known by Heim to produce exactly this kind of nonverbal response of the defendant. Without that crucial evidence there was an insufficient basis to arrest the defendant and search his vehicle.”
K.S.A. 1992 Supp. 22-2402 does not apply to checklane stops established according to a plan embodying explicit neutral limitations on the conduct of individual officers. Davis v. Kansas Dept. of Revenue, 252 Kan. at 228-29. The stop in the case at bar is within the Davis rule.
The trooper had probable cause to further detain the vehicle when he smelled the marijuana odor. In fact, the trial court found that Heim had reasonable suspicion, based on the odor, that there was marijuana in the car. The odor created the needed particularized suspicion of criminal activity. See Annot., Odor of Nar cotics as Providing Probable Cause for Warrantless Search, 5 A.L.R.4th 681, 685 (“it frequently has been held that detection of the odor of fresh marijuana or marijuana smoke, standing alone, provided probable cause for searches of motor vehicles following stops by immigration or customs officers and stops for investigation of possible traffic or equipment violations”). Under the circumstances, it was reasonable for the trooper to act upon his suspicion. The opposite conclusion would require the officer to “look the other way” and not pursue evidence which signals a crime.
A majority of courts have found that marijuana odor detected by an experienced law enforcement officer can provide sufficient probable cause to support a warrantless search. U.S. v. Padron, 657 F. Supp. 840 (D. Del. 1987), aff’d without op. 857 F.2d 1466 (3rd Or.), cert, denied 488 U.S. 974 (1988).
Heim had probable cause to search the car. The marijuana odor provided the basis for the suspicion that a crime had been committed and that evidence in connection with the crime was located within the automobile. In California v. Acevedo, 500 U.S. 565, 114 L. Ed. 2d 619, 111 S. Ct. 1982 (1991), the United States Supreme Court considered the question of “whether the Fourth Amendment requires the police to obtain a warrant to open [a] sack in a movable vehicle simply becasue they lack probable cause to search the entire car.” 500 U.S. at 573. The Court thoroughly reviewed the conflicting state of search and seizure law as it relates to containers in automobiles. The Court reasoned that “[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” 500 U.S. at 580.
We have indicated that “[ajutomobile searches may be upheld if there is probable cause to believe there is evidence of crime in the automobile.” State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, 477, 799 P.2d 1043 (1990). The search of the car was supported by probable cause.
Additionally, MacDonald and the owner of the automobile consented to its search. The question of whether the consent in the case at bar was sufficiently distinguishable from the metal box incident is, to some extent, a question of fact. However, the owner was not directly implicated in the metal box exchange. The owner’s consent was sufficiently separate and voluntary. The owner’s consent would have authorized the search, and the marijuana in the metal box would have been discovered. See Florida v. Jimeno, 500 U.S. 248, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991).
MacDonald’s Incriminating Statements
The trial court suppressed all oral and written incriminating statements based upon the violation of K.S.A. 1992 Supp. 22-2402. The State believes that the trial court intertwined the concept of reasonable suspicion and the limited inquiry allowed under 22-2402, with the scope of a post-Miranda interrogation. According to the State, the trial court believed that the response given by MacDonald, i.e., the physical act of opening the' metal box, provided evidence without which the search could not have been conducted. However, the evidence, which was not challenged by MacDonald, . was that the . car’s occupants were attempting at that time to convince the trooper that the odor he had detected was incense. The State contends that the question by the trooper concerning the contents of the metal box was not unreasonable considering the context , of the conversation and the other surrounding circumstances. We agree.
■ The State explains that when MacDonald was placed under árrést, the Miranda warning was promptly given. MacDonald chose to give both oral , and written statements. Consequéntly, the. State believes that the suppression of the statements was not supported by the , evidence or by Miranda. MacDonald does not separately address this issue. He reasons that the interrogation was beyond the permissible scope of 22-2402.
The rationale of Davis v. Kansas Dept. of Revenue, 252 Kan. at 228, applies. K.S.A. 1992 Supp. 22-2402 does not govern the questioning that occurred concerning the metal box. MacDonald’s later post-Miranda inculpatory statements were not fruits of the poisonous tree and are admissible.
Reversed and remanded. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Jon H. Mareska, Jr., appeals from the district court’s denial of his motion to modify sentence. The sole issue raised by the defendant is whether the district court erred in denying the motion to modify sentence without considering the policy and factors set out in K.S.A. 21-4601 and K.S.A. 21-4606.
On February 6, 1992, Mareska pled guilty to one count of first-degree murder, one count of aggravated kidnapping, one count of rape, and one count of aggravated criminal sodomy. For Mareska’s guilty pleas, the State agreed to withdraw its notice of intent to invoke the penalty provision of K.S.A. 1992 Supp. 21-4624, the “hard 40” provision. Furthermore, the State and Mareska “agreed to be bound by” the following sentences: life on the murder count, life on aggravated kidnapping, 10 years to life on rape, and 10 years to life on aggravated criminal sodomy. They also agreed that the terms should run consecutively to one another as well as to the preexisting sentence. On April 13, 1992, the district court imposed the requested sentences.
On April 14, 1992, Mareska filed a motion pursuant to K.S.A. 1992 Supp. 21-4603, seeking modification of his sentences. Mareska expressly requested a hearing on the motion.
On June 10, 1992, the district court judge filed and sent the following letter to counsel: “MEMORANDUM DECISION .... The Court finds that returning the defendant for a formal hearing upon the defendant’s Motion to Modify would serve no useful purpose and the Motion to Modify the sentence imposed is considered and denied.” . ,
Mareska argues that “[t]he district court abused its discretion by refusing to modify the sentence without a consideration of the statutory policy pursuant to K.S.A. 21-4601 or the statutory factors pursuant to K.S.A. 21-4606.” He relies on State v. Bennett, 240 Kan. 575, 731 P.2d 284 (1987), and Cochrane v. State, 4 Kan. App. 2d 721, 610 P.2d 649 (1980). Neither case supports his position. Both involve sentencing rather than a motion to modify sentence. Both stand for the proposition that it is the better practice for the sentencing court, when imposing a sentence which exceeds the minimum, to make a record of the facts and factors it considered. Neither requires that a record be made of the sentencing court’s considerations.
The State argues that State v. Crawford, 250 Kan. 174, Syl., 824 P.2d 951 (1992), is applicable. In Crawford, we held:
“Where (1) a plea bargain is knowingly and voluntarily entered into which contains specific sentence recommendations; (2) the defendant urges the district court to. impose the recommended sentences; and (3) the district court then imposes the recommended sentences, the defendant shall be deemed to have waived any consideration or application by the district court of the sentencing factors set forth in K.S.A. 21-4601 and K.S.A. 21-4606.”
Crawford is distinguishable in that it also involves the failure to consider the K.S.A. 21-4606 factors at the time of sentencing.
Mareska has provided no legal authority for his contention that the district court must consider the statutory factors upon a motion to modify sentence. Clearly, K.S.A. 21-4606 applies to the sentencing of a defendant and not to the modification of sentence. In the present case the district court, on the record at the time of sentencing, stated that it had reviewed the criteria set forth in K.S.A. 21-4606 and that the prosecutor had “addressed those criteria at some length.” Thus, the district court embraced the “better practice” and considered the factors when imposing a sentence which exceeded the minimum. Mareska has not presented sound reasons to the court, nor are we aware of any, why the district court should be reversed for not reconsidering the factors upon his motion to modify sentence.
In State v. Fish, 252 Kan. 985, 850 P.2d 250 (1993), the defendant was sentenced pursuant to a plea agreement, and a Topeka Correctional Facility (SRDC) evaluation was ordered. Fish filed a motion to modify his sentence, which was denied. Fish appealed, arguing that the district court abused its discretion in failing to modify the sentence to the minimum. Although Fish conceded that Crawford controls as to the original sentence, he argued it should not apply to the motion to modify because of new information in the SRDC report. We found that no new significant information was contained in the report. The report did not recommend modification of defendant’s sentence but, rather, concluded Fish should serve an appropriate sentence. In affirming thé district court, we said:
“K.S.A. 1992 Supp. 21-4603(4) requires the trial'court to modify a sentence upon the recommendation of the SRDC unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification. Factual situations may arise in plea-bargained cases where a defendant has received the sentence bargained for and the SRDC report recommends modification of sentence or contáins significant new information not previously before the trial court. In such situations, K.S.A. 1992 Supp. 21-4603(4) sháll apply.” 252 Kan. at 988.
We find our decision in Fish to be controlling in the present case. The Topeka Correctional Facility report contains no significant new or additional information beneficial to the defendant’s position, nor does it recommend that his sentence be modified. As in Fish, the recommendation is that the defendant serve “appropriate sentence.” We do not find that the district court abused its discretion in denying the defendant’s motion for modification of sentence.
Affirmed. | [
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Per Curiam-.
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Stephen J. Jones, an attorney admitted to the practice of law in Kansas. Two separate complaints were filed, Case No. B5308 and Case No. B5330, which were consolidated for hearing before the Kansas Board for Discipline of Attorneys (Board) and this court. The facts, as determined by the hearing panel of the Board (the panel), and the panel’s recommended discipline are not disputed by respondent.
The following pertinent findings and recommendations were made by the panel:
“4. Respondent had very little experience with plaintiff’s cases in medical malpractice actions. Three of the four cases involved in Complaint No. B5308 involve medical negligence claims and all four cases involved in Complaint No. B5308 involve the plaintiff’s side. Respondent found himself unable to communicate with his clients when the statute of limitations had run in the cases. He now identifies this as a psychological problem—obsessive compulsive personality disorder.
“5. Respondent and his former law firm have been sued by William D. Rupp for the matters alleged in Count I of Complaint B5308. [Respondent misrepresented the status of Rupp’s medical malpractice case by making reference to the case as if it were still a viable claim. Respondent misled Rupp for a period in excess of five (5) years regarding the status of Rupp’s medical malpractice case. Respondent failed to inform Rupp that his medical malpractice claim was barred by the statute of limitations until August 28, 1990.] The case is pending and discovery is ongoing .... The other matters alleged in Counts II [Respondent failed to file a timely claim on behalf of Iris Dunigan. Respondent misled Dunigan about the status of her case. After realizing that Dunigan’s claim was barred by the statute of limitations, Respondent failed to notify Dunigan of the status of her case for almost one year.], Ill [Respondent misled James Overby regarding the viability of Overby’s medical malpractice claims. Respondent failed to inform Overby of the statute of limitations problems until August of 1989.], and IV [In November of 1987, Respondent agreed to represent Timothy Youngers on a personal injury claim. Respondent filed suit on September 7, 1989, one week after the statute of limitations had run. The case was dismissed on March 26, 1990, for lack of prosecution. This fact was not reported by Respondent to Youngers until September 11, 1990.] of Complaint No. B5308 have all been settled and monies have been paid. Where settlement has occurred, Respondent has paid his former law firm his proportionate- share of the deductible in these cases as all the claims have been covered by Respondent and the law firm’s malpractice insurance. Since leaving the law firm in 1990, Respondent has been unable to obtain legal malpractice insurance, but has made attempts to do so. There has been no claim that Respondent’s actions in Complaint No. B5330 [Respondent failed to respond to requests for information and return of the case file in a workers compensation case.] resulted in monetary damages and no litigation is anticipated.
“7. Since becoming a solo practitioner, Respondent’s practice continues to consist primarily of workers compensation cases. He does some corporate work and general defense work. He has approximately 80 active files and averages 50-60 hour long work weeks. He no longer accepts any plaintiff’s personal injury litigation outside the workers compensation area and has made attempts to refer domestic matters to other attorneys. His office loss prevention system consists of a triple calendar system on computer, day book and master calendar done by his secretary. In addition, he personally sets up the statute of limitations on each case and causes the same to be placed in the front of each file and on computer. He relies upon several other solo practitioners to cover for him when he is confronted with double scheduling situations.
“8. Andrew E. Busch, a practicing attorney with the law firm of Busch, Johnson, Wirth and Mank in Wichita, Kansas, has agreed to monitor Respondent’s law practice and has reviewed the status of Respondent’s cases with him. He has advised the panel by letter that Respondent’s files are in order.
“11. Respondent quite candidly advised the panel he views his recovery at this time as ongoing and continuing in nature. With therapy he has come to recognize his emotional problems and stop the pattern of behavior from happening, but he readily acknowledges if he ‘back slides out of therapy’, he is ‘liable to do it again.’
“12. The panel is advised Respondent had one former discipline imposed against him In the Matter of Stephen J. Jones, W-3789 resulting in informal admonition. The discipline was administered in 1987 and the rules violated were DR 6-101[A](2) and (3) [1992 Kan. Ct. R. Annot. 214] [inadequate preparation avid neglect].”
The panel made conclusions and recommendations as follows:
“CONCLUSIONS OF LAW
“Respondent’s actions with respect to the handling of legal matters in Case No. B5308 do amount to a violation of DR 1-102(A)(4) [1992 Kan. Ct. R. Annot. 1&9] [misconduct]; DR 6-101(A)(l) and (3) [incompetence and neglect]; DR 7-101(A)(2) [1992 Kan. Ct. R. Annot. 219] [failure to provide services]; MRPC 1.1 [1992 Kan. Ct. R. Annot. 244] [incompetence]; 1.3 [1992 Kan. Ct. R. Avinot. 248] [lack of diligence]; 1.4(a) and (b) [1992 Kan. Ct. R. Annot. 251] [failure to communicate]; 3.2 [1992 Kan. Ct. R. Annot. 294-95] [failure to expedite litigation]; and 8.4(c) [1992 Kan. Ct. R. Annot. 328] [misconduct]. Respondent’s actions with respect to the handling of a legal matter in Case No. B5330 does amount to a violation of MRPC 1.3, 1.4(a) and (b), 1.16(a)(3) and (d) [1992 Kan. Ct. R. Annot. 286] [failure to withdraw and terminate], and 3.2.
“RECOMMENDATION
“Respondent is guilty of serious misconduct. Suspension from the practice of law is the customary and appropriate discipline for such conduct; however, the panel is loathe to recommend such unconditional discipline in this case.
“The panel does not condone the Respondent’s actions in this case. The panel recognizes that in the practice of law, the potential for serious problems exists with respect to the statute of limitations for every lawyer. Of concern to the panel was Respondent’s reaction and his inability to promptly advise his clients that the statutes of limitations had run when he ran into problems in his cases during the time frame in question.
“Respondent makes no excuses for his professional misconduct and clearly has had and continues to have a hard time accepting his own shortcomings and failings. He readily acknowledges the imposition of discipline to be automatic in this case.
“The hearing panel concludes that this matter deserves special attention for the following reasons:
1. Cooperation with all participants in the disciplinary process;
2. Restitution to the aggrieved parties. (It should be noted in excess of $800,000.00 has been paid in settlement on behalf of Respondent and his former law firm on the claims set forth in Complaint No. B5308. Respondent cooperates fully with the defense in the Rupp litigation in which he and his former law firm are presently involved. Counsel for the defense appointed by the insurance carrier have determined triable issues exist in the litigation);
3. Confinement of misconduct to a definite time period ending in 1991 abated prior to the imposition of discipline and monitored by professional counseling of indefinite duration;
4. Acceptance of continued professional practice by clients;
5. Support of the rehabilitation effort by other members of the local bar and agreed monitoring of Respondent’s actions by Andrew E. Busch;
6. Unanimous conviction of the hearing panel and the Disciplinary Administrator that rehabilitation of Respondent will serve the best interests of the profession and that Respondent is sincere in his efforts and contrite. No useful purpose will be served by depriving the Respondent of his livelihood and his clients of his services.
“The panel recommends that . . .:
“The Respondent be disciplined by suspension from the practice of law pursuant to Supreme Court Rule 203(a)(2) [1992 Kan. Ct. R. Annot. 153] for a period of eighteen (18) months, said discipline being probated on the following terms and conditions pursuant to Supreme Court Rule 203(a)(5):
1. Attorney Andrew E. Busch will supervise Respondent’s legal practice for a period of eighteen (18) months from the Supreme Court Order authorizing this plan.
2. Andrew E. Busch shall be acting as an officer of the Court and as agent for the Court as supervisor of probation in monitoring the legal practice of Respondent. Mr. Busch shall be afforded all immunities granted by Supreme Court Rule 223 [1992 Kan. Ct. R. Annot. 186] during the course of his activities as directed by the Supreme Court’s Order.
3. Respondent will allow Mr. Busch access to his files, his case inventory, [to the assistance of his office personnel], and his trust account. He shall periodically, but at least once per month, check the following:
a. The status of each case on Mr. Jones’ case list;
b. The efficacy of Mr. Jones’ docketing system;
c. Management of discovery;
d. Responses to client requests for information;
e. Mr. Jones’ trust account.
4. The supervising attorney shall by separate writing acknowledge that he has read this proposed plan and that he agrees to serve in the capacity of’supervising attorney as outlined herein and, further, that he has already reviewed the case inventory of the Respondent, familiarized himself in a general way with the client files and general type of practice of the Respondent, and states that there appears to be no apparent, significant problems with the case inventory of the Respondent.
5. The Respondent shall continue to attend the counseling sessions with Dr. Stephen K. Sowards and shall prepare and/or sign all necessary releases to direct and authorize Dr. Sowards to report periodically, but at least every two months, to the office of the Disciplinary Administrator on his progress in counseling. The report should note any significant deviation from the agreed upon appointments.
6. Respondent shall obtain, prior to the implementation of this program, an updated report from Dr. Sowards which shall include at least the following:
a. His diagnosis of the psychological problems or condition of Respondent;
b. Any progress made by Respondent since he began seeing Dr. Sowards;
c. His prognosis for the future so far as the same may be made as it relates to Respondent and the recommended course of treatment.
7. Dr. Stephen K. Sowards shall be acting as an officer of the Court in reporting to the Disciplinary Administrator as required in Paragraphs No. 5 and 6 herein, and shall be afforded all immunities granted by Supreme Court Rule 223 . . . during the course of his activities covered by this plan or as directed by the Supreme Court.
8. Respondent shall continue with good faith efforts to obtain legal malpractice liability insurance throughout the course of this probationary period. Respondent shall advise the office of the Disciplinary Administrator in writing of his efforts to obtain such insurance prior to the implementation of this program and shall provide the office of the Disciplinary Administrator with letter reports of his efforts at least every six (6) months during the course of his probationary period.
9. At the end of eighteen (18) months, the Disciplinary Administrator shall certify to the Supreme Court the Respondent’s satisfactory completion of probation.
10. Upon report of any misconduct or non-compliance with these Orders by the Respondent, the Disciplinary Administrator shall promptly inform the Supreme Court and an Order shall be issued directing Respondent show cause why these Orders should not be vacated and such discipline be imposed by the Court as it deems just and proper without further formal proceedings.”
Jones did not file exceptions to the findings, conclusions and recommendations as embodied in the final hearing report of the panel.
We find there is clear and convincing evidence establishing the violations found and enumerated by the panel as to each of the two counts. We agree with and adopt the panel’s findings, conclusions, and recommendations, with one additional requirement:
Either Andrew E. Busch or another attorney approved by this court shall continue to supervise respondent until such time as respondent secures legal malpractice insurance coverage in an amount to be approved by this court. Respondent shall remain on probation during his supervision.
It is therefore ordered that Stephen J. Jones be suspended from the practice of law for a minimum period of 18 months in accordance with Supreme Court Rule 203(a)(2) (1992 Kan. Ct. R. Annot. 153), the discipline being probated in accordance with Supreme Court Rule 203(a)(5) on the terms and conditions recommended by the panel, as modified by this court.
It is further ordered that, in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to the respondent, and this court shall take whatever disciplinary actions it deems just and proper, including disbarment, without further formal proceedings.
It is further ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to the respondent. | [
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The opinion of the court was delivered by
Lockett, J.:
This appeal arises from eight consolidated lawsuits tried to the court in which plaintiffs/appellants claimed certain of defendants’ oil and gas leases had automatically terminated because the leaseholds had failed to produce gas in commercial quantities. The trial court ruled in favor of the plaintiffs in two cases and against them in six cases. Plaintiffs in those six cases appeal, claiming the trial court: (1) failed to make sufficient findings of fact to conclude the wells were producing or capable of producing gas in paying quantities; (2) erred in finding the shut-in royalty payments perpetuated the leases; and (3) erred in considering the suit as an equitable action for lease forfeiture rather than a legal action to terminate the leases. Defendants cross-appeal, claiming the trial court erred by not entering judgment in their favor on grounds the plaintiffs were estopped from claiming the leases terminated.
Plaintiffs-lessors are (1) certain landowners of the lands covered by the defendants’ oil and gas leases involved in these lawsuits and (2) Plains Resources, Inc. (Plains). Defendants-lessees are (1) Hugoton Energy Corporation (Hugoton), (2) Plains Petroleum Operating Company (PPOC), (3) Hamilton Brothers Oil and Gas Corporation, (4) Texaco, Inc., (5) Mesa Mid-Continent Limited Partnership, and (6) Mesa Operating Limited Partnership. Defendant Hugoton is the successor operator to PPOC: The other defendant-lessees owned smaller working interests in the gas units but did not operate the units.
The wells involved in this lawsuit are in the Bradshaw Field in Hamilton County, Kansas. They were initially drilled in the 1960’s by Kansas-Nebraska Natural Gas Company, Inc., now KN Energy, Inc. (KN Energy). The primary term of the various oil and gas leases expired long ago. Each of the wells has produced gas only and each produced gas nearly every month until the mid-1980’s. KN Energy initially operated the wells and owned a substantial interest in the associated leasehold estates. It also owned the gathering and pipeline system which transported the gas produced from those wells.
Gas from these wells is of relatively low quality. The wells have relatively low deliverability, and they produce significant amounts of water. Because the wells produce large quantities of water, they cannot be turned on and off to meet current demands. They, therefore, require a high level of maintenance.
In 1983, KN Energy formed Plains Petroleum Company, a wholly owned subsidiary. KN Energy transferred its gas units in the Bradshaw Field to this new corporation and then entered into a Gas Purchase Contract for all the gas produced from the units.
As the price of gas increased, KN’s sale of gas drastically decreased because of a decline in industrial gas sales. KN lost substantial sales, for instance, when a major commercial customer, a gas-fired energy plant, switched to coal. As a result of the decline in gas sales, KN’s purchases of natural gas under the gas purchase contract also declined.
On September 13, 1985, Plains Petroleum Company became independent of KN Energy. Plains Petroleum Company then formed a wholly owned subsidiary, Plains Petroleum Operating Company, on December 1, 1986, and transferred its Bradshaw Field interests and the KN Energy gas purchase contract to PPOC.
In 1986, the wells involved in this appeal encountered mechanical problems and production from the wells ceased. PPOC elected not to repair and produce those wells because of the high cost of maintenance. The wells remained off production for more than three years, each subsequently resuming production at a different time. During those periods in which the wells were not producing, PPOC tendered “shut-in” royalty payments which were accepted by the lessors.
In 1989, PPOC decided to sell its properties in the Bradshaw Field. It prepared and distributed a Sales Brochure which contained information regarding its Bradshaw Field properties, including revenue and operating expense information for the wells for the 28-month period from January 1987 through April 1989. The brochure indicated that operating expenses exceeded revenues for each of the wells during that period.
In the summer of 1989, Plains Resources determined that the leases at issue had terminated because the wells were not producing in paying quantities or were not capable of producing in paying quantities. Consequently, Plains acquired new oil and gas leases covering the properties associated with the wells. In November 1989, Hugoton became the successor in interest to the original lessees when it acquired PPOC’s leases covering those, same properties.
Plaintiffs brought this action to terminate Hugoton’s oil and gas leases.
TRIAL COURT DECISION
After reviewing the evidence, the trial court found that all the leases involved in the lawsuit had valid shut-in royalty payment provisions; when the six wells involved in this appeal were first shut down in 1986 it was for mechanical reasons; and PPOC subsequently chose to invoke the shut-in royalty payment provisions of the leases rather than to repair the wells because PPOC would not be able to recover its costs of repair at the price being paid by and the limited market available through KN Energy.
As relevant to this appeal, the trial court concluded that when the wells were shut down and shut-in royalty payments made, there was no market available for the sale of the natural gas that could be produced from the wells. The court also concluded that prior to and after the shut-in period, four of the wells were producing in paying quantities and were capable of producing in paying quantities when shut in and that, as to two of the wells, repairs had commenced within the time frame required by the leases but that a sufficient period of time had not passed to determine whether the revenue from the sale of gas would exceed the Lease Operating Expense (LOE).
The trial court refused to terminate defendants’ leases in those six cases.
As noted previously, plaintiffs in those six cases appeal, and defendants cross-appeal. Because the record does not support plaintiffs’ conclusion that the trial court considered this to be an equitable action for lease forfeiture rather than a legal action to terminate the leases, we do not address plaintiffs’ third claim of error.
INSUFFICIENT FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs first claim the trial court’s findings of fact and conclusions of law were insufficient to support its determination that the wells were producing or capable of producing gas in paying quantities. Plaintiffs, however, did not raise this issue with the trial court.
Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
In reviewing the decision of a trial court, this court must accept as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court, and must disregard any conflicting evidence or other inferences that might be drawn therefrom. State v. McKeown, 249 Kan. 506, 515, 819 P.2d 644 (1991). Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. K.S.A. 60-252(a).
Supreme Court Rule 165 (1992 Kan. Ct. R. Annot. 134) provides that in all contested matters submitted to a judge without a jury the judge shall state the controlling facts required by K.S.A. 60-252 and the legal principles controlling the decision. This requirement is in part for the benefit of the appellate courts in facilitating review. Where 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, meaningful appellate review is precluded.
It is well established, however, that a litigant must object to inadequate findings of fact and conclusions of law in order to give the trial court an opportunity to correct them. In the absence of an objection, omissions in findings will not be considered on appeal. Where there has been no such objection, the trial court is presumed to have found all facts necessary to support the judgment. Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 369, 598 P.2d 188 (1979).
A review of the record shows the trial judge failed to set out the mathematical procedure he used to arrive at the income and expenses for each of the wells. However, because plaintiffs failed to object to the inadequacy of the findings and thereby allow the trial judge the opportunity to further explain his findings and conclusions, the trial judge’s omission is not reversible error.
SHUT-IN ROYALTY PAYMENTS
Plaintiffs • next contend the trial court erred in concluding the shut-in royalty payments perpetuated the leases because (1) the trial court erred in finding that no market existed for the gas, and (2) the wells were not mechanically capable of producing gas.
There were three different shut-in royalty clauses and related repair clauses involved in this case. All were similar to the following:
“Where gas from a well or wells, capable of producing gas only, is not sold or used for a period of one year, lessee shall pay or tender, as royalty, an amount equal to the delay rental as provided in paragraph (5) hereof, payable annually at the end of each year during which such gas is not sold or used, and while said royalty is so paid or tendered this lease shall be held as a producing property under paragraph numbered two hereof.”
“If, upon, or after the expiration of the primary term of this lease, the well or wells on the leased premises, or on the consolidated gas leasehold estate, shall be incapable of producing, this lease shall not terminate provided lessee resumes operations for drilling a well on the leased premises or on the consolidated leasehold estate within one hundred twenty (120) days from such cessation, and this lease shall remain in force during the prosecution of such operations and, if production results therefrom, then as long as production continues.”
Plaintiffs first argue that shut-in royalty clauses cannot be invoked when there is a market for the gas or the wells are not capable of producing because of mechanical problems. Although the trial court concluded that at the time the wells were shut down and the shut-in royalty payments made there was no market for the gas that could be produced from the wells, plaintiffs contend that conclusion is inconsistent with the trial court’s factual findings. They point out the court’s factual finding that, as to each of the six wells, PPOC invoked the shut-in royalty payment provisions because it would not be able to recover its costs of repair at the price being paid by and the limited market available through KN Energy. They argue the finding that there was a limited market is inconsistent with the conclusion that there was no market and, since there was a limited market, shut-in royalty clauses could not be invoked.
As a general rule, forfeiture of oil and gas leases for breach of an implied covenant is disfavored. Whether a lessee has performed its duties under expressed or implied covenants is a question of fact. In the absence of a controlling stipulation, neither the lessor nor the lessee is the sole arbiter of the extent, or the diligence with which, the operations and development shall proceed. The standard by which both are bound is what an experienced operator of ordinary prudence would do under the same or similar circumstances, having due regard for the interests of both. In making such a determination, consideration is given only to the circumstances existing at the time without benefit of the wisdom of hindsight.
In Pray v. Premier Petroleum, Inc., 233 Kan. 351, 352, 662 P.2d 255 (1983), the lessor executed an oil and gas lease which contained the standard provision with a primary term of two years “ ‘and as long thereafter as oil and gas, or either of them, is produced from said land by the lessee, or the premises are being developed or operated.’ ” The lease also contained a shut-in royalty clause. During the primary term of the lease, the lessee began drilling operations on the property. A well capable of producing gas in paying quantities was completed.
In Pray, the lessee’s effort to market the gas was fruitless since it was the only gas well in the area and was three miles from a gas line. The lessee tendered payment under the shut-in royalty provision. For five years, the shut-in royalty payments were paid and accepted. Thereafter, the lessors refused to accept them. Lessors then filed a quiet title action claiming the gas well was not capable of producing in paying quantities because the cost of connecting the pipeline rendered it unprofitable. The trial court concluded that the cost of transporting the gas to the nearest market should be used in determining whether the well was capable of producing in paying quantities and determined the lease had expired by its own terms.
On appeal, the sole issue was whether the costs of connection could be used in determining the well’s capability of producing in paying quantities. We determined costs of connecting the pipeline should not be included and that to do so would essentially negate the effectiveness of a shut-in royalty clause. 233 Kan. at 356.
In reversing the trial court, the Pray court discussed some of the typical provisions of an oil and gas lease. It noted that, generally, under the habendum clause of an oil and gas lease, oil or gas must be produced in “paying” or commercial quantities in order to perpetuate a lease beyond its primary term. Paying quantities is synonymous with commercial quantities. See, e.g., Texaco, Inc. v. Fox, 228 Kan. 589, 618 P.2d 844 (1980). Although the phrase “in paying quantities” may not appear in oil and gas leases, it implicitly is a part of the habendum clause. Pray, 233 Kan. at 353.
With regard to the “thereafter” provision, also known as the extension clause, of the habendum clause of an oil and gas lease, the court noted that it is generally accepted the phrase “in paying quantities” means production of quantities of oil and gas sufficient to yield a profit to the lessee over operating expenses, even though the drilling costs or equipping costs are never recovered and even though the undertaking as a whole may thus result in a loss to the lessee. Pray, 233 Kan. at 355.
The court further stated that a shut-in royalty clause in an oil and gas lease enables a lessee, under appropriate circumstances, to keep a nonproducing lease in force by the payment of the shut-in royalty and that such a clause by agreement of the parties creates constructive production. As such, the clause becomes an integral part of the habendum clause. Pray, 233 Kan. at 353.
The shut-in royalty clause was developed to protect against automatic termination of a lease where a gas well was drilled and no market existed for that gas. The reason that the shut-in royalty clause has come into growing use goes back to the inherent physical nature of natural gas. Unlike oil, it cannot be produced and stored or transported in railroad cars or tank trucks. A lessee completing a gas well consequently often had a special and quite onerous problem in finding a market outlet for the gas production. This would, at times, result in losing a lease at the end of the primary term. Vernon v. Union Oil Company of California, 270 F.2d 441, 446 (5th Cir. 1959); Pray, 233 Kan. at 353.
The “shut-in” royalty clause applies to circumstances where “a well capable of producing a profit is drilled but for the time being no market exists.” Pray, 233 Kan. at 356. There is a mutual interest between the lessor and lessee when no market for the gas exists. However, once a market for gas is secured, that mutual interest no longer exists because the lessor’s interest is in securing royalty payments from production, while the lessee’s interest is divided between receiving revenues and minimizing expenses associated with that production. Thus, the “shut-in” royalty clause serves the interests of both parties only in situations where no market exists for the gas. Pray, 233 Kan. at 354.
The fact a lease is held by payment of shut-in gas royalties does not excuse the lessee from its duty to diligently search for a market and to otherwise act as would a reasonable and prudent lessee under the same or similar circumstances. Robbins v. Chevron U.S.A., Inc., 246 Kan. 125, Syl. ¶ 6, 785 P.2d 1010 (1990).
Although a shut-in royalty clause does not normally specify the shut-in gas well must be capable of producing in paying quantities, such a requirement is implied. As noted, a shut-in royalty clause is a savings clause allowing for constructive production. Such clauses provide that upon payment of the shut-in royalty it will be considered as if gas is being produced within the meaning of the habendum clause. In order to achieve the desired result, namely a profit, production, whether actual or constructive, must be in paying quantities.
To obtain the maximum profit from its use of gas, the lessee chose not to produce gas from the wells that required constant maintenance. Because, in this case, at the time of shut-in there was a limited market available to defendants-lessees for the gas producible from the six wells at issue, the shut-in royalty clauses could not be invoked to perpetuate the leases. Thus, the trial court erred in finding the shut-in royalty clauses were properly invoked.
When a mineral lease is terminated because of failure to produce, subsequent production from the land will not extend its term or revive rights which the parties fixed in the contract. Wilson v. Holm, 164 Kan. 229, Syl. ¶ 7, 188 P.2d 899 (1948). Thus, because the leases had terminated because they were not producing in paying quantities, the trial court erred in considering the productive ability of the wells subsequent to the shut-in period when determining whether the wells were producing or capable of producing in paying quantities when shut-in. The trial judge’s determination that the wells were currently producing did not save the leases because they had already terminated.
Because of our holding that the existence of a limited market precluded invocation of the shut-in royalty provisions in this case, we do not reach plaintiffs’ assertion that the wells were incapable of producing in paying quantities due to their mechanical problems.
CROSS-APPEAL
In reaching a decision on the merits, the trial court did not consider the defendants’ affirmative defense of equitable estoppel.
Equitable estoppel is the effect of the voluntary conduct of a party that precludes that party, both at law and in equity, from asserting rights against another who relies on such conduct. A party seeking to invoke equitable estoppel must show that the acts, representations, admissions, or silence of another party (when it had a duty to speak) induced the first party to believe certain facts existed. There must also be a showing the first party 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. There can be no equitable estoppel if any essential element thereof is lacking or is not satisfactorily proved. Estoppel will not be deemed to arise from facts which are ambiguous and subject to more than one construction. Gillespie v. Seymour, 250 Kan. 123, 129-30, 823 P.2d 782 (1991); Ram Co. v. Estate of Kobbeman, 236 Kan. 751, 766, 696 P.2d 936 (1985).
Defendants claim they continued to pay the operating expenses on the wells because of plaintiffs’ acceptance of the shut-in royalty payments. They claim their reliance on the acceptance was reasonable and that plaintiffs are now estopped from terminating the leases.
In light of our holding that the shut-in royalty clauses could not be invoked, the matter must be remanded for the trial court to determine whether plaintiffs should be equitably estopped from claiming termination of the leases at issue is required.
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The opinion of the court was delivered by
Lockett, J.:
Claimant, Mary Glin Chandler, appeals a judgment of the district court which affirmed the decisions of an Administrative Law Judge (ALJ) and the Director of Workers Compensation which awarded benefits to another claimant, Eliza Davis Chandler, as the surviving widow of Fred R. Chandler, Sr., deceased. Mary Chandler appealed, claiming that the district court erred in failing to require the claimed common-law wife to overcome the presumption of validity of the subsequent ceremonial marriage between claimant Mary and the deceased. In an unpublished opinion filed August 28, 1992, the Court of Appeals reversed and remanded for further proceedings. Eliza Chandler’s petition for review was granted by this court.
Fred R. Chandler, Sr., was shot during a robbery in the course of his employment as a gas station attendant for Central Oil Corporation, Inc., respondent. Fred died on July 18, 1988, as a result of his injury.
Fred fathered three children with three different women. Fred had a son named Ruben Holmes who was bom on March 6, 1955, to Dorothy R. Johnson. Fred and Dorothy were never married. Ruben was 33 years old when Fred was killed. Ruben never appeared in this action.
After his relationship with Dorothy, Fred married three women and fathered two other children. He first married Noletta J. Carter on June 20, 1964. Fred and Noletta were divorced on June 1, 1973. There were no children bom of this marriage.
The second wife, Eliza, began living with Fred in 1969. Rosalin Chandler, the daughter of Fred and Eliza, was bom August 27, 1971. She turned 18 on August 27, 1989, after Fred’s death, while this case was pending. Eliza and Fred were married in Arkansas on July 7, 1972. Eliza did not know that Fred was still married to Noletta at the time. Eliza and Fred continued to live together after Fred’s divorce from Noletta became, final.
Mary, the third wife, and Fred began living together in April 1982. They were married on July 10, 1985, in Kansas City, Kansas. Fred R. Chandler, Jr., the son of Fred and Mary, was bora July 14, 1983. Mary also had six children who were not Fred’s natural children. Fred and Mary lived together until his death on July 18, 1988.
After Fred’s death, both Eliza and Mary claimed to be the surviving spouse. In determining whether Eliza or Mary was entitled to Fred’s workers compensation death benefits, the ALJ concluded that, because Eliza and Fred continued to live together and hold themselves out as husband and wife after Fred’s divorce from Noletta became final, a common-law marriage existed between Eliza and Fred. Under these facts, Fred lacked capacity to enter into the subsequent marriage with Mary because his prior common-law marriage to Eliza had not been dissolved. The ALJ found that because Eliza was the common-law wife of Fred at the time of his death, Eliza and her children were entitled to receive benefits in various amounts and at various periods of time. The ALJ denied benefits to Mary and her children, except for Fred, Jr.’s, own benefits. Mary appealed to the Director of Workers Compensation. The Director upheld the ALJ. Mary appealed to the district court.
The district court observed the only issue on review was who was the surviving spouse of Fred R. Chandler, Sr. After reviewing the testimony, the exhibits, the submission letters of the parties, and oral arguments, the district court affirmed the ALJ and the Director’s determination, that Eliza Chandler was the surviving spouse and, as a result, entitled to the benefits.
The district court noted that well-settled law in Kansas recognizes a common-law marriage if three elements are present: (1) the requisite capacities of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public. See In re Estate of Hendrickson, 248 Kan. 72, 73, 805 P.2d 20 (1990). The district court pointed out that both the award of the ALJ and the order of the Director recognized the prerequisites for a common-law marriage and set forth in detail the factual basis for concluding that such a relationship existed between Fred and Eliza at the time Fred died. The district court concluded the three elements required for a common-law marriage existed between Fred and Eliza. Because the subsequent marriage of Fred to Mary Chandler was void and of no legal effect, Eliza, as the surviving spouse of Fred Chandler, Sr., was entitled to all benefits allowed under the Workers Compensation Act to the surviving widow. The district court affirmed the award of the ALJ and the Director. Mary appealed to the Court of Appeals.
In an unpublished opinion, the Court of Appeals noted that in proceedings under the Workers Compensation Act, the burden of proof is on the claimant to establish the claimant’s right to an award of compensation and to prove the various conditions on which the claimant’s right depends. In determining whether the claimant has satisfied this burden of proof, the trier of fact considers the whole record. K.S.A. 1991 Supp. 44-501(a). It observed that K.S.A. 1991 Supp. 44-508(g) defines burden of proof under workers compensation as “the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party’s position on an issue is more probably true than not true on the basis of the whole record.” It observed that under these statutes, both Mary and Eliza had the burden to prove by a preponderance of the evidence they were entitled to benefits as Fred’s surviving spouse. The Court of Appeals noted that Mary claims she is entitled to a presumption that her subsequent marriage to Fred was valid under Harper v. Dupree, 185 Kan. 483, Syl. ¶ 2, 345 P.2d 644 (1959).
In Harper, a husband sought to have his marriage annulled because his alleged wife had a surviving spouse from a previous marriage. The Harper court stated the law is well settled with respect to the presumption of validity of a subsequent marriage where an attempt is made to have it annulled on the ground one of the parties thereto was not divorced from his or her spouse at the time of such subsequent marriage. It noted that where annulment is sought on the ground of a prior subsisting marriage, courts will not grant a decree of nullity except on the production of clear, satisfactory, and convincing evidence, the reason being the peculiar nature of marriage and the grave consequences attendant on its subversion. 185 Kan. at 487. See 55 C.J.S., Marriage, § 58c., pp. 938, 939-40.
The Harper court noted that the majority view is that a second or subsequent marriage of a person is presumed to be valid; that such presumption is stronger than and overcomes or rebuts the presumption of the continuance of the previous marriage, and that the burden of proving the continuance of the previous marriage, and the invalidity of the second marriage, is upon the party attacking the validity of the subsequent marriage. To overcome the presumption of validity, and to sustain the burden of proving the invalidity of a marriage, every reasonable possibility of validity must be negatived, and the evidence to overcome the presumption of validity of the subsequent marriage must be clear, strong, and satisfactory and so persuasive as to leave no room for reasonable doubt. In other words, the burden of proving that a divorce has not been granted to either party to a former marriage is substantial and is not met by proof of facts from which mere inferences may be drawn. 185 Kan. at 487.
The Harper court found that where an attempt is made to annul a marriage on the ground of a prior subsisting marriage of the other party, the presumption of validity of the subsequent marriage is stronger than and overcomes the presumption of the continuance of the previous marriage, and one who seeks to impeach the subsequent marriage has the burden of proving by evidence “ ‘so cogent as to compel conviction’ ” that the previous marriage has not been dissolved. 185 Kan. at 488 (quoting Kinney v. Woodmen of the World, 110 Kan. 323, 326, 203 Pac. 723 [1922]).
In a subsequent case, Burnett v. Burnett, 192 Kan. 247, 387 P.2d 195 (1963), the wife, Noema, was divorced from a former husband on October 14, 1958. On October 26, 1958, William Burnett and Noema were married in Miami, Oklahoma. On October 7, 1961, William filed for divorce. Later, William amended his petition, alleging Noema was incapable of entering into the Oklahoma marriage with him because her Kansas divorce from her first husband had not become final. Noema filed a cross-petition praying for divorce,-alimony, and a division of the marital property. The trial court annulled the Oklahoma marriage and adjusted the property rights of the parties in the annulment decree. Noema appealed.
On appeal, the Burnett court pointed out that in a proceeding to annul a marriage the trial court has the responsibility of seeing that the marital status is not disturbed unless clearly sanctioned by. law. The marriage relationship is a matter of public concern. Proceedings to dissolve marriages are not favored under the law. Annulment proceedings are equitable in nature and equitable principles should prevail. In an annulment proceeding, it is the present marital status that is to be considered, not whether a prior márriage between the parties was void. The court observed that an annulled marriage strips the parties of all. legal rights which follow the dissolution of a valid marriage. It reversed the judgment with directions to the trial court -to decree a valid marriage of the parties under the common law and to proceed with the determination of their marital rights under the law pertaining to divorce and alimony. 192 Kan. at 251. See In re Estate of Keimig, 215 Kan. 869, 528 P.2d 1228 (1974); Johnson County National Bank & Trust Co. v. Bach, 189 Kan. 291, 369 P.2d 231 (1962).
Eliza argues that this presumption applies only when a party to the marriage seeks to annul the marriage; because she is not a party to the marriage, the presumption does not apply. The Court of Appeals pointed out that Eliza’s argument is inconsistent with Hawkins v. Weinberger, 368 F. Supp. 896 (D. Kan. 1973), in which the United States District Court for the District of Kansas applied the presumption of validity of the second mamage against the alleged spouse of a prior common-law, marriage who was attempting to obtain social security benefits as the decedent’s surviving widow. The Hawkins court concluded that substantial competent evidence supported the agency’s conclusion that there was no common-law marriage between the decedent and the alleged first spouse. 368 F. Supp. at 900.. The United States District Court applied the presumption from Harper, noting we had held that where two purportedly valid marriages are entered into in good faith, the law will presume the second of the mar riages to be valid, with the burden on the claimant from the first marriage to rebut that presumption. The presumption includes the fact of dissolution of the previous marriage. 368 F. Supp. at 900. The Court of Appeals found that this case is controlled by Harper and that the Hawkins rationale applies because here, as in Hawkins, the prior common-law spouse sought to invalidate the decedent’s subsequent ceremonial marriage in order to receive dependent benefits.
The Court of Appeals also noted public policy supports applying the presumption against Eliza. Eliza testified that after she moved to Florida she received social security benefits for Rosalin because Fred was disabled, but Fred did not support her during the years they were separated. The Court of Appeals pointed out that K.S.A. 1991 Supp. 44-508(c)(l) defines dependents as “such members of the employee’s family as were wholly or in part dependent upon the employee at the time of the accident.” It observed that K.S.A. 1991 Supp. 44-508(c)(2) explains that a surviving spouse is excluded from the definition of “members of a family” if the surviving spouse willfully or voluntarily deserts or abandons the employee more than six months prior to the date of the employee’s death. The Court of Appeals concluded the presumption applies against Eliza’s claim of a common-law marriage because this statute demonstrates that the purpose of the act is to compensate spouses who are dependent upon the employee for their livelihood.
The Court of Appeals then determined that under the facts of this case the district court erred by failing to require Eliza to overcome the presumed validity of the subsequent marriage by proving that she and Fred entered into a common-law marriage and that it had not been dissolved at the time of Fred’s marriage to Mary. More specifically, it held the district court erred in affirming the ALJ’s conclusion that the marriage was still in effect absent proof that Fred and Eliza were divorced.
The Court of Appeals reversed and remanded the cause with directions to the district court to (1) apply the presumption of validity to the marriage of Fred and Mary and then permit Eliza the opportunity to rebut such presumption; and (2) after deciding which of the claimants was the wife of the worker at the time of his death, determine how the benefits for dependent children/ stepchildren should be divided. The Court of Appeals held that if the district court after remand concludes that Mary was the surviving spouse of Fred, the court must also consider whether Mary’s children from a previous marriage were entitled to dependent benefits as stepchildren pursuant to K.S.A. 1991 Supp. 44-508(c)(3)(b) and (c).
We agree with the Court of Appeals’ determination that under the Workers Compensation Act the burden of proof is on the claimant to establish the claimant’s right to an award of compensation and to prove the various conditions on which the claimant’s right depends. K.S.A. 1991 Supp. 44-501(a). The burden of proof for a party to prove its claim or right is to persuade the trier of facts by a preponderance of the credible evidence that the party’s position on an issue is more probably true than not true based upon the whole record. K.S.A. 1991 Supp. 44-508(g).
We disagree with the Court of Appeals’ statement that K.S.A. 1991 Supp. 44-508(c)(l), which defines “dependents,” and K.S.A. 1991 Supp. 44-508(c)(2), which explains that a surviving spouse is excluded as a “member of the family” if the surviving spouse willfully or voluntarily deserts or abandons the employee more than six months prior to the date of the employee’s death, are statements of a public policy which supports a presumption against Eliza as a surviving spouse of the deceased worker in this action. The statute was not enacted to determine which of two claimants is entitled to be the surviving spouse of a deceased worker, but whether the surviving spouse of the deceased worker is entitled to workers compensation benefits.
We agree with the Court of Appeals’ statement that, because of the peculiar nature of the relationship of marriage and the grave consequences attendant upon its subversion, the law raises a presumption of validity of a subsequent marriage, and such presumption is “ ‘one of the strongest known to the law.’ ” Harper v. Dupree, 185 Kan. at 488 (quoting Shepard v. Carter, 86 Kan. 125, 130, 119 Pac. 533 [1911]). Where an attempt is made to annul a marriage on the ground of a prior subsisting marriage of the other party, the presumption of validity of the subsequent marriage is stronger than and overcomes the presumption of the continuance of the previous marriage, and one who seeks to impeach the subsequent marriage assumes the burden of proving by evidence “ ‘so cogent as to compel conviction’ ” that the previous marriage has not been dissolved. Harper v. Dupree, 185 Kan. at 488.
On remand, to overcome the presumption of validity and to sustain the burden of proving the invalidity of the marriage of Mary and Fred, every reasonable possibility of validity of that marriage must be negatived, and Eliza’s evidence of a continuing common-law marriage to overcome the presumption of validity of the subsequent marriage must be clear, strong, and satisfactory and so persuasive as to leave no room for reasonable doubt. Clear and convincing evidence is evidence that is certain, unambiguous, and plain to the understanding and so reasonable and persuasive as to cause the trier of fact to believe it. Cerretti v. Flint Hills Rural Electric Co-op Ass'n, 251 Kan. 347, 367, 837 P.2d 330 (1992). Clear and convincing evidence is not a quantum of proof, but rather a quality of proof; thus, a party establishes a claim by a preponderance of the evidence, but this evidence must be clear and convincing in nature. Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 448, 827 P.2d 24 (1992).
Judgment of the district court is reversed and the case is remanded. Judgment of the Court of Appeals is affirmed as modified.
Davis, J., not participating.
Terry L. Bullock, District Judge, assigned. | [
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The opinion of the court was delivered by
Lockett, J.:
Herman Krug Farms, Inc., Herman A. Krug, and Esther B. Krug (the Krugs) borrowed money from and executed a mortgage and note to the Federal Land Bank of Wichita to purchase farm and ranch land. The loan was to be repaid in 33 annual installments. Three years later the Krugs entered into a contract for the sale of the land to the partners in S & S Ranch. S & S executed an assumption agreement of the Krugs’ loan from the Bank. S & S made two annual payments but refused to make additional payments when it was unable to obtain a deed from the Krugs or the Bank. The Bank petitioned for foreclosure, naming the Krugs and S & S as defendants. The Krugs cross-claimed against S & S for failure to make payments due under the real estate contract and indemnity for any liability the Krugs had to the Bank. The district court (1) rescinded the contract for sale between the Krugs and S & S; (2) ordered S & S to make an accounting to the court; (3) found S & S had no rights of redemption; (4) found S & S partners and the Krugs were liable to the Bank on the mortgage assumption agreement; and (5) found the Bank had violated the Equal Credit Opportunity Act. S & S appealed, claiming that rescission of the contract is a defense to a mortgage. The Court of Appeals reversed the trial court in an unpublished decision filed November 13, 1992. We granted the Federal Land Bank’s petition for review.
Those involved in the action can be divided into three parties: The first party (the Krugs) includes Herman Krug Farms, Inc.; Herman A. Krug (deceased) and Esther B. Krug; and the Herman Krug Estate. The second party (S & S) includes Jack Yost, John Yost, and Bruce Miller, partners in S & S Ranch; and Eloise Yost and Terrie Miller, the wives of John Yost and Bruce Miller. The Federal Land Bank of Wichita (Bank) is the third party.
In 1981, the Krugs executed a promissory note for $584,000 and a 33-year mortgage on 2,720 acres of farm and ranch land to the Bank. The mortgage stated: “[M]ortgagee at its option may declare the debt immediately due in the event of change of ownership of the security, unless mortgagee has given its written consent to such change.”
Because the Krugs could not make the annual payment on the note in 1984, they entered into a Contract For Sale of Real Estate with S & S. The contract provided that S & S was to acquire the land and the KrUgs’ stock in the Bank. In return, S & S was to assume the Krugs’ debt to the Bank. The contract expressly stated: “[I]t is agreed and stipulated by and between the parties that such contract sale shall at all times be subject to the approval by The Federal Land Bank Association of Wichita, Kansas, of the assumption of the above referred to mortgage by Buyer.”
A mortgage assumption agreement was prepared by.the Bank and executed by S & S as purchaser of the land, and by Herman Krug Farms, Inc., as the seller of the land. Under the agreement, S & S assumed and agreed to pay to the Bank the unpaid balance of the Krugs’ indebtedness and agreed to be bound by all the covenants, conditions., and obligations contained in the note, mortgage, and other loan instruments to the same extent as if the note, mortgage, and other loan instruments were executed by S & S.
After S & S had made the November 1, 1984, and November 1, 1985, annual payments on the mortgage, it refused to make the November 1, 1986, payment because it was unable to obtain a deed from the Krugs or the Bank. The Bank commenced a foreclosure action naming the Krugs and S & S as defendants. The Krugs cross-claimed against S & S for its failure to make the last of two payments under the real estate contract and for indemnity for any liability of the Krugs to the Bank. Other issues were raised and disposed of, and they will not be discussed in the opinion. • ■■
As relevant, the trial court found:
1. Defendants had defaulted on the note and mortgage in failing to pay the Bank the installments-when due.
2. Defendants Krug and S & S were jointly and severally liable for the amounts due the Bank.
3. Defendants were entitled to credit against the judgment for their stock in the Federal Land Bank Association of Hays, and their interest in the stock was foreclosed.
4. The Bank was entitled to have its mortgage and security interest foreclosed. The Bank was entitled to have the property sold to satisfy payment of the amount of indebtedness.
5. Both S & S and the Krugs breached the terms and conditions of the real estate contract (the Krugs because they failed to timely deliver good and marketable title and refused to tender a warranty deed and S & S because it did not pay the Bank when payment was due).
6. S & S Ranch did not seek specific performance of the contract, nor did it seek damages for breach of contract. The court construed that to mean it sought the contract remedy of restitution and rescission. Accordingly, the trial court rescinded the contract; S & S was directed to make an accounting to the court; the Krugs were entitled to possession; S & S was entitled to have the $2,500 down payment returned to it; and S & S partners had no rights of redemption because, as a result of the rescission of the contract, they had no ownership interest in any of the subject property.
7. Breach of the sales contract between the Krugs and S & S ranch was not, as a matter of law, a defense to the claim for mortgage foreclosure by the Bank or a defense to the mortgage assumption agreement executed by S & S.
8. The property should be sold according to law and applied to the judgment.
9. If there remains any amount due the Bank, the Bank is entitled to a deficiency judgment against the defendants for such remaining amounts.
S & S appealed to the Court of Appeals, claiming that rescission of the contract is a defense to a mortgage.
The Court of Appeals reversed the district court, holding:
1. The trial court was correct in ordering rescission of the Contract for Sale of Real Estate because failure to tender marketable title was a material breach warranting rescission. The Court of Appeals equated failure to tender a deed with failure to tender marketable title.
2. The contract and mortgage assumption should be construed together to determine the intent of the parties to the contract because (a) the Bank was a necessary approving party to the contract for sale; (b) the Bank would not have approved the sale without the mortgage assumption; (c) the mortgage assumption is a contract between the Krugs and S & S and the Bank is not listed as a party to the mortgage assumption; and (d) the mortgage assumption states the parties are purchaser and seller and “this language” cannot stand without the sale because “there must be something for the purchaser to purchase.”
3. The Bank’s forbearance to foreclose is insufficient consideration for the mortgage assumption because it is not reasonable to believe that S & S, absent its ownership interest, would have assumed the mortgage only to protect the Krugs’ land from foreclosure. The assumption is reasonable only when one includes the fact that S & S had Signed a contract to buy the land. When a buyer’s interest in property is removed, as the trial court did with rescission in this case, any consideration received for executing the mortgage assumption is also removed. Therefore, a rescission of the contract in this case necessarily includes rescission of the mortgage assumption.
4. In general, equity requires that all parties be placed where they originally started. Under the facts of this case, it is possible to return each party to its original position. Including the mortgage assumption in the rescission of the contract will place all parties in their original position. Rescission of the contract includes rescission of the mortgage assumption, and rescission of the contract in this case is a defense to liability for the mortgage debt:
The Bank petitioned for review, and we granted .the petition.
We first note that the parties do not agree on the statement of the issue being reviewed. We determine the issue to be whether .the Court of Appeals erred by reversing the trial court and finding that because the trial court-rescinded the contract it also rescinded the assumption ágreement which was the basis for S ,& S’s obligation to the Bank under the mortgage..
The Bank contends that the standard of review is whether the findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. It contends that, on the basis of this standard of review, the Court of Appeals erred in reversing the trial court’s judgment that S & S’s execution of the assumption agreement made it liable to the Bank on the mortgage. We disagree with the Bank’s contention as to the appropriate standard of review.
The mortgage assumption agreement was a written document. As a general rule, the interpretation or construction and meaning and legal effect of written instruments are matters of law exclusively for the court and not questions of fact. State v. Reineking, 10 Kan. App. 2d 630, Syl. ¶ 7, 706 P.2d 483, rev. denied 238 Kan. 879 (1985). Therefore, regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, Syl. ¶ 1, 754 P.2d 803 (1988). See State v. Smith, 244 Kan. 283, 284, 767 P.2d 1302 (1989).
S & S asserts that the “Mortgage Assumption Agreement; Voting Stock and Participation Certifícate Transfer” was part of the contract between the Krugs and S & S for the sale of real estate. It claims that the contract between it and the Krugs merely authorizes the Bank to transfer the stock of the Bank to the purchasers and, as such, is merely adjunct to or an implementation of that portion of the Contract for Sale of Real Estate. S & S asserts that because the Bank did not approve the contract for sale, the Bank is only a third-party beneficiary of the contract and, as such, is subject to all defenses to the contract, including rescission and restitution. S & S argues that once the underlying real estate contract was rescinded, there was no consideration to support the assumption agreement.
The Bank asserts the Court of Appeals correctly found the contract and mortgage assumption agreement should be construed together to determine the intent of the parties because the Bank was a necessary approving party to the contract for sale and the Bank would not have approved the sale without the mortgage assumption. It argues the Court of Appeals erred in determining the mortgage assumption was an agreement between the Krugs and S & S and that the Bank’s forbearance to foreclose its mortgage was insufficient consideration for the assumption agreement.
For authority the Bank relies on Federal Land Bank v. Girtch, 151 Kan. 528, 99 P.2d 768 (1940). In that case Rathbun purchased from the Girtches property secured , by a mortgage to the Federal Land Bank. Rathbun did not agree to assume the indebtedness of the mortgage. However, Rathbun later executed a written application to extend the time to make a payment due on the mortgage. To obtain the extension, Rathbun agreed to pay the balance of indebtedness.
When the loan became delinquent, the Bank instituted a foreclosure action against the Girtches and Rathbun. Rathbun defended ■ the action, stating that when executing the extension agreement, he did not assume the mortgage debt and that there was no consideration for the extension agreement. In rejecting Rathbun’s arguments, the Girtch court stated that the agreement was sufficiently clear that in consideration for the extension of credit Rathbun assumed personal liability to all items extended. The court found that by granting the extension to Rathbun, the Bank gave consideration by parting with its legal right to foreclose the mortgage.
To warrant rescission of a contract for breach of contract, the breach must be material and the failure to perform so substantial as to defeat the object of the parties in making the agreement. M & W Development, Inc. v. El Paso Water Co., 6 Kan. App. 2d 735, Syl. ¶ 1, 634 P.2d 166 (1981). Generally, upon rescission of a contract the parties must be placed in substantially the same condition as they were when the contract was executed. M & W Development, Inc., 6 Kan. App. 2d 735, Syl. ¶ 3. Only by placing all parties where they originally started can equity be done.
The Court of Appeals reasoned rescission of the contract of sale between the Krugs and S & S required that all parties must be placed substantially where they were when the sale contract for the land was executed. It determined that because there was no consideration for S & S’s execution of the assumption agreement, equity required all parties be placed where they originally started.
The primary rule in construing written contracts is the intention of the parties as disclosed by the instruments. An assumption agreement is an act of assuming or taking an obligation on one’s self and can include the undertaking or adoption of a debt or obligation resting upon another. When one contracts to assume a mortgage even though the documents are executed at different times, but in the course of the same transaction concerning the same subject matter, they will be construed together to determine the intent of the parties to the contract. Hollenbeck v. Household Bank, 250 Kan. 747, Syl. ¶ 2, 829 P.2d 903 (1992). One of the conditions of the contract between the Krugs and S & S is that the sale of the land was subject to approval of the Bank and the buyer’s assumption of the note and mortgage. Under these circumstances, the Bank’s approval was sufficient consideration for the assumption agreement.
A real estate mortgage is a contract which conveys no legal title, but is merely the mortgagee’s security for the mortgagor’s debt. Because the mortgage is only security, and incident to the debt, it follows the debt and partakes of its nature and character. Lewis v. Kirk, 28 Kan. 497, 501 (1882). A judgment rendered against one who is not a signer of the note and mortgage is proper when the individual later executes a valid agreement to assume the obligations of the note and mortgage.
The judgment of the district court is affirmed. The judgment of the Court of Appeals is reversed. | [
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In a letter dated October 29, 1993, to the clerk of the appellate courts, respondent Robert E. Jenkins, of Kansas City, Kansas, an attorney admitted to practice law in the State of Kansas, voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1992 Kan. Ct. R. Annot. 175).
On May 28, 1993, this court indefinitely suspended respondent from the practice of law in Kansas. In re Jenkins, 253 Kan. 48, 853 P.2d 648 (1993). At the time he surrendered his license, there were six separate complaints scheduled for hearing on November 1, 1993, before a panel of the Kansas Board for Discipline of Attorneys. There were also five different docketed complaints waiting to be scheduled on the Supreme Court docket. Two additional complaints had been received and docketed and were being investigated by the office of the Disciplinary Administrator. All of the 13 complaints alleged that respondent had accepted representation of clients in legal matters but had subsequently failed to perform the legal services for which he had been retained and had failed to communicate with his clients.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It is therefore ordered that Robert E. Jenkins be and he is hereby disbarred from the practice of law in the State of Kansas, and his license and privilege to practice law are hereby revoked.
It is further ordered that the clerk of the appellate courts strike the name of Robert E. Jenkins from the roll of attorneys licensed to practice law in the State of Kansas.
It is further ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176). | [
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Donna M. Dill, formerly of Overland Park but whose present address is Rohnert Park, California. Ms. Dill is an attorney admitted to the practice of law in Kansas. Two separate complaints were filed against respondent which were consolidated for hearing before the Kansas Board for Discipline of Attorneys (Board) and before us.
McNaughton complaint
In complaint No. B5516, the hearing panel found that John McNaughton retained respondent to perform legal services for him and, in connection therewith, left various legal documents with her. Without informing Mr. McNaughton, respondent moved to California. Mr. McNaughton then retained another attorney, J. Patrick Flanigan, to represent him. Despite multiple requests by Mr. Flanigan to respondent seeking return of the client’s file, the file was not returned. Respondent also ignored the Disciplinary Administrator’s efforts to obtain the return of the file, and respondent has not responded to inquiries from that office.
LOVEALL COMPLAINT
In complaint No. B5515, the hearing panel found that Mary Karen Loveall of Warsaw, Missouri, was seeking an attorney to represent her relative to obtaining disability benefits. A friend gave her respondent’s name. Ms. Loveall had a telephone con versation with respondent in which respondent agreed to represent Ms. Loveall and requested that all pertinent documents and information be mailed to her. Ms. Loveall sent the information. After not hearing anything from respondent for several months, Ms. Loveall telephoned respondent’s office and learned respondent had moved to California. Ms. Loveall then telephoned the California number the office had provided. Respondent stated she would refer Ms. Loveall to an attorney. Ms. Loveall has heard nothing further from respondent, and her file has not been returned. Efforts of the Office of the Disciplinary Administrator to secure the return of the file have been unsuccessful, and respondent has not responded to inquiries from that office.
From these facts the hearing panel concluded respondent had violated the following:
“X. MRPC X.3 [X992 Kan. Ct. R. Annot. 248]—in that Respondent has failed to act with reasonable diligence and promptness in representing clients.
“2. MRPC X.4 [X992 Kan. Ct. R. Annot. 25X]—in that Respondent has failed to keep clients reasonably informed about the status of a legal matter and has failed to promptly comply with reasonable requests for information from a legal client.
“3. MRPC X.X6 [X992 Kan. Ct. R. Annot. 286]—in that (X) the Respondent has failed to terminate or withdraw from the representation of a client where the lawyer was discharged; or (2) the lawyer’s conduct materially impaired the lawyer’s ability to represent the clients.
“4. Supreme Court Rule 207 [X992 Kan. Ct. R. Annot. X60]—in that the Respondent has failed to cooperate with the Disciplinary Administrator’s investigation of both of these cases.”
We adopt the hearing panel’s findings of fact and conclusions of law.
Respondent had previously received the discipline of informal admonition from the Board in a complaint dated November 1, 1990. Further, on January 22, 1993, respondent was suspended from the practice of law for one year for conduct similar to that shown herein. In re Dill, 252 Kan. 486, 845 P.2d 699 (1993). After noting these prior complaints, the hearing panel expressed its concern over respondent’s failure to respond to client inquiries and to the complaints herein. No evidence of mitigating circumstances was presented. The hearing panel then recommended that respondent be disbarred from the practice of law in Kansas. We agree with said recommendation.
It Is Therefore Ordered that Donna M. Dill be and she is hereby disbarred from the practice of law in the State of Kansas, and her license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Donna M. Dill from the roll of attorneys licensed to practice law in the State of Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein be assessed to respondent, and that respondent forthwith comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176). | [
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiffs, William and Laverne Gross, brought this action, alleging that each of the defendants trespassed and that Capital Electric Line Builders, Inc., (Capital) the State of Kansas, and Kansas Highway Patrol Officers Ray Wards and Timothy Hepner took their property without compensation and violated their civil rights. The district court entered summary judgment against the Grosses. They appealed, and the case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3017.
William and Laverne Gross own property at 9006 W.' 63rd, Shawnee Mission, Kansas. The Merriam Toyota automobile deal ership formerly was located there. No business operated at the location for several years prior to and including 1989.
For approximately the first six months of 1989, the Grosses were in Florida. It was during their absence or shortly after their return that Capital and the State used the parking lot.
Capital was installing lights and traffic signals as part of the I-35 reconstruction project near the parking lot. Employees of Capital, who were driving pickups for the company and personal vehicles, parked on thé lot during an 8- to 12-week period. Capital admits that it trespassed on the Grosses’ property.
Also in connection with the reconstruction project on 1-35, other contractors, including Clarkson Construction Company, had trucks and equipment on the parking lot.' Clarkson was not sued by the Grosses.
Sometime in 1989, Ray Wards and Timothy Hepner of the Motor Carrier Inspection Troop of the Kansas Highway Patrol spent approximately two hours in the Grosses’ parking lot weighing trucks. They were operating a Mobile Enforcement Unit and selected the vacant parking lot as a safe location for the operation. The portable scales weighed approximately 35 pounds and were taken to the parking lot in a passenger car. Eight to ten trucks were weighed on the Grosses’ property.
William Gross testified that there were cracks in the asphalted parking lot before 1989. He testified: “This was cracked (indicating). This wasn’t, cracked at—it was all cracked. Sure, it was cracked. Asphalt cracks.” When he was asked, “Can you tell me whether the cracking in the parking lot was any different before and after you learned of any alleged trespassing?” he answered, “Oh, yes. It was severe afterwards.” Gross also testified that he had no way of quantifying the damage he alleged had been done by Capital and the State.
The district court entered summary judgment against the Grosses and in favor of Capital, the State, Wards, and Hepner on the Grosses’ claim of trespass, principally for the reason thát no damages were shown. The district court concluded that the modern rule with respect to trespass is that damáges will riot be inferred as a matter of law and that the modern rule should be applied in the present case. The district court'cited as authority Maddy v. Vulcan Materials Co., 737 F. Supp. 1528 (D. Kan. 1990), and Gobin v. Globe Publishing Co., 232 Kan. 1, 6, 649 P.2d 1239 (1982).
On appeal, the Grosses argue that the rule stated in Hefley v. Baker, 19 Kan. 9 (1877), which allows a trespass plaintiff who can show no actual loss to recover nominal damages, is still the law in Kansas. They distinguish Maddy as being a “hybrid cause of action that has come about through the combining of nuisance law and physical tangible trespass law,” whereas the present case is a classic case of trespass on the premises of another. They further contend that the “modern trend” which the federal district court discussed in Maddy does not exist. Finally, they contend that Gobin does not support the proposition that the courts of this state are moving away from awards of nominal damages in intentional tort actions.
Capital concedes that as recently as the decision in Longenecker v. Zimmerman, 175 Kan. 719, Syl., 267 P.2d 543 (1954), this court held that “[f]rom every unauthorized invasion of the person or property of another, the law infers some damage without proof of actual injury.” It urges the court, however, to abandon a rule when the reason for it no longer exists, citing Carroll v. Kittle, 203 Kan. 841, 848, 457 P.2d 21 (1969) (abolishing governmental immunity).
Capital suggests that the principles announced in Gobin and Maddy offer guidance, but it does not represent that they are controlling in the present case. Capital advocates that the rule of presumed damages in trespass cases should be abolished because it is not supported by public policy and is not consistent with modern tort law.
Capital reviews “modern” tort cases from other states which variously recognize or do not recognize distinctions between tangible and intangible or intentional and negligent invasions of the property of another. We find none of them to be germane except perhaps to demonstrate that the law governing trespass is not static.
Not surprisingly, the State defendants join Capital in advocating that this court abandon the rule of presumed damages in trespass cases. They urge that limited judicial resources “are best spent on real cases with real damages. Any legal fictions which support [the Grosses’] action need to be assigned to the museum of legal history.”
In Maddy, the federal district court granted Vulcan Materials Company’s motion for summary judgment on the Maddys’ trespass claim. The Maddys were neighbors of the manufacturer, and they complained of airborne pollution from Vulcan. The Maddys did not claim that their property suffered physical damage; they claimed economic damages arising from a diminution of the market value of their property and the costs of moving. 737 F. Supp. at 1539. The federal district court reviewed the traditional rules relating to trespass that required an invasion of the plaintiff’s property by tangible matter. It observed:
“However, a modern trend has emerged under which airborne pollution may constitute a trespass, where the plaintiff can demonstrate physical damage to his property. Bradley v. American Smelting & Refining Co., 104 Wash. 2d 677, 709 P.2d 782 (1985); Wilson v. Interlake Steel Co., 32 Cal. 3d 229, 185 Cal. Rptr. 280, 649 P.2d 922 (1982); Born v. Exxon Corp., 388 So. 2d 933 (Ala. 1980); Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala. 1979). See Annotation, Recovery in Trespass for Injury to Land caused by Airborne Pollutants, 2 A.L.R.4th 1054 (1980) (collecting cases). The modem trend departs from the traditional rule by finding that intangible invasions of the plaintiff’s property may constitute a trespass. However, the modem' trend also departs from traditional trespass rules by refusing to infer damage as a matter of law, thereby eliminating the right to nominal damages. The plaintiff claiming trespass must prove that the intangible invasion resulted in substantial damages to the plaintiff’s land.” 737 F. Supp. at 1539.
The federal district court adopted the “modem view” that an intangible invasion may constitute an actionable trespass if the property owner can show substantial physical damage to the property. 737 F. Supp. at 1540. Under this modern view, no damage to the property is inferred by an intangible invasion. There is no right, therefore, to nominal damages. The Maddys alleged an intangible invasion, but failed to allege or prove injury to their property. Even under the modern view, therefore, the Maddys could not recover in trespass. 737 F. Supp. at 1541.
Maddy is distinguishable from the present case, where the Grosses alleged a tangible rather than an intangible invasion of their property. The Grosses alleged that trucks were driven and. parked on their property, as contrasted with the Maddys, who had alleged that airborne gases had migrated from Vulcan’s property onto their own.
. In the' present case, Capital convinced the district court that Gobin stood for the proposition that this court is moving away from the old practice of awarding nominal damages in intentional tort áctions. Gobin was neither a public official nor a public figure. He alleged that the Dodge City Daily Globe published a news story about his pleading guilty to a charge of cruelty to animals which was false, libelous, and défamatory: 232 Kan. at 2.'
In- Gobin, this court was presented with a case in which the plaintiff in a libel action did not allege or prove injury to his reputation. The court decided that the courts of Kansas would not permit the recovery of damages for mental anguish in a libel or slander action without a showing of damage to reputation. 232 Kan. at 7. The court stated that “the plaintiff in an action for defamation must first offer proof of harm to reputation; any claim for mental anguish is ‘parasitic,’ and compensable only after damage to reputation has beén established.” 232 Kan. at 7. The court stated its rationale as follows: , ‘
“We conclude that in this state, damage to one’s reputation is the essence and gravamen of an action for defamation. Unless injury to reputation is shown, plaintiff has not established a valid claim for defamation, by either libel, or slander, under our law. It is reputation which is defamed, reputation which is injured, .reputation' which is protected by the laws of libel and slander.” 232 Kan. at 6.
In other words, damage to reputation is “the principal injury with which a defamation action is concerned.” 232 Kan. at 7.
The-threshold analysis used by Kansas courts is the status of the person alleging libel. The proof required for a non-public figure does not include a showing of intent on the, part of the publisher of the falsehood to harm the defamed individual, but; when the publicatión is the result of negligence, the.proof must include a showing of actual injury to the individual.
Based upon its reading of Gobin, the district -court imposed on- the present tangible invasion the requirement of a showing of actual and substantial-physical damage to the property, which the federal district court had limited to an intangible invasion. We do riot concur in the district court’s reading of Gobin. Nor are we convinced that we should abandon the rule that infers damages without proof of actual damages in an action for trespass.
Appellants also argue, in the alternative, that, even if a showing of substantial damage is required, summary judgment should not have been entered against them because there was evidence of substantial damage. In support of their argument, appellants quote 75 Am. Jur. 2d, Trespass § 135, p. 101, as follows: "A defendant who has beneficially occupied the plaintiff’s property may be liable for its fair rental value, even though the plaintiff was not hindered or obstructed in any use which he expected to make of the property.”
The cases cited in the treatise for this proposition are Balto. & Ohio Railroad Co. v. Boyd, et al., 67 Md. 32, 10 A. 315 (1887), and Pearl v. P.W. Freight Co., 112 Ohio App. 11, 168 N.E.2d 571 (1960). In the first case, the railroad’s entry into and the construction and use of railroad tracks on the Boyd property was supposed to be authorized by condemnation proceedings. When the proceedings later proved to be defective, the railroad procured condemnation through subsequent proceedings. The property owners brought suit for the repeated trespasses which occurred before condemnation was made effective. Thus, the railroad “was not a wilful wrongdoer.” 67 Md. at 40. Moreover, there was no evidence that the property owners were hindered in any use of their land. 67 Md. at 41. Nonetheless, the Maryland court concluded that the property owners were “entitled to a reasonable compensation for the use of their land . . . measured by what would be a fair rental value for the ground” because it had been continuously and beneficially occupied by the railroad. 67 Md. at 41. The Maryland court cited cases from Illinois, Michigan, and Wisconsin in support of its disposition of the matter.
The facts of the Ohio case bear more similarity to the facts of the present case. There, a trucking operation parked trucks and trailers on part of Pearl’s premises without permission. Pearl sought $10,200 on two theories. First he asked for damages for the unlawful use of his property, and second he alleged that the trucking company had been unjustly enriched in that amount at his expense. 112 Ohio App. 11. The trial court granted the truck ing company’s demurrer, and the appellate court reversed. Its reasoning consisted in large measure of quotes from Am. Jur.:
“Now in trespass cases, ‘. . . the law infers some damage, without proof of actual injury.; hence, in an action of trespass the plaintiff is always entitled to at least nominal damages, even though he was actually benefited by the act of the defendant.’ (52 American Jurisprudence, 872, Section 47.) (Murphy v. City of Fond du Lac, 23 Wis., 365, 99 Am. Dec., 181.) Therefore, once the plaintiff in this case had alleged a trespass, it became quite unnecessary to say further that the premises had been damaged. . . .
“52 American Jurisprudence, 874, Section 49, should set the matter at rest with these words: ‘What will constitute an appropriate compensation is dependent, of course, upon whether the claimant’s tenure is such as to entitle him to recover for a permanent injury to the property or merely to an injury to his use and enjoyment of it . . . .’ (Emphasis ours.) These emphasized words certainly indicate that the damages can be to the person for his being deprived of the use of his premises, and that it is not necessary to show a damage to the premises themselves.
“And . . the measure of damages for wrongfully depriving the plaintiff of the use of his property is the rental value or the reasonable rental value of the use of the property during the time he is deprived thereof.’ (52 American Jurisprudence, 874, Section 49.) All of which hardly substantiates the view of the appellee that damages to the real property must be shown in trespass.
“Also, from 52 American Jurisprudence, 475, Section 49, there is the following: ‘. . . when the defendant has beneficially occupied the property, he may be held liable for its fair rental value, even though the plaintiff was not hindered or obstructed in any use which he expected to make of the property.’
“Therefore, the plaintiff is entitled to damages of some kind for the trespass committed against his property.” 112 Ohio App. at 14-15.
Capital objects to the Grosses’ arguing that they are entitled to rent for use of the property on the ground that they did not present that argument to the district court. Capital cites Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988), for the rule that the Grosses had an affirmative duty to come forward with facts to support a claim for rent, which Capital contends they failed to do.
In this case, however, it seems that the shortcoming lies not in a failure to come forward with facts but perhaps with a failure to forcefully advocate a legal basis or theory for recovery of the rent. The rent which the Grosses had earned from the property when it was occupied by an automobile dealership was in the record, and it appears that it had been brought to the court’s attention in an attachment to Capital’s suggestions in support of its motion for summary judgment. It was presented as the Grosses’ answer to Capital’s interrogatory seeking particulars of the damages claim:
“Defendants, in appropriating plaintiffs’ property for their own use, should be liable for the reasonable rental fee for the property for the months it was appropriated by the defendants. By Lease of June 1, 1982, the real estate was leased to Prairie Pacific Corporation. That was assigned on December 20, 1985, to D & H Corporation. The monthly rental was $15,000.00, triple net.”
With regard to the rental value, the Grosses concede that use of the property as a parking lot is worth less than its use as an automobile dealership. They contend that even the lesser rental value exceeds nominal damages and was sufficient to avoid the entry of summary judgment. In any event, based upon the extent of the trespass, it is an element of damages to be considered upon remand to the district court.
We next consider if the district court erred in entering summary judgment in favor of the State, Wards, and Hepner on the Grosses’ claims of constitutional and civil rights violations. Our discussion of the merits on this issue needs to be prefaced by a brief procedural history. The Grosses’ amended petition alleged that all the defendants trespassed. In addition, the Grosses alleged that the State, Wards, and Hepner “took the plaintiffs’ property without due process of law” and “violated the civil rights of the plaintiffs.” The Grosses and Capital filed motions for summary judgment. Ruling on these motions, the district court entered judgment for all the defendants, including the State, Wards, and Hepner, “principally for the reason that . . . [d]amages will not be inferred as a matter of law in trespass cases.” The district court also stated that it was basing its decision on
“the reasons stated in defendant Capital’s memorandum in opposition, pages 1-4, and defendant State’s memorandum in opposition to the effect that plaintiffs have failed to state a claim based on the common law of trespass of Kansas upon which relief can be granted, and for the further reasons stated on pages 5-11 of the defendant State’s memorandum in opposition.”
At pages 5-11 of the State’s memorandum in opposition, the following arguments were made: (1) Wards and Hepner were privileged to be on the Grosses’ private property for a public purpose; (2) the Kansas Tort Claims Act bars any recovery by the Grosses; (3) Kansas does not recognize actions against the State or its officials which are brought directly under the Fourteenth Amendment to the federal Constitution; and (4) the Grosses have not stated a cause of action under 42 U.S.C. § 1983 (1988) because (a) the State and its officials are not persons for purposes of the statute, and (b) a claim of trespass is not a claim of infringement of the federal Constitution and therefore will not support a § 1983 action.
On appeal, the Grosses state that “[t]he trial court did not specifically rule on these issues.” Even so, the Grosses devote many pages of their briefs to the issues because, in their words, “since the court has the power as an alternative grounds to sustain the grant of summary judgment to appellees State of Kansas, Wards and Hepner, appellants will address this issue.”
The Grosses argue that Wards’ and Hepner’s brief use of their parking lot constituted deprivation of property without just compensation in violation of the Fifth Amendment to the federal Constitution. For the proposition that such a brief, temporary use entitles them to compensation, the Grosses rely on First Lutheran Church v. Los Angeles County, 482 U.S. 304, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987). The circumstances in First Lutheran and the present case are not comparable. In First Lutheran, a flood destroyed a church-owned facility for handicapped children. An interim ordinance adopted by Los Angeles County prohibited the reconstruction of any structures in the flood-protection area. The United States Supreme Court decided that the land-use regulation was a compensable taking and that the church could recover damages for the period preceding determination that the regulation constituted a taking. Thus, subsequent invalidation of the ordinance would not deprive the church of recovery of damages.
Proceeding from the premise that even a temporary use of the lot is a compensable taking under the Fifth Amendment, the Grosses argue that they must be compensated whether Wards’ and Hepner’s activity was statutorily authorized or not. If they were acting within statutory authority, the State owes the Grosses compensation “for the time in which their property was converted to public use.” If they were acting without statutory authority, Wards and Hepner violated the Grosses’ civil rights and the Grosses have a cause of action under 42 U.S.C. § 1983. Either way, summary judgment was improper, the Grosses contend.
The State defendants characterize the Grosses’ claim for compensation for a taking as “a claim directly under the Fourteenth Amendment.” In Sharp v. State, 245 Kan. 749, 783 P.2d 343 (1989), cert, denied 112 L. Ed. 2d 206 (1990), this court rejected a § 1983 action and a Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), action against the State. 42 U.S.C. § 1983 provides, in pertinent part:
“Every person who, under color of any statute ... of any State . . . , subjects . . . any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
We said, in Sharp:
“We have held that the State of Kansas has not waived its sovereign immunity in suits seeking monetary damages under 42 U.S.C. § 1983. See Beck v. Kansas Adult Authority, 241 Kan. 13, 21, 735 P.2d 222 (1987). More importantly, however, the United States Supreme Court has recently decided, subsequent to the filing of this case, that a State is not a ‘person’ within the meaning of § 1983, and thus not subject to suit under the statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). Under Will, no relief is available to the plaintiffs under 42 U.S.C. § 1983.” 245 Kan. at 751.
In Will v. Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), the United States Supreme Court held that neither a State nor officials of the State while acting in their official capacities are “persons” within the meaning of § 1983.
As to the Bivens action, we said:
“The sixth and final issue is whether plaintiffs have stated a claim under the theory of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388. Bivens is an unusual action in which the United States Supreme Court held that the plaintiff had stated a federal damage claim directly under the Fourth Amendment, although no federal statute authorized his action. Federal courts have not allowed Bivens actions against the states. See Vakas v. Rodriquez, 728 F.2d 1293 (10th Cir.), cert, denied 469 U.S. 981 (1984); Colon Berrios v. Hernandez Agosto, 716 F.2d 85 (1st Cir. 1983); and Phelps v. Wichita Eagle-Beacon, 632 F. Supp. 1164 (D. Kan. 1986). The United States Supreme Court has limited nonstatutory damage actions brought under the Bivens theory and cautions against judicial action in expanding available remedies absent statutory mandate. See Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983); Chappell v. Wallace, 462 U.S. 296, 76 L. Ed. 2d 586, 103 S. Ct. 2362 (1983); Vakas, 728 F.2d at 1296. Plaintiffs seek to distinguish these cases on various grounds, but the arguments are not persuasive. We see no reason to recognize such an action against the State in this case.” 245 Kan. at 754.
Wards and Hepner also argue that the constitutional violation which must be present to support a § 1983 action is missing here. They contend that the only wrongdoing alleged against them in their individual capacities is trespass. They note that in Wise v. Bravo, 666 F.2d 1328 (10th Cir. 1981), the circuit court held: "[A] trespass to property, negligent or intentional, is a common law tort; it does not infringe the federal constitution.” 666 F.2d at 1335. Wise appealed from a district court’s entry of summary judgment against him on his 42 U.S.C. § 1983 claim against Bravo, a policeman who went to Wise’s apartment to retrieve and return Wise’s daughter to her mother. The 10th Circuit Court of Appeals, in affirming, stated:
“Wise contends that the trial court erred by dismissing his claim for damages filed pursuant to 42 U.S.C.A. § 1983 for interference with his visitation rights.
“To state a claim for relief under § 1983, a plaintiff must demonstrate that he was deprived of a right secured by the Constitution or laws of the United States, and that any such deprivation was achieved under color of law. Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1975); Adickes v. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
“§ 1983 does not, standing alone, create any equal or civil rights of citizens; rather, it provides a remedy for rights guaranteed by the Constitution or laws of the United States. See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979).” 666 F.2d at 1331.
“Wise’s § 1983 trespass claim is predicated on his allegation that Bravo entered his apartment without consent or process of law. Wise’s deposition demonstrates that there is no merit in this allegation. In any event, a trespass to property, negligent or intentional, is a common law tort; it does not infringe the federal constitution. Commonwealth of Pennsylvania ex rel. Feiling v. Sincavage, 313 F. Supp. 967 (W.D. Pa. 1970); aff’d, 439 F.2d 1133 (3d Cir. 1971) [as applied to Section 1983 action against police for search of a home]; Kao v. Red Lion Municipal Authority, 381 F. Supp. 1163 (M.D. Pa. 1974).” 666 F.2d at 1335.
We conclude that relief is not available to the appellants under 42 U.S.C. § 1983 or the Fifth Amendment.
The judgment of the district court granting summary judgment is affirmed as to the § 1983 and Fifth Amendment claims and reversed as to the claim for trespass. The case is remanded for further proceedings consistent with this opinion.
Abbott, J., not participating.
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The opinion of the court was delivered by
Holmes, C.J.:
The State of Kansas appeals upon a question reserved from a decision of the district court in which the defendants, JC Sports Bar, Inc., and Jong S. Song, were each acquitted of one count of violating K.S.A. 1992 Supp. 41-2615(a). The appeal is denied.
K.S.A. 1992 Supp. 41-2615 provides:
“(a) No licensee or permit holder, or any owner, officer or employee thereof, shall knowingly or unknowingly permit the consumption of alcoholic liquor or cereal malt beverage by a minor on premises where alcoholic beverages are sold by such licensee or permit holder.
“(b) Violation of this section is a misdemeanor punishable by a fine of not less than $100 and not more than $250 or imprisonment not exceeding 30 days, or both.”
In a trial to the district magistrate judge, both defendants were found guilty as charged. On appeal to the district judge pursuant to K.S.A. 22-3609a, both defendants were acquitted, and the State has now appealed.
Before the district judge the case was submitted on the transcript of the proceedings before the district magistrate judge, stipulations, briefs, and arguments of counsel. The facts are uncontroverted.
In the early morning hours of May 2, 1992, Wayne A. Weibel, a liquor control investigator for the Alcoholic Beverage Control Division of the State Department of Revenue, and Lieutenant Al Boskey, of the Geary County Sheriff’s Office, were conducting random bar checks in Junction City. While looking through the front windows of the JC Sports Bar, the officers observed Thomas K. Hoffman, a minor, pick up a white plastic cup and drink from it. Lt. Boskey recognized Hoffman and knew that he was a minor. Hoffman had been playing pool with an acquaintance who had left the bar shortly before, leaving a partial cup of beer on an unoccupied table. After Hoffman took a drink from the cup, Weibel and Boskey entered the bar, took possession of the cup and its contents, and issued Hoffman a misdemeanor citation. The cup contained beer, a cereal malt beverage specified in the statute, K.S.A. 1992 Supp. 41-2615(a). Hoffman later pled guilty and testified for the State in this proceeding.
The JC Sports Bar is owned by the defendant JC Sports Bar, Inc., which is the holder of a cereal malt beverage license for the premises. The defendant Jong S. Song is the owner of the corporation. Agent Weibel testified that at the time the officers observed Hoffman’s activities, Mr. Song was also standing on the sidewalk outside the bar. The evidence is uncontroverted that neither Song nor any employee or agent of JC Sports Bar, Inc., sold or gave Hoffman the beer which Hoffman drank. There was no evidence that Song or any employee of the bar even knew that Hoffman had taken a drink of someone else’s beer.
JC Sports Bar, Inc., and Jong S. Song were both charged with one count of “knowingly or unknowingly” permitting the con sumption of a cereal malt beverage by Thomas K. Hoffman, a minor. On appeal de novo from the district magistrate judge, the district judge received and reviewed the trial transcript, briefs, and stipulations and thereafter on December 23, 1992, heard arguments of counsel based upon the record submitted. Following argument, the court made the following findings and rulings:
“All right. The Court has examined both the facts from the transcript that was presented and has acknowledged—or has noticed—noted those facts— excuse me—as they were recited in the briefs.
“Court would find that . . . there was a juvenile inside of the premises; that—that’s not alleged to have been any violation, for the juvenile to be on the premises.
“The premises sold cereal malt beverages. The—the cereal malt beverage is alleged to have been sold to some other person inside this tavern.
“At the—at some point in time, two officers were outside the premises on the sidewalk and through the window viewed this juvenile take a drink from a foam cup or a container of some sort, and then proceeded into the tavern to apprehend the young man, and I believe he was prosecuted for that offense.
“As to where the owner or manager or anyone was at that point in time, one officer stated that it was his recollection that that person or that owner who was operating the tavern was outside the premises, with them, on the sidewalk at that time, and those are the facts which were established by the transcript which I read.
"The Court would find that 41-2615 requires that, for there to be a violation, by licensee or permit holder where alcoholic beverages are sold or cereal malt beverages are sold, that no licensee or permit holder or any owner or officer shall knowingly or unknowingly permit the consumption of alcoholic liquor.
“Now, emphasis by the briefs has been arguing the question of whether or not it was knowingly or unknowingly permitted.
“Court finds that, from the evidence, there is no evidence that it was either knowingly or unknowingly permitted, because there is no evidence that it was, in fact, permitted, whether knowingly or unknowingly.
“And since there was no act which was actually done by the owner or any representative or agent of the tavern or licensee, the Court finds that the—that constitutionally this person—or, neither the person, the corporation, or the bar itself, or the owner thereof or the operator thereof can be charged in this particular instance with this particular offense and would enter a finding of not guilty, because there was no actual permission or act of permission, whether it was knowingly or unknowingly, that has been shown by the evidence in this case, and that is the Court’s finding and the reason for the Court’s finding.”
In the journal entry signed by the district judge and approved by counsel for all parties, the court’s conclusions of law were summarized as follows:
“(1) K.S.A. 41-2615 requires, as an element of proof, evidence constituting an act which falls within the statutory language \ . . knowingly or unknowingly permit . .
“(2) that there is no evidence that the owner or any employee of the bar committed any act ‘knowingly or unknowingly’;
“(3) that because there was no illegal act committed by the owner (licensee) or agent (employee), there is no act which constitutes any conduct which falls within the statutory language of ‘knowingly or unknowingly permit’;
“(4) therefore, there was no criminal violation of the law by any party other than the minor Thomas Hoffman.”
The issue now before the court is whether the language “knowingly or unknowingly permit” as set forth in K.S.A. 1992 Supp. 41-2615(a) imposes an absolute duty to prohibit the consumption of alcoholic liquor or cereal malt beverage by minors on a licensee’s premises. Or stated another way, does the statute create an absolute liability offense?
Before addressing the issue of whether the district court erred in its interpretation of K.S.A. 1992 Supp. 41-2615(a), we reiterate some of the cardinal rules of statutory construction. “ ‘Interpretation of a statute is a question of law.’ ” Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Assn, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). “Our criminal statutes are to be construed strictly against the State.” State v. Sexton, 232 Kan. 539, 543, 657 P.2d 43 (1983).
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. . . . When the legislature revises an existing law ... it is presumed that the legislature intended to make some change in the law as it existed prior to the amendment.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
Finally, K.S.A. 1992 Supp. 77-201 Second states:
“Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings.”
In this case, the State contends the district court erred in its interpretation and application of the language in the statute involved which, for convenience, will be repeated here. K.S.A. 1992 Supp. 41-2615 provides:
“(a) No licensee or permit holder, or any owner, officer or employee thereof, shall knowingly or unknowingly permit the consumption of alcoholic liquor or cereal malt beverage by a minor on premises where alcoholic beverages are sold by such licensee or permit holder.
“(b) Violation of this section is a misdemeanor punishable by a fine of not less than S100 and not more than $250 or imprisonment not exceeding 30 days, or both.” (Emphasis added.)
The State contends that the plain language of the statute imposes an absolute duty upon drinking establishments and their owners, officers, and employees to prohibit the consumption of alcoholic beverages by minors on the licensed premises.
Both parties rely primarily upon State v. Sleeth, 8 Kan. App. 2d 652, 664 P.2d 883 (1983), which involved a violation of the pre-1987 version of the same statute. Although the statute has been amended, the case is relevant because the specific language now before us has remained constant. The pre-1987 version of 41-2615 provided:
“No club licensed hereunder shall knowingly or unknowingly permit the consumption of alcoholic liquor or cereal malt beverage on its premises by a minor and no minor shall consume or attempt to consume any alcoholic liquor or cereal malt beverage while in or upon the premises of a club licensed hereunder or as prohibited by K.S.A. 41-715 and any amendments thereto. The owner of any club, any officer or any employee thereof, who shall permit the consumption of alcoholic liquor or cereal malt beverage on the premises of the club by a minor shall be deemed guilty of a misdemeanor and upon conviction- shall be subject to the same penalty as prescribed by K.S.A. 41-715 for violation of that section.” (Emphasis added.)
In Sleeth, the defendant-owner was appealing her conviction for a violation of K.S.A. 41-2615. Although the defendant was not present during the violation, the State attempted to impute criminal liability to her for the act of an employee of the club. The court initially recognized that the statute contained a regulatory provision as to a club in sentence one and a penal provision as to an owner, officer, or employee in the second sentence. The issue in the case was whether the penal provision of the statute could be “invoked against a club owner who was not present at, had no knowledge of, and did not consent to or authorize” the violation. 8 Kan. App. 2d at 654. In determining that the application of the penal provision was improper, the court focused first on the regulatory provision and the language “knowingly or unknowingly permit.” In considering this language, the court stated: “Knowledge of the infraction is not a prerequisite to holding a ‘club’ liable for a transgression of this provision.” However, in its discussion of the penal-provision of the statute, the court stated: “The omission of the phrase ‘knowingly or unknowingly’ from the second sentence of the statute is a clear indication of the legislative intent to infuse that penal provision with a scienter [knowledge] requirement.” 8 Kan. App. 2d at 656.
The Court of Appeals reconfirmed its holding in Sleeth four years later when dealing with a related issue involving K.S.A. 41-2615. In Sanctuary, Inc. v. Smith, 12 Kan. App. 2d 38, 733 P.2d 839 (1987), a private club was trying to recover for the civil penalty imposed upon it for violating K.S.A. 41-2615. Sanctuary, Inc., argued that the civil penalties should be recoverable from the minor who fraudulently gained entry to the club. The Court of Appeals disagreed, however, stating: “The regulatory provisions of K.S.A. 41-2615 would be rendered less than strict if private clubs could pass on the costs of ‘unknowing’ violations to minors in suits for fraud.” 12 Kan. App. 2d at 39. In relying on Sleeth, the court noted: “Our legislature has adopted a strict regulatory policy by imposing upon private clubs an absolute duty not to permit minors to consume alcoholic beverages on their premises. (Emphasis added.) 12 Kan. App. 2d at 39. While Sleeth involved a criminal prosecution, it should be noted that the actual discussion and application of the words “knowingly or unknowingly permit” were in the context of civil regulation under the alcoholic beverage laws in both Sleeth and Sanctuary, Inc.
Although the rulings in both Sleeth and Sanctuary, Inc., involve the earlier version of K.S.A. 41-2615, the relevant language has not changed. The primary changes made to K.S.A. 41-2615 in the 1987 amendment were two-fold. First, the amendment broadened the scope of the language “knowingly or unknowingly permit” to include all violators of the statute. Prior to 1987, only a “club” was subject to the Sleeth standard of absolute liability. And as noted in Sleeth, the punishment rendered against a club was not criminal in nature. Instead, a club was subject to license revocation proceedings as called for in K.S.A. 41-2611(b). 8 Kan. App. 2d at 656. Additionally, clubs were subject to civil penalties pursuant to K.S.A. 41~2633a. Second, and more importantly in the present case, the 1987 amendment expanded criminal liability to apply to all violators of the statute—whether the violation was “knowingly or unknowingly” permitted. Under K.S.A. 1992 Supp. 41-2615(b), violators are subject to a fine or imprisonment or both. As a result, the statute must be considered from the stricter standards applied to criminal statutes rather than the more liberal standards applied to non-criminal statutes.
In considering the statute now before us, we must determine whether the use of the words “knowingly or unknowingly permit” contemplates something other than strict or absolute liability. Our research indicates there is no legislative history which sheds any light upon this particular language or why it was used in this statute. As previously indicated, criminal statutes must be strictly construed. Our most recent pronouncement of this rule was in State v. Donlay, 253 Kan. 132, Syl. ¶ 3, 853 P.2d 680 (1993), wherein we stated:
“The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.” (Emphasis added.)
In State v. Merrifield, 180 Kan. 267, 303 P.2d 155 (1956), we recognized that the legislature has the power to enact criminal statutes which create absolute liability offenses requiring no knowledge or intent on the part of the accused. In Merrifield, which involved a drivers’ license violation, this court stated:
“The legislature may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and where the legislative intention appears, it is incumbent upon the courts to give it effect, although the intent of the doer may have been innocent. The doing of an inhibited act constitutes the crime, and the moral turpitude or purity of motive by which it is prompted, and knowledge or ignorance of its criminal character, are immaterial circumstances on the question of guilt.” 180 Kan. at 269. (Emphasis added.)
The legislature has codified the foregoing principle as to misdemeanor and traffic offenses in K.S.A. 21-3204, which provides:
“A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. ” (Emphasis added.)
The State argues that the plain language of K.S.A. 1992 Supp. 41-2615(a) imposes an absolute duty upon drinking establishments and their owners, officers, or employees to prohibit consumption of alcohol by minors. The defendants, however, contend that the words “knowingly or unknowingly permit” require some act or affirmative failure to act before there can be a violation of the statute. Black’s Law Dictionary 1140 (6th ed. 1990) defines permit as “To suffer, allow, consent, let; to give leave or license; to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act.”
In addition to Merrifield, defendants cite State v. Riedl, 15 Kan. App. 2d 326, 807 P.2d 697 (1991) (application of compulsion defense to an absolute liability driving offense); City of Wichita v. Hull, 11 Kan. App. 2d 441, 724 P.2d 699 (1986) (driving under the influence); and City of Overland Park v. Estell, 8 Kan. App. 2d 182, 653 P.2d 819 (1982) (leaving the scene of an injury accident), for the argument that some action is required, even in an absolute liability offense.. In Merrifield, the court referred to “the doing of an act” in applying absolute liability to the driver in that case.
The JC Sports Bar was a legitimate and legal business operating under the statutes of the State of Kansas. To carry the State’s argument to its ultimate conclusion would mean that every investor in, or owner of, a drinking establishment, no matter how small the interest, could be held criminally liable for a minor’s violation of the law even if that investor or owner had never been on the premises and had no say in its control or operation. We do not believe the legislature had any such intention. Here, although the defendant Song was just outside his bar on the sidewalk, he could just as well have been home in bed. Where are we to draw the line?
While it is true that in Sleeth the Court of Appeals found the words “knowingly or unknowingly permit” created absolute liability and that knowledge of the infraction was not required and that the Court of Appeals apparently affirmed that position in Sanctuary, Inc., those cases involved civil liability and were decided under a more liberal standard than must be applied to the present statute.
It appears to us that the legislature in adopting the language “knowingly or unknowingly permit” intended some action or inaction of a greater magnitude than merely opening for business on the night in question, which allowed the prohibited conduct to occur before criminal liability would attach. Does the statute clearly indicate a legislative purpose to impose absolute liability as required by K.S.A. 21-3204? We think not. If that had been the intent, it would have been a simple matter to write the statute accordingly. Unless some limitation on criminal liability was intended, there would have been no need to include the questioned language. As the statute creates a reasonable doubt as to its meaning and intent, those doubts must be resolved in favor of the defendants here.
We conclude that K.S.A, 1992 Supp. 41-2615(a) does not establish absolute liability under the facts of this .case and does not clearly indicate a legislative purpose to do so. In view of the result reached, it is not necessary that we consider the other arguments of the defendants, including the effect, if any, of K.S.A. 41-904 on the statute under consideration.
The appeal is denied. | [
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The opinion of the court was delivered by
PRAGER, C.J.:
This case is before the court following the granting of a petition for review from an unpublished decision of the Kansas Court of Appeals filed on March 5, 1987. The appeal is from a summary judgment entered by the district court in which the court held that the plaintiff, Georgia Armstrong, an employee covered by a collective bargaining agreement, could not maintain a tort action against the defendant employer, Goldblatt Tool Company, for an alleged retaliatory discharge because the plaintiff had filed a workers’ compensation claim.
Plaintiff, a member of the United Steelworkers of America, had been an employee of defendant Goldblatt Tool Company since 1967. The employment relationship was covered by a collective bargaining agreement between the union and the employer. The collective bargaining agreement provided, in substance, that an employee could be discharged only for just cause and further provided a grievance procedure to a discharged employee culminating in binding arbitration. The plaintiff never attempted to use the grievance procedure provided in the collective bargaining agreement.
Plaintiff was injured at work in June 1982 and filed a workers’ compensation claim which was settled in August 1983. She testified that the personnel director of the company told her that she could not return to her former position or any other position with the company unless she received a lower disability rating. Plaintiff did not apply for other jobs at Goldblatt through the bidding procedures available to her under the contract, nor did she file a grievance under the specified contract procedure. Goldblatt maintained that plaintiff had never actually been discharged from her position. Plaintiff filed suit against defendant in Wyandotte County district court alleging that the defendant’s refusal to allow her to return to her former job constituted a retaliatory discharge resulting from her filing the workers’ compensation claim. The case was removed to the United States District Court for the District of Kansas and later remanded back to the Wyandotte County district court. The defendant employer then filed a motion for summary judgment. The trial court sustained defendant’s motion for summary judgment, concluding that plaintiff s state tort action for retaliatory discharge was preempted by federal law and that plaintiff s claim should have been resolved through the grievance procedure contained in the collective bargaining agreement.
Plaintiff then appealed to the Court of Appeals. The Court of Appeals affirmed, concluding that the case was controlled by the recent decision of this court in Cox v. United Technologies, 240 Kan. 95, 727 P.2d 456 (1986), which held, in substance, that an action based on the tort of retaliatory discharge is not available to an employee whose employment relationship is governed by a collective bargaining agreement which prohibits discharge of an employee except for just cause and which provides a grievance procedure including binding arbitration. The Court of Appeals, in its opinion, noted that the facts in the instant case were not in dispute and that the only question before the court was whether the defendant was entitled to judgment as a matter of law.
In Cox, the plaintiff was discharged 13 days after he settled a workers’ compensation claim with his employer’s insurer, on the basis of his employer’s claim that he failed to report to work following the conclusion of his workers’ compensation claim. Cox’s employment was covered by a collective bargaining agreement, which, as in the present case, contained the provision that an employee would not be terminated except for proper cause and also provided grievance procedures, including binding arbitration, for the resolution of disputes. Cox filed a grievance based upon his termination. The arbitrator restored Cox to his former position but did not award him back pay. Thereafter, Cox filed an action for retaliatory discharge against his employer, alleging that he was not allowed to return to work because he had filed a workers’ compensation claim. On appeal, this court held that an employee, who is adequately protected contractually from discharge except for just cause by a collective bargaining agreement, does not have an independent action in tort for retaliatory discharge. The court, in Cox, refused to extend the right to bring an action in tort for retaliatory discharge, which was judicially recognized for employees at will in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), to include an employee adequately protected by a collective bargaining agreement.
In reliance upon our holding in Cox, the Court of Appeals in this case held that the presence of an adequate grievance procedure in a collective bargaining agreement precludes the employee from bringing a retaliatory discharge action, even though the employee failed to pursue his or her contractual remedies. The plaintiff, while conceding the applicability of Cox, contended that the recognition of the right of an at-will employee to bring an action for retaliatory discharge for filing a workers’ compensation claim, while denying the same right to bring such an action to an employee covered by a collective bargaining agreement, is unconstitutional as unjust discrimination against the rights of the employee covered by a collective bargaining agreement. The Court of Appeals summarily rejected this contention and held that the distinction made in Cox was constitutional. The Court of Appeals affirmed the granting of summary judgment to the defendant, holding that the sole remedy of plaintiff Armstrong was contained in the collective bargaining agreement and not in a common-law action for retaliatory discharge. The Supreme Court granted the plaintiff s petition for review.
There is no dispute between the parties in this case that our decision in Cox, if constitutional, denies to plaintiff Armstrong an independent cause of action in tort for retaliatory discharge where the collective bargaining agreement, as in this case, prohibits her discharge except for just cause and provides an appropriate grievance procedure. The plaintiff urges us to overrule our holding in Cox on the basis of public policy. We have considered the arguments of the plaintiff in this regard and have concluded on public policy considerations that our decision in Cox should stand. The majority of the court has determined that the legal principles and rationale set forth in Cox should be adhered to and should be applied in this case to bar plaintiff Armstrong from bringing a cause of action in tort for retaliatory discharge. In Cox, we noted that the Court of Appeals in Murphy v. City of Topeka, 6 Kan. App. 2d 488, recognized an action could be brought by an employee at will for retaliatory discharge for filing a workers’ compensation claim. We noted that there is a strong public policy underlying the Workers’ Compensation Act (K.S.A. 44-501 et seq.) which favors the worker’s right to avail himself, or herself, of the benefits arising therefrom. We stated that, because an employee at will may be discharged with or without cause and because an unscrupulous employer could subvert this public policy by placing the employee at will in the position of having to choose between filing a workers’ compensation claim or keeping his or her employment, an independent action for retaliatory discharge should be judicially created to provide a remedy for a class of employees having no contractual remedy.
In Cox, we stated without equivocation that a discharge pre dicated upon an employee having exercised his right to file a workers’ compensation claim would not constitute “proper cause.” We considered a number of cases from other jurisdictions, both pro and con on the issue, and concluded that an employee covered by a collective bargaining agreement permitting discharge only for just cause and providing an adequate grievance procedure is adequately protected from retaliatory discharge. We concluded that the public policy of Kansas does not require that the tort of retaliatory discharge for filing a workers’ compensation claim recognized for employees at will be extended to employees fully covered and protected by a collective bargaining agreement. Justice Harold S. Herd dissented.
In adopting the rule set forth in Cox, the court reasoned that it was obligated to take into consideration the strong public policy which takes into account the right of parties to enter into contracts and that, where a union and an employer in their agreement decide the remedies that should be available and decide that those remedies should be final and binding, the intent of the agreement should be enforced by the courts and the remedies therein available, if adequate, should be preclusive of any others. We adhere to our conclusion that collective bargaining agreements made pursuant to federal law should be enforced by the courts unless there is some important state public policy present to deny their enforcement.
In passing, we note that the rule adopted in Cox was reaffirmed in January of this year in Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871 (1987), which holds that no tort action for retaliatory discharge for filing a workers’ compensation claim exists where the employee is adequately protected contractually from such discharge by a collective bargaining agreement.
We turn now to the constitutional issues raised by plaintiff. Plaintiff, in substance, argues that this court’s decision in Cox v. United Technologies is unconstitutional for three reasons:
(1) It denies unionized workers due process of law;
(2) it creates impermissible and irrational classifications of employees and employers; and
(3) it violates the First Amendment. Plaintiff argues, in substance, that the tort of retaliatory discharge was created by the Kansas Court of Appeals in Murphy v. City of Topeka, 6 Kan. App. 2d 488, and that this court in Cox limited the previous cause of action so as to deprive this plaintiff of due process of law. We believe this contention is without merit. The effect of Murphy was to establish a limited public policy exception to the generally accepted rule that an at-will employee may be terminated for any reason, good or bad, just or unjust. In Anco Constr. Co. v. Freeman, 236 Kan. 626, 693 P.2d 1183 (1985), it is stated in Syl. ¶ 4 as follows:
“The employment-at-will doctrine in Kansas stems from the judicial determination that, in the absence of a contract covering the duration of employment, the employment is terminable at the will of either party, and the employee has no cause of action by alleging he was discharged.”
The rule established in Murphy and subsequently followed in Kansas was a judicially created rule applicable only to at-will employees in order to protect the at-will employees from discharge in violation of some public policy of the state.
In Morriss v. Coleman Co., 241 Kan. 501, 738 P.2d 841 (1987), the opinion discusses in depth the termination-at-will doctrine as traditionally applied in Kansas and other jurisdictions. In Morriss, we noted that the termination-at-will or employment-at-will doctrine, although generally applied throughout the United States, has in recent years been criticized by legal scholars and the courts. The opinion discusses the various methods used by the courts to avoid the inherent injustice of the doctrine. One of the exceptions to the termination-at-will doctrine arose from the creation of an action in tort for retaliatory discharge based upon the theory that the dismissal of employees for reasons violative of a particular public policy should be actionable. Our decision in Morriss made it clear that the creation of a cause of action in favor of an at-will employee who is discharged for reasons violative of public policy was designed to avoid the injustice of the traditional rule. It was not designed to create a new cause of action for employees who are adequately protected from wrongful discharges by a collective bargaining agreement which prohibits discharge or termination of employment unless just cause is established.
Under the circumstances, we have no hesitancy in holding that the due process rights of plaintiff Armstrong in this case have not been violated. As an employee under the collective bargaining agreement, she cannot be discharged unless just cause is shown. Furthermore, a specific remedy is provided by a grievance procedure. The remedy by arbitration was surely adopted in the contract by the parties as an alternative method of resolving employment disputes in order to avoid the expense of litigation in the courts. We hold that the claim of denial of due process in this case is without merit.
The plaintiff next contends that our decision in Cox created impermissible and irrational classifications of employees and employers in violation of the equal protection clause of the United States Constitution. We do not agree. The rule established in Cox creates no unreasonable classification of employers or employees. The remedy of a cause of action for retaliatory discharge was created by the Kansas courts to benefit a limited group of employees at will who otherwise were completely without a remedy. In Cox, we simply refused to extend the remedy to employees covered by a collective bargaining agreement who did not require the remedy of an action for retaliatory discharge in order to protect their rights.
The United States Supreme Court has at least impliedly recognized that a state-created tort remedy may properly be made available to at-will employees which is unavailable to employees subject to a collective bargaining agreement. In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985), the United States Supreme Court reversed the Supreme Court of Wisconsin which held that an employee subject to a collective bargaining agreement was entitled to pursue an action against his employer based on the tort of bad faith. The court stated:
“Since nearly any alleged willful breach of contract can be restated as a tort claim for breach of a good-faith obligation under a contract, the arbitrator’s role in every case could be bypassed easily if § 301 is not understood to pre-empt such claims. Claims involving vacation or overtime pay, work assignment, unfair discharge — in short, the whole range of disputes traditionally resolved through arbitration — could be brought in the first instance in state court by a complaint in tort rather than in contract. A rule that permitted an individual to sidestep available grievance procedures would cause arbitration to lose most of its effectiveness, [Citation omitted], as well as eviscerate a central tenet of federal labor-contract law under § 301 that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract in the first instance.” (Emphasis supplied.) pp. 219-20.
See also the annotations in 72 A.L.R.2d 1439 and 32 A.L.R.4th 350, where many cases are cited holding that an action for wrongful discharge may not be maintained where the right of action is derived from a collective bargaining agreement unless the employee has first exhausted the grievance procedures established by such an agreement.
In Viestenz v. Fleming Companies, Inc., 681 F.2d 699 (10th Cir.), cert. den. 459 U.S. 972 (1982), a diversity action was brought was in the United States District Court for Kansas by a former employee against his employer, a Kansas corporation, alleging wrongful discharge from his job in Missouri for union activities. The court affirmed the lower court’s dismissal of the wrongful discharge claim, because it was barred by the employee’s failure to avail himself of the grievance procedure provided by the collective bargaining agreement between the employer and the employee’s union.
The plaintiff relies on Peabody Galion v. Dollar, 666 F.2d 1309 (10th Cir. 1981), which case is clearly distinguishable from the present case. The employee’s cause of action for retaliatory discharge in that case was created by an Oklahoma statute applicable to all Oklahoma employees, not just employees at will. The court specifically stated:
“We note also that the Oklahoma statute which is here considered is a law of general applicability and is not one whose object is to regulate relations between employees, their union, and their employer. It applies to all Oklahoma employees, not just union members or employers governed by collective bargaining agreements negotiated under federal law.” p. 1317.
The court emphasized that the employee’s right to bring an action for retaliatory discharge was based upon an Oklahoma statute which did not distinguish between employees. Thus, the decision in Peabody Galion v. Dollar is not applicable to the case now before us.
Simply stated, there is no legitimate basis for a claim of denial of equal protection in this case. The rule of Murphy and Cox permits the filing of an action in tort for wrongful discharge for filing a workers’ compensation claim only where the employee is an employee at will and terminable without just cause. Such an employee falls within an entirely different category than do employees who are fully protected from wrongful discharge by collective bargaining agreements. There is definitely a rational basis for distinguishing between such employees. The purpose of the public policy exception protecting at-will employees is to guarantee them protection from wrongful discharge, a protection which is not required where a collective bargaining agreement specifically provides such protection.
We also find no merit to the contention of the plaintiff that our ruling in Cox violates the First Amendment right of free association of organized workers because it penalizes workers who have joined unions by denying them state tort remedies available to at-will employees. This is essentially an equal protection argument which we have just discussed and rejected.
For the reasons set forth above, we hold that the decision of this court in Cox v. United Technologies, 240 Kan. 95, controls the determination of this appeal and bars plaintiff from bringing an action in tort for a retaliatory discharge, because a full and complete remedy is provided by the collective bargaining agreement.
The judgments of the district court and of the Court of Appeals are affirmed. | [
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The opinion of the court was delivered by
Prager, C.J.:
This is an action brought by Bonanza, Inc., the lessee under a 92-year lease of land for commercial purposes, for a declaratory judgment that the lease was in full force and effect. Bonanza also sought damages for breach of contract. The original lessor was Sweetbriar Gardens, Inc., which was later dissolved. The defendant, E.A. McLean, became the sole owner of the corporate assets and, thus, stands in the shoes of the original lessor. In response to the petition of Bonanza, defendant McLean filed 18 counterclaims and cross-claims denying the validity of the lease and adding, as third-party defendants, Jack R. Hunt, the owner of Bonanza; the City of Wichita; and the Southwest National Bank.
Following completion of discovery, the trial court granted plaintiff Bonanza summary judgment on all of McLean’s counterclaims. Thé case then proceeded to trial by the court on plaintiff s claim of breach of contract. The trial court awarded plaintiff judgment for damages in the amount of $63,694. Defendant McLean appealed.
The facts in the case are not greatly in dispute and essentially are as follows: Defendant, E.A. McLean, was the president and sole stockholder of Sweetbriar Gardens, Inc., which owned a section of land located at 21st and Amidon in Wichita, Kansas. During 1965, there were negotiations between Sweetbriar Gardens and Bonanza for a lease on the property which ultimately led to the execution of a lease for a term of 92 years. At the time the lease was executed on September 10, 1965, the land was undeveloped except for a Sinclair service station located on a street corner. The lease granted to the lessee immediate possession of approximately 10 acres of land (roughly the northern half of the parcel) and also granted the lessee the option to lease the southern portion of the parcel. The Sinclair service station was located on the southern half of the property but was excepted from the lease as originally drafted.
The parties to the lease contemplated that a shopping center would be erected on the leased property by Bonanza, as lessee. Thereafter, Sweetbriar Shopping Center was constructed on the property by Bonanza at a cost in excess of $2,000,000 and has been completed in its present form since the early 1970’s. The property, as originally platted in 1953, was a part of the Benjamin Hills Second Addition to Sedgwick County and included residential lots and two streets running across the premises. In 1953, covenants were recorded with the Sedgwick County Register of Deeds restricting the use of the residential lots to single-family residences.
In 1965, prior to entering into the lease with Bonanza, Sweetbriar Gardens caused the land to be replatted as Sweetbriar Addition to the City of Wichita, and the new plat was approved by the Board of County Commissioners. Also in 1965, prior to entering into the lease with Bonanza, Sweetbriar Gardens caused a Community Unit Plan to be approved for the leased premises. The actions of Sweetbriar Gardens in replatting the property and in obtaining approval of the Community Unit Plan had four effects:
(1) The residential lots were deleted;
(2) the streets on which the residential lots were located were vacated;
(3) a fire lane easement was dedicated across the land formerly platted as residential lots; and
(4) approval of the Board of Zoning Appeals was obtained to use the former residential lots as a parking area.
These zoning changes having been accomplished, Bonanza proceeded to develop the land and, thereafter, in 1967, executed its option to lease the southern half of the property.
The lessor and the lessee, from the beginning, contemplated that the lessee would borrow money for the construction of commercial buildings on the property. In the original lease, the lessor agreed that it would subordinate its title to leasehold mortgages to be executed by Bonanza, as lessee. During the term of the lease, the property was subjected to nine separate mortgage contracts in which the lessor’s interest was subordinated to the mortgage lien. At the time the trial court entered judgment, all of the various mortgages had been released except a $1,500,000 mortgage which was to be paid off in full within a year.
In 1968, a dispute arose between the lessor and the lessee over the amount of rent due. McLean contended that the acreage used to calculate the rent should have been determined according to the metes and bounds description used in the lease agreement which included areas dedicated to the city for streets and the service station site. For settlement purposes, a contract was signed and Bonanza agreed to pay rent on an additional .83 acre with a lump sum of $721.37 due for back rent. From that point on, Bonanza continued to pay rent of $1,500 per acre per year computed at 10.73 acres for the north parcel, 8.2866 for the south parcel, and .83 for the additional parcel.
In 1983, Bonanza determined that there was a market for mini-warehouse space and that such use might be a low traffic use that would be acceptable to neighboring owners and the city. Prior attempts to obtain rezoning for business use had been unsuccessful. Bonanza filed a petition for a change of zoning to commercial use. The area Citizens Participation Organization unanimously approved the proposal to rezone the northern strip of the premises from single family residential to office use, a classification which allowed the construction of mini-warehouses, and the rezoning was adopted by the city on January 21, 1984. Shortly thereafter, the zoning commission took action to authorize the construction of the mini-warehouse project. Notice of the above actions was given to defendant McLean in compliance with the statutes of Kansas, and she acknowledged that she personally received notice by mail. The city agency was at all times aware that Bonanza was a lessee of the property under a 92-year lease. The subject of a long-term lessee’s right to apply for a zoning change was specifically discussed in hearings regarding the rezoning.
After this zoning change was obtained, the controversy arose which brought about this litigation. Bonanza undertook to obtain a construction loan secured by a leasehold mortgage. The mortgage creditor and the title insurance company required, as a condition for obtaining the loan, that a certificate be obtained from the lessor stating that the lease was in full force and effect and not in default. In response thereto, defendant McLean signed a letter stating in substance that the lease was in full force and effect. The title company found the wording of the letter inadequate and requested that an additional certificate be obtained in order to clarify a title concern arising from the fact the copy of the recorded lease did not have the blank space for the date of the lease filled in. At this point, defendant McLean refused to sign the certificate and took the position that the lease was in default and subject to forfeiture for the reasons set forth in her counterclaims. As the result of defendant McLean’s actions, plaintiff Bonanza was not in a financial position to undertake the construction of the mini-warehouses without outside financing, and therefore, could not use a portion of the northern half of the property for any business enterprises. Bonanza then brought this action for a declaratory judgment that the lease was in full force and effect and to recover damages for breach of contract and for breach of the lease agreement.
The eighteen counterclaims filed by the defendant McLean were disposed of by summary judgment in favor of the plaintiff and the third-party defendants, Hunt, the Southwest National Bank, and the City of Wichita. Following trial to the court on plaintiff s claim for breach of contract, the trial court awarded Bonanza $63,694 in damages. Defendant McLean appealed, contending that the trial court had erred in granting summary judgment against her on her counterclaims and in refusing to hold, as a matter of law, that plaintiff Bonanza had no right to recover damages from the defendant based upon a claim of breach of the contract or breach of the lease.
The first point raised by the defendant on the appeal is that the trial court erred in granting summary judgment on the defendant’s counterclaim which alleged that Bonanza had forfeited its lease because it had denied defendant’s title to the property. This claim of the defendant was based upon the fact that, at various times during the lease term, plaintiff executed mortgages on the property on standard forms which did not reflect that the plaintiff s interest was only a leasehold and not the fee ownership. Plaintiff also granted a water line easement to the City of Wichita and successfully applied for rezoning of the property. Defendant McLean complains, in substance, that these acts constituted a “denial of title,” the remedy for which is forfeiture of the leasehold. In regard to the mortgage, the only action which Bonanza took was to execute a mortgage in 1982, similar to the ones used on eight separate occasions in previous years which indicated that Bonanza was the owner of the property to be mortgaged. In fact, both Bonanza and defendant Southwest National Bank at all times knew and acknowledged that Bonanza held only a leasehold interest. McLean had previously subordinated her fee interest to these mortgage liens on the property. Defendant City of Wichita knew that Bonanza owned only a leasehold interest in the land at the time the City was granted an easement for a water line and rezoned the land. At all times, defendant McLean had notice of the various attempts to rezone the property and did not oppose the plans. Bonanza took no affirmative steps to hold itself out as the owner of the land. In our judgment, the trial court properly held that the acts of Bonanza did not give rise to a cause of action against Bonanza for forfeiture of the lease. It is clear that the only steps which were taken by Bonanza were for the purpose of carrying out the original intention of the parties that commercial buildings were to be constructed on the leased premises.
Defendant McLean testified in her deposition that she had no objection to commercial use of the premises. We also think it important that Bonanza paid the rent under the lease when it was due, and defendant McLean continued to accept that rent. Bonanza never refused to recognize the rights of McLean as lessor and fee owner of the property. We hold this point to be without merit.
The second issue raised by the defendant on the appeal is that the trial court erred in granting summary judgment on defendant’s claim against the Southwest National Bank based upon the theory that the Bank denied McLean’s title by executing and recording the 1982 mortgage on the property. Simply stated, McLean argues that the 1982 mortgage, which referred to Bonanza as “the owner” created a “cloud” on her title for which she was entitled to damages. We find this point to be without merit. The Bank never took the position that McLean had no interest in the property. The Bank officers knew at all times that Bonanza was only a long-term lessee. Under the circumstances, the trial court did not err in sustaining the motion of the defendant Southwest National Bank for summary judgment on the defendant’s cross-claim.
The defendant’s next point is that the trial court erred in upholding the validity of the zoning actions of the City of Wichita and the Board of Zoning Appeals in connection with the rezoning of a portion of the leased premises from (AA) Residential to (BB) Office District. In granting summary judgment on this counterclaim, the trial court found that McLean had testified by deposition that she had no objection to the commercial use of the property. In addition, the court noted that the lease agreement contemplated that the entire leased property would be available for commercial rather than for residential use. The trial court also found that, as a matter of law, the actions taken in connection with the rezoning were not subject to collateral attack because McLean failed to take a timely appeal as required by the Kansas statutes. We have concluded that the trial court did not err in granting summary judgment on the defendant’s counterclaim. Clearly, Bonanza, as a lessee under a 92-year lease, was a real party in interest, and therefore, qualified to seek rezoning. Under the Kansas cases, plaintiff, as a lessee, may be considered as an owner of the premises. For example, it has been held that a lessee is an owner of property within the meaning of that term as used in our condemnation statutes. Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, Syl. ¶ 3, 332 P.2d 539 (1958). See City of Manhattan v. Kent, 228 Kan. 513, 516, 618 P.2d 1180 (1980). It has also been held that the word “owner” used in the mechanics’ lien statute includes the owner of a leasehold estate. Miller v. Bankers Mortgage Co., 130 Kan. 543, Syl. ¶ 1, 287 Pac. 618 (1930); Construction Materials, Inc. v. Becker, 8 Kan. App. 2d 394, 398, 659 P.2d 243, rev. denied 233 Kan. 1091 (1983).
In 49 Am. Jur. 2d, Landlord and Tenant § 82, p. 123, it is stated:
“Thus, the estate of a landlord during the existence of the outstanding leasehold estate may be called the reversion, and during the existence of the lease the tenant is the absolute owner of the demised premises for all practical purposes for the term granted . . . .”
Here, plaintiff Bonanza held a 92-year lease. At the time of the rezoning, more than 70 years remained under the contract. Legally, Bonanza “owned” the leasehold interest, if not the land. It should further be emphasized that McLean did not object to the rezoning ordinance. She simply did not like the idea of mini- warehouses and her attack on the zoning ordinance is an attempt to prevent construction. The trial court found this fact to be dispositive and did not actually determine whether the defendant was an owner or real party in interest for purposes of K.S.A. 12-708.
The trial court ruled that defendant McLean’s exclusive remedy for appealing the zoning amendment was contained in K.S.A. 12-712, which provides, in substance, that any taxpayer or any other person having an interest in property affected, may have the reasonableness of any zoning amendment determined by bringing an action against the governing body of the City within 30 days after the making of the decision by the governing body.
The Kansas Court of Appeals has held that the remedy provided in K.S.A. 12-712 is the exclusive remedy for a person wishing to challenge either the validity or reasonableness of a zoning ordinance. St. John v. City of Salina, 9 Kan. App. 2d 636, Syl. ¶ 2, 684 P.2d 464, rev. denied 236 Kan. 876 (1984). It is clear from the deposition of defendant McLean that she received notice of the zoning change and ignored it. McLean failed to meet the 30-day statute of limitations for appeals contained in K.S.A. 12-712. McLean filed her claim against the City of Wichita on September 6, 1984. Rezoning was granted on January 24, 1984. Clearly, more than 30 days had elapsed before the suit was filed. We hold that the trial court correctly ruled that defendant McLean was barred by K.S.A. 12-712 from attacking the validity of the zoning ordinance.
The next point raised by defendant McLean is that the trial court erred in holding that the original restrictive covenants on the land were not enforceable by McLean. In 1953, McLean filed restrictive covenants on the land which was then known as the Benjamin Hills Second Addition. These covenants limited use of the land to single-family homes. McLean replatted the property in 1965 and the plat became known as the Sweetbriar Addition. She agreed to a Community Unit Plan which expressly provided there would be no residential use. The trial court found that McLean was barred from enforcing the restrictive covenants because she testified she had no objection to commercial use of the premises and agreed to a Community Unit Plan that specified commercial use of the land.
McLean entered into a lease with the specific goal of developing a shopping center, a commercial use. Now that the shopping center is complete, the character of the neighboring land is drastically different than the character contemplated by the covenants. The right to enforce restrictive covenants can be lost by acquiescence in the violation of such provisions. Hecht v. Stephens, 204 Kan. 559, 562, 464 P.2d 258 (1970). Because McLean has taken positive steps throughout the years to prevent residential use, she cannot now be heard to complain that her wishes have not been carried out. The ruling of the district court was correct.
The defendant McLean next contends that the district court erred in denying her possession of and/or rent for the land occupied by the service station. The record is clear that Bonanza exercised its option to rent the southern half of the parcel using a metes and bounds description which included the service station site. Following exercise of the option, the parties disagreed about the amount of land involved and whether or not plaintiff was lessee of the service station site. Their disagreement ended with a contract signed April 12, 1968. The contract of April 12, 1968, described the property to be included under the lease and clearly included the service station site. The contract specifically referred to “the Sinclair Service Station located on said property.” This conclusion is further bolstered by the behavior of the parties. In the contract, plaintiff agreed to pay $721.37 back rent on the parcel and to pay rent in the future based on the additional acreage. McLean testified that she did include the service station site in plaintiff s lease and accepted rent which included the site for more than 15 years. We hold that the trial court properly determined this issue.
The remaining two issues raised on the appeal arose after trial to the court on Bonanza’s claim of breach of contract in which it sought to recover damages. At the conclusion of the trial, the trial court made findings of fact as follows:
“1. Plaintiff Bonanza, Inc. desired to construct a mini-storage warehouse facility on a portion of the premises leased from defendant E. A. McLean located at 21st and Amidon Streets in Wichita, Kansas.
“2. By April of 1984, Bonanza had completed all steps necessary to commence construction of the warehouse facility including obtaining the zoning changes, drawing of preliminary plans and specifications, and arranging of financing.
“3. The construction loan was to be obtained from Twin Lakes Bank in Wichita, and was to be secure^ by a mortgage lien on Bonanza’s leasehold interest in the premises. The bank required a policy of mortgagee’s title insurance in order to assure that its mortgage would be a valid lien entitled to the priority expected.
“4. As a condition to providing the requested insurance, the title company required a statement from defendant McLean as landlord to the effect that the lease was in full force and effect and not in default. Mrs. McLean signed such a statement dated April 13, 1984. This statement was prepared by Robert Hoopes, vice-president of the Twin Lakes Bank.
“5. The title insurance company was not satisfied with the form of this statement prepared by Mr. Hoopes, because it did not address the title company’s requirement that a statement, referred to in the title insurance commitment as a modification of the lease, be executed to state the effective dates of the lease, which had been left blank in the copy of the lease originally filed for record with the register of deeds of Sedgwick County in 1965.
“6. An affidavit for signature by Mrs. McLean was prepared by or for the title company containing both the statement of the effective dates of the lease and the statement that it was in full force and effect. Jack Hunt, president of Bonanza, Inc., returned the first signed statement of April 13, 1984, to Mrs. McLean and requested that she sign the second statement. Mrs. McLean tore up the first statement and refused to sign the second statement or affidavit.
“7. Prior to the filing of this lawsuit, the only reason given by Mrs. McLean for refusing to sign the certificate was a claim that Bonanza was not paying enough rent, and, therefore, she contended the lease was in default. However, the amount of rent due under the lease had previously been disputed and settled by agreement dated April 12, 1968, and the same rent had been paid for over 16 years without dispute. On motion for summary judgment, it has previously been held, as a matter of law, that Mrs. McLean could not dispute the amount of rent due under the lease.
“8. Mrs. McLean testified that she first learned of Bonanza’s intent to build mini-warehouses when Mr. Hunt met with her to request the second statement or affidavit referred to above. Mrs. McLean was strongly opposed to the building of the mini-warehouses. She indicated that she would do anything she could to keep them from being built. However, she testified that she would have approved the papers she was requested to sign if the project had been a drug store or other facility of which she approved. There was evidence that a branch bank, a savings and loan office, and a restaurant had previously been proposed for construction on the site in question without objection from Mrs. McLean, but necessary changes in applicable zoning ordinances for those purposes were not obtained.
“9. The evidence leaves little doubt that a primary purpose, and perhaps the only purpose, of Mrs. McLean’s refusal to sign the papers necessary to acknowledge the tenant’s leasehold title for purposes of obtaining an insured mortgage was to prevent construction of mini-warehouses on the leased premises.
“10. At trial, Mrs. McLean’s counsel argued that she had a right to refuse to sign the requested affidavit because it purported to require a modification of the lease and because it contained erroneous statements to the effect that it was being signed on behalf of Sweetbriar Gardens, Inc., a corporation owned by Mrs. McLean that had held tide to the property in 1965 when the lease was made but had later been dissolved. As stated above, these were not the reasons given by Mrs. McLean, and die court finds they were not the true reasons for Mrs. McLean’s conduct. Mrs. McLean testified tiiat there was indeed a title problem relating to her corporation, in that part of the premises had never been transferred of record from corporate ownership to her as an individual and that this was done in 1985 after the litigation commenced. To the extent such items could have been legitimate objections to signing the papers, a minimum of good faith would have resulted in a prompt and simple resolution of diese items. In addition, the court finds that stating the beginning and ending dates of the lease as requested by the title insurance company, does not constitute a modification of the lease, except as to a matter of form, but rather merely states for record the existing agreement of the parties without modifying such agreement.
“11. The court finds that Mrs. McLean acted arbitrarily and unreasonably in refusing to sign the affidavit requested and in other actions and positions taken in order to preclude the construction of mini-warehouses on the leased premises. She offered no evidence herein on which any finding of good faith could be based. She did not testify to any good faith belief that she was entitled to refuse all cooperation or to preclude construction of mini-warehouses. Quite to the contrary, the evidence was that her own attorneys at that time advised her to sign the requested documents. Her testimony left no doubt that she was unalterably opposed to the construction of mini-warehouses and was beyond hearing the voice of reason.
“12. The terms of the lease between the parties do not preclude mini-warehouse use, and Mrs. McLean breached the lease in seeking to preclude construction of mini-warehouse by (i) failing to execute documents reasonably requested (ii) seeking to overturn the zoning ordinance, (iii) seeking to enforce restrictive covenants against a use permitted by the lease and (iv) declaring the lease forfeited without a good faith basis for doing so.
“13. But for the actions of Mrs. McLean, the mini-warehouse facility would have been constructed in 1984. The evidence is undisputed that, except for obtaining Mrs. McLean’s signature on the documents, Twin Lakes Bank was ready to make a construction loan; all necessary plans, permits, construction contract bids had been obtained; and plaintiff was ready, willing and able to commence construction.
“14. Defendant McLean contends that Bonanza had an obligation to mitigate damages by constructing the mini-warehouse facility from its own funds, rather than from the borrowed funds that she precluded Bonanza from obtaining, and also asserts that this contention bears on causation. The facts leave no doubt that Bonanza was ready, willing and able to proceed with construction up until the time when the construction loan was unable to be completed and that the actions of Mrs. McLean in this connection were the only reason Bonanza did not go ahead with construction.
“The facts with respect to Bonanza’s ability to proceed with its own funds were that it probably had enough assets to pay the cost of construction of the facility, but this would have substantially depleted all of plaintiff s liquid assets, which plaintiff believed to be unreasonable and ill-advised. The court finds that it would be unreasonable to require plaintiff to risk its liquidity by proceeding with construction when it could not borrow against the property and that this was a less favorable alternative not reasonably practical or open to plaintiff under the circumstances.”
In concluding that the plaintiff s evidence showed that the defendant had breached either the contract or the lease, the trial court held that every contract implies good faith and fair dealing between the parties to it, and a duty of cooperation on the part of both parties. Whenever the cooperation of the promisee is necessary for the performance of the promise, there is a condition implied that the cooperation will be given. The court further held that contracts impose on the parties thereto a duty to do everything necessary to carry them out. The court stated that the lease between Bonanza and McLean contemplated commercial use of the entire premises, but, prior to 1984, such use of that part of the premises where plaintiff desired to construct a mini-warehouse business was subject to zoning and community unit plan restrictions precluding commercial use. Bonanza, as lessee, sought to obtain the necessary zoning changes to permit commercial use of this portion of the premises. Such a move was contemplated by the parties. Once the change of zoning was obtained, Mrs. McLean as the landlord had no right to prohibit or interfere with any lawful use by Bonanza for commercial purposes.
The trial court concluded that, whether the breach of the lease is characterized as a breach of the covenant of good faith or of the covenant of quiet enjoyment, the court was convinced that Mrs. McLean’s conduct was contrary to the obligations of the lease and constituted a breach of the lease contract for which lost profits may be recovered as damages. The court used this language in its conclusions of law:
“The Court finds that plaintiff had a contractual duty: (i) to cooperate in good faith by affirming that the lease was in full force and effect and had a definite commencement and termination date when necessary to allow the tenant to conduct a lawful business enterprise on the leased premises so that the tenant would be enabled to fulfill the obligation to pay rent; (ii) to cooperate in obtaining zoning changes rather than bringing suit to invalidate them; (iii) to assist in removing restrictive covenants that could impair the use of the premises for purposes authorized by the lease instead of bringing suit to enforce them; and (iv) not to assert that the lease was forfeited with no good faith basis for asserting the claim, especially when a primary reason for asserting the claim was to prevent plaintiff from using and occupying the premises for a lawful business enterprise. Defendant has breached the lease contract as a matter of law in these respects, and is liable to plaintiff for the resulting damages.”
We have concluded that, under the Kansas decisions, the plaintiff s evidence established a breach of contract on the part of the landlord McLean. In Sykes v. Perry, 162 Kan. 365, 176 P.2d 579 (1947), it was held in Syllabus ¶ 2 that the provisions not specifically mentioned in a written contract but which are essential in carrying out its purposes may be implied and, when properly implied, are as binding as if written therein. Sykes involved a controversy over a contract pertaining to the lease and sale of real property. Sykes quotes the applicable principles of law from 6 R.C.L. 856, § 244, as follows:
“ ‘Necessary implication is, beyond doubt, as much a part of an instrument as if that which is so implied were plainly expressed. If it can be plainly seen from all the provisions of the instrument taken together, that the obligation in question was within the contemplation of the parties when making their contract, or is necessary to carry their intention into effect — in other words, if it is a necessary implication from the provisions of the instrument — the law will imply the obligation and enforce it. The policy of the law is to supply in contracts what is presumed to have been inadvertently omitted by the parties, being supposed to have made those stipulations which as honest, fair and just men they ought to have made. Therefore, whatever may fairly be implied from the terms or nature of an instrument is, in judgment of law, contained in it. . . . In fact, it may be said that contracts impose on parties, not merely obligations expressed in them, but everything which, by law, equity, and custom, is considered incidental to the particular contract, or necessary to carry it into effect. Implied promises always exist where equity and justice require the party to do or refrain from doing the thing in question; where the covenant on one side involves some corresponding obligation on the other; where by the relations of the parties and the subject-matter of the contract a duty is owing by one not expressly bound by the contract to the other party in reference to the subject of it. Whatever the law necessarily implies in a contract is as much a part thereof as if expressly stated therein. . . .’ ” p. 373.
A similar holding may be found in Heckard v. Park, 164 Kan. 216, 188 P.2d 926 (1948). See Wiles v. Wiles, 202 Kan. 613, 622-23, 452 P.2d 271 (1969), where the court states that provisions not specifically mentioned in a written contract but which are essential in carrying out its purpose may be implied and when properly implied are as binding as if written therein. Zelleken v. Lynch, 80 Kan. 746, 104 Pac. 563 (1909).
We have concluded that the trial court correctly determined this issue and properly held that defendant McLean breached her written contract with Bonanza. The modern trend is to apply the duty of good faith and fair dealing in every contract. The duty imposes both affirmative and negative obligations. 17 Am. Jur. 2d, Contracts § 256, pp. 653-654, states:
“Every contract implies good faith and fair dealing between the parties to it, and a duty of co-operation on the part of both parties. Accordingly, whenever the co-operation of the promisee is necessary for the performance of the promise, there is a condition implied that the co-operation will be given. Indeed, it may be said that contracts impose on the parties thereto a duty to do everything necessary to carry them out. When one undertakes to accomplish a certain result he agrees by implication to do everything to accomplish the result intended by the parties. If the giving of notice is requisite to the proper execution of a contract, a promise to give such notice will be inferred. Moreover, there is an implied undertaking in every contract on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out his part of the agreement, or do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Ordinarily if one exacts a promise from another to perform an act, the law implies a counterpromise against arbitrary or unreasonable conduct on the part of the promisee. However, essential terms of a contract on which the minds of the parties have not met cannot be supplied by the implication of good faith and fair dealing.”
Under the undisputed facts, it is clear that the lease contemplated commercial use and specifically the development of a shopping center on the premises. In our judgment McLean was obligated, not only to take the steps necessary to further that development, but to avoid preventing that use. Her refusal to sign a statement that the lease was still in effect and her subsequent counterclaim seeking to hold the lease null and void without any reasonable basis clearly violated McLean’s obligation as lessor under the lease contract. McLean obviously interfered with Bonanza in developing the land leased for commercial development. We hold that the trial court did not err in holding that McLean had violated her contractual obligation to Bonanza.
The last point raised on the appeal is that the trial court erred in awarding damages to plaintiff for breach of the lease contract because there was no substantial competent evidence that it had lost revenue and no evidence of a causal relationship between the defendant’s actions and the damages sought. At the trial, plaintiff and defendant each presented witnesses who testified as experts in the field of mini-warehouse developments. There was evidence to show that there was an extensive market for mini-warehouse storages in the area and that the project planned by the plaintiff was feasible and would have been profitable. The defendant offered expert testimony to the contrary. It would serve no useful purpose to set forth with particularity all of the evidence in the case. Suffice it to say, we have concluded that there was substantial competent evidence to uphold the findings of the trial court that the plaintiff Bonanza had been damaged in the amount of $63,694 by the delay in the construction of the mini-warehouse and the increased cost of financing the same.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a medical malpractice action brought by Adoria Boydston on behalf of her daughter, Mercia Boydston, and by Adoria Boydston and Maurice Wilson individually against the University of Kansas Medical Center (KUMC) through the Board of Regents for the State of Kansas; Glen P. Dewberry, M.D.; and Lynn E. Katterhenrich, R.N. Following settlement by defendants Dewberry and Katterhenrich, the trial court granted the Board of Regents’ motion to dismiss and the plaintiffs timely appeal.
The basic facts are not in dispute. On January 2, 1985, the plaintiffs filed this action against the Board of Regents, alleging, in part:
“4. That in October of 1983, Adoria Boydston became pregnant and consulted physicians at the University of Kansas Medical Center, College of Health Sciences and Hospital in Kansas City, Kansas, for medical care and treatment, including prenatal care and delivery of her child. Up to and including the time of her delivery on June 23,1984, Adoria Boydston was accepted as a patient and was treated by various doctors employed by the University of Kansas Medical Center.
“6. That during the course of plaintiff, Adoria Boydston’s, pregnancy, employees of the defendants willfully, wantonly and carelessly refused to render care to the plaintiff, causing her physical and emotional harm. These acts by the defendants should entitle plaintiffs to punitive damages.”
On March 6, 1985, in response to defendant Board of Regents’ first set of interrogatories, plaintiffs set out their claim of negligence as follows:
“ANSWER:
“a) Nurses who attended the labor and delivery of MERCIA BOYDSTON. We believe their names to be Adair, Bain and Pearson;
“*4(b) The nurses failed to respond timely to documented indications of fetal distress, thereby unduly delaying the emergency delivery of MERCIA BOYDSTON, thereby causing severe injury to said MERCIA BOYDSTON. Further, all agents or employees of this defendant who participated in the attempted, unauthorized spinal tap of MERCIA BOYDSTON in July 1984. Their names are known to this defendant, and will be developed during discovery, as well as the damages caused by said unauthorized, attempted spinal tap.”
The plaintiffs amended their petition on July 18, 1985, by adding Dr. Glen P. Dewberry and Lynn E. Katterhenrich, R.N., as additional parties/defendants. The amended petition made specific allegations and incorporated by reference the allegations of negligence made in the original petition. On November 25, 1985, the plaintiffs filed a pretrial questionnaire which stated, in part:
“5. Theory of your claim, if any (including grounds of negligence, if applicable.):
“C. As to defendant The Board of Regents for the State of Kansas, plaintiff claims:
“1. Imputed liability for negligent acts of defendant Katterhenrich and defendant Dewberry, based on theory of respondeat superior.
“2. This defendant was also negligent in that it did not have a board certified obstetrician and gynecologist on duty the night of June 23,1984, and did not have an adequate nursing staff on duty the night of June 23,1984, and had an inadequate number of doctors on duty the night of June 23,1984, in the labor and delivery area.
“3. It did not have proper procedures to screen and monitor the experience, knowledge and skill of the nurses working in the OB/GYN department.
“4. It did not have continuing education program [s] to make sure that the nurses working in the OB/GYN department knew what they were doing, specifically, in regard to interpreting fetal monitor tracings.
“5. It negligently hired nurses to work in the OB/GYN department.”
On June 27, 1986, the plaintiffs filed a second amended petition which reflected the death of the infant Mercia Boydston on May 21, 1986. Otherwise, the second amended petition reaffirmed the allegations of the plaintiffs’ prior petitions. On the same day, the parties entered into a discovery scheduling agreement. Under the agreement, the attorney for the plaintiffs was to prepare a statement of his contentions before July 15, 1986, and submit it to the defendants, who would then incorporate the contentions into a proposed pretrial order.
In a letter dated July 10, 1986, the attorney for the plaintiffs wrote to the separate counsel for the Regents, Dewberry, and Katterhenrich concerning the contentions advanced by the plaintiffs. Under the heading “Basis of Liability,” the letter denoted five paragraphs detailing the alleged negligence of Nurse Katterhenrich, and six paragraphs detailing the alleged negligence of Dr. Dewberry. There are no separate allegations of any negligent acts by the defendant Regents.
After receiving this letter, counsel for the Regents prepared a proposed pretrial order which was delivered to the plaintiffs. The proposed order stated, in part:
“C. As to the defendant the Board of Regents for the State of Kansas, the plaintiff claims the following acts of negligence:
“(1) Imputed liability for the negligent acts of defendant Katterhenrich based on the theory of respondeat superior.
“(2) The defendant Hospital failed to have a board certified obstetrician and gynecologist on duty the night of June 23,1984, did not have an adequate nursing staff on duty the night of June 23,1984, and had an inadequate number of doctors on duty the night of June 23, 1984 in the labor and delivery area.
“(3) The Hospital failed to have proper procedures to screen and monitor the experience, knowledge and skill of the nurses working in the OB/GYN department.
“(4) The Hospital failed to have continuing education programs to make sure that the nurses working in the OB/GYN department knew how to interpret the fetal heart monitor tracings.
“(5) The Hospital negligently hired nurses to work in the OB/GYN department.”
No pretrial conference was held in this case, nor wa's the proposed pretrial order filed with the court. Trial of the case was set to begin on Monday, August 4,1986, and discovery continued up to the week of trial. On Friday, August 1, the separate attorneys for defendants Dewberry and Katterhenrich informed counsel for the Regents that the plaintiffs had settled with their clients. Under the terms of the settlement, the plaintiffs had settled all claims against Dewberry and Katterhenrich, and had released the Regents from “all claims that may arise as a result of the vicarious liability of Kansas University Medical Center for the alleged negligent acts of Glen Dewberry, M.D. and Lynn Katterhenrich, R.N.”
At 4:00 p.m. the same day, counsel for the plaintiffs submitted to the Regents’ attorneys a list of claims advanced by the plaintiffs. The list basically restated the plaintiffs’ allegations of negligence against the Board of Regents as set out in plaintiffs’ pretrial questionnaire.
The morning that trial was set to begin, counsel for the plaintiffs submitted “Updated Answers to Defendant’s First Confirming Set of Interrogatories.” The plaintiffs amended their answers to Interrogatory No. 4 by setting out the alleged acts of negligence committed by the defendant.
On the same day, the defendant filed motions to strike, for summary judgment, and to dismiss. The defendant contended that the plaintiffs were “attempting at this late minute to manufacture a cause of action against the hospital where none exists. This changes the whole complexion of this lawsuit should the court allow the plaintiffs to do this, and now necessitates a trial by ambush.” The trial court agreed and found that the plaintiffs were changing the theory of their lawsuit to raise new claims against defendant and granted the motion to dismiss with prejudice.
The only question presented on appeal is whether the trial court abused its discretion in granting defendant’s motion to dismiss with prejudice. The plaintiffs advance numerous arguments to support their contention that the trial court erred. However, we believe that plaintiffs misinterpret the rationale for the trial court’s decision and incorrectly frame the issues on appeal.
The plaintiffs argue that the court erred in dismissing the case for failure to comply with its orders, by treating the motion to dismiss as a summary judgment motion, and by holding that the release of one joint tortfeasor releases all joint tortfeasors. Although the motion to dismiss was framed in terms of the release of one joint tortfeasor releases all, the trial court dismissed on the basis of unfair surprise. The argument relating to summary judgment is not relevant since the trial court expressly stated it did not rule on the motion for summary judgment. Finally, the trial court did not find that, by releasing the doctor and the nurse as joint tortfeasors, the plaintiffs had also necessarily released defendant Board of Regents. Rather, the trial court held that the plaintiffs pled only claims of vicarious liability against defendant. Since the plaintiffs’ settlement with Dewberry and Katterhenrich expressly released the defendant from any vicarious liability for the actions of Dewberry or Katterhenrich, the court found that the plaintiffs had released all of the claims they had pled against defendant, and that it would be unfair and prejudicial to the defendant to allow plaintiffs to proceed upon the theory of direct negligence.
Under the Kansas Code of Civil Procedure, there is no requirement that pleadings state facts sufficient to constitute a cause of action. Oller v. Kincheloe’s Inc., 235 Kan. 440, 448-49, 681 P.2d 630 (1984). Rather, the petition need only contain a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief to which he deems himself entitled. Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, 62, 612 P.2d 150 (1980). The short and plain statement of a claim is sufficient if it gives the defendant “fair notice of what the plaintiff s claim is and the ground upon which it rests.” Rinsley v. Frydman, 221 Kan. 297, 302, 559 P.2d 334 (1977) (citing Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 [1957]).
As long as the opponent is apprised of the facts that entitle the plaintiff to relief, it is not necessary to spell out a legal theory of relief in the pleadings. Oller, 235 Kan. 440. Wright and Miller have addressed the same subject, and state:
“The real issue, of course, is not whether legal theories may be pleaded but whether the original theory may be discarded and recovery had on some other theory. The federal rules, and the decisions construing them, evince a belief that when a party has a valid claim, he should recover on it regardless of his counsel’s failure to perceive the true basis of the claim at the pleading stage, provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits. Undoubtedly cases can be imagined in which an alteration in legal theory would work to the prejudice of the opposing party in a way that cannot be rectified by an appropriate court order. But such cases are very rare and the court always can invoke its discretion under Rule 15 to prevent a change in the theory of the action. In the vast majority of cases, any temporary prejudice from a shift in theory can be overcome by permitting additional time for discovery or by granting a continuance if the case has reached trial.” 5 Wright & Miller, Federal Practice and Procedure: Civil § 1219 (1969).
The statement of the law under Rule 8 of the Federal Rules of Civil Procedure (which is identical to K.S.A. 60-208) has been consistently cited with approval by the federal courts. See, e.g., Colonial Refrigerated Transp., Inc. v. Worsham, 705 F.2d 821 (6th Cir. 1983); Mir v. Foshurg, 646 F.2d 342 (9th Cir. 1980); Thibodeau v. Foremost Ins. Co., 605 F. Supp. 653, 657 (N.D. Ind. 1985). In Oller, 235 Kan. at 447, this court stated:
“The spirit of our present rules of civil procedure permits a pleader to shift the theory of his case as the facts develop so long as he has fairly informed his opponent of the transaction or the aggregate of the operative facts involved in the litigation.” (Citing Griffith v. Stout Remodeling, Inc., 219 Kan. 408, Syl. ¶ 3, 548 P.2d 1238 [1976].)
The determination of whether a party’s claim is a late shift in the thrust of the case which prejudices the opponent is left to the sound discretion of the trial court. Mir v. Fosburg, 646 F.2d at 347. Where such exercise of discretion is questioned on appeal, we must determine whether the opposing party was taken by surprise and, if so, whether it resulted in substantial prejudice to that party.
With these principles in mind, we turn to the trial court’s determination in the present case. Was the defendant prejudiced by plaintiffs’ shift in theory of liability? We think not. It is true that the original petition makes no allegation of direct negli gence on the part of defendant Regents but, rather, speaks of injuries which were caused by “various doctors employed” by KUMC. Similarly, the plaintiffs’ Answers to Interrogatories filed March 6, 1985, contain allegations only of the negligence of medical personnel employed by KUMC. There is no allegation in the answers to interrogatories of any direct negligence on the part of defendant.
The plaintiffs did, however, prepare a pretrial questionnaire filed on November 25, 1985, which contained allegations of direct — as opposed to merely vicarious— liability on the part of defendant. As part of a discovery scheduling agreement in June 1986, the plaintiffs’ attorney was to prepare a statement of contentions which would be incorporated into a pretrial order to be prepared by the defendant. The proposed pretrial order was prepared by counsel for the defendant and provided to the plaintiffs on or about July 21,1986. The defendant was obviously aware of plaintiffs’ contentions of direct negligence prior to July 21, 1986.
The defendant, in defending the trial court’s ruling, argues that, since there was no pretrial conference or order, the pleadings contain only claims based on vicarious liability which were resolved by the settlement agreement and, therefore, no claims remained against the defendant on the day of trial. The defendant’s argument ignores the basis of the trial court’s decision. The plaintiffs’ case was dismissed based upon the finding of unfair surprise that prejudiced the defendant’s ability to defend the case on its merits, and was not dismissed based upon the pleadings. What was pled or not pled by the plaintiffs is not relevant in determining the issue before this court on appeal.
The unsettled and confused status of this case on the day of trial was due in large part to the failure to hold a pretrial conference and file a subsequent pretrial order. Counsel failed to agree on the proposed pretrial order prior to trial. Both counsel and the trial court must share the responsibility for the breakdown in the pretrial procedure and resulting confusion: counsel, for not requesting a pretrial conference or court intervention when the proposed pretrial order could not be agreed to; the trial court, in failing to hold a pretrial conference or in making sure that counsel submitted an agreed-to pretrial order within a rea sonable time prior to trial. The primary purposes of a pretrial conference are to reduce, if not eliminate, surprise from the trial and to determine exactly what issues are to be tried and what procedures are to be followed. In Tillotson v. Abbott, 205 Kan. 706, 709, 472 P.2d 240 (1970), this court stated:
“The pre-trial conference and the order entered thereon are an important part of the procedural process. They are provided to acquaint each party in advance of trial with the factual contentions of the opposite parties as to matters in dispute. The opportunity for maneuver and surprise during the trial is reduced. As a result of the pre-trial conference all parties are better able to prepare their testimony on the issues to be tried.” (Emphasis added.)
In all but the simplest cases, reason and common sense dictate that a pretrial conference be held within an appropriate time prior to trial, and a pretrial order be prepared and filed, as required by Supreme Court Rule 140 (235 Kan. cix).
Under the circumstances of this case, was the trial court justified in dismissing this case with prejudice? We think not. Whatever temporary prejudice defendant suffered from a shift in plaintiffs’ theory of liability could have easily been cured by taking less severe action.
Dismissal with prejudice is a drastic and final action. It is akin to entering default judgment in its effect to the litigants and to the lawsuit. This court has stated on numerous occasions that default judgments are not favored in law and any doubt should be resolved in favor of action which allows the case to be decided on its merits. Montez v. Tonkawa Village Apartments, 215 Kan. 59, 523 P.2d 351 (1974); Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 Kan. 110, 519 P.2d 730 (1974). We pointed out in Montez that, while there is a need to achieve finality in litigation, judicial discretion must not accomplish that end in disregard of what is just, right, and equitable under the circumstances. The same applies equally to dismissing a case with prejudice to a party.
We are of the opinion that less drastic action would have been sufficient to overcome any temporary prejudice suffered by the defendant. The court could have, for example, determined if the proposed pretrial order was acceptable to counsel and, if not, then resolved the differences and rescheduled the case for trial or scheduled a pretrial conference and proceeded accordingly. To deny the plaintiffs their day in court when other less severe action would have overcome the limited prejudice to the defendant was an abuse of discretion.
The judgment of the trial court is reversed and the case is remanded with directions to set aside the dismissal with prejudice and for further proceedings consistent with this opinion.
Holmes and McFarland, JJ., concur in the result. | [
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The opinion of the court was delivered by
Miller, J.:
The defendant, Dennis K. Fraker, was convicted by jury trial in Osage County District Court of driving under the influence of alcohol or drugs, K.S.A. 1986 Supp. 8-1567(a). He appealed, challenging the use of the written and unsworn traffic citation and notice to appear, issued by the arresting Kansas Highway Patrol trooper, as the complaint. The Court of Appeals held that a prosecution for driving under the influence of alcohol (DUI) can be commenced only by the filing of a verified complaint or information; it vacated defendant’s conviction and dismissed the charge against him. State v. Fraker, 12 Kan. App. 2d 259, 739 P.2d 940 (1987). We granted the State’s petition for review.
We agree with the statutory history as set forth in the opinion of the Court of Appeals. Prosecutions in this state have historically been commenced with the filing of a sworn complaint. See K.S.A. 62-602 (Corrick) and prior law and case annotations cited thereunder. This was carried over into our revised Code of Criminal Procedure adopted in 1970. See L. 1970, ch. 129, §§ 22-2202(6), -2301. The 1972 legislature first authorized the use of notices to appear, signed by law enforcement officers, as complaints. See L. 1972, ch. 120, § 1(6). Prosecutions for driving under the influence of alcohol could be commenced by the issuance of the uniform traffic citation until January 1, 1985. On that day new statutes became effective, and since then prosecutions for DUI must be commenced with the filing of a verified complaint. Unsworn traffic citations may no longer be used as a complaint in DUI cases; or in cases when the driver is charged with driving while his or her license is suspended, revoked, or cancelled, K.S.A. 1986 Supp. 8-262; or with fleeing from a police vehicle, K.S.A. 8-1568; or with failing to stop or to give information after an accident involving damage to property or death or personal injury, K.S.A. 8-1602, -1603, and K.S.A. 1986 Supp. 8-1604. K.S.A. 1986 Supp. 8-2104(d), requires the arresting officer to take a motorist arrested for those offenses or for any traffic violation which is a felony before a judge of the district court without unnecessary delay. K.S.A. 1986 Supp. 8-2106 authorizes the use of traffic citations for various misdemeanors and traffic infractions when the person “is not required to be taken before a judge of the district court.” Since DUI is one of those offenses for which the accused must be taken before a judge of the district court without unnecessary delay, an unsworn traffic citation cannot be used as a complaint when a charge of this offense is to be made. The legislature has limited the use of the unsworn traffic citation as a complaint. Its use in DUI cases is no longer authorized.
Fraker did not waive any of the irregularities in the commencement of these proceedings. When he was taken before the district magistrate judge, he moved to dismiss the charge before trial, contending that the prosecution could not be commenced on the unsworn citation. He has so contended throughout. We agree with the Court of Appeals that the charge of DUI was not properly commenced without a verified complaint. Fraker’s conviction must be vacated.
The Court of Appeals held that the error in the trial court was jurisdictional; with that we disagree. It is true that our statutes require a complaint charging DUI to be verified. That does not mean, however, that verification of the complaint cannot be waived. K.S.A. 22-3208(3) requires “[d]efenses or objections based on defects in the institution of the prosecution or in the complaint,” with certain exceptions, be raised only by motion before trial. Fraker timely raised that objection. The notice to appear, issued and signed by the officer in this case, contains more than enough information to charge the offense of DUI; its only failing, as a complaint, is that it is not sworn to by the complainant before the judge. The verification of a complaint is a defect which may be waived; lack of verification does not oust the court of jurisdiction. See State v. Searle, 136 Kan. 177, 179-80, 14 P.2d 636 (1932); State v. Alton, 127 Kan. 832, 275 Pac. 166 (1929); State v. Griggs, 103 Kan. 344, 173 Pac. 908 (1918); State v. Edwards, 93 Kan. 598, 144 Pac. 1009 (1914); State v. Miller, 87 Kan. 454, 124 Pac. 361 (1912); City of Garnett v. Guynn, 7 Kan. App. 414, 53 Pac. 275 (1898). Similarly, we have held that even though the statute required a petition for divorce to be verified, lack of verification did not oust the court of jurisdiction. Patterson v. Patterson, 164 Kan. 501, 190 P.2d 887 (1948).
Where the charging document, whether in the form of a formal complaint or in the form of a notice to appear, contains all of the information necessary to charge the offense of DUI, but is unverified, and where the accused appears and proceeds to trial without objecting to the lack of verification, the defect is waived. K.S.A. 22-3208(3). In such cases the accused has had notice of the charge made against him or her, has elected to proceed to trial without objecting to the lack of verification, and has suffered no prejudice. It is the general rule that any objection to the verification of the information is waived by failure to interpose a timely objection. See 41 Am. Jur. 2d, Indictments and Informations § 305, and 42 C.J.S., Indictments and Informations § 305(c), and cases there cited. We hasten to add, however, that we are not concerned here with the issuance of a warrant of arrest upon a finding of probable cause; no warrant was issued in this case, and in most DUI cases no warrant is issued when the accused appears pursuant to notification. This case does not involve a finding of probable cause, necessary to support the issuance of a warrant, which must be based upon sworn infor mation. See K.S.A. 1986 Supp. 22-2302, and Wilbanks v. State, 224 Kan. 66, Syl. ¶¶ 1-6, 579 P.2d 132 (1978).
For the reasons stated, the defendant’s conviction is vacated, the judgment of the Court of Appeals is affirmed as modified, and the judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Herd, J.:
Defendant Mallonee Lee was charged with second-degree murder and felonious obstruction of official duty. She was convicted of involuntary manslaughter and obstructing official duty. The Court of Appeals reversed the manslaughter conviction for improper instructions and affirmed the obstruction of official duty conviction. We granted defendant’s petition for review on the obstruction of official duty conviction.
On October 22, 1984, Mallonee was visiting with her friend, Beverly Roland, in Roland’s home. Mallonee had agreed to stay overnight with Beverly because she was upset. Beverly’s boyfriend, Dennis Roby, had hit Beverly in the jaw that evening at a club. After Roby was ejected from the club, Beverly confided in Mallonee that Roby had held a gun to her head that morning in a threatening manner.
The women were in the bathroom talking and preparing for bed, with Mallonee leaning against the bathroom door. Suddenly she felt the door being pushed open and heard a call for Beverly. It was Roby. Mallonee held the door as best she could, trying to keep Roby out of the bathroom. In spite of the struggle, Roby pushed his way into the bathroom, brandishing a handgun. Mallonee grabbed Roby’s gun hand and they struggled. Mallonee won the struggle, got the gun, and shot Roby five times, killing him.
Beverly opened her eyes to see Mallonee standing over Roby with a smoking gun. Beverly sent all of her children except one over to their aunt’s house to spare their viewing the body. Before they left, the children heard Mallonee expressing concern about her fingerprints on the gun and telling Beverly they should both wash the gunpowder off their hands.
Tony, Beverly’s oldest boy, refused to leave. He saw Mallonee wrap the gun in her robe and put it in her bag. Mallonee then took Tony with her to her car and left. She instructed Tony to tell the police they had thrown the gun out the window and suggested he might blame the killing on an old boyfriend of Beverly’s. When Mallonee arrived home she unwrapped the gun and removed the five spent cartridges. The gun was not one Tony recognized as Roby’s. Mallonee asked Tony to call his aunt’s house and warn everyone not to mention her.
During the first interview, Tony’s family complied with the request and did not mention that Mallonee had been there.
That afternoon, some 12 hours after the shooting, Mallonee and Tony went to the police station for questioning. They were interviewed separately. Tony said the gun had been thrown out of the car. The police spent that afternoon and the next day searching for the gun. Finally, Tony confessed his lie. Mallonee denied telling Tony to lie and had no memory of seeing or talking about the gun once Reverly removed it from her hand after the shooting. The gun was never found. The State claims the gun used in the killing belonged to Mallonee and, if found, would discredit her story of the events of the evening.
The only issue here is whether there was sufficient evidence of obstruction of official duty to convict Mallonee Lee.
K.S.A. 21-3808 provides:
“Obstructing legal process or official duty is knowingly and willfully obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.
“Obstructing legal process or official duty in a case of felony is a class E felony.”
Felony obstruction, under K.S.A. 21-3808, follows former K.S.A. 21-717 (Corrick) in all substantive respects. The Judicial Council Comment notes the “historic scope of the crime is quite broad.” At common law, obstruction included any act which impeded justice. 67 C.J.S., Obstructing Justice § 2.
The statute is construed broadly in Kansas. We construed it in State v. Merrifield, 180 Kan. 267, 270, 303 P.2d 155 (1956):
“[T]o obstruct is to interpose obstacles or impediments, to hinder, impede or in any manner interrupt or prevent, and this term does not necessarly imply the employment of direct force, or the exercise of direct means.”
Merrifield involved a defendant who, while under arrest and in custody of a person he knew to be a sheriff, went inside his house and refused to open the door. This action was held to be obstruction.
State v. Logan, 8 Kan. App. 2d 232, 233, 654 P.2d 492 (1982), rev. denied 232 Kan. 876 (1983), gave a broad interpretation of the scope of K.S.A. 21-3808. Logan upheld the conviction of a defendant who refused to stay in a police station when ordered to do so by an arresting officer on crutches. The court held the defendant had violated the statute by his passive resistance in refusing to stay.
The defendant in State v. Latimer, 9 Kan. App. 2d 728, 733, 687 P.2d 648 (1984), gave a false name to officers. The court found mere words could constitute obstruction because “the apparent intent of the statute is to make criminal the willful obstruction by any means of an officer acting in the discharge of his official duty.”
This court in State v. Hatfield, 213 Kan. 832, 835, 518 P.2d 389 (1974), however, held mere refusal to unlock a door (when there was no evidence the defendant had the ability to do so) was not enough to constitute obstruction. The opinion stressed the absence of “trickery or deceit on the part of defendant that in any way impeded the sheriff.”
It is apparent the question of whether a defendant has obstructed official duty depends on the facts of each case. State v. Parker, 236 Kan. 353, 364, 690 P.2d 1353 (1984). In the present case, the Court of Appeals held there was sufficient evidence of three actions by Lee which substantially hindered Detective Lawson in his investigation. First, she left the scene and did not report to the police for 12 hours; second, she told Tony to lie about what happened to the gun; and third, she removed the gun, which was never recovered.
Lee argues mere failure to come forward cannot be construed as an act obstructing official duty, and to so hold would mean that in every case where a potentially criminal act is committed without an immediate journey to the police station, the defendant would be guilty of obstruction. She submits this is not what the legislature intended in enacting the statute.
State laws vary on whether mere flight from the scene of a crime constitutes obstruction of justice. See Annot., 44 A.L.R. 3d 1018, 1052-53. The authors’ comments to § 21-3808 in Vernon’s Kansas Code of Criminal Procedure state the statute forbids “every form of resistance or obstruction placed in the way of an officer in the performance of his official duty.” Vernon’s Kansas C. Crim. Proc. § 21-3808 (1971). The authors go on to say Merrifield seems to imply that flight would constitute resistance under Kansas law. The flight in Merrifield, however, occurred after the defendant was already under arrest and in custody.
All of the foregoing cases are distinguishable from this case. Here, all of Mallonee Lee’s actions complained of occurred prior to her having come under investigation or having been charged. At the time of Lee’s actions, there was no officer whose official duty she could obstruct.
The complaint against Lee on obstructing official duty charered:
“That on or about the 22nd day of October, 1984 through the 31st day of October, 1984, in the County of Johnson, and State of Kansas, Malonee M. Lee did then and there unlawfully, feloniously, willfully and knowingly obstruct a person authorized by law to serve process, to-wit: Detective Terry Lawson while the said Detective Terry Lawson was attempting to perform an official duty, to-wit: investigate the shooting and death of Dennis D. Roby, in violation of K.S.A. 21-3808 and K.S.A. 21-4501(e).
In order to convict Lee pursuant to K.S.A. 21-3808, the jury was instructed it must find:
“1. That Terry Lawson was authorized by law to serve legal process.
“2. That the defendant knowingly and willfully obstructed him in the investigation of the shooting and death of Dennis D. Roby which was an official duty of Terry Lawson.
“3. That the act of the defendant substantially hindered or increased the burden of the officer in the performance of the officer’s duty.
“4. That at the time the defendant knew or should have known that Terry Lawson as a law enforcement office . . . .”
State v. Gasser, 223 Kan. 24, 30, 574 P.2d 146 (1977), states the defendant must have reasonable knowledge he is opposing a police officer. In State v. Parker, 236 Kan. 353, we emphasized the obstruction must be directed against the officer named in the complaint.
In Parker, Detective Metz waited outside for an investigator’s signal to move inside after he arrested a suspected prostitute. When the investigator placed the defendant under arrest, she ran to another room and put marked bills down the disposal. The defendant was charged with obstructing Detective Metz in the performance of his official duty under K.S.A. 21-3808. The court found it could not consider the actions of the defendant prior to the arrival of Detective Metz.
Parker holds K.S.A. 21-3808 is intended to deter the obstruction of a specific officer, rather than that of justice generally. It holds the State is required to prove an identified officer was discharging his duty, and defendant knowingly and willfully obstructed “that officer in the performance of that duty.” 236 Kan. at 365.
In Parker, when Detective Metz came inside and questioned the defendant about the missing evidence, she replied “I don’t know what money you are talking about.” This is similar to Lee’s reply to Detective Lawson that she didn’t know what happened to the gun. The court in Parker held the defendant’s response to be the equivalence of silence, which was her right to claim. It also noted silence does not “substantially increase the burden” on the officer, and held defendant’s actions, to constitute obstruction, must substantially hinder the officer. 236 Kan. at 365-66.
We hold there is no evidence Mallonee Lee obstructed the official duty of Detective Terry Lawson.
The judgments of the trial court and the Court of Appeals are reversed on the issue of obstruction of official duty and this case is remanded for a new trial on involuntary manslaughter. | [
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The opinion of the court was delivered by
McFarland, J.:
This action was commenced by Gary Peterson against defendant Midland National Bank seeking payment for hay provided to certain cattle in which Midland had a security interest. The Peterson claim was based, in part, upon foreclosure of a lien pursuant to K.S.A. 58-207. Inasmuch as this was a lien foreclosure action, the district court ordered Maijorie Wharton Wells and Wharton Ranches, Inc., brought in as additional parties defendant as they claimed liens in the same cattle. The district court ultimately found that Peterson did not have a valid lien, but awarded him a $7,236.40 judgment against Midland on the theory of unjust enrichment. The district court awarded Maijorie Wharton Wells and Wharton Ranches, Inc., a $46,000.00 judgment against Midland as foreclosure of an agister’s lien (K.S.A. 58-220). Midland appeals from both judgments.
We shall first consider the issues raised relative to the Wells-Wharton Ranches judgment.
WELLS-WHARTON RANCHES JUDGMENT
The general relevant and uncontroverted background was found by the trial court to be as follows:
“1. Marjorie Wells is a resident of the state of Texas and owns approximately 7,000 acres of Kansas real estate, individually and through a family corporation. Her husband, B. G. Wells, owns no interest in the corporation. Mrs. Wells leased from her family corporation the Kansas real estate so that she had control of the entire 7,000 acres.
“2. Mr. & Mrs. Wells entered into a written grass and agricultural lease, plaintiffs Exhibit B-4, wherein Mr. Wells leased all 7,000 acres. The lease provided for rent at the rate of $15 per acre. It had a commencement date of November 1, 1983, and extended for five years. The lease was silent as to when the rental payment was due but all the parties agree that it was to be paid in the fall of the year at the conclusion of the pasture season. This follows a commonly accepted practice in the area of paying the pasture rent at the conclusion of the pasture season which commences approximately April 1st and concludes approximately on October 31st of the same year.
“3. The lease was prepared by Mr. Kenneth Shollenbarger, the Texas attorney for Mr. and Mrs. Wells, in 1984. Although it has a commencement date of November 1,1983, it was not signed by the parties until sometime after the first of August, 1984.
“4. Mr. Wells put approximately 460 head of cattle on the leased premises in March, 1984. The cattle were purchased with loan proceeds received from the Strong City State Bank.
“5. During this same period, the Strong City State Bank desired to sell participation in its loan to B. G. Wells to Midland National Bank because the loan exceeded its loan limits. At the end of February or the first of March, 1984, Robert G. Wall, who manages the loan department for Midland, talked to Ray Meyer, the President of the Strong City State Bank, about the participation. Meyer informed Wall of the history of the bank’s relationship with Mr. and Mrs. Wells and pointed out to him the Wells’ real estate which was highlighted on a county land map located behind Meyer’s desk. Meyer also showed Wall a financial statement for Mr. and Mrs. Wells, signed by Mr. Wells, indicating ownership of the real estate and a substantial net worth.
“6. Wall requested that the Strong City Bank provide him with a current financial statement indicating whether the land was owned by Mr. or Mrs. Wells or the two of them jointly. In response, Wall received from Meyer a financial statement dated March 6, 1984, indicating that B. G. Wells owned the real estate by himself and that it was valued at $1,550,000.00. The financial statements are inaccurate in that Mrs. Wells and her family corporation own the real estate. The two financial statements are shown as Defendants’ Exhibits 2 and 6.
“7. Midland purchased a portion of the loan from the Strong City State Bank relying on the financial statement of Mr. Wells and the cattle at the Wells’ ranch. Mr. Ray Meyer at the Strong City State Bank agreed to periodically inspect the collateral on behalf of Midland.
“8. In the fall of 1984, the loan came due, and Mr. Wells could not pay it. Midland soon discovered that Mr. Wells did not own the real estate in Chase County.
“9. Midland decided it was necessary to take over the loan directly. It proceeded to purchase the interest of Strong City State Bank.”
In the fall of 1984, Mr. Wells was having serious financial problems. He could not pay the Midland loan, and he could not pay the $105,000.00 pasture rent due Mrs. Wells on November 1, 1985. He had subleased a portion of the pasture to the Wells’ sons for their own cattle operation, and the sons paid their $55,500.00 portion directly to Mrs. Wells. Mrs. Wells took possession of some horses belonging to Mr. Wells for which she gave him a $3,500.00 credit. Mr. Wells’ debt to Mrs. Wells was thereby reduced to $46,000.00.
Meanwhile, Mr. Wells was negotiating with Midland in an attempt to stave off the financial disaster with which he was confronted. As the trial court found:
“12. In the fall of 1984, negotiations then ensued as to how Mr. Wells’ debt to Midland would be paid. Mr. Wells proposed a plan whereby the 1984 calf crop which had been born to the cattle in Kansas would be moved to pasture land he had arranged for in Texas. The cows and bulls located in Kansas would remain in Kansas for another year in order that Wells could get another calf crop from the Kansas cattle, at which point the herd would be sold and the bank would be paid off.
“13. On November 15, 1984, in connection with the refinancing, Midland wrote Mr. Wells requesting a payment of interest, a disclaimer signed by Mrs. Wells, and a new security agreement and financing statement together with a balance sheet and profit and loss statement for Mr. Wells. Mr. Wells then consulted his attorney, Mr. Kenneth Shollenbarger, an attorney licensed to practice in the state of Texas.”
On December 14, Mr. Shollenbarger wrote the following letter to Mr. Wall, Midland’s Senior Vice President:
“Mr. Robert G. Wall,
Senior Vice President
Midland National Bank
P. O. Box 427
Newton, Kansas 67114-0427
“Re: Mr. B. G. Wells, Rural Route No. 1, Cottonwood Falls, Kansas 66845
“Dear Mr. Wall:
“This letter confirms our phone conversation of this morning while Mr. Wells was in my office.
“In connection with his present outstanding loan with your bank, I have enclosed the following:
“1. 11-1-84 Promissory Note in the amount of bearing interest at maturing on 5-1-85 (executed by Mr. Wells); and
“2. Kansas Security Agreement covering Mr. Wells’ Kansas property, and contract rights, and with respect to Baylor County and Knox County, Texas, locations — calves on wheat pasture in those counties (executed by Mr. Wells); and
“3. Statement or Affidavit to Midland National Bank (with respect to Mr. Wells’ farming and ranching operations in Kansas) executed by Marjorie Wharton Wells; and
“4. Check No. 4977 dated 12-12-84 from Ty Jones Cattle Co., Inc. of Canyon, Texas, drawn on the First National Bank of Canyon, Texas and payable to Mr. Wells, but endorsed in favor of your bank, in the amount of $12,000.
“These documents, and these monies, are tendered to the bank as per our phone conversation, understanding, and agreement along the following lines:
“1. The Kansas Security Agreement tracks previously executed Security Agreements executed by Mr. Wells in favor of Midland National Bank, and are intended to cover the listed farm equipment, and all cattle-livestock, and related assets of Mr. Wells’ farming and ranching operations in Kansas. You advised that UCC l’s have been filed with the Texas Secretary of State, and in Potter, Baylor and Knox Counties, Texas, covering only calves or cattle located in Texas, and on no other properties.
“2. In consideration of the Ty Jones Cattle Co., Inc., check, and to protect the bank’s security position under the Security Agreement, the bank will make periodic advances to Mr. Wells, under new notes from time to time, covering only cattle expenses already paid to date, new pasture and grazing, trucking, and other related cattle expenses needed to mature the cattle out to the best size possible on or before the maturity date of the note.
“3. The affidavit of Mrs. Wells is intended to cover only Mr. Wells’ Kansas farm and ranch operations (as Mr. Wells’ separate property and estate). Such farm and ranch operations, originating in Kansas, are now, and shall at all times be, the sole, separate property and estate of Mr. Wells. The affidavit does not speak to the separate property and community property rights of Mrs. Wells with respect to Texas community property, and separate property she may own either in Texas or elsewhere.
“As we discussed by phone on several occasions, Mr. Wells wants the present cattle arrangement to work to the absolute best interests of the bank. Mr. Wells wants your bank to realize the maximum sales proceeds and revenues from the cows, calves now in pasture, and those calves which may be born prior to the maturity date of the note, giving to the bank all revenues and proceeds from this operation so that the bank will, to the maximum extent possible, be completely paid off with respect to the principal and accrued interest on the note described above.
“If we can help in any way to accomplish this, please let me know.
“Thanks again for your help.
“With best regards, I am
“Very truly yours,
/s/ Kenneth E. Shollenbarger
KENNETH E. SHOLLENBARGER”
The affidavit referred to in paragraph three of the letter is the following statement:
“DATED: 10-3-84
“STATEMENT OR AFFIDAVIT TO MIDLAND NATIONAL BANK
527 Main, P. O. Box 427
Newton, Kansas, 67114-0427
“By this statement or affidavit, I MARJORIE WHARTON WELLS, am disclaiming any right to manage, or own, or to have any ownership or other property or rights or interests in the farming and ranching operations of my husband, B. G. WELLS, with respect to his Kansas-based farm and ranch operations, specifically including all cattle-livestock, livestock trailer, farm tractor with front-end loader and blade, and other related or similar assets, located at his Cottonwood Falls, Kansas ranch having an address of Rural Route One, Cottonwood Falls, Kansas 66845.
/s/ Marjorie Wharton Wells
MARJORIE WHARTON WELLS”
On cross-examination of Mrs. Wells at trial, she testified:
“Q. Is Mr. Shollenbarger your attorney?
“A. Yes.
“Q. Was he on December 14th, 1984?
“A. Yes.
“Q. Did you authorize him to send that statement or affidavit to the bank, the Defendant’s Exhibit No. 1?
“A. Yes.”
On re-cross-examination, Mrs. Wells testified:
“Q. . . . The affidavit that we’ve identified as deposition — Defendant’s Exhibit 1, you still have it in front of you. All right. On December 14th, 1984, did Mr. Shollenbarger have authority from you to deliver that to the Midland National Bank?
“A. He had authority from me to do whatever he deemed necessary in this situation.
“Q. And I understand you to say he did have authority to send that; is that correct?
“A. Yes.”
After receipt of the December 14 letter from the attorney representing both Mr. and Mrs. Wells with its enclosed statement from Mrs. Wells, Midland agreed to go along with Mr. Wells’ proposal to keep the cattle until spring with Midland advancing costs for the feed and care. It should be noted that Midland had a pending lawsuit (filed November 15, 1984) against Mr. Wells over his nonpayment of the loan when this agreement was made.
The district court concluded:
“5. Based upon the facts and circumstances of this action this Court must conclude that Mrs. Wells’ Statement, marked Defendant’s Exhibit No. 1, was not a disclaimer of lien rights in the cattle.”
The district court then proceeded to determine the legal effect of arrangements between Mr. and Mrs. Wells whereby he would pay $5.00 per cow per month to keep the cows on the leased property over the winter, finding the lease did not terminate on November 1, 1984, but was modified as to “duration.” The district court then held that since the lease had not terminated the requirement that lien foreclosure be commenced before December 31 pursuant to K.S.A. 58-220 was inapplicable (relying on Hermes v. Stackley, 10 Kan. App. 2d 342, 699 P.2d 560 [1985]). The district court ultimately allowed partial foreclosure of the lien (filed June 7, 1985) based on the $46,000 due for the 1984 pasture season. The district court disallowed that portion of the lien applicable to the $5.00 per cow per month agreement based on estoppel arising from a subsequent disclaimer affidavit by Mrs. Wells. No cross-appeal was taken from this determination.
Various claims of error are predicated upon findings of facts and conclusions of law made by the district court relative to post December 14, 1984, occurrences. We believe, however, that the issue relative to the legal effect of Defendant’s Exhibit 1 (Mrs. Wells’ statement) is dispositive of the issues between Midland and Wells-Wharton Ranches.
As we said in Home State Bank v. Johnson, 240 Kan. 417, Syl. ¶ 3, 729 P.2d 1225 (1986):
“The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court.”
At the time the statement was sent to Midland (December 14, 1984), the attorney representing both Mr. and Mrs. Wells had authority from the maker to deliver it. It shows on its face that it was prepared expressly for presentation to Midland. Midland had a pending action against Mr. Wells and Mr. Wells was attempting to secure Midland’s agreement to carry the cattle on until spring at Midland’s expense. One must assume that Mrs. Wells, despite the separate nature of the business activities of Mr. and Mrs. Wells, had at least a mild interest in staving off her husband’s pursuing creditors, else why would she have executed such a document? For convenience the statement is repeated, as-follows:
“By this statement or affidavit, I MARJORIE WHARTON WELLS, am disclaiming any right to manage, or own, or to have any ownership or other property or rights or interests in the farming and ranching operations of my husband, B. G. WELLS, with respect to his Kansas-based farm and ranch operations, specifically including all cattle-livestock, livestock trailer, farm tractor with front-end loader and blade, and other related or similar assets, located at his Cottonwood Falls, Kansas ranch having an address of Rural Route One, Cottonwood Falls, Kansas 66845.
Is/ Maq'orie Wharton Wells
MARJORIE WHARTON WELLS”
(Emphasis supplied.)
The clear intention of this broad, all-inclusive language is to assure Midland that Mrs. Wells is claiming no interest of any kind in the cattle in dispute. Midland insisted on this disclaimer before approving the proposal by Mr. Wells to carry the cattle on until spring. The instrument was intended to, and did, influence Midland’s decision relative to what to do about Mr. Wells’ delinquent loan. We conclude that the district court erred in its interpretation of and legal significance ascribed to Mrs. Wells’ statement. Mrs. Wells, as a result of this statement, is estopped from claiming a $46,000.00 lien interest in the cattle. The judgment herein ran in favor of both Mrs. Wells and Wharton Ranches, Inc., inasmuch as both were listed on the lien statement. Mrs. Wells was the owner or lessee from the family corporation of the entire 7,000 acres involved. No one claims that Wharton Ranches, Inc., has a greater or separate interest in the lien in question. Mrs. Wells is the real party in interest and if she is estopped to assert a lien, any rights of Wharton Ranches, Inc., also fail. The judgment against Midland in favor of Mrs. Wells and Wharton Ranches must be reversed. By virtue of this determination, other issues raised relative to the Wells-Wharton Ranches judgment need not be determined.
PETERSON JUDGMENT
The relevant findings of fact of the district court are as follows:
“29. Midland was on notice that Mr. Wells was in financial difficulty as early as November 15, 1984, as it had filed a lawsuit against Mr. Wells. As early as November 21,1984, Midland had discovered that the financial statements of Mr. Wells were inaccurate.
“30. Mr. Wall of Midland instructed Mr. Wells to have someone bring feed to the cattle. Based on these instructions by Mr. Wall, Mr. Wells caused Mr. Peterson to be hired to feed the cows.
“31. Midland agreed to advance funds to pay to feed and care for the cattle.
“32. Mr. Peterson was hired simply to provide and deliver hay. His job was to sell the hay; deliver it either to a designated pasture where the cows were located or the Wells barn; break the wire bands and feed it to the cows. Further, Mr. Peterson was not responsible for medicating the cows or contacting a veterinarian when they became ill. His job was merely to provide and feed the hay to the cows. His employment ended when he ran out of hay on February 9, 1985.
“33. At no time did Peterson own, lease or have possession of the pasture land where the cattle were located. He admitted that he did not have possession of the cattle but they were the responsibility of Mr. Wells.
“34. Mr. Peterson commenced delivering hay to the cows on December 13, 1985, and fed them almost daily until February 9, 1985, when he exhausted his hay supply. Mr. Peterson stated that he charged the going rate for his hay delivered in the field.
“35. Mr. Randy Wells contacted Mr. Peterson to feed the cows 100 bales of hay commencing on December 13, 1984. Mr. Peterson made up four invoices for the hay fed based upon his daily calendar notations. Mr. Peterson was paid for the first and third invoices covering the periods December 13, 1984, to December 31, 1984, and January 16, 1985, to January 27, 1985.
“36. Moneys advanced by the Midland were used to pay for feed for the cattle including payment to Mr. Bill Thomas for protein and to Mr. Peterson for his first and third invoice.
“37. Mr. Peterson sent his first statement for his services to Mr. Wells approximately January 5, 1985, covering the period of time from December 13, 1984 to December 31,1984. After January 15,1985, he sent his second statement to Mr. Wells covering the period of time from January 1, 1985, to January 15, 1985. The third invoice covered the period of time from January 16, 1985, to January 27, 1985, and the final invoice covered the period of time from January 29, 1985, to February 9, 1985.
“38. Midland advanced funds for payment of feed bills in the amount of $8,661.00 by cashier’s check dated February 15, 1985, payable to Murdock State Bank for the account of Mr. Wells. . . .
“39. Mr. Peterson notified Mr. Wells about one week prior to February 9, 1985, that he would not be able to feed the cows any longer because he was running out of feed.
“40. The cows secured to Midland would have died if Mr. Peterson had not fed them between December 13, 1984, and February 9, 1985. Therefore, Midland benefited from Mr. Peterson’s feed and care.
“42. In February of 1985, after he finished feeding the cattle, Peterson contacted Midland National Bank, to inquire when he would be paid. Mr. Peterson remains unpaid for 23 days or the sum of $7,236.40
“43. On June 21, 1985, over ninety (90) days past the date of the sale [of the cattle] to McCormick Grain, Mr. Peterson filed a notice of lien with the Chase County Register of Deeds. This action was instituted on July 29, 1985, in part, to foreclose this lien.
“44. In the fall of 1985 all the parties agreed the cattle pastured in Chase County, Kansas could be removed upon payment to the Clerk of the District Court of Chase County the sums of $57,500.00 and $9,270.00 by Midland and McCormick, respectively. . . . These monies were paid into the clerk’s office and invested in interest bearing accounts pending resolution of this action.
“45. On August 19, 1986, Mr. Peterson was granted a default judgment against Mr. Wells in the amount of $7,236.40 with interest at the rate of 10% per annum from and since February 10,1985, to August 4,1986, and thereafter interest at the judgment rate plus costs.”
Inasmuch as Peterson did not ever have possession of the cattle, the district court did not enforce Peterson’s lien. Rather, the judgment herein was based upon unjust enrichment. In so doing, the district court concluded:
“8. A person who has been unjustly enriched at the expense of another is required to make restitution to the other. 66 Am. Jur. 2d, Restitution and Implied Contracts § 3. p. 946.
“9. While the most prevalent implied contract recognized under the doctrine of unjust enrichment is predicated upon a relationship between the parties from which the court infers an intent, the doctrine also recognizes an obligation imposed by law regardless of the intent of the parties, where good conscience dictates that under the circumstances the person benefited should make reimbursement. Unjust enrichment arises not only where an expenditure by one person adds to the property of another, but also where the expenditure saves the other from expense or loss. 66 Am. Jur. 2d, Restitution and Implied Contracts § 3, p. 946.
“10. Once jurisdiction of the subject matter has been established, the court will take into consideration all matters before it to fully adjust the rights and equities of the parties. Place v. Place, 207 Kan. 734, 486 P.2d 1354 (1971); Koerner v. Custom Components, Inc., 4 Kan. App. 2d 113, 603 P.2d 628 (1979); Schaefer & Associates v. Schirmer, 3 Kan. App. 2d 114, 590 P.2d 1087 (1979).
“11. Midland realized the benefits of Mr. Peterson’s feed and care for the cattle. Mr. Peterson conferred a benefit that saved others from expense and loss.
“13. Mr. Peterson is entitled to recover the sum of $7,236.40 from the sum of $57,500.00 deposited by Midland with the Clerk of the District Court of Chase County, Kansas. Interest is to accrue at the statutory rate from the effective date of this Memorandum until paid.”
Midland contends that unjust enrichment was an inappropriate theory which was improperly used to remedy a defective lien.
Restitution and unjust enrichment are modern designations for the older doctrine of quasi-contracts. Mai v. Youtsey, 231 Kan. 419, 423, 646 P.2d 475 (1982); Wheat v. Finney, 230 Kan. 217, 220, 630 P.2d 1160 (1981). One prerequisite for unjust enrichment is a benefit conferred on the defendant by the plaintiff. Mai v. Youtsey, 231 Kan. at 423; 17 C.J.S., Contracts § 6. The substance of an action for unjust enrichment lies in a promise implied in law that one will restore to the person entitled thereto that which in equity and good conscience belongs to him. 17 C.J.S., Contracts § 6.
In Continental Oil Co. v. Ideal Truck Lines, Inc., 7 Kan. App. 2d 153, 157, 638 P.2d 954, rev. denied 231 Kan. 799 (1982), Justice Herd, writing for the Court of Appeals, said:
“Restitution is based on justice, morals, equity and good conscience rather than contract or statute. 66 Am. Jur. 2d, Restitution & Implied Contracts § 4, p. 946. Restatement of Restitution § 1 (1937), makes this observation: ‘A person who has been unjustly enriched at the expense of another is required to make restitution to the other.’ At common law the term ‘restitution’ was used to describe the return or restoration of a specific thing or circumstance. It is now expanded to mean a general duty to do justice.”
Of the various parties herein, Peterson is the only truly innocent person. He was caught in the complex cogs of the other parties’ relationship. Mr. Wells hired him to deliver feed to the cattle because Midland told Wells it would bear the cost thereof. Midland set the wheels in motion that ran over Peterson and now attempts to avoid liability behind technical arguments on the requirements of liens and contracts. The district court was clearly correct in concluding that Midland benefited from Peterson’s delivery of hay to the cattle which otherwise would have died. We conclude the doctrine of unjust enrichment is well suited for application to the factual situation herein and properly applied by the district court.
We do have a problem with the allowance of interest issue herein. The district court allowed interest at the statutory rate. Pursuant to the agreement of the parties, Midland paid $57,500.00 into court in September of 1985 and the cattle were then sold. Said money was to be held in a separate interest bearing account. The Memorandum Decision herein was entered on December 10, 1986.
The law in Kansas pertaining to post-judgment interest was clearly stated in Bartlett v. Heersche, 209 Kan. 369, 374, 496 P.2d 1314 (1972), where we said:
“Once a judgment debtor pays the full amount of money payable on a judgment into court, interest is not recoverable on the monies deposited in court. The general rule goes even further — when a fund of money is deposited with the court, and cannot be paid out without an order of the court, the fund will not bear interest during such time as it is within the custody of the court. (Metropolitan Water Dist. v. Adams, 32 C. 2d 620, 197 P.2d 543; City of Barnsdall v. Crunutt, 201 Okl. 508, 207 P.2d 320; and 47 C.J.S., Interest, § 54.) During such time neither party has use of the funds.”
In McGuire v. Sifers, 235 Kan. 368, 681 P.2d 1025 (1984), we said:
“If the judgment debtor wishes to avoid the accrual of interest on appeal, he must tender the amount of the judgment or pay the amount into court.” Syl.1l 10.
“Once a judgment debtor pays the full amount of money payable on a judgment into court, interest is not recoverable on the monies deposited in court.” Syl. ¶ 11.
The judgment herein is to be paid from monies paid into court by Midland prior to judgment. Under the circumstances herein, we deem that the judgment should have been for $7,236.40 plus that portion of the interest accrued in the interest-bearing account that is attributable to the portion of the fund awarded to Peterson.
Other issues raised by Midland relative to this judgment are considered and are held to be without merit.
CONCLUSION
The judgment is reversed in part and affirmed in part as modified, and the case is remanded to the district court with directions to redetermine the interest allowed in accordance with this opinion. | [
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The opinion of the court was delivered by
Holmes, J:
This case comes before the court on a petition for review of an unpublished decision of the Court of Appeals which affirmed the trial court’s denial of petitioner’s K.S.A. 60-1507 motion. (See Lowe v. State, No. 59,746, filed June 4, 1987.) Appellant, James Salvatore Lowe, was originally charged with one count of burglary (K.S.A. 21-3715) and one count of misdemeanor theft (K.S.A. 1986 Supp. 21-3701). He was convicted by a jury of the theft charge and that conviction was affirmed by this court in a direct appeal in State v. Lowe, 238 Kan. 755, 715 P.2d 404 (1986).
The facts leading to appellant’s original conviction are fully set forth in State v. Lowe and need not be repeated here. Only the procedural aspects of the original trial are germane to the issue now before the court. In the original trial, the State rested its case late in the afternoon at which time motions were heard outside the presence of the jury in the court’s chambers. The petitioner’s motion to dismiss for lack of subject matter jurisdiction and a renewal of an earlier motion for mistrial were both denied.
However, the court, on its own motion, dismissed the charge of misdemeanor theft, finding insufficient evidence to support the charge. The following morning, again in the court’s chambers and outside the presence of the jury, the judge reversed his earlier ruling and reinstated the theft charge. Petitioner’s counsel objected, arguing such reinstatement violated the Fifth Amendment prohibition against double jeopardy. The trial on both charges then resumed and the jury acquitted the petitioner on the burglary charge but found him guilty of theft.
In State v. Lowe, we affirmed the conviction and held the double jeopardy clause had not been violated, with Justice Herd dissenting. In that decision, rendered February 21, 1986, we stated:
“We hold that, under the facts of this case, where the proceedings were not terminated, no intervening proceedings took place before the jury, and no prejudice to the defendant’s ability to proceed on both counts has been shown, double jeopardy did not bar resumed prosecution of the theft count. If the court had merely stated that it was going to take the matter under advisement and then ruled the next morning, as it did here, there would be no error and the appellant would have been in the identical situation as resulted in this case. We find no error.” 238 Kan. at 763.
We also found that the court’s dismissal of the theft charge constituted an acquittal, stating:
“We have no difficulty in finding that the trial court’s action constituted an acquittal of the charge of theft even though it was not stated in those precise terms.” 238 Kan. at 760.
Appellant’s K.S.A. 60-1507 motion, and his appeal from the denial of that motion, are based upon the decision of the United States Supreme Court in Smalis v. Pennsylvania, 476 U.S. 140, 90 L. Ed. 2d 116, 106 S. Ct. 1745 (1986), decided May 5, 1986, subsequent to our decision in State v. Lowe.
In Smalis, a husband and wife, who owned a building housing a restaurant and apartment, were charged with various crimes in connection with a fire in the building. At the close of the prosecution’s case in chief, the defendants challenged the sufficiency of the evidence by filing a demurrer. The trial court sustained the demurrer, saying it was not satisfied there was sufficient evidence from which it could be concluded that either of the defendants were guilty beyond a reasonable doubt. The issue was whether the State’s attempt to appeal that decision would violate the double jeopardy clause. The Superior Court of Pennsylvania granted review, affirmed the trial court, and held the appeal was improper as it was barred by the double jeopardy clause. Com. v. Smalis, 331 Pa. Super. 307, 480 A.2d 1046 (1984). In a consolidated appeal by the Commonwealth, the Supreme Court of Pennsylvania reversed, finding no double jeopardy violation. Com. v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985). The United States Supreme Court granted certiorari and reversed the Pennsylvania Supreme Court.
In Smalis, the Supreme Court found first that sustaining a demurrer is an acquittal under the double jeopardy clause. Second, the Court rejected the Commonwealth’s argument that resuming the trial following a reversal on appeal would simply constitute “continuing” jeopardy, and found an acquittal terminated the proceeding. The Court stated:
“Thus, whether the trial is to a jury or to the bench, subjecting the defendant to postacquittal factfinding proceedings going to guilt or innocence violates the Double Jeopardy Clause. Arizona v. Rumsey, 467 U.S. 203, 211-212, 81 L. Ed. 2d 164, 104 S. Ct. 2305 (1984).
“When a successful postacquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose. Allowing such an appeal would frustrate the interest of the accused in having an end to the proceedings against him. The Superior Court was correct, therefore, in holding that the Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.’ Martin Linen, [430 U.S.], at 570, 51 L. Ed. 2d 642, 97 S. Ct. 1349.
“We hold, therefore, that the trial judge’s granting of petitioners’ demurrer was an acquittal under the Double Jeopardy Clause, and that the Commonwealth’s appeal was barred because reversal would have led to further trial proceedings.” (Emphasis added.) 476 U.S. at 145-46.
The key language in Smalis, that a postacquittal appeal is barred by the double jeopardy clause “if reversal would translate into ‘further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged’ ”, is derived from United States v. Jenkins, 420 U.S. 358, 370,43 L. Ed. 2d 250, 95 S. Ct. 1006 (1975), and was quoted with approval in United States v. Martin Linen Supply Co., 430 U.S. 564, 570, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977). The Kansas Court of Appeals distinguished the instant case, stating:
“In Smalis, Martin Linen Supply Co., and Jenkins, however, the reversal required new trials, proceedings of much greater significance than what occurred in the present case. The prosecution would have had an opportunity to present new or additional evidence against the defendants. In the case before us no additional evidence was presented. Here, the jury was instructed, closing arguments were heard, and the case was given to the jury.”
We do not find the distinction valid. It appears clear Smalis requires that we overrule our decision in State v. Lowe and that we reverse the instant case. It is conceded that in the present case jeopardy had attached in the original trial and the dismissal constituted an acquittal of the theft charge. The reinstatement of the theft charge the next day and its submission to the jury constituted “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged” which, under Smalis, constituted a violation of the prohibition against double jeopardy.
Our decision in State v. Lowe, 238 Kan. 755, is overruled; the decisions of the Court of Appeals and the district court are reversed and the case is remanded to the district court with directions to set aside the appellant’s conviction. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This case was filed in the United States District Court for the District of Kansas and comes before this court by certification pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. We accepted certification.
The order from the United States District Court provides, in part:
“Pursuant to K.S.A. 60-3201 et seq., this court, upon its own motion, hereby certifies to the Kansas Supreme Court the following questions of Kansas law, which are deemed to be determinative of this action and as to which no controlling precedent exists in the decisions of the Kansas Supreme Court or Kansas Court of Appeals:
“(1) Whether K.S.A. 36-402 abrogates the common law liability of an innkeeper for negligence in caring for a guest’s property?
“(2) Whether the provisions of K.S.A. 36-402(b) (dealing with the loss of sample merchandise) or K.S.A. 36-402(c) (dealing with the loss of jewelry) apply to the loss of sample merchandise consisting of jewelry?
“(3)(a) If K.S.A. 36-402(b) applies, whether that subsection imposes any affirmative duty upon the innkeeper to ask a guest, who requests the inn to safekeep his property without disclosing the nature of the property, to identify the property and provide an itemized list thereof?
(b) If K.S.A. 36-402(c) applies, whether, under similar circumstances, that subsection imposes an affirmative duty upon the innkeeper to (1) ask the guest to identify the property and provide an itemized list thereof and (2) provide the guest with a receipt?
“(4) Whether K.S.A. 36-402 applies to limit an innkeeper’s liability for the loss of property not belonging to a guest, when the guest fails to notify the inn that the property belongs to another?”
The facts as certified by Chief Judge Earl E. O’Connor are as follows:
“This case arises out of the theft of property owned by the plaintiff from the defendant motel, Red Roof Inns, Inc. Darryl Kulwin was employed by plaintiff as a jewelry salesperson. In that capacity, Kulwin traveled throughout the country carrying with him jewelry, owned and manufactured by plaintiff, to show to prospective buyers. Panoria Ruston was a guest registered with the Red Roof Inn in Overland Park, Kansas. Ruston and Kulwin met at the inn and later made plans to leave to go to dinner. Kulwin asked Ruston to make arrangements with the desk clerk to leave his sample case in the office of the inn while they went out to dinner. Ruston asked the desk clerk if she could leave ‘her bag’ in the office of the inn. The clerk allowed Ruston to place the bag in the manager’s office. An unidentified person obtained access to the manager’s office with the clerk’s knowledge and removed the case from the office.
“Neither Kulwin nor Ruston notified the clerk or any employee of Red Roof that the case contained jewelry samples, nor did they provide the clerk with an itemized list of the jewelry contained in the case. Ruston did, however, advise the clerk that the contents of the case were valuable and that it was only to be released to her. There was no specific written agreement between defendant and plaintiff that Red Roof Inn assumed liability for loss of the contents of the case. At all times relevant hereto, defendant had posted a copy of the applicable Kansas statutes, K.S.A. 36-401 et seq., governing the safekeeping of property for guests by an innkeeper in every guest room of the inn.
“Plaintiff s complaint alleges that defendant did not comply with the applicable Kansas statutes, K.S.A. 36-401 et seq., in that the clerk failed to ask Ruston for the identity of the contents of the bag and their value, and failed to issue a receipt for the bag. The complaint claims that the inn is liable to plaintiff for negligence in its own right and vicariously liable for the negligence of its clerk. Plaintiff seeks damages in the amount of $650,000.00, the claimed value of the lost jewelry.”
The defendant, Red Roof Inns, filed a motion for summary judgment, alleging, first, that plaintiff Nova Stylings failed to meet the requirements of K.S.A. 36-402(b), and second, that the common-law liability of an innkeeper for negligence in caring for a guest’s property has been abrogated by K.S.A. 36-401 et seq. The United States District Court, pursuant to K.S.A. 60-3201 et seq., certified four questions of law to this court.
It is the contention of the plaintiff that the first certified question should be answered in the negative. Plaintiff argues that the provisions of K.S.A. 36-402 were intended only to alleviate the common-law rule imposing strict liability on innkeepers for the loss of their guests’ property, and that the statute provides no protection for an innkeeper who negligently causes the loss of the guests’ property. We disagree. K.S.A. 36-402(b) provides:
“No hotel or motel keeper in this state shall be liable for the loss of, or damage to, merchandise for sale or samples belonging to a guest, lodger or boarder unless the guest, lodger or boarder upon entering the hotel or motel, shall give notice of having merchandise for sale or samples in his possession, together with an itemized list of such property, to the hotel or motel keeper, or his authorized agent or clerk in the registration office of the hotel or motel. No hotel or motel keeper shall be liable for any loss of such property designated in this subsection (b), after notice and itemized statement having been given and delivered as aforesaid, in an amount in excess of two hundred fifty dollars ($250), unless such hotel or motel keeper, by specific agreement in writing, individually, or by an authorized agent or clerk in charge of the registration office of the hotel or motel, shall voluntarily assume liability for a larger amount with reference to such property. The hotel or motel keeper shall not be compelled to receive such guests, lodgers or boarders with merchandise for sale or samples.”
Plaintiff s attempt to create an ambiguity in the statute is not persuasive. The statute unambiguously provides that, where the guest fails to give notice to the innkeeper of having merchandise for sale or samples in his possession upon entering the inn, “[n]o hotel or motel keeper in this state shall be liable for the loss of, or damage to, merchandise for sale or samples belonging to a guest.” The express, plain, and unambiguous wording of K.S.A. 36-402(b) extends the scope of the subsection to include actions for negligence. “When a statute is plain and unambiguous [a] court must give effect to the intention of the legislature as expressed [in the plain language of the statute], rather than determine what the law should or should not be.” Johnson v. McArthur, 226 Kan. 128, 135, 596 P.2d 148 (1979). The plaintiff is correct that statutes in derogation of common-law rights should be strictly construed; however, that is not a license for this court to ignore the plain and unambiguous wording of the statute. Such statutes cannot be so strictly construed as to violate the plain meaning of the statute.
Kansas has never expressly adopted the common-law rule that an innkeeper acts as an insurer of his guests’ property, although the common-law view was implicitly accepted in Johnson v. Reynolds, 3 Kan. 257, 262 (1865). Consequently, both parties rely extensively upon decisions from other jurisdictions concerning the issue of whether statutes protecting innkeepers from liability for loss of their guests’ property include actions based upon negligence.
In Kahn v. Hotel Ramada of Nevada, 799 F.2d 199, 201 (5th Cir. 1986), the Fifth Circuit Court of Appeals interpreted a Nevada statute to include actions alleging negligence. The issue in Kahn was the scope of Nev. Rev. Stat. § 651.010(3) (1979), which provided a $750 limit on an innkeeper’s liability except where the innkeeper receives the property for deposit or safekeeping and consents in writing to a greater liability in case of loss or damage to the property. Unlike the first two subsections of the statute, subsection (3) did not exempt the grossly negligent innkeeper from its protection. The plaintiff in Kahn, alleging, among other things, that the defendant hotel had caused the loss of his property through its negligence, contended that subsection (3) provided protection only for innkeepers who were grossly negligent and who were excluded from the protections of subsections (1) and (2). The Fifth Circuit disagreed with the plaintiff s argument, finding that subsection (3) provided a limitation on an innkeeper’s liability “in all instances of negligence except when the innkeeper consents to assume more responsibility.” Kahn, 799 F.2d at 202.
The same result was reached in Link-Simon, Inc. v. Muehlebach Hotel, Inc., 374 F. Supp. 789 (W.D. Mo. 1974). The plaintiff, a jewelry salesman, filed suit against the defendant hotel, contending that it had caused his property to be lost through its negligence. The plaintiff contended that Mo. Rev. Stat. § 419.030 (1969) provided no protection for the innkeeper, arguing that the law was directed merely at ending the innkeeper’s common-law liability as insurer of a guest’s property and did not bar actions alleging negligence. 374 F. Supp. at 791. The court rejected the plaintiff s interpretation of Mo. Rev. Stat. § 419.030, finding that “it appears that the legislature has completely covered the common law liability of innkeepers — both as to strict liability and negligence liability.” 374 F. Supp. at 795.
California has also rejected the position advanced here by plaintiff. In Ricketts v. Morehead Co., Inc., 122 Cal. App. 2d 948, 265 P.2d 963 (1954), the issue before the court involved interpretation of the last clause of Cal. Civ. Code § 1860 (West 1954), which provided that an innkeeper would not be liable “in any case for more than the sum of two hundred fifty dollars ($250) for any or all such property . . . unless he shall have given a receipt in writing therefor to such guest.” 122 Cal. App. 2d at 952. The plaintiff in Ricketts contended that the $250 limitation on an innkeeper’s liability was intended to alter only the innkeeper’s common-law liability, and did not apply where the plaintiff s loss was allegedly caused by the innkeeper’s negligence. The California court found that the plaintiffs argument was without merit. 122 Cal. App. 2d at 955. The Supreme Judicial Court of Maine has reached a similar result, interpreting Me. Rev. Stat. ch. 88 §§ 35 and 36 (1944) as not merely eliminating the common-law strict liability of innkeepers, but also providing protection for innkeepers from claims based upon negligent loss of a guest’s property. Levesque v. Columbia Hotel, 141 Me. 393, 395-97, 44 A.2d 728 (1945).
Finally, in Kalpakian v. Oklahoma Sheraton Corporation, 398 F.2d 243 (10th Cir. 1968), the Tenth Circuit Court of Appeals reached the same conclusion interpreting Oklahoma law. At issue in Kalpakian was the extent of the protection afforded innkeepers by Okla. Stat. tit. 15, § 503a (1961), sentence 2, which provided a $300 maximum limit on an innkeeper’s liability for loss or damage to property which a guest has deposited with the innkeeper. The Tenth Circuit rejected the contention of the plaintiff that the $300 limitation of § 503a, sentence 2, did not apply to actions alleging negligence. 398 F.2d at 247.
Plaintiff also makes a lengthy public policy argument against interpreting K.S.A. 36-402 to include actions based upon an innkeeper’s negligence. Simply stated, plaintiff argues that one purpose of tort law is to provide an incentive to exercise due care and, therefore, K.S.A. 36-402 should not be construed to take away the duty of an innkeeper to perform with reasonable care.
As in the present case, the overwhelming majority of cases addressing this issue involve jewelry salespersons who lose samples of their merchandise while staying at a hotel or motel. Placing upon the owners the primary responsibility for the care and protection of such uniquely valuable property is not such a gross error of public policy that this court is free to disregard the plain terms of K.S.A. 36-402(b), which reflect a decision by the legislature that the owner of merchandise for sale or samples is in the best position to take steps to protect that property.
In addition, courts which have considered the terms of inn keeper liability limitation statutes, and have found them to apply to actions grounded in negligence, have identified public policy concerns which support such interpretation. In Link-Simon, Inc. v. Muehlebach Hotel, Inc., 374 F. Supp. at 795, the court stated that “the obvious rationale” of such provisions were “perfectly consistent with logic and sound public policy.” The Link-Simon court relied in particular upon the decision of the Supreme Judicial Court of Maine in Levesque v. Columbia Hotel, 141 Me. 393. In Levesque, the court stated:
“The hotelkeeper is not a banker; and he is not in the business of operating a safe deposit vault except as an incident to operating a hotel. It is not, therefore, unreasonable to restrict his liability for such incidental services rendered to his guests within such limits as will meet their ordinary needs. Those who carry with them large amounts of money or jewelry must take other measures for their protection. The added cost to the hotelkeeper of providing for such protection even as against the willful act or negligence of an employee, is in the last analysis one of his costs of operation reflected in the rates charged to all. Why should those guests who do not need such protection pay for the cost of those who do?” 141 Me. at 398.
We conclude that K.S.A. 36-402 does apply to actions against an innkeeper for negligence in caring for a guest’s property. The answer to the first question certified by the United States District Court is yes.
Plaintiff s next argues that, even if K.S.A. 36-402 is found to apply to property losses caused by the negligent actions of an innkeeper, it is subsection (c) of 36-402 which controls rather than subsection (b). K.S.A. 36-402(c) provides:
“With respect to money, jewelry, diamonds, or other valuable stones, articles of silver and gold, tickets, certificates or other like valuables, no hotel or motel keeper shall be liable for the loss thereof or damage thereto unless the same, together with an itemized list thereof, has actually been delivered by such guest, lodger or boarder, to such hotel or motel keeper, or his authorized agent or clerk in the registration office of such hotel or motel, and the receipt thereof acknowledged by the delivery to such guest or boarder of a claim check or receipt of the hotel or motel for such property. No hotel or motel keeper shall be liable for the loss of any property specified in this paragraph (c), after delivery of such property and the receipt therefor as aforesaid, in an amount in excess of two hundred fifty dollars ($250), unless such hotel or motel keeper by a specific agreement in writing individually, or by an authorized agent or clerk in charge of the registration office of such hotel or motel, shall voluntarily assume liability in a larger amount in reference to such property.”
Plaintiff contends that, because the property in this case was delivered to the innkeeper, which is not required under subsection (b), that subsection (c) applies, since (c) requires a guest to deliver the property designated under that subsection to the innkeeper. Plaintiff has misread the obvious meaning of subsections (b) and (c). The respective scopes of subsections (b) and (c) are not controlled by the actions which a guest must undertake to receive the protection of the statute. Rather, subsections (b) and (c) designate specific property which falls within the respective subsections, and then prescribes the various actions which must be taken by the guest in order to impose liability upon the innkeeper. Subsection (b) applies to “merchandise for sale or samples.” Subsection (c) applies to “money, jewelry, diamonds, or other valuable stones, articles of silver and gold, tickets, certificates or other like valuables.” In construing the provisions of a statute, a court should attempt to reconcile different provisions of the statute so as to make them consistent, harmonious, and sensible. State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985).
A plain, harmonious, and sensible construction of K.S.A. 36-402(b) and (c) indicates that, although certain property, as in the present case, might fall under either subsection, the distinguishing feature between the two subsections is the purpose for which the property is held by the owner. For example, if a person owns items of personal jewelry which are not held as inventory in the person’s business, such property would fall within the provisions of subsection (c). On the other hand, where the property is held as merchandise for sale or samples, the property falls within the provisions of subsection (b). The facts in the present case are undisputed that the jewelry which is the subject of the action was not held for personal, ornamental, or other like purposes. Rather, the jewelry was in the possession of plaintiff Nova Stylings’ sales agent, and was held as merchandise for sale or samples. Subsection (b) of K.S.A. 36-402 controls the present case. The answer to the second certified question is that subsection (b) rather than (c) of K.S.A. 36-402 applies to the loss of sample merchandise consisting of jewelry.
The plaintiff contends that defendant is excluded from the protections of K.S.A. 36-402 since it failed to ask its guest about the nature of the property. Plaintiff argues that the burden falls upon the innkeeper to inquire of its guests as to the nature of their property and to fulfill all the requirements of the statute.
The growing trend of cases which have addressed the issue rejects the argument advanced by plaintiff. See, e.g., K.S.K. Jewelry Co. v. Chicago Sheraton Corporation, 283 F.2d 8 (7th Cir. 1960). In Chase Rand v. Pick Hotels, 167 Ohio St. 299, 147 N.E.2d 849 (1958), the Supreme Court of Ohio rejected imposition of a burden upon the innkeeper to inquire of its guests concerning the value of their property. The court stated:
“The trend under modern statutes limiting the common-law liability of an innkeeper appears to be to the contrary, and the majority of cases hold in effect that a guest is not relieved from all responsibility in respect to his property on entering an inn. He is bound to use reasonable care and prudence in respect to its safety, so as not to expose it to unnecessary danger of loss.” 167 Ohio St. at 308.
In holding that Ohio law placed upon a guest the obligation to inform his innkeeper of the value of his property, the court stated:
“Such a rule is the essence of reason. How can an innkeeper make a ‘special arrangement’ to receive the property of a guest if he does not know what the property is? How can the innkeeper and guest agree on terms for such receiving? How can an innkeeper refuse to receive ‘4721.01 property’ in excess of $500, as he has a right to do, unless he knows the value of the property tendered? These questions are unanswerable, unless somewhere along the line there is a duty upon someone to make disclosure.” 167 Ohio St. at 308.
As a “salutary and logical rule,” the court found that the duty to disclose the value of the property fell upon the guest. 167 Ohio St. at 308-09.
The same result was reached by the Tenth Circuit Court of Appeals in Kalpakian v. Oklahoma Sheraton Corporation, 398 F.2d 243. In Kalpakian, the issue involved an interpretation of Okla. Stat. tit. 15, § 503a, sentence 2, which provided that an innkeeper was not required to accept property for safekeeping in excess of $300, and that, absent a special agreement, an innkeeper could not be held liable for property deposited for safekeeping in an amount in excess of $300. The court stated that the “manifest purpose” of the statute was
“to protect a hotel against undisclosed excessive liability when it furnishes its guests safety deposit facilities, and to provide a method for accepting greater liability by written agreement if the hotel management desires. The decision to accept greater responsibility can be made only after the hotel guest has notified the hotel of the actual value of the deposited property. The statutory duty to give the notice of value is upon the guest. When the hotel knows the value of the property to be deposited, it may then determine whether it desires to accept the deposit and assume responsibility for its loss.” (Emphasis added.) 398 F.2d at 246.
The Tenth Circuit court concluded:
“The trend of the decisions considering state statutes relating to a hotel’s liability for lost property deposited with it, is to strictly construe the obligation of a hotel guest to disclose the value of deposited property and to refuse to impose on hotels without notice a greater liability than the statutory amount, regardless of negligence.” 398 F.2d at 247.
In the present case, the hotel guest is obviously in the best position to know whether property in his possession is merchandise for sale or samples under subsection (b) of K.S.A. 36-402 or whether he possesses money, jewelry, diamonds, or other valuable property under subsection (c). The guest is also in the best position to know the value of the property in his possession. It is important to note that, in the present case, defendant Red Roof Inns fully complied with the provisions of K.S.A. 36-403, which require the posting of a complete copy of the Kansas statute in every guest room of every hotel and motel. The failure of the guest in the present case to inform the innkeeper of the value of the property which she sought to leave in the motel managers office, her failure to give notice of having merchandise for sale or samples, and her failure to give an itemized list of the property to the defendant precluded the defendant from determining whether it wished to accept the responsibility being placed on it. We therefore conclude that the answer to the third certified question is no.
The final argument advanced by plaintiff is that K.S.A. 36-402(b) has no application in the present case because its sales agent was not a guest of defendant Red Roof Inns. Rather, its sales agent had given the sample case containing the jewelry to Ms. Ruston, a guest of the defendant. Because the sales agent, Kulwin, was not a guest of the motel, plaintiff argues that K.S.A. 36-402(b) is inapplicable.
The argument which plaintiff advances here would require an innkeeper not merely to inquire concerning the ownership of a guest’s property, but to ignore statements by a guest that she owned certain property and to conduct an independent investigation to determine whether a guest’s representation that she owned the property in question is truthful. A construction of the statute “ ‘should be avoided which would render the application of the statute impracticable, or inconvenient, or which would require the performance of a vain, idle, or futile thing, or attempt to require the performance of an impossible act.’ ” In re Adoption of Baby Boy L., 231 Kan. 199, 209, 643 P.2d 168 (1982) (quoting 73 Am. Jur. 2d, Statutes § 251, p. 424). Such a construction of K.S.A. 36-402(b) would require within the terms of the statute the inclusion of property which has been entrusted to a guest. However, in the present case, not only was the property entrusted to the guest, the guest affirmatively represented to the innkeeper that the property in question belonged to her. Under the facts of this case, we find that K.S.A. 36-402 applies to limit an innkeeper’s liability and, therefore, we answer the fourth certified question in the affirmative. | [
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The opinion of the court was delivered by
Miller, J.:
The defendant, GAF Corporation, appeals from a
judgment for actual and punitive damages entered against it and in favor of the plaintiff, State of Kansas, after a lengthy jury trial in Shawnee County District Court. The Court of Appeals affirmed that portion of the judgment awarding actual damages of $70,493.79, but reversed the finding of fraud and the award of punitive damages of $1,000,000. It remanded the case for a new trial on the fraud claim. State ex rel. Stephan v. GAF Corp., 12 Kan. App. 2d 123, 736 P.2d 465 (1987). We granted review upon petitions from both parties.
The factual background of this litigation is clearly set forth in Judge Parks’ opinion for the Court of Appeals, 12 Kan. App. 2d at 123-26, which factual statement is incorporated by reference. We will briefly set out the facts here.
The State’s suit against GAF was based upon claims of breach of express warranty, negligence, and fraud. Prior to 1974, the State planned a new building at the Kansas Neurological Institute in Topeka. This structure, known as the Flint Hills Lodge, was designed to serve as living quarters for approximately 96 severely handicapped and disabled persons. The cost of the building was in excess of one million dollars. On February 28, 1974, by addendum to the original specifications, GAF specification 212N was adopted as the specification for construction of the roof on the new building. The roof was later built according to that specification.
Manufacturers of roofing and other building and construction components annually submit specifications for their various products to a publisher who incorporates them in a multi-volume work known as “Sweet’s Catalog.” As one would expect, architects rely upon those specifications. The architects in preparing the specification for the Flint Hills Lodge relied upon roofing specifications submitted and thus published by GAF. The roof was built according to those specifications by a general contractor who was an approved GAF roof installer. After the installation, GAF inspected and approved the roof and issued a written ten-year guarantee. Almost immediately after completion, the roof leaked. Water appeared to come through the roof, through the underlying lightweight insulating concrete, and through the concrete roof deck. Water filled ceiling light fixtures and ceiling tile installations. Water ran down interior walls, dripped from the ceiling, and collected on the floor. After numerous attempts at repair failed, GAF inspected the roof and refused to accept responsibility for the leaks, claiming that the cracks in the surface (the GAF membrane) were caused by excessive moisture in the underlying Zonolite layer. A new roof was installed by the State at a cost of $109,600 plus architect fees. This litigation followed. The problems with the Flint Hills Lodge roof appear to be similar to those described in Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, 666 P.2d 192 (1983).
The first and primary issue before us is whether the trial court properly instructed the jury as to the elements of fraudulent concealment and, if not, then whether any error in the instructions was prejudicial and constitutes reversible error. The trial court gave the jury two instructions on fraud, and later answered a question from the jury about them. Judge Parks, in his opinion for the Court of Appeals, explains:
“The two instructions given by the trial court on fraud were taken from PIK Civ. 2d 14.40 and 14.42. Instruction No. 4 (14.40) states the elements of active fraud or misrepresentation while Instruction No. 5 (14.42) describes fraudulent concealment as follows:
“Instruction No. 4
‘The essential elements required to sustain an action for fraud are:
1. That false (or untrue) representations were made as a statement of existing and material fact.
2. That the representations were known to be false (or untrue) by the party making them, or were recklessly made without knowledge concerning them.
3. That the representations were intentionally made for the purpose of inducing another party to act upon them.
4. That the other party reasonably relied and acted upon the representations made.
5. That the other party sustained damage by relying upon them.
A representation is material when it relates to some matter that is so substantial as to influence the party to whom it was made.’
“and
“Instruction No. 5
‘The plaintiff claims fraud through silence on the part of the defendant. To constitute fraud by silence the plaintiff must prove:
1. The defendant has knowledge which plaintiff did not have and which the plaintiff could not have discovered by the exercise of reasonable diligence;
2. The defendant was under an obligation to communicate the true state of facts to the plaintiff;
3. The defendant intentionally failed to communicate to plaintiff the true state of facts;
4. The plaintiff relied upon the defendant to communicate the true state of facts to him; and
5. The plaintiff sustained damages as a result of the defendant’s failure to communicate this to the plaintiff.’
“During deliberations, the jury asked the following question: In order to find fraud by silence do all five items on page 4 and all items on page 5 need to be present!?]’ The court responded in writing, after hearing the objections of defendant, as follows:
‘In order to find fraud by silence, all five items in Instruction No. 5 must be proved. Instruction No. 4 is not applicable to fraud by silence.’ ” 12 Kan. App. 2d at 126-27.
During the jury instruction conference, defense counsel’s only objection to Instruction 5 was that it was cumulative to Instruction 4. However, when the trial court received the jury question quoted above, defense counsel objected to the trial court’s proposed answer on the grounds that Instruction 5, standing alone, does not require that the silence relate to something material, does not require that the plaintiff reasonably relied and acted upon the representations made, and does not advise the jury how to determine whether the defendant was obligated to communicate the “true state of facts” to the plaintiff.
The Court of Appeals held that in order for silence or fraudulent concealment to constitute fraud, the plaintiff must establish that the seller had superior knowledge of a material defect that was not within the fair and reasonable reach of the buyer, and not discoverable by the buyer through the exercise of reasonable diligence; that the undisclosed knowledge was knowledge of a material fact and defect; and that the buyer reasonably relied upon the seller to communicate the true facts. While we agree with the Court of Appeals’ statement of the law, we disagree with its conclusion that Instruction No. 5 was deficient, and that the trial court’s response to the jury’s question constituted reversible error.
First, let us examine the obligation of GAF to “tell it like it is” — to tell the complete truth in the information it disseminates about its products. There was evidence that GAF experienced problems with this type of roof as early as 1969. These included blistering and splitting when its roofing materials were applied over the lightweight insulating concrete, Zonolite, manufactured by W. R. Grace and Company. The problems did not go away, but got worse at a progressive rate. Meanwhile, GAF continued to issue and disseminate its recommended building specifications on built-up roofing, urging the installation of its roofing materials over products such as Zonolite. It continued to recommend just the type of installation that was causing the problems. Between May and June, or at least May and the fall of 1973, and long before the specifications for the Flint Hills Lodge were issued, the four GAF employees who were responsible for revising GAF’s built-up roofing specifications each year determined that GAF should no longer specify the use of its products over Zonolite. Their conclusions, findings, and recommendations fell on deaf ears; GAF continued to disseminate the same or similar roofing specifications. Architects, contractors, and builders were not warned of the recurring problems with this type of roof, and GAF continued to recommend that such roofs be built, with its products. GAF continued to so recommend, in spite of the fact that it was having increasing problems with similar roofs in areas of the United States where there are severe temperatures causing freezing and thawing during the winter months. This area includes Topeka, Kansas.
Certainly no manufacturer has an absolute right to or can with impunity disseminate false information about its products, knowing that others will rely upon that information to their detriment. Similarly, a manufacturer who knows that its product is being improperly used or installed cannot continue to disseminate with impunity information encouraging the improper installation or use of its material. Such is the case here. GAF continued to recommend the installation of its product in a manner which it knew was improper and unsatisfactory.
The manufacturer of ethical or prescription drugs has a duty to give timely and adequate warnings to the medical profession of any dangerous side effects produced by its drugs, of which it knows or has reason to know. The greater the danger, the greater the duty to warn. While the duty is to warn the physician rather than the patient, the manufacturer is held directly liable to the patient. Further, the manufacturer is required to keep abreast of the current state of knowledge as gained through research, adverse reaction reports, and other available methods. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038 (1984).
Similarly, a manufacturer of roofing products, such as GAF, deals not with the ultimate consumer, but with those who design and construct buildings for the owner. We think the principles applied in Wooderson are applicable here. The person or entity proposing to construct a commercial building may have little, if any, experience in selecting appropriate materials for the structure. A manufacturer such as GAF not only has available to it the benefit of its own research and that of others, but it has the experience gained from having roofs constructed out of its products according to its specifications in many different areas. Where, as here, the manufacturer has actual knowledge of recurring defects and problems when roofs are built according to its specifications, the law imposes upon it the duty to either change those specifications, withdraw those specifications, or warn those likely to follow its recommendations of the dangers inherent in such construction. GAF did nothing. It neither withdrew nor changed its specifications, and it gave no warning to those persons who relied upon its specifications.
Other courts have held that a manufacturer of roofing materials (Celotex) has a duty to give prompt warning when a defect which makes a product hazardous to use becomes known to the manufacturer after the product has been put on the market. “Hazardous to use,” in that context, is synonymous with defective for the purpose for which the product is designed and manufactured. Campus Sweater & Sportswear v. M. B. Kahn Const., 515 F. Supp. 64, 101 (D.S.C. 1979); Carolina Home Builders v. Armstrong Furnace Co., 259 S.C. 346, 191 S.E.2d 774 (1972). In Wolf v. Brungardt, 215 Kan. 272, 282, 524 P.2d 726 (1974), we said:
“Where 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 expedience of the bargain.”
Here, GAF had information that its product, when used in conjunction with certain other products precisely as it recommended in its published specifications, was defective for the purpose for which it was designed and manufactured — to pro duce a durable, weathertight roof, free of leaks. Under those circumstances, the law imposes on GAF a duty to warn or take other corrective action. The evidence is undisputed that it did not do so. Here, the State did not need to offer evidence beyond that in this record to establish GAF’s duty; that duty is imposed by law. Plaintiff established that duty by establishing the background facts. The court did not need to instruct further as to that duty, or to present to the jury as an issue of fact whether the duty arose.
Next, let us consider the matter of materiality. The jury was instructed that it must find the the plaintiff sustained damages as a result of GAF’s failure to communicate the true state of facts to the plaintiff. Evidence that GAF failed to communciate some unimportant or immaterial fact which had nothing to do with the damages sustained would not sustain the burden placed on plaintiff by Instruction No. 5. The law does not impose a duty to disclose immaterial facts.
In the context in which the instruction was given, the only fact not disclosed by GAF was the known unsatisfactory result with this type of roof. It was not serviceable, it was not weatherproof, it was not durable, and GAF had access to and knew that information. GAF did not disclose it. The information not disclosed had to be the cause of the loss, and thus very much material. The instruction could not have been misinterpreted by the jury nor was it misleading or incomplete. The damages had to result from GAF’s failure to communicate, and thus the facts not disclosed had to be material.
Finally, let us look at the matter of “reasonable” reliance. The instruction requires the plaintiff to prove that GAF had knowledge which the State did not have, and could not have discovered with reasonable diligence; that GAF had a duty to tell the truth to the State, and intentionally failed to do so; that the State relied upon GAF to tell the truth, and sustained damages as a result of GAF’s failure to do so. There was absolutely no issue at the trial but that the State, through its architects and contractors, had every right to rely upon GAF’s published specifications. There was no claim that those should not have been relied upon. There was no evidence that any of those persons had other information which would make them question the published specifications. As a matter of law, the State had a right to rely on GAF to tell the truth about its products, and no reason not to so rely. There was no issue of the reasonableness of the State’s reliance, and we conclude that the omission of the word “reasonably” before the words “relied upon” in the fourth numbered paragraph of Instruction No. 5 was not a fatal, prejudicial, or reversible error. We hold that Instruction No. 5 was a sufficient statement of the law of fraud by silence, under the facts of this case. The trial court did not err in its response to the jury’s question.
GAF next contends that the trial court erred in not requiring the State to elect between its contract and tort theories. In discussing this claim the Court of Appeals said:
“Defendant . . . contends the court erred in permitting plaintiff to go to the jury on both its contract and negligence claims. As authority for this argument, defendant relies upon implied warranty cases which have held that a plaintiff seeking recovery for a breach of implied warranty may plead and proceed upon the theories of both contract and tort until the facts have been developed but must elect a definite theory before final submission to the trier of the facts. Oller v. Kincheloe’s, Inc., 235 Kan. 440, 447, 681 P.2d 630 (1984); Ware v. Christenberry, 7 Kan. App. 2d 1, Syl. ¶ 7, 637 P.2d 452 (1981). The reasoning behind these cases is that implied warranty is a hybrid cause of action which may sound in either contract or tort. While the defendant commits only one wrong by violating an implied warranty, this wrong may be characterized as either a violation of a legal or contractual duty which gives rise to only one recovery. The plaintiff is required to elect the theory upon which the jury is to consider the implied warranty violation to avoid confusion, particularly in fixing damages.
“This case was not presented to the jury as an implied warranty case; rather, plaintiff claimed the defendant committed negligence in designing, manufacturing, and selling the GAF membrane used on the Lodge and also breached a contractual obligation by refusing to honor the terms of its express warranty and guarantee of free repair. In short, plaintiff alleged that defendant committed both a breach of legal duty and a breach of a contractual obligation and sought the appropriate remedy for each of these wrongs. Damages from each wrongful act might have overlapped and plaintiff would not be permitted to obtain duplicative awards. However, the means of preventing a duplicative damage award lies in the drafting of the verdict form or in the power of the court to enter a proper judgment on the verdict. The court did not err in permitting both the contract and the tort claims to go to the jury.” 12 Kan. App. 2d at 130-31.
We agree. An election is required only when the claims are inconsistent. Claims are inconsistent where one “ ‘must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other.’ ” Drewicki v. Fidelity & Guaranty Fire Corp., 157 Kan. 569, 573, 142 P.2d 806 (1943) (quoting Taylor v. Robertson Petroleum Co., 156 Kan. 822, Syl. ¶ 5, 137 P.2d 150 [1943]). The jury in this case found that GAF breached the terms of its express warranty to the State. It also found that GAF was guilty of negligence. Only one recovery of actual damages was sought or permitted. The trial court did not err in failing to require an election.
GAF next contends that the trial court erred in the verdict form submitted since it did not adequately set forth the appropriate basis for recovery upon the alternative theories of negligence and contract. We agree with the Court of Appeals that, under the circumstances of this case, the inadequacies of the verdict form were harmless. The case was presented on the theories of breach of express contract, negligence, and fraud. The jury specifically found that GAF breached its written guaranty contract, that it was negligent, and that it was guilty of fraud. The verdict form permitted only one recovery, and there is no contention by the appellant that the various amounts of actual damages sought were not properly recoverable on the theory of negligence. GAF argues that consequential damages were not recoverable for a breach of its express written warranty, and that the jury should have.been specifically instructed and required to find the damages recoverable for breach of express warranty. If the jury had found breach of warranty but no negligence, appellant’s complaint would have merit. However, considering all of the findings of the jury, we find no error.
GAF also contends that under the terms of its express warranty, the inspection and service guaranty, the owner was obligated to report any leaks to GAF’s nearest district office no later than 30 days after the discovery thereof and that, since no such prompt report was made, the State is barred from any recovery for breach of express warranty. The Court of Appeals discussed this issue and disposed of it as follows:
“After the presentation of plaintiff s case in chief, defendant moved to dismiss the claim for breach of express warranty on the grounds that plaintiff had failed to prove its satisfaction of a condition precedent to defendant’s obligation to perform under the terms of the guarantee. Defendant argued that since plaintiff failed to give written notice of the leaking to its district office within 30 days of the first problems, defendant never had the obligation to repair. The court denied the motion to dismiss and plaintiff defends the ruling, contending (1) defendant waived the issue by not raising it in the pretrial order; (2) the notice to Rinehart Roofing satisfied the requirement of the express warranty; and (3) if the claim was erroneously submitted to the jury, it was harmless error because defendant was found liable on the alternative negligence claim.
“Assuming the court erred in denying the motion to dismiss the express warranty claim on the notice question, it does appear the error caused no prejudice to defendant. The jury found defendant was negligent in selling its product for use on the Lodge and assessed damages for that negligence. No separate damages were assessed on the alternative claim for breach of contract and any such damages would, in any event, appear to be duplicative of those already awarded. Therefore, consideration of the merits of this issue is unnecessary.” 12 Kan. App. 2d at 132.
We agree. Also, we note that Rinehart Roofing, the subcontractor who did the actual roof installation, was required under a side agreement with GAF to make all necessary repairs within the first two years of completion of construction. The State referred all complaints during that time to Rinehart, and Rinehart made all repairs that were made on the roof during that period of time. Leaks continued. The State notified GAF, and, without raising the matter of lack of prompt notice, GAF in- - spected the roof and declined to make any repairs or assume any responsibility, giving other reasons for its action. GAF did not raise the matter of lack of notice, a condition precedent, in its answer filed in this case. It did not raise the matter at the pretrial conference, and that defense is not included in the pretrial order. GAF’s failure to raise at pretrial the defense of breach of a condition precedent prevents consideration of the notice issue. It is well established that a pretrial order controls the subsequent course of the action unless modified to prevent manifest injustice. The issues stated therein are the issues upon which the case is to be tried.
In Dold v. Sherow, 220 Kan. 350, 552 P.2d 945 (1976), we held that the matter of notice of breach of statutory warranty was waived where there was no mention of that as an issue in the pretrial order. Further, no prejudice resulted to GAF here, since damages were not assessed separately based upon breach of express contract of warranty or for negligence. In short, had there been no breach of express warranty, the total damage award would have been the same; it could not have been more.
We turn now to GAF’s claim that the State’s fraud claim is barred by the statute of limitations, K.S.A. 60-513, which provides in substance that an action for relief on the grounds of fraud must be brought within two years of the discovery of the fraud. The Court of Appeals said:
“The trial court denied the motion to dismiss the fraud claim, concluding that the statute of limitations did not apply to the State. K.S.A. 60-521 describes the circumstances under which statutes of limitations apply to the State as follows:
“ ‘As to any cause of action accruing to the state, any political subdivision, or any other public body, which cause of action arises out of any proprietary function or activity, the limitations prescribed in this article shall apply to actions brought in the name or for the benefit of such public body in the same manner as to actions by private parties, except in (1) actions for the recovery of real property or any interest therein, or (2) actions to recover from any former officer or employee for his or her own wrongdoing or default in the performance of his or her duties.’
“This court in State ex rel. Schneider v. McAfee, 2 Kan. App. 2d 274, 275, 578 P.2d 281, rev. denied 225 Kan. 845 (1978), held that since causes of action arising out of governmental functions are omitted from K.S.A. 60-521, statutes of limitation do not apply to such actions. This holding and the rule that statutes of limitations do not run against the State unless specifically provided by statute have been repeatedly relied upon by our appellate courts. Twin City Fire Ins. Co. v. Bell, 232 Kan. 813, 819, 658 P.2d 1038 (1983); State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 Kan. App. 2d 57, 61, 649 P.2d 419, rev. denied 232 Kan. 876 (1982); and U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 351, 629 P.2d 196, rev. denied 230 Kan. 819 (1981). Nevertheless, defendant contends the State is subject to statutes of limitations even when undertaking governmental functions because the law regarding immunity from limitations was historically intertwined with the law regarding tort immunity. Thus, defendant contends that when the Supreme Court abolished governmental immunity for negligent acts in Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978), the law regarding immunity from limitations was also altered. Defendant ignores the fact that McAfee was decided after Gorrell and that the Supreme Court denied the petition for review of McAfee even though Gorrell had been handed down just months earlier.
“Defendant does not contend the fraud cause of action arose out of the State’s exercise of a nongovernmental or proprietary function. Indeed, defendant apparently concedes such an argument would be fruitless in light of the holding in the Celotex Corp. case. In that case, the court not only found the suit by a school district for fraud and breach of warranty in the installation of a roof on a high school to arise out of a governmental function, the court also rejected the Gorrell argument. Celotex Corp., 6 Kan. App. 2d at 351. Thus, defendant’s argument and reliance on Gorrell is meritless, and the court’s refusal to dismiss the fraud claim is correct.” 12 Kan. App. 2d at 129-30.
We agree with the Court of Appeals’ rationale. Statutes of limitation are measures of public policy and are entirely subject to the will of the legislature. State v. Bentley, 239 Kan. 334, 339, 721 P.2d 227 (1986). We do not find the Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978), rationale persuasive. Gorrell dealt with the tort immunity of Kansas municipalities, and in effect permitted the bringing of such actions against municipalities. The reasons supporting tort immunity are not the same as those which support an extension of time limitations to the State beyond those limits governing individuals. The action was not untimely and it is not barred by the two-year statute of limitations. We have not overlooked the arguments of appellant, and the cases cited, but we find them unpersuasive.
Finally, we turn to GAF’s contention that the punitive damage award of one million dollars is excessive and should shock the conscience of this court. The actual damages sustained by the State were determined to be slightly in excess of $100,000. That was reduced by the trial court when judgment was entered, due to the 70% negligence attributed to GAF by the jury. The million dollar punitive damage award is not quite ten times the amount of the actual damages sustained by the plaintiff. We recognize that in other cases cited and relied upon by the parties, we have approved punitive damage awards, some considerably greater than ten times the actual damages, others being considerably less. We have carefully considered the evidence in this case, and we find nothing to arouse our sympathy for GAF or to shock our conscience. GAF intentionally, knowingly and wilfully led people — the State in this case — into building expensive roofs which were not durable, not watertight, and not satisfactory, and which not only had to be replaced within a short period of time, but which caused much hardship upon the building’s owner and occupants during the interim. All of this could have and should have been avoided, had GAF withdrawn its specifications some years earlier when it first had knowledge of the unsatisfactory result reached when its roofing membrane was installed over Zonolite. We do not find the award excessive.
The judgment of the Court of Appeals is affirmed in part and reversed in part; the judgment of the district court is affirmed. | [
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On or about the 23rd day of July, 1987, and the 20th day of May, 1988, formal complaints were filed by the office of the Disciplinary Administrator against Richard W. Niederhauser, of Kansas City, an attorney formerly admitted to the practice of law in Kansas.
Without going into detail, the complaints alleged violations of the Code of Professional Responsibility, Rule 225 (1987 Kan. Ct. R. Annot. 122). Respondent was alleged to have (1) failed to pay a medical bill incurred by a personal injury client following settlement of her lawsuit, (2) failed to comply with court orders directed to respondent in a civil action filed against him in the District Court of Wyandotte County, Kansas, (3) neglected a client’s case in a federal court matter, and (4) been guilty of incompetence. Additionally, respondent was alleged to have failed to cooperate with the office of the Disciplinary Administrator as required by Rule 207 (1987 Kan. Ct. R. Annot. 105).
Several additional disciplinary complaints against respondent are also pending or under consideration by the office of the Disciplinary Administrator. On April 29, 1988, the respondent was indefinitely suspended from the practice of law by an order of this court. In re Niederhauser, 243 Kan. 170, 753 P.2d 1288 (1988).
On the 28th day of June, 1988, respondent delivered to Stanton Hazlett, Deputy Disciplinary Administrator, a notice that he desired to surrender his license and privilege to practice law in Kansas, pursuant to Rule 217 (1987 Kan. Ct. R. Annot. 115), rather than proceed with the pending disciplinary matters.
The Court, being fully advised in the premises, finds that the surrender of respondent’s license and privilege to practice law in the State of Kansas should be accepted and that respondent should be disbarred.
It is Therefore Ordered that Richard W. Niederhauser be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts is directed to strike his name from the roll of attorneys in Kansas.
Effective this 1st day of July, 1988.
It is Further Ordered that this order shall be published in the official Kansas Reports and that the costs of this proceeding and all other pending disciplinary proceedings be assessed to the respondent.
It is so Ordered. | [
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